EXHIBIT 1.1
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made as of the 2nd day of February, 1998, by and
among Xxxxxxxx Properties Trust (the "Company"), a real estate investment trust
organized under the laws of the State of Maryland, Xxxxxxxx Properties
Acquisition Partners, L.P., a Delaware limited partnership (the "Operating
Partnership") and UBS Limited, an English corporation ("UBS Limited") and Union
Bank of Switzerland, London Branch, acting through its agent UBS Securities LLC
("UBS-LB") (UBS Limited and UBS-LB being hereinafter collectively called the
"UBS Parties" and sometimes individually, a "UBS Party"). The Company and the
Operating Partnership are referred to collectively herein as the "Xxxxxxxx
Entities."
IN CONSIDERATION of the mutual covenants contained in this Purchase
Agreement, the Company, the Operating Partnership and the UBS Parties agree as
follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms and
conditions of this Purchase Agreement, the Company has authorized the sale to
UBS Limited of up to an aggregate of 1,100,000 common shares of beneficial
interest (the "Common Shares"), $.01 par value per share (the "Purchase
Shares"), of the Company. In addition, the Company may issue to UBS-LB
additional Common Shares in settlement of certain of its obligations under the
Forward Stock Purchase Agreement, dated February 2, 1998 (the "Forward Stock
Purchase Agreement"), between the Company and UBS-LB (the "Additional Shares").
The Purchase Shares and the Additional Shares are hereinafter collectively
called the "Shares."
SECTION 2. Agreement to Sell and Purchase the Purchase Shares. Subject to
the terms and conditions of this Purchase Agreement, on the Closing Date (as
defined in Section 3 hereof), the Company will sell to UBS Limited the Purchase
Shares, the number of which shall equal 1,100,000, for a per share purchase
price equal to the Closing Price. The "Closing Price" shall equal the closing
price reported on the New York Stock Exchange for a Common Share on the business
day immediately preceding the Closing Date.
SECTION 3. Delivery of the Shares at the Closing.
3.1. Closing. The completion of the purchase and sale of the Purchase
Shares (the "Closing") shall occur as soon as practicable, on such date to be
agreed upon by the Company and the UBS Parties (hereinafter, the "Closing
Date").
3.2. Conditions. At Closing, the Company shall deliver to UBS Limited one
or more stock certificates registered in the name of UBS Limited representing
the number of Purchase Shares set forth in Section 2 above.
The Company's obligation to complete the purchase and sale of the Purchase
Shares and deliver such stock certificate(s) to UBS Limited at the Closing shall
be subject to the following conditions, any one or more of which may be waived
by the Company: (i) receipt by the Company of Federal Funds (or other mutually
agreed upon form of payment) in the full amount of the purchase price for the
Purchase Shares being purchased hereunder, (ii) the accuracy in all
material respects, as of the Closing Date, of the representations and warranties
made by the UBS Parties herein and the fulfillment, in all material respects, as
of the Closing Date, of those undertakings of the UBS Parties to be fulfilled
prior to the Closing, (iii) the Forward Stock Purchase Agreement shall have been
fully executed by the parties thereto and (iv) receipt by the Company of a
cross-receipt with respect to the Purchase Shares executed by UBS Limited.
UBS Limited's obligation to accept delivery of such stock certificate(s)
and to pay for the Purchase Shares evidenced thereby shall be subject to the
following conditions: (i) the accuracy in all material respects, as of the
Closing Date, of the representations and warranties made by the Company herein
and the fulfillment in all material respects, as of the Closing Date, of those
undertakings of the Company to be fulfilled prior to Closing and (ii) the UBS
Parties shall have received all opinions and certificates to be delivered
pursuant to this Agreement.
