Exhibit 1.1
EXECUTION COPY
URSTADT XXXXXX PROPERTIES INC.
Class A Common Stock
(par value $.01 per share)
UNDERWRITING AGREEMENT
-------------------
June 27, 2002
Xxxxxx, Xxxxx Xxxxx, Incorporated
Xxxxxx Xxxxxx & Company, Inc.
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
Advest, Inc.
As Representatives of the several Underwriters
c/o Ferris, Xxxxx Xxxxx, Incorporated
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Ladies and Gentlemen:
Section 1. Introductory. Urstadt Xxxxxx Properties Inc., a Maryland
corporation (the "Company"), proposes to issue and sell to the several
underwriters named in Schedule A (the "Underwriters") an aggregate of 7,000,000
shares (the "Firm Common Shares") of its Class A common stock, par value $.01
per share (the "Class A Common Stock"). In addition, the Company has granted to
the Underwriters an option to purchase up to an additional 1,050,000 shares (the
"Optional Common Shares") of Class A Common Stock, as provided in Section 3. The
Firm Common Shares and, if and to the extent such option is exercised, the
Optional Common Shares are collectively called the "Common Shares." Xxxxxx,
Xxxxx Xxxxx, Incorporated ("FBW"), Xxxxxx Xxxxxx & Company, Inc. ("Xxxxxx
Xxxxxx"), J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. ("Xxxxxxxx Xxxxx") and Advest, Inc.
("Advest") have agreed to act as representatives of the several Underwriters (in
such capacity, the "Representatives") in connection with the offering and sale
of the Common Shares.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-84774), which contains a form of prospectus to be used in connection with
the public offering and sale of the Common Shares. Such registration statement,
as amended, including the financial statements, exhibits and schedules thereto,
in the form in which it was declared effective by the Commission under the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the "Securities Act"), including any information
deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A
or Rule 434 under the Securities Act, is called the "Registration Statement."
Any registration statement filed by the Company pursuant to Rule 462(b) under
the Securities Act is called the "Rule 462(b) Registration Statement," and from
and
after the date and time of filing of the Rule 462(b) Registration Statement, the
term "Registration Statement" shall include the Rule 462(b) Registration
Statement. Such prospectus, in the form first used by the Underwriters to
confirm sales of the Common Shares, is called the "Prospectus." Any reference
herein to the Registration Statement, the 462(b) Registration Statement, the
Prospectus or any amendment or supplement thereto shall be deemed to refer to
and include the Incorporated Documents, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement,
the 462(b) Registration Statement or the Prospectus shall be deemed to refer to
and include the filing after the execution hereof of any Incorporated Documents.
As used herein, the term "Incorporated Documents" means the documents which at
the time are incorporated by reference in the Registration Statement, the 462(b)
Registration Statement, the Prospectus or any amendment or supplement thereto
filed by the Company with the Commission as required by paragraphs (a) and (b)
of Item 12 of Form S-3. For purposes of this Agreement, all references to the
Registration Statement, the 462(b) Registration Statement, the Prospectus, any
preliminary prospectus or to any amendment or supplement thereto shall be deemed
to include any copy filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System (XXXXX).
The Company hereby confirms its agreements with the Underwriters as
follows:
Section 2. Representations and Warranties.
The Company hereby represents, warrants and covenants to each Underwriter
as follows:
(a) Compliance with Registration Requirements. The Registration
Statement and any Rule 462(b) Registration Statement have been filed with the
Commission and have been declared effective by the Commission under the
Securities Act and are not proposed to be amended. The Company has complied with
all requests of the Commission for additional or supplemental information. The
Company has not received any notice that a stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued by the Commission or that any proceedings for such
purpose have been instituted by the Commission and, to the Company's knowledge,
no such proceedings are contemplated or threatened by the Commission.
Each preliminary prospectus and the Prospectus when filed complied in all
material respects with the Securities Act and, if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T
under the Securities Act), was identical to the copy thereof delivered to the
Underwriters for use in connection with the offer and sale of the Common Shares.
Each of the Registration Statement (including any Rule 462(b) Registration
Statement), at the time it became effective, and any post-effective amendment
thereto, at the time it became or becomes effective, complied and will comply in
all material respects with the Securities Act and did not and will not contain
any untrue statement of a
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material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Each preliminary
prospectus, at the time of filing thereof, did not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. The Prospectus, as amended and supplemented, as of its
date and at the Closing Date and the Second Closing Date, if any, did not and
will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
representations and warranties set forth in the three immediately preceding
sentences do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment thereto, any preliminary prospectus, or the Prospectus, or any
amendments or supplements thereto, made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
the Representatives expressly for use therein.
The Incorporated Documents heretofore filed, when they were filed (or, if
any amendment with respect to any such document was filed, when such amendment
was filed) conformed in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the "Exchange Act"), any further
Incorporated Documents so filed will, when they are filed, conform in all
material respects with the requirements of the Exchange Act, no such document
when it was filed (or, if an amendment with respect to any such document was
filed, when such amendment was filed), contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and no such
further document, when it is filed, will contain an untrue statement of a
material fact or will omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading.
(b) Offering Materials Furnished to Underwriters. The Company has
delivered to the Representatives a complete manually signed copy of the
Registration Statement and of each consent and certificate of experts filed as a
part thereof, and conformed copies of the Registration Statement (without
exhibits) and preliminary prospectuses and the Prospectus, as amended or
supplemented, in such quantities and at such places as the Representatives have
reasonably requested for each of the Underwriters.
(c) Distribution of Offering Material by the Company. The Company has
not distributed and will not distribute, prior to the later of the Second
Closing Date (as defined below) and the completion of the Underwriters'
distribution of the Common Shares, any offering material in connection with the
offering and sale of the Common Shares other than a preliminary prospectus, the
Prospectus or the Registration Statement.
(d) Exhibits; Material Contracts. There are no contracts or other
documents required to be described in the Prospectus or to be filed as exhibits
to the Registration Statement which have not been described or filed as
required. The contracts so described in the Prospectus to which the Company or
any of UB Stamford, L.P., Scarborough Associates L.P. or Eastchester Mall
Associates L.P., each a limited partnership for which the Company serves as sole
general partner (each a "Limited Partnership" and, collectively, the
"Partnerships") is a party have been duly authorized, executed and delivered by
the Company or the Partnerships, constitute valid and binding agreements of the
Company or the Partnerships, and are enforceable against and by the Company or
the Partnerships in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by general principles of equity.
Neither the Company, the Partnerships, nor, to the
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best of the Company's knowledge, any other party is in material breach of or
material default under any of such contracts.
(e) No Brokerage Commissions, etc. Except as disclosed in the
Prospectus, there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the Company
or any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(f) The Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(g) Authorization of the Common Shares. The Common Shares have been
duly authorized for issuance and sale pursuant to this Agreement; all other
outstanding shares of capital stock of the Company are, and, when the Common
Shares have been issued and delivered by the Company pursuant to this Agreement,
such Common Shares will have been, validly issued, fully paid and
non-assessable.
(h) No Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement, except for such rights as have been
duly satisfied or waived.
(i) No Material Adverse Change. Except as otherwise disclosed in the
Prospectus, subsequent to the respective dates as of which information is given
in the Prospectus: (i) there has been no material adverse change, or any
development that could reasonably be expected to result in a material adverse
change, in the condition, financial or otherwise, or in the earnings, business,
operations or business prospects, whether or not arising from transactions in
the ordinary course of business, of the Company and its subsidiaries and the
Partnerships, considered as one enterprise (any such change or development is
called a "Material Adverse Change"); (ii) the Company and its subsidiaries and
the Partnerships, considered as one enterprise, have not incurred any material
liability or obligation, indirect, direct or contingent, not in the ordinary
course of business, nor entered into any material transaction or agreement not
in the ordinary course of business; (iii) there has been no material casualty
loss or condemnation or other material adverse event with respect to the real
properties owned by the Company and its subsidiaries and the Partnerships
(collectively, the "Properties"); and (iv) there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for
dividends or distributions paid to the Company or its subsidiaries or the
Partnerships, any of its subsidiaries or the Partnerships on any class of
capital stock or other equity interests or repurchase or redemption by the
Company or any of its subsidiaries or the Partnerships of any class of capital
stock or other equity interests.
