Terreno Realty Corporation Common Stock Underwriting Agreement
Exhibit 1.1
Terreno Realty Corporation
Common Stock
January [•], 2010
Xxxxxxx, Xxxxx & Co.,
As representative of the several Underwriters
named in Schedule I hereto,
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.
As representative of the several Underwriters
named in Schedule I hereto,
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.
Ladies and Gentlemen:
Terreno Realty Corporation, a Maryland corporation (the “Company”), proposes, subject to the
terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I
hereto (the “Underwriters”) an aggregate of [•] shares (the “Firm Shares”) and, at the election of
the Underwriters, up to [•] additional shares (the “Optional Shares”) of its common stock, par
value $0.01 per share (“Stock”), of the Company (the Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof being collectively called the
“Shares”).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-11 (File No. 333-163016) (the “Initial Registration
Statement”) in respect of the Shares has been filed with the Securities and Exchange Commission
(the “Commission”); the Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding exhibits thereto, to you for each of
the other Underwriters, have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a “Rule 462(b) Registration
Statement”), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
“Act”), which became effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and no stop order suspending
the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose
has been initiated or, to the Company’s knowledge, threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Act is
hereinafter called a “Preliminary Prospectus”; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and deemed by virtue
of Rule 430A under the Act to be part of the Initial Registration Statement at the time it was
declared effective, each as amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the “Registration Statement”; the
Preliminary Prospectus relating to the Shares that was included in the Registration Statement
immediately prior to the Applicable Time (as defined in Section 1(c) hereof) is hereinafter called
the “Pricing Prospectus”; such final prospectus, in the form first filed pursuant to Rule 424(b)
under the Act, is hereinafter called the “Prospectus”; and any “issuer free writing prospectus” as
defined in Rule 433 under the Act relating to the Shares is hereinafter called an “Issuer Free
Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is [•:•] [•]m (Eastern time) on
the date of this Agreement. The Pricing Prospectus, as supplemented by the information listed in
Schedule II(a) hereto (as so supplemented, the “Pricing Disclosure Package”), as of the Applicable
Time, did not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II(b)
hereto does not conflict with the information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and
taken together with the Pricing Prospectus as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to statements or omissions
made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for
use therein;
(d) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective date as to each
part of the Registration Statement and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein;
(e) The Company has not sustained since the date of the latest audited financial statements
included in the Pricing Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or contemplated in
the Pricing Prospectus; and, since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not been any change in the capital
stock or long-term debt of the Company or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of the Company (a “Material Adverse
Effect”), otherwise than as set forth or contemplated in the Pricing Prospectus;
(f) The Company owns no real property and has good and marketable title to all personal
property owned by it, free and clear of all liens, encumbrances and defects except such as are
described in the Pricing Prospectus or such as would not reasonably be expected to materially
affect the value of such property and do not interfere with the use made and proposed to be made of
such property by the Company; and any real property and buildings held under lease by the Company
are held by it under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such property and
buildings by the Company;
(g) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Maryland, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Pricing Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where the failure to be so qualified or in
good standing would not, individually or in the aggregate, have a Material Adverse Effect;
(h) The Company has an authorized capitalization as set forth in the Pricing Prospectus and
all of the issued shares of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and conform to the description of the Stock contained
in the Pricing Disclosure Package and Prospectus; and the Company has no subsidiaries;
(i) The Shares to be issued and sold by the Company to the Underwriters hereunder have been
duly and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued and fully paid and non-assessable
and will conform to the description of the Stock contained in the Prospectus;
(j) The issue and sale of the Shares and the compliance by the Company with this Agreement and
the consummation of the transactions herein contemplated will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of the property or assets of
the Company is subject, (ii) result in any violation of the provisions of the Amended and Restated
Articles of Incorporation or Amended and Restated By-laws of the Company or (iii) result in any
violation of any statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties except in the case of (i) or
(iii), such as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is required for the issue
and sale of the Shares or the consummation by the Company of the transactions contemplated by this
Agreement, except for the registration under the Act of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(k) The Company is not in violation of its Articles of Incorporation or By-laws or in default
in the performance or observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be bound;
(l) The statements set forth in the Pricing Prospectus and Prospectus under the captions
“Description of Capital Stock”, “Distribution Policy”, “Material Provisions of Maryland Law and of
Our Charter and Bylaws”, “ERISA Considerations” and “Material U.S. Federal Income Tax
Considerations”, and under the caption “Underwriting”, insofar as they purport to constitute a