SECTION 4. Representations, Warranties and Covenants of the Company. Each
of the Company and the Operating Partnership, jointly and severally, hereby
represents and warrants to, and covenants with, the UBS Parties as follows:
4.1. Organization and Qualification. The Company is a real estate
investment trust duly formed, validly existing and in good standing under the
laws of the State of Maryland, is duly qualified to do business and is in good
standing in each jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification and has all requisite power
and authority to conduct its business as currently conducted. The Operating
Partnership has been duly formed and is validly existing as a limited
partnership under the laws of the State of Delaware, is duly qualified to do
business as a foreign limited partnership in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires such
qualification, and has all partnership power and authority necessary to own or
hold its properties, to conduct the business in which it is engaged and to enter
into and perform the obligations under this Agreement.
4.2. Authorized Capital Stock. The Company has authorized and outstanding
capital stock as set forth in the Most Recent Financial Statements (as defined
below); the issued and outstanding Common Shares have been duly authorized and
validly issued, are fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for or purchase
securities, and conform to the description thereof included or incorporated by
reference in the Company's SEC Filings (as defined below). Other than as
described in the Company's SEC Filings, the Company does not have outstanding
any options to purchase, or any preemptive rights or other rights to subscribe
for or to purchase, any securities or obligations convertible into, or any
contracts or commitments to issue or sell, shares of its capital stock or any
such options, rights, convertible securities or obligations, except for options
issued pursuant to employee benefit plans. The description of the Company's
stock, stock bonus and other stock plans or arrangements and the options or
other rights granted and exercised thereunder in the Company's SEC Fillings
accurately and fairly presents the information required to be shown with respect
to such plans, arrangements, options and rights.
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4.3. Issuance, Sale and Delivery of the Shares. The Purchase Shares to be
sold by the Company have been duly authorized and, when issued, delivered and
paid for in the manner set forth in this Agreement, will be duly authorized,
validly issued, fully paid and nonassessable, and will conform to the
description thereof included in or incorporated by reference in the Registration
Statement (as defined below). The Additional Shares, if and when issued pursuant
to the Forward Stock Purchase Agreement, will be duly authorized, validly
issued, fully paid and nonassessable, and will conform to the description
thereof incorporated by reference in the Registration Statement. None of the
Shares when issued and delivered to the UBS Parties shall be subject to any
lien, security interest, claim, charge or encumbrance of any nature. Other than
the UBS Parties and as set forth in the Company's SEC Filings, no shareholder of
the Company has any right, which has not been waived or has not expired by
reason of lapse of time following notification of the Company's intent to file
the Registration Statement, to require the Company to register the sale of any
shares owned by such shareholder under the Securities Act of 1933, as amended
(the "Securities Act"), in the Registration Statement. No further approval or
authority of the shareholders or the Board of Trustees of the Company will be
required for the issuance and/or sale of the Shares to be sold by the Company as
contemplated herein or in the Forward Stock Purchase Agreement, except such as
shall have been obtained on or before the Closing Date. The issuance and/or sale
of the Shares to the UBS Parties by the Company pursuant to this Agreement or
the Forward Stock Purchase Agreement (as the case may be), the compliance by the
Company with the other provisions of this Agreement or the Forward Stock
Purchase Agreement and the consummation of the other transactions contemplated
hereby or thereby do not require the consent, approval, authorization,
registration or qualification of or with any governmental authority, except such
as shall have been obtained on or before the Closing Date other than the
registration of the resale of the Shares by the UBS Parties with the Securities
and Exchange Commission (the "SEC") and any required Blue Sky filings within the
States. The Company meets and will continue to meet the requirements for use of
Form S-3 under the Securities Act and the rules and regulations promulgated
thereunder (the "Rules and Regulations"). The Company has filed and will file
all documents which it is required to file under the Securities Exchange Act of
1934, as amended (the "Exchange Act") and all such documents (the "Company's SEC
Filings") comply in all material respects with the requirements of the Exchange
Act and the rules and regulations thereunder, as applicable, and none of such
documents, when so filed, contained or will contain any 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, in light of the
circumstances under which they were made, not misleading, and any documents so
filed and incorporated by reference subsequent to the effective date of the
Registration Statement shall, when they are filed with the SEC, conform in all
material respects with the requirements of the Securities Act and the Rules and
Regulations and the Exchange Act and the rules and regulations thereunder, as
applicable. No Registration Statement filed in respect of any of the Shares,
when so filed, contained or will contain any untrue statement of a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