(j) Xxxxxx Xxxxxxxx, LLP as Independent Accountants. Xxxxxx Xxxxxxxx,
LLP, who has expressed its opinion with respect to the financial statements
(which term as used in this Agreement includes the related notes thereto) filed
with the Commission as a part of or incorporated by reference in the
Registration Statement and included in the Prospectus, are independent public
accountants as required by the Securities Act and the Exchange Act.
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(k) Ernst & Young, LLP as Independent Accountants. Ernst & Young, LLP,
who has performed the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial information as
described in SAS 71, Interim Financial Information, on the unaudited
consolidated financial statements included in the Company's Quarterly Report on
Form 10-Q for the quarter ended April 30, 2002, incorporated by reference in the
Registration Statement, are independent public accountants as required by the
Securities Act and the Exchange Act.
(l) Xxxxxxxx Xxxxxx & Green LLP as Independent Accountants. Xxxxxxxx
Alpren & Green LLP, who has expressed its opinion with respect to the statement
of revenues and certain expenses of the property known as Xxxxxxxx Shopping
Center, Stamford, Connecticut, incorporated by reference in the Registration
Statement, are independent public accountants as required by the Securities Act
and the Exchange Act.
(m) Preparation of the Financial Statements. The financial statements
filed with the Commission as a part of the Registration Statement and included
in the Prospectus present fairly and accurately the consolidated financial
position of the Company and its subsidiaries and the Partnerships as of and at
the dates indicated and the results of their operations and cash flows for the
periods specified. Any supporting schedules included in the Registration
Statement present fairly and accurately the information required to be stated
therein. Such financial statements and supporting schedules have been prepared
in conformity with generally accepted accounting principles in the United States
applied on a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. No other financial statements or
supporting schedules are required to be included in the Registration Statement.
The financial data set forth in the Prospectus under the captions "Selected
Consolidated Financial and Other Data" and "Capitalization" fairly and
accurately present the information set forth therein on a basis consistent with
that of the financial statements contained in the Registration Statement when
read in conjunction with the textual information included in those sections.
(n) Organization and Good Standing of the Company and its Subsidiaries
and the Partnerships. Each of the Company and its subsidiaries and the
Partnerships has been duly incorporated or formed, as the case may be, and is
validly existing as a corporation or partnership, as the case may be, in good
standing under the laws of the jurisdiction of its incorporation or formation,
as the case may be, and has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and, in
the case of the Company, to enter into and perform its obligations under this
Agreement. Each of the Company and its subsidiaries and the Partnerships is duly
qualified as a foreign corporation or partnership, as the case may be, to
transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except for such jurisdictions where the
failure to so qualify or to be in good standing would not, individually or in
the aggregate, result in a Material Adverse Change. All of the issued and
outstanding equity interests of each subsidiary of the Company that is a
corporation has been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, claim,
restriction or encumbrance. The Company does not own or control, directly or
indirectly, any corporation, partnership, association or other
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entity other than (i) 323 Railroad Corp., a Connecticut corporation, (ii) UB
Darien, Inc., a Connecticut corporation, (iii) UB Danbury, Inc., a Connecticut
corporation, or (iv) the Partnerships.
(o) Partnership Agreements. Each of the Agreements and Certificates of
Limited Partnership of the Limited Partnerships, including any amendments
thereto, has been duly and validly authorized, executed and delivered by the
Company and constitutes the valid and binding agreement of the Company,
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general principles of equity.
(p) Capitalization and Other Capital Stock Matters. The authorized,
issued and outstanding capital stock of the Company is as set forth in the
Prospectus under the captions "Capitalization" and "Description of Capital
Stock" (other than for subsequent issuances, if any, pursuant to employee
benefit plans described, or the description of which is incorporated by
reference, in the Prospectus, upon exercise of outstanding options or warrants
described, or the description of which is incorporated by reference, in the
Prospectus or under the Company's current dividend reinvestment plan (the
"DRIP")). The capital stock (including the Common Shares) conforms in all
material respects to the description thereof contained in the Prospectus. All of
the issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and non-assessable and have been
issued in compliance with applicable federal and state securities laws. None of
the outstanding shares of capital stock of the Company was issued in violation
of any preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company. There are no authorized or
outstanding options, warrants, preemptive rights, rights of first refusal or
other rights to purchase, or equity or debt securities convertible into or
exchangeable or exercisable for, any capital stock of the Company or any of its
subsidiaries other than those described in the Prospectus. The description of
the Company's stock option, stock bonus and other stock plans or arrangements,
and of the options or other rights granted thereunder, set forth, or the
description of which is incorporated by reference, in the Prospectus fairly and
accurately presents the information required to be shown with respect to such
plans, arrangements, options and rights.
(q) Exchange Act Registration; Stock Exchange Listing. The Class A
Common Stock and the Company's common stock, $0.01 par value per share (the
"Supervoting Stock"), is registered pursuant to Section 12(b) of the Exchange
Act, and is listed on the New York Stock Exchange (the "NYSE"), and the Company
has taken no action designed to, or likely to have the effect of, terminating
the registration of the Class A Common Stock or the Supervoting Stock under the
Exchange Act or delisting the Class A Common Stock or the Supervoting Stock from
the NYSE, nor has the Company received any notification that the Commission or
the NYSE is contemplating terminating such registration or listing. Application
has been made to list the Common Shares on the NYSE, and as of the Closing Date
with respect thereto, the Common Shares shall have been approved for listing on
the NYSE, subject to official notice of issuance.
(r) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company, the Partnerships nor
any subsidiary is in breach of, or in default under (nor has any event occurred
which with notice, lapse of time, or both would
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constitute a breach of or default under) ("Default"), its respective articles or
certificate of incorporation, bylaws, certificate of limited partnership or
partnership agreement, as the case may be, or in the performance or observance
of any obligation, agreement, covenant or condition contained in any license,
indenture, mortgage, deed of trust, loan or credit agreement or other agreement
or instrument to which the Company, any Partnership or any subsidiary is a party
or by which any of them or their respective properties is bound (each, an
"Existing Instrument"), except for such breaches or defaults which would not
result in a Material Adverse Change. The Company's execution, delivery and
performance of this Agreement and consummation of the transactions contemplated
hereby (i) have been duly authorized by all necessary corporate action and will
not result in any violation of the provisions of the charter or by-laws or other
organizational documents of the Company or any of its subsidiaries or any of the
Partnerships, (ii) will not conflict with or constitute a breach of, or a
Default or Debt Repayment Triggering Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries or any of the
Partnerships pursuant to, or require the consent of any other party to, any
Existing Instrument, and (iii) will not result in any violation of any law,
administrative regulation or administrative or court decree applicable to the
Company or any of its subsidiaries or any of the Partnerships. No consent,
approval, authorization or other order of, or registration or filing with, any
court or other governmental or regulatory authority or agency, is required for
the Company's execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby, except (i) such as have
been obtained or made by the Company and are in full force and effect under the
Securities Act and (ii) such as may be required under applicable state
securities or blue sky laws or by the National Association of Securities
Dealers, Inc. (the "NASD").
As used herein, a "Debt Repayment Triggering Event" means any event or
condition which gives, or with the giving of notice or lapse of time or both
would give, the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries or any of the Partnerships.