summary of the terms of the Stock or describe the provisions of the laws and documents referred to
therein, are accurate and complete;
(m) Other than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company is a party or of which any property of the Company is the
subject which, if determined adversely to the Company, would individually or in the aggregate have
a Material Adverse Effect; and, to the best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(n) The Company is not and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, will not be an “investment company”, as such term is defined
in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(o) At the time of filing the Initial Registration Statement the Company was not and is not an
“ineligible issuer,” as defined under Rule 405 under the Act;
(p) Deloitte & Touche LLP, who have certified certain financial statements of the Company, are
independent public accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(q) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) that is designed to comply with the requirements of the Exchange Act and has been designed
by the Company’s principal executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with generally accepted
accounting principles. The Company’s internal control over financial reporting is effective and
the Company is not aware of any material weaknesses in its internal control over financial
reporting;
(r) Since the date of the latest audited financial statements included in the Pricing
Prospectus, there has been no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting;
(s) The Company will maintain disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act;
such disclosure controls and procedures will be designed to ensure that material information
relating to the Company is made known to the Company’s principal executive officer and principal
financial officer by others within those entities; and such disclosure controls and procedures are
effective in all material respects;
(t) Other than as set forth in the Pricing Prospectus, the Company has no knowledge of any of
the following which would be expected to have a Material Adverse Effect: (1) the unlawful presence
of any hazardous substances, hazardous materials, toxic substances or waste materials
(collectively, “Hazardous Materials”) on any of the properties currently owned by it or any of the
properties previously owned by it for which it retains any liability with respect to Hazardous
Materials or (2) any unlawful spills, releases, discharges or disposal of Hazardous Materials that
have occurred or are presently occurring off such properties as a result of any construction on or
operation and use of such properties. In connection with the construction on or operation and use
of the properties owned by the Company, the Company represents that it has no knowledge of any
material failure to comply with all applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and disposal of any Hazardous Materials;
(u) The Company carries or is entitled to the benefits of insurance, with reputable and
financially sound insurers, in such amounts and covering such risks as are adequate in accordance
with reasonable business judgment to protect the Company and its business,
and all such insurance is in full force and effect. The Company has no reason to believe that
it will not be able (A) to renew its existing insurance coverage as and when such policies expire
or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate
to conduct its business as now conducted and at a cost that would not result in a Material Adverse
Effect. The Company has not been denied any insurance coverage which it has sought or for which it
has applied;
(v) The statistical and market-related data included in the Registration Statement, the
Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate;
(w) The Company, commencing with its taxable year ending on December 31, 2010, will be and,
subject to any future determination by the Company’s board of directors that it is no longer in the
best interests of the Company and its stockholders to qualify as a REIT, will continue to be
thereafter, organized and operated in conformity with the requirements for qualification and
taxation as a “real estate investment trust” (a “REIT”) under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the “Code”). The proposed method of operation of the
Company as described in the Registration Statement, the Pricing Prospectus and the Prospectus will
enable the Company to continue to meet the requirements for qualification and taxation as a REIT
under the Code. The Company intends to continue to operate in a manner which would permit it to
continue to meet the requirements for qualification and taxation as a REIT under the Code;
(x) No relationship, direct or indirect, exists between or among the Company, on the one hand,
and the directors, officers or stockholders of the Company, on the other hand, which is required by
the rules of the Financial Industry Regulatory Authority (“FINRA”) to be described in the
Registration Statement or the Prospectus which is not so described. The Company has not, directly
or indirectly, extended credit, arranged to extend credit, or renewed any extension of credit, in
the form of a personal loan, to or for any director or executive officer of the Company, or to or
for any family member or affiliate of any director or executive officer of the Company;
(y) The Shares to be sold to certain of the Company’s executive officers (the “Concurrent
Offering Purchasers”) in a private offering concurrent with the offering of the Shares as described
in the Pricing Prospectus (the “Concurrent Offering”), pursuant to a subscription agreement, dated
as of the date hereof, among the Company and each of the Concurrent Offering Purchasers (each, a
“Subscription Agreement”) have been duly authorized for issuance and sale, and when issued and
delivered by the Company pursuant to the Subscription Agreements, will be validly issued, fully
paid and non-assessable;
(z) Each Subscription Agreement has been duly authorized, executed and delivered by the
Company, and constitutes a valid and binding agreement of the Company, enforceable in accordance
with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally and by general
equitable principles;
(aa) The Company has no present plan or intention to materially alter its investment policies
as described in the Registration Statement, the Pricing Prospectus, the Prospectus and any Issuer
Free Writing Prospectuses; and
(bb) The Shares have been approved for listing on the New York Stock Exchange (the
“Exchange”), subject only to official notice of issuance.