4.4. Due Execution, Delivery and Performance of the Agreement. Each of the
Company and the Operating Partnership has full legal right, power and authority
to enter into the Purchase Agreement and the Forward Stock Purchase Agreement
and perform the transactions contemplated hereby and thereby. The Purchase
Agreement and the Forward Stock Purchase
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Agreement have been duly authorized, executed and delivered by each of the
Company and the Operating Partnership. The making and performance of the
Purchase Agreement and the Forward Stock Purchase Agreement by each of the
Company and the Operating Partnership and the consummation of the transactions
herein and therein contemplated will not violate any provision of the
declaration of trust or bylaws, or other organizational documents, of the
Company or the Operating Partnership, and will not conflict with, result in the
breach or violation of, or constitute, either by itself or upon notice or the
passage of time or both, a default under any material agreement, mortgage, deed
of trust, lease, franchise, license, indenture, permit or other instrument to
which either the Company or the Operating Partnership is a party or by which the
Company or the Operating Partnership or any of their respective properties may
be bound or affected, any statute or any authorization, judgment, decree, order,
rule or regulation of any court or any regulatory body, administrative agency or
other governmental body applicable to the Company, the Operating Company or any
of their respective properties. No consent, approval, authorization or other
order of any court, regulatory body, administrative agency or other governmental
body is required for the execution and delivery of this Agreement, the Forward
Stock Purchase Agreement or the consummation of the transactions contemplated
hereby or thereby, except in connection with the filing of any Registration
Statements pursuant to Section 7 below or for compliance with the Blue Sky laws
applicable to the offering of the Shares. Upon the execution and delivery
hereof, each of the Purchase Agreement and the Forward Stock Purchase Agreement
will constitute the valid and binding obligation of each of the Company and the
Operating Partnership, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Company and the Operating Partnership in Section 7.5 hereof may be
legally unenforceable.
4.5. Accountants. The Company's independent certified public accountants,
who have expressed their opinion with respect to the Most Recent Financial
Statements (as defined below) are independent accountants as required by the
Securities Act and the Rules and Regulations. The Company shall cause the
independent certified public accountants to deliver, on the effective date of
Registration Statement, and at the time of sale pursuant to the Registration
Statement of Shares, a letter stating that such accountants are independent
public accountants within the meaning of the Securities Act and otherwise in
customary form and covering such financial and accounting matters as are
customarily covered by letters of independent certified public accountants
delivered in connection with underwritten public offerings of equity securities;
provided that the UBS Parties shall deliver to such accountants all
representations required by applicable accounting pronouncements.
4.6. No Defaults. Except as to defaults, violations and breaches which
individually or in the aggregate would not be material to the Xxxxxxxx Entities
taken as a whole, neither the Company nor the Operating Partnership is in
violation or default of any provision of its declaration of trust or bylaws, or
other organizational documents, or is in breach of or default with respect to
any provision of any agreement, judgment, decree, order, mortgage, deed of
trust, lease, franchise, license, indenture, permit or other instrument to which
it is a party or by which it or any of its properties are bound; and, to the
Company's knowledge, there does not exist any
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state of fact which constitutes an event of default on the part of the Company
or Operating Partnership as defined in such documents or which, with notice or
lapse of time or both, would constitute such an event of default except such
defaults which individually or in the aggregate would not be material to the
Xxxxxxxx Entities.
4.7. No Actions. Except as otherwise disclosed in the Company's SEC
Filings, there are no legal or governmental actions, suits or proceedings
pending (provided that, for this purpose, a suit or proceeding that can be
commenced without concurrent service of process or written notice to the Company
shall be deemed "pending" only from the time such service of process or written
notice occurs) or, to the best of the Company's knowledge, threatened (which
shall include any suit or proceeding not "pending" because service of process or
written notice has not occurred) to which any of the Xxxxxxxx Entities is or may
be a party or of which property owned or leased by any Xxxxxxxx Entity is or may
be the subject, or related to environmental or discrimination matters, which
actions, suits or proceedings might, individually or in the aggregate, prevent
or adversely affect the transactions contemplated by this Agreement or result in
a material adverse change in the condition (financial or otherwise), of the
properties, business or results of operations of the Xxxxxxxx Entities, and no
labor disturbance by the employees of the Company exists or is imminent which
might be expected to affect adversely such condition, properties, business or
results of operations of the Xxxxxxxx Entities. The Company is neither a party
nor subject to the provisions of any material injunction, judgment, decree or
order of any court, regulatory body administrative agency or other governmental
body.