(s) No Material Actions or Proceedings. There are no legal or
governmental actions, suits or proceedings pending or, to the best of the
Company's knowledge, threatened (i) against or affecting the Company or any of
its subsidiaries or any of the Partnerships, (ii) which has as the subject
thereof any officer or director of, or property owned or leased by, the Company
or any of its subsidiaries or any of the Partnerships or (iii) relating to
environmental or discrimination matters, where in any such case (A) there is a
reasonable possibility that such action, suit or proceeding might be determined
adversely to the Company or such subsidiary or such Partnership and (B) any such
action, suit or proceeding, if so determined adversely, would reasonably be
expected to result in a Material Adverse Change or adversely affect the
consummation of the transactions contemplated by this Agreement. No material
labor dispute with the employees of the Company, any of its subsidiaries, or any
of the Partnerships, exists or, to the best of the Company's knowledge, is
threatened or imminent.
(t) Intellectual Property Rights. The Company and its subsidiaries and
the Partnerships own or possess sufficient trademarks, trade names, patent
rights, copyrights, licenses, approvals, trade secrets and other similar rights
(collectively, the "Intellectual Property Rights") reasonably necessary to
conduct their businesses as now conducted or as proposed to be
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conducted as described in the Prospectus; and the expected expiration of any of
such Intellectual Property Rights would not result in a Material Adverse Change.
Neither the Company nor any of its subsidiaries nor any of the Partnerships has
received any notice of infringement or conflict with asserted Intellectual
Property Rights of others, which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Change.
(u) All Necessary Permits, etc. The Company and each of its
subsidiaries and each of the Partnerships possesses such valid and current
certificates, authorizations, licenses, registrations and permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies necessary to
conduct their respective businesses, and neither the Company nor any such
subsidiary nor any such Partnership has received any notice of proceedings
relating to the revocation or modification of, or non-compliance with, any such
certificate, authorization, license, registration or permit which, individually
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Change.
(v) Properties. The Company and each of its subsidiaries and each of
the Partnerships owns or leases all such properties as are necessary to its
operations as now conducted or as proposed to be conducted as described in the
Prospectus, except where the failure to so own or lease, individually or
together with all such other failures, would not result in a Material Adverse
Change. The Company and its subsidiaries and the Partnerships have good and
marketable title in fee simple to all of the Properties, free and clear of all
security interests, mortgages, pledges, liens, claims, restrictions or
encumbrances of any kind, except such as (i) are described in the Prospectus or
(ii) do not, individually or in the aggregate, materially affect the value of
such Property and do not interfere with the use made and proposed to be made of
such Property. All security interests, mortgages, pledges, liens, claims,
restrictions and encumbrances of any kind on or affecting the Properties or the
other assets of the Company and its subsidiaries and the Partnerships that are
required to be disclosed in the Prospectus are disclosed therein. There is no
violation by the Company of any municipal, state or federal law, rule or
regulation (including, but not limited to, those pertaining to environmental
matters) concerning the Properties or any part thereof which would result in a
Material Adverse Change. Each of the Properties complies with all applicable
zoning laws, ordinances, regulations and deed restrictions or other covenants
and, if and to the extent there is a failure to comply, such failure would not,
individually or together with all such other failures, result in a Material
Adverse Change or result in a forfeiture or reversion. Neither the Company nor
any of its subsidiaries nor any of the Partnerships has received any notice from
any governmental or regulatory authority or agency of any condemnation of or
zoning change affecting the Properties or any part thereof, and the Company does
not know of any such condemnation or zoning change which is threatened. No
lessee of any portion of any of the Properties is in default under any of the
leases governing such Properties and there is no event which, but for the
passage of time or giving of notice or both, would constitute a default under
any of such leases, except such defaults as would not, individually or in the
aggregate, result in a Material Adverse Change.
(w) Mortgages and Deeds of Trust. Except as set forth in the
Prospectus, the mortgages and deeds of trust encumbering the Properties and any
other assets described in the Prospectus are not convertible and none of the
Company, any of its subsidiaries, any of the Partnerships or any other person
affiliated therewith holds a participating interest therein, and such mortgages
and deeds of trust are not cross-defaulted or cross-collateralized to any
property
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not owned directly or indirectly by the Company or any of its subsidiaries or
any of the Partnerships.
(x) Tax Law Compliance. The Company and its subsidiaries and the
Partnerships have filed all necessary federal, state, local and foreign income
and franchise tax returns or have properly requested extensions thereof and have
paid all taxes required to be paid by them and, if due and payable, any related
or similar assessment, fine or penalty levied against any of them, except such,
of any, that are being contested in good faith. The Company has made adequate
charges, accruals and reserves in the applicable financial statements referred
to in Section 2(m) above in respect of all federal, state, local and foreign
income and franchise taxes for all periods as to which the tax liability of the
Company or any of its subsidiaries or any of the Partnerships has not been
finally determined.
(y) Qualification as a REIT. Commencing with its taxable year ended
October 31, 1970, and through the date hereof, the Company has been and is
organized in conformity with the requirements for qualification as a real estate
investment trust ("REIT") under the Internal Revenue Code of 1986, as amended,
and the regulations and published interpretations thereunder (collectively, the
"Code"), and its method of operation has enabled and will enable it to meet the
requirements for qualification and taxation as a REIT under the Code. No
transaction or other event has occurred which would cause the Company to not be
able to qualify as a REIT for its current taxable year or future taxable years.
(z) Company Not an "Investment Company." The Company has been advised
of the rules and requirements under the Investment Company Act of 1940, as
amended (the "Investment Company Act"). The Company is not, and after receipt of
payment for the Common Shares will not be, an "investment company" within the
meaning of the Investment Company Act and will conduct its business in a manner
so that it will not become subject to the Investment Company Act.
(aa) Insurance. The Company and each of its subsidiaries is insured by
recognized, financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks as are generally
deemed in the Company's industry to be adequate and customary for their
businesses, including, but not limited to, policies covering real and personal
property owned or leased by the Company and its subsidiaries and the
Partnerships against theft, damage, destruction and acts of vandalism and, with
respect to the Properties, defects in title. The Company has no reason to
believe that it or any of its subsidiaries or any of the Partnerships will not
be able (i) to renew its existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted or as proposed
to be conducted as described in the Prospectus and at a cost that would not
result in a Material Adverse Change. Neither the Company nor any of its
subsidiaries nor any of the Partnerships has been denied any insurance coverage
which it has sought or for which it has applied.
(bb) No Price Stabilization or Manipulation. Except for purchases or
issuances of shares of Class A Common Stock pursuant to the DRIP the Company has
not taken and will not take, directly or indirectly, any action designed to or
that might be reasonably expected to
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cause or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Common Shares. None of such
purchases and issuances pursuant to the DRIP was made by the administrator of
the DRIP at the request of the Company with the purpose or intent of stabilizing
or manipulating the price of any security of the Company to facilitate the sale
or resale of the Common Shares.
(cc) Related Party Transactions. There are no business relationships
or related-party transactions involving the Company or any of its subsidiaries
or any of the Partnerships required to be described in the Prospectus which have
not been described as required.
(dd) No Unlawful Contributions or Other Payments. Neither the Company
nor any of its subsidiaries nor any of the Partnerships nor, to the best of the
Company's knowledge, any employee or agent of the Company or any subsidiary or
any Partnership, has made any contribution or other payment to any official of,
or candidate for, any federal, state or foreign office in violation of any law
or of the character required to be disclosed in the Prospectus.