2. (a) Subject to the terms and conditions herein set forth, (1) the Company agrees to issue
and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at a purchase price per share of $[•], the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto and (2) in the event
and to the extent that the Underwriters shall exercise the election to purchase Optional Shares as
provided below, the Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price
per share set forth in clause (1) of this Section 2(a), that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional Shares by a
fraction, the numerator of which is the maximum number of Optional Shares which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and
the denominator of which is the maximum number of Optional Shares that all of the Underwriters are
entitled to purchase hereunder.
(b) The Company hereby grants to the Underwriters the right to purchase at their election up
to [•] Optional Shares, at the purchase price per share set forth in the paragraph above, for the
sole purpose of covering sales of shares in excess of the number of Firm Shares, provided that the
purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm Shares but not payable on the
Optional Shares. Any such election to purchase Optional Shares may be exercised only by written
notice from you to the Company, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no event earlier than
the First Time of Delivery (as defined in Section 4 hereof) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days after the date of such
notice.
(c) In addition to the underwriting discount reflected in the price per share to the
Underwriters referenced in Section 2(a)(1), the Company agrees to pay to Xxxxxxx, Xxxxx & Co., for
the account of the Underwriters, $[•] per share multiplied by the number of Shares purchased by the
Underwriters pursuant to this Agreement (the “Conditional Payment”), at such time as the Company
has completed the purchase of assets in accordance with its investment strategy described in the
Prospectus with an aggregate purchase price (including the amount of any outstanding indebtedness
assumed or incurred by the Company) at least equal to the net proceeds received by the Company from
the sale of the Shares (after deducting the full underwriting discount payable to the Underwriters
in accordance with Sections 2(a) and 2(b) hereof and the other offering expenses described in Part
II to the
Registration Statement). The Conditional Payment shall be payable by the Company to the
Underwriters by wire transfer of immediately available funds to a bank account designated by
Xxxxxxx, Sachs & Co. no later than the date which is five (5) business days after the date the
Company purchases the asset or assets that causes the Company to meet or exceed the aggregate
purchase price described above.
3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set forth in the
Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in definitive form, and in
such authorized denominations and registered in such names as Xxxxxxx, Xxxxx & Co. may request upon
at least forty-eight hours’ prior notice to the Company shall be delivered by or on behalf of the
Company to Xxxxxxx, Sachs & Co., through the facilities of the Depository Trust Company (“DTC”),
for the account of such Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by
the Company to Xxxxxxx, Xxxxx & Co. at least forty-eight hours in advance. The Company will cause
the certificates representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the
office of DTC or its designated custodian (the “Designated Office”). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City time, on
[•], 2010 or such other time and date as Xxxxxxx, Sachs & Co. and the Company may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified
by Xxxxxxx, Xxxxx & Co. in the written notice given by Xxxxxxx, Sachs & Co. of the Underwriters’
election to purchase such Optional Shares, or such other time and date as Xxxxxxx, Xxxxx & Co. and
the Company may agree upon in writing. Such time and date for delivery of the Firm Shares is
herein called the “First Time of Delivery”, such time and date for delivery of the Optional Shares,
if not the First Time of Delivery, is herein called the “Second Time of Delivery”, and each such
time and date for delivery is herein called a “Time of Delivery”.
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 8(k) hereof, will be delivered at the
offices of Xxxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxxx Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the
“Closing Location”) or such other location as Xxxxxxx Sachs & Co. and the Company may agree upon in
writing, and the Shares will be delivered at the Designated Office, all at such Time of Delivery.