4.8. Properties.
(a) Each of the Xxxxxxxx Entities, directly or indirectly, has good and
marketable title to each of the properties and assets reflected as owned by it
in the Most Recent Financial Statements not located in Texas, and has good and
indefeasible title to each of the properties and assets located in Texas, in
each case free and clear of all liens, encumbrances, claims, security interests
and defects, except (i) those, if any, reflected in such financial statements or
the Company's SEC Filings, or (ii) those which are not material in amount and do
not adversely affect the use made and promised to be made of such property by
such Xxxxxxxx Entity.
(b) At all times since October 22, 1996, the Company has qualified as a
real estate investment trust (a "REIT") under the Internal Revenue Code of 1986,
as amended, and is organized in conformity with the requirements for
qualification as a REIT, and its manner of operation has enabled it to meet the
requirements for qualification as a REIT as of the date hereof, and its proposed
manner of operation will enable it to meet the requirements for qualification as
a REIT in the future.
4.9. No Material Change. Since the date of the Most Recent Financial
Statements, and except as otherwise disclosed in the Company's SEC Filings as of
the Closing Date or in writing to the UBS Parties (i) neither the Company nor
the Operating Partnership has incurred any material liabilities or obligations,
indirect, or contingent, or entered into any material verbal or written
agreement or other transaction which is not in the ordinary course of business
(it being agreed that for purposes of this sentence the Xxxxxxxx Entities'
ordinary course of business shall include the acquisition, directly indirectly,
of real estate properties or businesses of a type
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that may be owned by a REIT); (ii) neither the Company nor the Operating
Partnership has sustained any material loss or interference with its businesses
or properties from fire, flood, windstorm, accident or other calamity, whether
or not covered by insurance; (iii) neither the Company nor the Operating
Partnership is in default in the payment of principal or interest on any
outstanding debt obligations; (iv) there has not been any change in the capital
stock of the Company (other than the sale of the Purchase Shares hereunder and
the sale of Common Stock under the Company's [Dividend Reinvestment and Stock
Purchase Plan]), or indebtedness material to the Company (other than in the
ordinary course of business); and (v) there has not been any material adverse
change in the condition (financial or otherwise), business, properties or
results of operations of the Xxxxxxxx Entities taken as a whole.
4.10. Intellectual Property. The Xxxxxxxx Entities believe they have
sufficient trademarks, trade names, patent rights, copyrights, licenses,
approvals and governmental authorizations to conduct their businesses as now
conducted; and the Xxxxxxxx entities have no knowledge of any material
infringement by any of them of trademark, trade name rights, patent rights,
copyrights, licenses, trade secrets or other similar rights of others, and, to
the knowledge of the Xxxxxxxx Entities, no claim has been made against the
Xxxxxxxx Entities regarding trademark, trade name, patent, copyright, license,
trade secrecy or other infringement which could have a material adverse effect
on the condition (financial or otherwise), business or results of operations of
the Xxxxxxxx Entities taken as a whole.
4.11. Compliance. Neither the Company nor the Operating Partnership has
been advised, nor has any reason to believe, that it is not conducting business
in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, including, without limitation,
all applicable local, state and federal environmental laws and regulations;
except where failure to be so in compliance would not materially adversely
affect the condition (financial or otherwise), business or results of operations
of the Xxxxxxxx Entities taken as a whole.
4.12. Taxes. Each of the Company and the Operating Partnership has filed
all necessary federal, state and foreign income and franchise tax returns and
has paid or accrued all taxes shown as due thereon, and neither has any
knowledge of any tax deficiency which has been or might be asserted or
threatened against it which could materially adversely affect the business
condition (financial or otherwise) or results of operations of the Xxxxxxxx
Entities taken as a whole.