(ee) Compliance with Environmental Laws. Except as otherwise disclosed
in the Prospectus, or except as would not, individually or in the aggregate,
result in a Material Adverse Change, (i) the Company and its subsidiaries and
the Partnerships have been and are in compliance with applicable Environmental
Laws (as defined below), (ii) none of the Company, any of its subsidiaries, any
of the Partnerships or, to the best of the Company's knowledge, any other owners
of any of the Properties at any time or any other party, has at any time
released (as such term is defined in CERCLA (as defined below)) or otherwise
disposed of Hazardous Materials (as defined below) on, to, in, under or from the
Properties or any other real properties previously owned, leased or operated by
the Company or any of its subsidiaries or any of the Partnerships, (iii) neither
the Company nor any of its subsidiaries nor any of the Partnerships intends to
use the Properties or any subsequently acquired properties, other than in
compliance with applicable Environmental Laws, (iv) neither the Company nor any
of its subsidiaries nor any of the Partnerships has received any notice of, or
has any knowledge of any occurrence or circumstance which, with notice or
passage of time or both, would give rise to a claim under or pursuant to any
Environmental Law with respect to the Properties, any other real properties
previously owned, leased or operated by the Company or any of its subsidiaries
or any of the Partnerships, or the assets described in the Prospectus or arising
out of the conduct of the Company or its subsidiaries or the Partnerships, (v)
none of the Properties are included or, to the best of the Company's knowledge,
proposed for inclusion on the National Priorities List issued pursuant to CERCLA
by the United States Environmental Protection Agency or, to the best of the
Company's knowledge, proposed for inclusion on any similar list or inventory
issued pursuant to any other Environmental Law or issued by any other
Governmental Authority (as defined below), (vi) none of the Company, any of its
subsidiaries, any of the Partnerships or, to the Company's knowledge, any other
person or entity for whose conduct any of them is or may be held responsible,
has generated, manufactured, refined, transported, treated, stored, handled,
disposed, transferred, produced or processed any Hazardous Material at any of
the Properties, except in compliance with all applicable Environmental Laws, and
has not transported or arranged for the transport of any Hazardous Material from
the Properties or any other real properties previously owned, leased or operated
by the Company or any of its subsidiaries or any of the Partnerships to another
property, except in compliance with all applicable Environmental Laws, (vii) no
lien has been imposed on the Properties by any Governmental Authority in
10
connection with the presence on or off such Property of any Hazardous Material,
and (viii) none of the Company, any of its subsidiaries, any of the Partnerships
or any other person or entity for whose conduct any of them is or may be held
responsible, has entered into or been subject to any consent decree, compliance
order, or administrative order with respect to the Properties or any facilities
or improvements or any operations or activities thereon.
As used herein, "Hazardous Material" shall include, without limitation, any
flammable materials, explosives, radioactive materials, hazardous materials,
hazardous substances, hazardous wastes, toxic substances or related materials,
asbestos, petroleum, oil, petroleum products and any hazardous material as
defined by any federal, state or local environmental law, statute, bylaw,
ordinance, rule or regulation, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended, 42
U.S.C. (S)(S) 9601-9675 ("CERCLA"), the Hazardous Materials Transportation Act,
as amended, 49 U.S.C. (S)(S) 1801-1819, the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. (S)(S) 6901-K, the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. (S)(S) 1101-11050, the Toxic Substances
Control Act, 15 U.S.C. (S)(S) 2601-2671, the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. (S)(S) 136-136y, the Clean Air Act, 42 U.S.C. (S)(S)
7401-7642, the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C.
(S)(S) 1251-1387, the Safe Drinking Water Act, 42 U.S.C. (S)(S) 300f-300j-26,
and the Occupational Safety and Health Act, 29 U.S.C. (S)(S) 651-678, and any
analogous state laws, as any of the above may be amended from time to time and
in the regulations promulgated pursuant to each of the foregoing (including
environmental statutes and laws not specifically defined herein) (individually,
an "Environmental Law" and collectively, the "Environmental Laws") or by any
federal, state or local governmental authority having or claiming jurisdiction
over the properties and assets of the Company and its subsidiaries (a
"Governmental Authority").
(ff) Periodic Review of Costs of Environmental Compliance. In the
ordinary course of its business, the Company conducts a periodic review of the
effect of Environmental Laws on the business, operations and properties of the
Company and its subsidiaries and the Partnerships, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review and the amount of its
established reserves, the Company has reasonably concluded that such associated
costs and liabilities would not, individually or in the aggregate, result in a
Material Adverse Change.
(gg) ERISA Compliance. The Company and any "employee benefit plan" (as
defined under the Employee Retirement Income Security Act of 1974, as amended,
and the regulations and published interpretations thereunder (collectively,
"ERISA")) established or maintained by the Company or its ERISA Affiliates (as
defined below) are in compliance in all material respects with ERISA. "ERISA
Affiliate" means, with respect to the Company, any member of any group of
organizations described in Sections 414(b), (c), (m) or (o) of the Code of which
the Company is a member. No "reportable event" (as defined under ERISA) has
occurred or is reasonably expected to occur with respect to any "employee
benefit plan" established or maintained by the Company or any of its ERISA
Affiliates. No "employee benefit plan" established or maintained by the Company
or any of its ERISA Affiliates, if such
11
"employee benefit plan" were terminated, would have any "amount of unfunded
benefit liabilities" (as defined under ERISA). Neither the Company nor any of
its ERISA Affiliates has incurred or reasonably expects to incur any liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any "employee benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of the
Code. Each "employee benefit plan" established or maintained by the Company or
any of its ERISA Affiliates that is intended to be qualified under Section
401(a) of the Code is so qualified and nothing has occurred, whether by action
or failure to act, which would cause the loss of such qualification.
Any certificate signed by an officer of the Company and delivered to the
Representatives or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
set forth therein.
Section 3. Purchase, Sale and Delivery of the Common Shares.
(a) The Firm Common Shares. On the basis of the agreements herein, but
subject to the conditions herein set forth, the Company agrees to issue and sell
to the several Underwriters the Firm Common Shares upon the terms herein set
forth. On the basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein set forth,
the Underwriters agree, severally and not jointly, to purchase from the Company
the respective number of Firm Common Shares set forth opposite their names on
Schedule A. The purchase price per Firm Common Share to be paid by the several
Underwriters to the Company shall be $10.32775 per share.
(b) The First Closing Date. Delivery of the Firm Common Shares to be
purchased by the Underwriters and payment therefor shall be made at such place
as may be agreed to by the Company and the Representatives at 11:00 a.m. Eastern
time, on July 3, 2002, or such other time and date as the Representatives and
the Company shall agree (the time and date of such closing are called the "First
Closing Date").
(c) The Optional Common Shares; the Second Closing Date. In addition,
on the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Company
hereby grants an option to the several Underwriters to purchase, severally and
not jointly, up to an aggregate of 1,050,000 Optional Common Shares from the
Company at the purchase price per share to be paid by the Underwriters for the
Firm Common Shares. The option granted hereunder is for use by the Underwriters
solely in covering any over-allotments in connection with the sale and
distribution of the Firm Common Shares. The option granted hereunder may be
exercised at any time upon notice by the Representatives to the Company, which
notice may be given at any time within 30 days from the date of this Agreement.
Such notice shall set forth (i) the aggregate number of Optional Common Shares
as to which the Underwriters are exercising the option, (ii) the names and
denominations in which the certificates for the Optional Common Shares are to be
registered and (iii) the time, date and place at which such certificates will be
delivered (which time and date may not be earlier than the First Closing Date;
and in the case that such date is simultaneous with the First Closing Date, the
term "First Closing Date" shall refer to the time and date of delivery of
certificates for the Firm Common Shares and the Optional Common Shares). Such
time and date of delivery, if subsequent to the First Closing Date, is called
the "Second Closing Date" and
12
shall be determined by the Representatives and shall not be earlier than three
nor later than ten full business days after delivery of such notice of exercise.
If any Optional Common Shares are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the number of Optional Common Shares
(subject to such adjustments to eliminate fractional shares as the
Representatives may determine) that bears the same proportion to the total
number of Optional Common Shares to be purchased as the number of Firm Common
Shares set forth on Schedule A opposite the name of such Underwriter bears to
the total number of Firm Common Shares. The Representatives may cancel the
option at any time prior to its expiration by giving written notice of such
cancellation to the Company.
(d) Public Offering of the Common Shares. The Representatives hereby
advise the Company that the Underwriters intend to offer for sale to the public,
as described in the Prospectus, their respective portions of the Common Shares
as soon after this Agreement has been executed and the Registration Statement
has been declared effective as the Representatives, in their sole judgment, have
determined is advisable and practicable.