A meeting will be held at the Closing Location at [•] p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
New York City are generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on the second
business day following the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or
any supplement to the Registration Statement or the Prospectus prior to the last Time of Delivery
which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and
to furnish you with copies thereof; to file promptly all material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of
the Shares, of the suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify
the Shares for offering and sale under the securities laws of such jurisdictions as you may request
and to comply with such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the Shares and if at such
time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus in order to comply with the
Act, to notify you and upon your request to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many written and electronic copies as you may from time to time
reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales
of any of the Shares at any time nine months or more after the time of issue of the Prospectus,
upon your request but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many written and electronic copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to and including the date
180 days after the date of the Prospectus (the “Lock-Up Period”), not to offer, sell, contract to
sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as
provided hereunder, of any securities of the Company that are substantially similar to the Shares,
including but not limited to any options or warrants to purchase shares of Stock or any securities
that are convertible into or exchangeable for, or that represent the right to receive, Stock or any
such substantially similar securities (other than pursuant to employee stock option plans existing
on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of,
the date of this Agreement and shares of Common Stock to be issued by the Company in the Concurrent
Offering), without your prior written consent; provided, however, that if (1) during the last 17
days of the initial Lock-Up Period, the Company releases earnings results or announces material
news or a material event or (2) prior to the expiration of the initial Lock-Up Period, the Company
announces that it will release earnings results during the 15-day period following the last day of
the initial Lock-Up Period, then in each case the Lock-Up Period will be automatically extended
until the expiration of the 18-day period beginning on the date of release of the earnings results
or the announcement of the material news or material event, as applicable, unless Xxxxxxx, Xxxxx &
Co. waives, in writing, such extension; the Company will provide Xxxxxxx, Sachs & Co. and each
stockholder subject to the Lock-Up Period pursuant to the lockup letters described in Section 8(i)
with prior notice of any such announcement that gives rise to an extension of the Lock-up Period;
(f) To furnish to its stockholders as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income, stockholders’ equity and cash
flows of the Company and its consolidated subsidiaries certified by independent public accountants)
and, as soon as practicable after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the Registration Statement),
to make available to its stockholders consolidated summary financial information of the Company and
its subsidiaries for such quarter in reasonable detail, in each case as required under the Exchange
Act;
(g) During a period of three years from the effective date of the Registration Statement, to
furnish to you copies of all reports or other communications (financial or other) furnished to
stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national securities exchange
on which any class of securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company furnished to or filed with the
Commission as you may from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated
in reports furnished to its stockholders generally or to the Commission); provided, however, that
the Company shall not be required to provide documents (x) that are available on the Company’s
website or through XXXXX or (y) the provision of which would violate Regulation FD as promulgated
under the Exchange Act unless otherwise disclosed in a manner reasonably designed to provide broad,
non-exclusionary distribution of the information to the public;
(h) To use the net proceeds received by it from the sale of the Shares pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
(i) To use its best efforts to list, subject to notice of issuance, the Shares on the
Exchange;
(j) To file with the Commission such information on Form 10-Q or Form 10-K as may be required
by Rule 463 under the Act;
(k) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act;
(l) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter
an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the
website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering
of the Shares (the “License”); provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be assigned or transferred; and
(m) To use its reasonable best efforts to meet the requirements for qualification and taxation
as a REIT under the Code for its taxable year ending December 31, 2010 and, subject to any future
determination by the Company’s board of directors that it is no longer in the Company’s best
interests to qualify as a REIT, thereafter.
6. (a) The Company represents and agrees that, without the prior consent of Xxxxxxx, Sachs &
Co., it has not made and will not make any offer relating to the Shares that would constitute a
“free writing prospectus” as defined in Rule 405 under the Act; each Underwriter represents and
agrees that, without the prior consent of the Company and
Xxxxxxx, Xxxxx & Co., it has not made and will not make any offer relating to the Shares that
would constitute a free writing prospectus; any such free writing prospectus the use of which has
been consented to by the Company and Xxxxxxx, Sachs & Co. is listed on Schedule II(b) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and the Company represents that it has satisfied and agrees
that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file
with the Commission any electronic road show;
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to Xxxxxxx, Xxxxx & Co.
and, if requested by Xxxxxxx, Sachs & Co., will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict,
statement or omission; provided, however, that this representation and warranty shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through Xxxxxxx,
Xxxxx & Co. expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel
and accountants in connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing, reproduction and filing of the Registration
Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters,
this Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey (iv) all fees and expenses in connection with listing the
Shares on the Exchange, and any stock or transfer taxes and stamp or similar duties on the issuance
and listing of the Shares; (v) the filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, any required review by the FINRA of the terms of
the sale of the Shares; (vi) the cost of preparing stock certificates; (vii) the cost and charges
of any transfer agent or registrar; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as provided in this Section,
and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them,
and any advertising expenses connected with any offers they may make. Notwithstanding the
foregoing, the Company, on the one hand, and the Underwriters, on the other hand, shall share
equally in the aggregate out-of-pocket costs and expenses incurred by them in connection with the
roadshow.
8. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each
Time of Delivery, shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
| (a) | The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; | ||
| (b) | Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; | ||
| (c) | Xxxxxxx Procter LLP, counsel for the Company, shall have furnished to you their written opinions, dated such Time of Delivery, in form and substance satisfactory to you, substantially as set forth in Annex I(a) hereto; | ||
| (d) | On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Deloitte & Touche LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in |
| form and substance satisfactory to you, to the extent set forth in Annex I hereto (the executed copy of the letter delivered prior to the execution of this Agreement is attached as Annex I(a) hereto and a draft of the form of letter to be delivered on the effective date of any post-effective amendment to the Registration Statement and as of each Time of Delivery is attached as Annex I(b) hereto); | |||
| (e) | (i) The Company shall not have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; | ||
| (f) | On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock; | ||
| (g) | On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal, New York or California State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; | ||
| (h) | The Shares to be sold at such Time of Delivery shall have been duly listed, subject to notice of issuance, on the Exchange; | ||
| (i) | The Company shall have obtained and delivered to the Underwriters executed copies of an agreement from each person who will be a director or executive officer of the Company as of the First Time of Delivery, substantially to the effect set forth in Section 5(e) hereof in form and substance satisfactory to you; |
| (j) | The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; | ||
| (k) | The Company shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company reasonably satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (e) of this Section and as to such other matters as you may reasonably request; and | ||
| (l) | The payment and delivery of the Shares to be sold in the Concurrent Offering shall occur concurrently with the First Time of Delivery. |
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Act, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in the Registration
Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment
or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or
any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or
any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in
conformity with written information furnished to the Company by such Underwriter through Xxxxxxx,
Sachs & Co. expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company on the one
hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer
affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be
in addition to any liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company (including any
person who, with his or her consent, is named in the Registration Statement as about to become a
director of the Company) and to each person, if any, who controls the Company within the meaning of
the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Shares which it
has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you
or another party or other parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such
Shares, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other parties satisfactory
to you to purchase such Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of such Shares, or the
Company notifies you that it has so arranged for the purchase of such Shares, you or the Company
shall have the right to postpone such Time of Delivery for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which in your opinion may
thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Shares to be purchased at such Time of Delivery, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the number of shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which
such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to the Second Time of Delivery, the obligations of the Underwriters to purchase and of the Company
to sell the Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and
the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason, any Shares are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company shall then be under no further liability to any Underwriter except as
provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representative at Xxxxxxx, Xxxxx & Co., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Registration Department; and if to the Company or its directors or executive officers shall be
delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the Company by you upon
request; provided, however, that notices under subsection 5(e) shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representative at Xxxxxxx, Sachs & Co., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000. Any such
statements, requests, notices or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the Underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and
directors of the Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares
from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Shares pursuant
to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand,
and the several Underwriters, on the other, (ii) in connection therewith and with the process
leading to such transaction each Underwriter is acting solely as a principal and not the agent or
fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility
in favor of the Company with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
on other matters) or any other obligation to the Company except the obligations expressly set forth
in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the
extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or
any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company, in connection with such transaction or the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
18. THIS AGREEMENT AND ANY MATTERS RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF THE STATE
OF NEW YORK. The Company agrees that any suit or proceeding arising in respect of this agreement
or our engagement will be tried exclusively in the U.S. District Court for the Southern District of
New York or, if that court does not have subject matter jurisdiction, in any state court located in
The City and County of New York and the Company agrees to submit to the jurisdiction of, and to
venue in, such courts.
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, “tax structure” is limited to
any facts that may be relevant to that treatment.
If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours, Terreno Realty Corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
On behalf of each of the Underwriters