4.13. Transfer Taxes. On the Closing Date, all stock transfer or other
taxes (other than income taxes) which are required to be paid in connection with
the sale and transfer of the Purchase Shares to be sold to UBS Limited hereunder
will be, or will have been, fully paid or provided for by the Company and all
laws imposing such taxes will be or will have been fully complied with.
4.14. Investment Company. The Company is not required to register as an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended.
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4.15. Offering Materials. The Company has not distributed and will not
distribute prior to the Closing Date any offering material in connection with
the offering and sale of the Purchase Shares other than the documents provided
to the UBS Parties pursuant to Section 4.17.
4.16. Insurance. Each of the Company and the Operating Partnership
maintains insurance (or insurance is maintained on its behalf) of the types and
in the amounts generally deemed adequate under customary industry standards for
its business, including, but not limited to, insurance covering all real and
personal property owned or leased by it against theft, damage, destruction, acts
of vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
4.17. SEC Filings. The Company represents and warrants that the information
contained in the following documents, which the Company has furnished to the UBS
Parties, or will furnish prior to the Closing, is or will be true and correct in
all material respects as of their respective filing dates:
(a) Annual Report on Form 10-K for the year ended December 31, 1996,
which Annual Report includes the Company's most recently available
audited financial statements together with the report thereon of the
independent certified public accountants (the "Most Recent Financial
Statements");
(b) Quarterly Report on Form 10-Q for the quarters ended March 31, 1997,
June 30, 1997 and September 30, 1997;
(c) the Company's proxy statements on Form 14A relating to (i) the most
recent Annual Meeting of the Company's Shareholders and (ii) any
Special Meetings of the Company's Shareholders which occurred during
the 12-month period prior to the date hereof or for which a meeting
date has been fixed and a proxy statement distributed; and
(d) all other documents, if any, filed by or with respect to the Company
with the SEC since January 1, 1997 pursuant to Sections 13, 15(d) or
16(a) of the Exchange Act.
4.18. Legal Opinion. Prior to the Closing, counsel to the Company and the
Operating Partnership will deliver its legal opinion to the UBS Parties in
substantially the form of Exhibit A hereto.
4.19. ERISA. The Company and its affiliates are in compliance in all
material respects with all applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended and the rules and regulations
promulgated thereunder ("ERISA"). Neither a Reportable Event (as defined under
ERISA) nor a Prohibited Transaction (as defined under ERISA) has occurred with
respect to any Plan (as defined below) of the Company and/or its affiliates; no
notice of intent to terminate a Plan has been filed nor has any Plan been
terminated within the past five years; no circumstance exists which constitutes
grounds under Section 402 of
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ERISA entitling the Pension Benefit Guaranty Corporation ("PBGC") to institute
proceedings to terminate, or appoint a trustee to administer, a Plan, nor has
the PBGC instituted any such proceedings; the Company and its affiliates have
not completely or partially withdrawn under Sections 4201 or 4202 of ERISA from
any Multiemployer Plan (as defined therein); the Company and its affiliates have
met the minimum funding requirements of Section 412 of the Internal Revenue Code
of 1986, as amended (the "Code") and Section 302 of ERISA with respect to each
Plan and there is no unfunded current liability (as defined below) with respect
to any Plan; the Company and its affiliates have not incurred any liability to
the PBGC under ERISA (other than for the payment of premiums under Section 4007
of ERISA); no part of the funds to be used by the Company in satisfaction of its
obligations under this Purchase Agreement or the Forward Stock Purchase
Agreement constitute "plan assets" of any "employee benefit plan" within the
meaning of ERISA or of any "plan" within the meaning of Section 4975(e)(l) of
the Code, as interpreted by the Internal Revenue Service and the U.S. Department
of Labor in rules, regulations, releases and bulletins or as interpreted under
applicable case law. As used below, "Plan" means an "employee benefit plan" or
"plan" as described in Section 3(3) of ERISA; and "unfunded current liability"
has the meaning provided in Section 302(d)(8)(A) of ERISA.