(e) Payment for the Common Shares. Payment for the Common Shares shall
be made at the First Closing Date (and, if applicable, at the Second Closing
Date) by wire transfer of immediately available Federal funds to the order of
the Company.
It is understood that the Representatives have been authorized, for their
own account and the accounts of the several Underwriters, to accept delivery of
and receipt for, and make payment of the purchase price for, the Firm Common
Shares and any Optional Common Shares the Underwriters have agreed to purchase.
FBW, Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx and Advest, individually and not as
Representatives of the Underwriters, may (but shall not be obligated to) make
payment for any Common Shares to be purchased by any Underwriter whose funds
shall not have been received by the Representatives by the First Closing Date or
the Second Closing Date, as the case may be, for the account of such
Underwriter, but any such payment shall not relieve such Underwriter from any of
its obligations under this Agreement.
(f) Delivery of the Common Shares. The Company shall deliver, or cause
to be delivered, to the Representatives for the accounts of the several
Underwriters certificates for the Firm Common Shares, against the irrevocable
release of a wire transfer of immediately available Federal funds for the amount
of the purchase price therefor. The Company also shall deliver, or cause to be
delivered, to the Representatives for the accounts of the several Underwriters
certificates requested for the Optional Common Shares the Underwriters have
agreed to purchase at the First Closing Date or the Second Closing Date, as the
case may be, against the irrevocable release of a wire transfer of immediately
available Federal funds for the amount of the purchase price therefor. The
certificates for the Common Shares shall be in definitive form and registered in
such names and denominations as the Representatives shall have requested at
least two full business days prior to the First Closing Date (or the Second
Closing Date, as the case may be) and shall be made available for inspection on
the business day preceding the First Closing Date (or the Second Closing Date,
as the case may be) at a location the Representatives may reasonably designate.
Delivery at the time and place specified in this Agreement is a further
condition to the obligations of the Underwriters.
13
(g) Delivery of Prospectus to the Underwriters. Not later than
12:00 p.m. on the second business day following the date the Common Shares are
first released by the Underwriters for sale to the public, the Company shall
deliver or cause to be delivered, copies of the Prospectus in such quantities
and at such places as the Representatives shall request.
Section 4. Additional Covenants. The Company further covenants and agrees
with each Underwriter as follows:
(a) Representatives' Review of Proposed Amendments and Supplements.
During such period beginning on the date hereof and ending on the later of the
First Closing Date or such date, as in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in
connection with sales by an Underwriter or dealer (the "Prospectus Delivery
Period"), prior to amending or supplementing the Registration Statement
(including any registration statement filed under Rule 462(b) under the
Securities Act) or the Prospectus, the Company shall furnish to the
Representatives for review a copy of each such proposed amendment or supplement,
and the Company shall not file any such proposed amendment or supplement to
which the Representatives reasonably object.
(b) Securities Act Compliance. After the date of this Agreement, the
Company shall promptly advise the Representatives in writing of (i) the receipt
of any comments of, or requests for additional or supplemental information from,
the Commission, (ii) the time and date of any filing of any post-effective
amendment to the Registration Statement or any amendment or supplement to any
preliminary prospectus or the Prospectus, (iii) the time and date that any post-
effective amendment to the Registration Statement becomes effective and (iv) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of any order
preventing or suspending the use of any preliminary prospectus or the
Prospectus, or of any proceedings to remove, suspend or terminate from listing
or quotation the Class A Common Stock from any securities exchange upon which it
is listed for trading or included or designated for quotation, or of the
threatening or initiation of any proceedings for any of such purposes. If the
Commission shall enter any such stop order at any time, the Company will use its
reasonable best efforts to obtain the lifting of such order at the earliest
possible moment. Additionally, the Company agrees that it shall comply with the
provisions of Rules 424(b), 430A and 434, as applicable, under the Securities
Act and will use its reasonable efforts to confirm that any filings made by the
Company under such Rule 424(b) were received in a timely manner by the
Commission.
(c) Amendments and Supplements to the Prospectus and Other Securities
Act Matters. If, during the Prospectus Delivery Period, any event shall occur or
condition exist 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 to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if in the reasonable opinion of the Representatives or counsel
for the Underwriters it is otherwise necessary to amend or supplement the
Prospectus to comply with law, the Company agrees to promptly notify FBW, Xxxxxx
Xxxxxx, Xxxxxxxx Xxxxx and Advest and to promptly prepare (subject to Section
4(a) hereof), file with the Commission and furnish at its own expense to the
Underwriters and to dealers, amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or supplemented will not include
an
14
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading or so that the
Prospectus, as amended or supplemented, will comply with law. Neither FBW's,
Xxxxxx Xxxxxx'x, Xxxxxxxx Xxxxx' or Advest's consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6.
(d) Copies of any Amendments and Supplements to the Prospectus. The
Company agrees to furnish the Representatives, without charge and in as many
copies as the Representatives reasonably request, (i) during the Prospectus
Delivery Period, the Prospectus and any amendments and supplements thereto, (ii)
signed copies of each Registration Statement, which will include all exhibits,
(iii) each related preliminary prospectus, and (iv) copies of the Incorporated
Documents, including exhibits.
(e) Blue Sky Compliance. The Company will arrange for the
qualification of the Common Shares for sale under the laws of such jurisdictions
as the Representatives designate and will continue such qualifications in effect
so long as required for the distribution, except that in no event shall the
Company be obligated in connection therewith to qualify as a foreign corporation
or to execute a general consent to service of process. The fees and costs
incurred in connection with such filings will be paid by the Company. The
Company will advise the Representatives promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Common
Shares for offering, sale or trading in any jurisdiction or any initiation or
threat of any proceeding for any such purpose, and in the event of the issuance
of any order suspending such qualification, registration or exemption, the
Company shall use its reasonable efforts to obtain the withdrawal thereof at the
earliest possible moment.
(f) Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Common Shares sold by it in the manner described under the caption
"Use of Proceeds" in the Prospectus.
(g) Transfer Agent. The Company shall maintain, at its expense, a
registrar and transfer agent for the Class A Common Stock.
(h) Earning Statement. As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally available
to its security holders and to the Representatives an earning statement (which
need not be audited) covering the twelve-month period that satisfies the
provisions of Section 11(a) of the Securities Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes the date on
which the Registration Statement became effective, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year, "Availability
Date" means the 90th day after the end of such fourth fiscal quarter.
(i) Periodic Reporting Obligations. During the Prospectus Delivery
Period, the Company shall file, on a timely basis, with the Commission and the
NYSE all reports and documents required to be filed under the Exchange Act.
15
(j) Agreement Not to Offer or Sell Additional Securities. During the
period of 180 days following the date of the Prospectus, the Company will not,
without the prior written consent of FBW, Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx and
Advest (which consent may be withheld at the sole discretion of FBW, Xxxxxx
Xxxxxx, Xxxxxxxx Xxxxx or Advest), directly or indirectly, sell, offer, contract
or grant any option to sell, pledge, transfer or establish an open "put
equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act,
or otherwise dispose of or transfer, or announce the offering of, or file any
registration statement under the Securities Act in respect of, any shares of
Class A Common Stock, options or warrants to acquire shares of Class A Common
Stock or securities exchangeable or exercisable for or convertible into shares
of Class A Common Stock (other than as contemplated by this Agreement with
respect to the Common Shares); provided, however, that the Company may (i) issue
shares of Class A Common Stock upon the exercise of warrants outstanding on the
date hereof and described in the Prospectus, (ii) grant options to purchase
Class A Common Stock and issue shares of Class A Common Stock upon the exercise
of options, in both cases, pursuant to any stock option plan or arrangement
described in the Prospectus, issue shares of Class A Common Stock in any
ordinary course of business pursuant to any restricted stock plan described in
the prospectus, or issue shares of Class A Common Stock in the ordinary course
of business pursuant to the Company's employee benefits plans existing on the
date hereof, (iii) issue shares of Class A Common Stock under the DRIP, and (iv)
issue shares of Class A Common Stock in payment of all or a portion of the
purchase price for properties acquired from sellers who are not affiliates of
the Company; provided that each recipient of shares pursuant to (i), (ii), (iii)
or (iv) enters into a lock-up agreement with terms substantially equivalent to
the lock-up agreements delivered to the Representatives pursuant to Section
6(i).
(k) Future Reports to the Representatives. During the period of three
years hereafter, the Company will furnish to the Representatives at c/o Ferris,
Xxxxx Xxxxx, Incorporated, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxx X. Xxxxxx, Xx.: (i) at the same time as
distributed to the Company's stockholders after the end of each fiscal year,
copies of the Annual Report of the Company containing the balance sheet of the
Company as of the close of such fiscal year and statements of income,
stockholders' equity and cash flows for the year then ended and the opinion
thereon of the Company's independent public or certified public accountants;
(ii) as soon as practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current
Report on Form 8-K or other report filed by the Company with the Commission or
the NYSE; (iii) at the same time as mailed to the Company's stockholders, copies
of any report or communication of the Company mailed generally to holders of its
capital stock; and (iv) from time to time, such other information concerning the
Company as FBW, Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx or Advest may reasonably request.
(l) Qualification as a REIT. The Company will use its best efforts to
meet the requirements to qualify as a REIT under the Code, subject to the
fiduciary duties of the Board of Directors of the Company to manage the business
of the Company in the best interests of its stockholders.
Section 5. Payment of Expenses. The Company agrees to pay all costs, fees
and expenses incurred by it in connection with the performance of its
obligations hereunder and in connection with the transactions contemplated
hereby, including, without limitation, (i) all
16
expenses incident to the issuance and delivery to the Underwriters of the Common
Shares (including all printing and engraving costs), (ii) all fees and expenses
of the registrar and transfer agent of the Class A Common Stock, (iii) all
necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Common Shares to the Underwriters, (iv) all fees, disbursements
and other expenses of the Company's counsel, independent public or certified
public accountants and other advisors, (v) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution of
the Registration Statement (including financial statements, exhibits, schedules,
consents and certificates of experts), each preliminary prospectus and the
Prospectus, and all amendments and supplements thereto, and this Agreement, (vi)
the filing fees incident to the NASD's review and approval of the Underwriters'
participation in the offering and distribution of the Common Shares, and (vii)
the fees and expenses associated with listing the Common Shares on the NYSE. In
addition, the Company agrees to pay on demand, on a monthly basis, upon
presentation to the Company by the Underwriters of appropriate documentation,
all out-of-pocket expenses reasonably incurred by the Representatives in
connection with the purchase and offering and sale of the Common Shares, the
performance of their obligations hereunder and the transactions contemplated
hereby (whether or not such transactions are consummated), including, but not
limited to, fees and disbursements of counsel, printing expenses, travel
expenses, postage, and facsimile and telephone charges. All amounts owed to the
Underwriters pursuant to this Section 5, or the letter of April 26, 2002 between
FBW and the Company engaging FBW as lead managing underwriter in the offering of
the Common Shares pursuant to this Agreement, which remain unpaid on the date of
either the First Closing or the Second Closing, as the case may be, shall be
deducted from the purchase price for the Common Shares set forth in Section 3.
Section 6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Common
Shares as provided herein on the First Closing Date and, with respect to the
Optional Common Shares, the Second Closing Date, shall be subject to the
accuracy of the representations and warranties on the part of the Company set
forth in Section 2 hereof as of the date hereof and as of the First Closing Date
as though then made and, with respect to the Optional Common Shares, as of the
Second Closing Date as though then made, to the timely performance by the
Company of its covenants and other obligations hereunder, and to each of the
following additional conditions:
(a) Accountants' Comfort Letters. On the date hereof, the
Representatives shall have received from Ernst & Young, LLP, independent public
accountants for the Company, letters dated the date hereof addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representatives, delivered according to Statement of Auditing Standards No. 72
(or any successor bulletin), with respect to the unaudited financial statements
and certain financial information contained in the Registration Statement and
the Prospectus, including the Incorporated Documents.
(b) Compliance with Registration Requirements; No Stop Order; No
Objection from NASD. For the period from and after effectiveness of this
Agreement and prior to the First Closing Date and, with respect to the Optional
Common Shares, the Second Closing Date:
17
(i) the Company shall have filed the Prospectus with the
Commission (including the information required by Rule 430A under the
Securities Act) in the manner and within the time period required by Rule
424(b) under the Securities Act; or the Company shall have filed a
post-effective amendment to the Registration Statement containing the
information required by such Rule 430A, and such post-effective amendment
shall have become effective;
(ii) no stop order suspending the effectiveness of the
Registration Statement (including any Rule 462(b) Registration Statement)
or any post-effective amendment to the Registration Statement, shall be in
effect and no proceedings for such purpose shall have been instituted or,
to the knowledge of the Company, threatened by the Commission; and
(iii) the NASD shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
(c) No Material Adverse Change. For the period from and after the date
of this Agreement and prior to the First Closing Date and, with respect to the
Optional Common Shares, the Second Closing Date, there shall not have occurred
any change, or any development or event involving a prospective change, in the
condition (financial or other), business, properties or results of operations of
the Company, the Partnerships and the Company's subsidiaries, taken as one
enterprise, which, in the judgment of the Representatives, is material and
adverse and makes it impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the Common Shares.
(d) Opinion of Counsel for the Company. On each of the First Closing
Date and the Second Closing Date, the Representatives shall have received the
favorable opinion of Coudert Brothers LLP, counsel for the Company, dated as of
such Closing Date, in form and substance reasonably satisfactory to the
Representatives.
(e) Opinion of Tax Counsel for the Company. On each of the First
Closing Date and the Second Closing Date, the Representatives shall have
received the favorable tax opinion of Coudert Brothers LLP, counsel for the
Company, dated as of such Closing Date, in form and substance reasonably
acceptable to the Representatives.
(f) Opinion of Counsel for the Underwriters. On each of the First
Closing Date and the Second Closing Date, the Representatives shall have
received the favorable opinion of Hunton & Xxxxxxxx, counsel for the
Underwriters, dated as of such Closing Date, in form and substance reasonably
satisfactory to the Representatives.
(g) Officers' Certificate. On each of the First Closing Date and the
Second Closing Date, the Representatives shall have received a written
certificate executed by (i) the Chairman of the Board, (ii) the Chief Executive
Officer or President of the Company and (iii) the Chief Financial Officer or
Chief Accounting Officer of the Company, dated as of such Closing Date, to the
effect set forth in subsection (b)(ii) of this Section 6, and further to the
effect that:
(i) for the period from and after the date of this Agreement and
prior to such Closing Date, there has not occurred any Material Adverse
Change;
18
(ii) the representations and warranties of the Company set forth
in this Agreement are true and correct in all material respects with the
same force and effect as though expressly made on and as of such Closing
Date, except that, to the extent any representations and warranties are
qualified by terms such as "material," "materially," "material adverse
effect" or "Material Adverse Change," such representations and warranties
will be true and correct in all respects; and
(iii) the Company has performed or complied in all material
respects with all of the covenants and agreements hereunder and satisfied
all the conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date.
(h) Bring-down Comfort Letters. On each of the First Closing Date and
the Second Closing Date, the Representatives shall have received from Ernst &
Young, LLP, independent public accountants for the Company, letters dated such
date, in form and substance satisfactory to the Representatives, to the effect
that they reaffirm the statements made in the letters furnished by them pursuant
to subsection (a) of this Section 6, except that the specified date referred to
therein for the carrying out of procedures shall be no more than three business
days prior to the First Closing Date or Second Closing Date, as the case may be.
(i) Lock-Up Agreements. On or before the date hereof, the Company
shall have furnished to the Representatives an agreement in the form of Exhibit
A hereto from each director and officer of the Company, and such agreement shall
be in full force and effect on each of the First Closing Date and the Second
Closing Date.
(j) Additional Documents. On or before each of the First Closing Date
and the Second Closing Date, the Representatives and counsel for the
Underwriters shall have received such information, documents and opinions as
they may reasonably require for the purposes of enabling them to pass upon the
issuance and sale of the Common Shares as contemplated herein, or in order to
evidence the accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 6 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the
Representatives by notice to the Company at any time on or prior to the First
Closing Date and, with respect to the Optional Common Shares, at any time prior
to the Second Closing Date, which termination shall be without liability on the
part of any party to any other party, except that Section 5, Section 7, Section
9 and Section 10 shall at all times be effective and shall survive such
termination.
Section 7. Reimbursement of Underwriters' Expenses. If this Agreement is
terminated by the Representatives pursuant to Section 6 or Section 12 or if the
sale to the Underwriters of the Common Shares on the First Closing Date is not
consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
the Company agrees, in addition to the payment of all expenses described in
Section 5 (subject to the last sentence of this Section 7), to reimburse the
Underwriters (or such Underwriters as have terminated this Agreement with
respect to themselves), severally, upon demand for all out-of-pocket expenses
that shall have been reasonably incurred by the Underwriters in connection with
the proposed purchase and offering
19
and sale of the Common Shares, including, but not limited to, fees and
disbursements of counsel, printing expenses, travel expenses, postage, and
facsimile and telephone charges. It is acknowledged and agreed that any payments
to which the Representatives may be entitled under this Section 7 shall be in
addition to any such payments to which the Representatives may otherwise be
entitled under Section 5.
Section 8. Effectiveness of this Agreement. This Agreement shall not become
effective until the execution and delivery of this Agreement by the parties
hereto.
Section 9. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and its officers, directors,
employees and agents, and each person, if any, who controls any Underwriter
within the meaning of the Securities Act and the Exchange Act, against any loss,
claim, damage, liability or expense, as incurred, to which such Underwriter or
such controlling person may become subject, under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, or at common
law or otherwise (including in settlement of any litigation, if such settlement
is effected with the written consent of the Company), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based (i) upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, or any amendment thereto, including any information deemed to be a
part thereof pursuant to Rule 430A or Rule 434 under the Securities Act, or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii) upon
any untrue statement or alleged untrue statement of a material fact contained in
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and to reimburse each
Underwriter and each such person for any and all expenses (including the
reasonable fees and disbursements of counsel chosen by FBW, Xxxxxxxx Xxxxx,
Xxxxxx Xxxxxx and Advest) as such expenses are reasonably incurred by such
Underwriter or such person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the foregoing indemnity agreement
shall not apply to any loss, claim, damage, liability or expense to the extent,
but only to the extent, arising out of or based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by the
Representatives expressly for use in the Registration Statement, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), as the
same is described in Section 9(b) below; and provided, further, that with
respect to any preliminary prospectus, the foregoing indemnity agreement shall
not inure to the benefit of any Underwriter from whom the person asserting any
loss, claim, damage, liability or expense purchased Common Shares, or any person
controlling such Underwriter, if copies of the Prospectus were timely delivered
to the Underwriter pursuant to Section 3 and a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Common Shares to such person, and if the
Prospectus (as so
20
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage, liability or expense. The indemnity agreement set forth in this
Section 9(a) shall be in addition to any liabilities that the Company may
otherwise have.
(b) Indemnification of the Company, its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of the Company's directors, each of its officers who signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act, against any loss,
claim, damage, liability or expense, as incurred, to which the Company or any
such director, officer or controlling person may become subject, under the
Securities Act, the Exchange Act, or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or is based upon
any untrue or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or arises out of or is 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 the case
of any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), in light of the circumstances in which they were made, 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 or the Prospectus (or any amendment or
supplement thereto), in reliance upon and in conformity with written information
furnished to the Company by the Representatives expressly for use therein; and
to reimburse the Company or any such director, officer or controlling person for
any legal and other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. The Company hereby acknowledges that the only
information that the Underwriters have furnished to the Company expressly for
use in the Registration Statement, any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) are the statements set forth in the
table following the first paragraph, the third paragraph and the eleventh
paragraph under the caption "Underwriting" in the Prospectus. The indemnity
agreement set forth in this Section 9(b) shall be in addition to any liabilities
that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 9 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 9, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party for contribution or otherwise under the
indemnity agreement contained in this Section 9 or to the extent it is not
prejudiced as a proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to
21
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that a conflict may arise
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 9 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with local counsel) representing the indemnified
parties who are parties to such action) or (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the reasonable fees and expenses of counsel shall
be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 9 shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent (i) includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding 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 an indemnified party.
(e) Arbitrations. If multiple claims are brought against any
Indemnitee or the Company in an arbitration, with respect to at least one of
which indemnification is permitted under applicable law and provided for under
this agreement, the parties agree that any arbitration award shall be
conclusively deemed to be based on claims as to which indemnification is
permitted and provided for, except to the extent the arbitration award expressly
states that the award, or any portion thereof, is based solely on a claim as to
which indemnification is not available.
Section 10. Contribution. If the indemnification provided for in
Section 9 is for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified
22
party, as incurred, as a result of any losses, claims, damages, liabilities or
expenses referred to therein (i) 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 hand, from the offering of the Common Shares pursuant
to this Agreement or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, 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 hand, in connection with the
offering of the Common Shares pursuant to this Agreement shall be deemed to be
in the same respective proportions as the total net proceeds from the offering
of the Common Shares pursuant to this Agreement (before deducting expenses)
received by the Company, and the total underwriting discount and commissions
received by the Underwriters, in each case as set forth on the front cover page
of the Prospectus bear to the aggregate initial public offering price of the
Common Shares as set forth on such cover. The relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or 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 hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 9(c), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in Section 9(c) with
respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 10; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 9(c) for purposes of indemnification.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 10 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 in this Section 10.
Notwithstanding the provisions of this Section 10, no Underwriter shall be
required to contribute any amount in excess of the underwriting discount and
commissions received by such Underwriter in connection with the Common Shares
underwritten by it and distributed to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 10 are several, and not joint, in proportion to their
respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 10, each officer and employee of an
Underwriter and each person, if any, who controls an Underwriter within the
meaning of the Securities Act and the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed
23
the Registration Statement, and each person, if any, who controls the Company
within the meaning of the Securities Act and the Exchange Act shall have the
same rights to contribution as the Company.
Section 11. Default of One or More of the Several Underwriters. If, on the
First Closing Date or the Second Closing Date, as the case may be, any one or
more of the several Underwriters shall fail or refuse to purchase Common Shares
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Common Shares to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportions that the number
of Firm Common Shares set forth opposite their respective names on Schedule A
bears to the aggregate number of Firm Common Shares set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as may be
specified by the Representatives with the consent of the non-defaulting
Underwriters, to purchase the Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date.
If, on the First Closing Date or the Second Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Common
Shares and the aggregate number of Common Shares with respect to which such
default occurs exceeds 10% of the aggregate number of Common Shares to be
purchased on such date, and arrangements satisfactory to the Representatives and
the Company for the purchase of such Common Shares are not made within 48 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter, except that the provisions of Section 5,
Section 9 and Section 10 shall at all times be effective and shall survive such
termination. In any such case, either the Representatives or the Company shall
have the right to postpone the First Closing Date or the Second Closing Date, as
the case may be, but in no event for longer than seven days in order that the
required changes, if any, to the Registration Statement and the Prospectus or
any other documents or arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
11. Any action taken under this Section 11 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
Section 12. Termination of this Agreement. Prior to the First Closing Date,
this Agreement may be terminated by the Representatives by notice given to the
Company if at any time (i) trading or quotation in any of the Company's
securities shall have been suspended or limited by the Commission or by the
NYSE, or trading in securities generally on the NYSE shall have been suspended
or limited, or minimum or maximum prices shall have been generally established
on any of such stock exchanges by the Commission or the NASD; (ii) a general
banking moratorium shall have been declared by any federal, Connecticut or New
York authorities; (iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or any change
in the United States or international financial markets, or in the United
States' or international political, financial or economic conditions, as in the
reasonable judgment of the Representatives is material and adverse and makes it
impracticable or inadvisable to market the Common Shares in the manner and on
the terms
24
described in the Prospectus or to enforce contracts for the sale of securities;
(iv) in the reasonable judgment of the Representatives there shall have occurred
any Material Adverse Change; (v) the Company or any of the Partnerships shall
have sustained a loss by strike, fire, flood, earthquake, accident or other
calamity of such character as in the judgment of the Representatives may
interfere materially with the conduct of the business and operations of the
Company regardless of whether or not such loss shall have been insured; or (vi)
any downgrading in the rating of any debt securities or preferred stock of the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities or preferred stock of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating). Any termination pursuant to this Section
12 shall be without liability on the part of (a) the Company to any Underwriter,
except that the Company shall be obligated to reimburse the expenses of the
Representatives and the Underwriters pursuant to Sections 5 and 7 hereof, (b)
any Underwriter to the Company, or (c) of any party hereto to any other party,
except that the provisions of Section 9 and Section 10 shall at all times be
effective and shall survive such termination.
Section 13. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of the Company's officers, and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its or their officers or directors or any
controlling person, as the case may be, and will survive delivery of and payment
for the Common Shares sold hereunder and any termination of this Agreement.
Section 14. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Representatives:
c/o Ferris, Xxxxx Xxxxx, Incorporated
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Xx.
with a copy to:
Hunton & Xxxxxxxx
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
25
If to the Company:
Urstadt Xxxxxx Properties Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Willing X. Xxxxxx
with a copy to:
Coudert Brothers LLP
Grace Building
1114 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
Section 15. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Underwriters pursuant
to Section 11 hereof, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 9 and Section 10, and
in each case their respective successors, and no other person will have any
right or obligation hereunder. The term "successors" shall not include any
purchaser of the Common Shares as such from any of the Underwriters merely by
reason of such purchase.
Section 16. Partial Unenforceability. The invalidity or unenforceability of
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
Section 17. Governing Law Provisions.
(a) Governing Law Provisions. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in such state.
(b) Consent to Jurisdiction. Any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated
hereby ("Related Proceedings") may be instituted in the federal courts of the
United States of America located in the State of New York or the courts of the
State of New York (collectively, the "Specified Courts"), and each party
irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
"Related Judgment"), as to which such jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. Service of any process, summons,
notice or document by mail to such party's address set forth above
26
shall be effective service of process for any suit, action or other proceeding
brought in any such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other proceeding in the
Specified Courts and irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such suit, action or other proceeding
brought in any such court has been brought in an inconvenient forum.
(c) Waiver of Immunity. With respect to any Related Proceeding, each
party irrevocably waives, to the fullest extent permitted by applicable law, all
immunity (whether on the basis of sovereignty or otherwise) from jurisdiction,
service of process, attachment (both before and after judgment) and execution to
which it might otherwise be entitled in the Specified Courts, and with respect
to any Related Judgment, each party waives any such immunity in the Specified
Courts or any other court of competent jurisdiction, and will not raise or claim
or cause to be pleaded any such immunity at or in respect of any such Related
Proceeding or Related Judgment, including, without limitation, any immunity
pursuant to the United States Foreign Sovereign Immunities Act of 1976, as
amended.
Section 18. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
The Section headings herein are for the convenience of the parties only and
shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business
person who was adequately represented by counsel during negotiations regarding
the provisions hereof, including, without limitation, the indemnification
provisions of Section 9 and the contribution provisions of Section 10, and is
fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 9 and 10 hereto fairly allocate the
risks in light of the ability of the parties to investigate the Company, its
affairs and its business in order to assure that adequate disclosure has been
made in the Registration Statement, any preliminary prospectus and the
Prospectus (and any amendments and supplements thereto), as required by the
Securities Act and the Exchange Act.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
27
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company the enclosed copies hereof, whereupon this
instrument, along with all counterparts hereof, shall become a binding agreement
in accordance with its terms.
Very truly yours,
Urstadt Xxxxxx Properties Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman
The foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representatives as of the date first above written.
Xxxxxx, Xxxxx Xxxxx, Incorporated
By: /s/ Xxxx X. Xxxxxx, Xx.
---------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President
For itself and the other
several Underwriters named in
Schedule A to this Agreement
28
SCHEDULE A
NUMBER OF FIRM
UNDERWRITER COMMON SHARES TO BE PURCHASED
----------- -----------------------------
Xxxxxx, Xxxxx Xxxxx, Incorporated 2,100,000
Xxxxxx Xxxxxx & Company, Inc. 2,100,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 1,750,000
Advest, Inc. 1,050,000
--------------------------------------------------------------------------------
TOTAL 7,000,000
EXECUTION COPY
EXHIBIT A
LOCK UP AGREEMENT
Xxxxxx, Xxxxx Xxxxx, Incorporated
Xxxxxx Xxxxxx & Company, Inc.
J.J.B Xxxxxxxx, X.X. Xxxxx, Inc.
Advest, Inc.
c/o Ferris, Xxxxx Xxxxx, Incorporated
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Re: Urstadt Xxxxxx Properties Inc. (the "Company")
Ladies and Gentlemen:
The undersigned is an owner of record or beneficially of certain
shares of Class A common stock, $.01 par value per share, of the Company ("Class
A Common Stock") or securities convertible into or exchangeable or exercisable
for Class A Common Stock. The Company proposes to carry out a public offering of
Class A Common Stock (the "Offering") for which you will act as the
underwriters. The undersigned recognizes that the Offering will be of benefit to
the undersigned and will benefit the Company by, among other things, raising
additional capital for its operations. The undersigned acknowledges that you and
the other underwriters are relying on the representations and agreements of the
undersigned contained in this letter in carrying out the Offering and in
entering into underwriting arrangements with the Company with respect to the
Offering.
In consideration of the foregoing, the undersigned hereby agrees that
the undersigned will not, without the prior written consent of Xxxxxx, Xxxxx
Xxxxx, Incorporated (which consent may be withheld in its sole discretion),
directly or indirectly, sell, offer, contract or grant any option to sell
(including, without limitation, any short sale), pledge, transfer, establish an
open "put equivalent position" within the meaning of Rule 16a-1(h) under the
Securities Exchange Act of 1934, as amended, or otherwise dispose of any shares
of Class A Common Stock, options or warrants to acquire shares of Class A Common
Stock, or securities exchangeable or exercisable for or convertible into shares
of Class A Common Stock currently or hereafter owned either of record or
beneficially (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended) by the undersigned (other than as a bona fide gift, provided
that the donee thereof agrees in writing to be bound by this Agreement), or
publicly announce the undersigned's intention to do any of the foregoing, for a
period commencing on the date hereof and continuing to and including the date
that is 90 days after the date of the prospectus supplement of the Company
related to the Offering. The undersigned also agrees and consents to the entry
of stop transfer instructions with the Company's transfer agent and registrar
against the transfer of shares of Class A Common Stock or securities convertible
into or exchangeable or exercisable for Class A Common Stock held by the
undersigned except in compliance with the foregoing restrictions.
This agreement is irrevocable and will be binding on the undersigned
and the respective successors, heirs, personal representatives, and assigns of
the undersigned.
Dated: ____________, 2002
Printed Name of Holder:
________________________________________
Signature
________________________________________
Printed Name of Person Signing
________________________________________
Capacity of Person Signing if Signing as
Custodian, Trustee, or on Behalf of an
Entity
C-2