4.20. Certificate. A certificate of the Company executed by the Chairman of
the Board or President and the chief financial or accounting officer of the
Company and certificate of the Operating Partnership executed by
_______________, to be dated the Closing Date in form and substance satisfactory
to the UBS Parties to the effect that the representations and warranties of the
Company and the Operating Partnership, respectively, set forth in this Section 4
are true and correct as of the date of this Agreement and as of the Closing
Date, and each of the Company and the Operating Partnership has complied with
all the agreements and satisfied all the conditions on its part to be performed
or satisfied on or prior to such Closing Date.
4.21. Environmental Protection. To the knowledge of the Xxxxxxxx Entities,
except as disclosed in the Company's SEC Filings, none of the Company's, the
Operating Partnership's or their affiliates' properties has suffered a release
of any Hazardous Materials that, under any Environmental Law, (i) would impose
liability on any of the Company or the Operating Partnership or any affiliate
that is likely to have a material adverse effect on the condition (financial or
other), business or results of operations of the Xxxxxxxx Entities or (ii) is
likely to result in the imposition of a lien on any assets owned, directly or
indirectly, by the Xxxxxxxx Entities. To the knowledge of the Xxxxxxxx Entities,
neither the Company nor the Operating Partnership nor any affiliate is subject
to any existing, pending or threatened investigation or proceeding by any
governmental agency or authority with respect or pursuant to any Environmental
Law, except any which, if adversely determined, would not have a material
adverse effect on the condition (financial or other), business, or results of
operations of the Xxxxxxxx Entities taken as a whole. As used herein,
"Environmental Laws" mean all federal, state, local and foreign environmental,
health and safety laws, codes and ordinances and all rules and regulations
promulgated thereunder, including, without limitation laws relating to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment (including, without limitation, air, surface water, ground
water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals, or industrial,
solid, toxic or hazardous substances or wastes; and
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"Hazardous Material" includes, without limitation, (i) all substances which are
designated pursuant to Section 311(b)(2)(A) of the Federal Water Pollution
Control Act ("FWPCA"), 33 X.X.X (X)0000 et seq.; (ii) any element, compound,
mixture, solution, or substance which is designated pursuant to Section 102 of
the Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. (S)9601 et seq.; (iii) any hazardous waste having the
characteristics which are identified under or listed pursuant to Section 3001 of
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. (S)6901 et seq.;
(iv) any toxic pollutant listed under Section 307(a) of the FWPCA; (v) any
hazardous air pollutant which is listed under Section 112 of the Clean Air Act,
42 U.S.C. (S)7401 et seq.; (vi) any imminently hazardous chemical substance or
mixture with respect to which action has been taken pursuant to Section 7 of the
Toxic Substances Control Act, 15 U.S.C. (S)2601 et seq.; and (vii) petroleum,
petroleum products, petroleum by-products, petroleum decomposition by-products,
and waste oil.
SECTION 5. Representations, Warranties and Covenants of the UBS Parties.
5.1. Investment. Each of UBS Limited and/or UBS-LB represents and warrants
to, and covenants with, the Xxxxxxxx Entities that: (i) UBS Limited, taking into
account the personnel and resources it can practically bring to bear on the
purchase of the Purchase Shares contemplated hereby, is knowledgeable,
sophisticated and experienced in making, and is qualified to make, decisions
with respect to investments in shares presenting an investment decision like
that involved in the purchase of the Purchase Shares, including investments in
securities issued by the Company, and has requested, received, reviewed and
considered all information it deems relevant in making an informed decision to
purchase the Purchase Shares; (ii) UBS Limited is acquiring the number of
Purchase Shares set forth in Section 2 above in the ordinary course of its
business and for its own account for investment (as defined for purposes of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the regulations
thereunder) only and with no present intention of distributing any of such
Purchase Shares or any arrangement or understanding with any other persons
regarding the distribution of such Shares (this representation and warranty not
limiting the rights of either UBS Party to sell pursuant to any Registration
Statement); (iii) neither UBS Party will, directly or indirectly, sell or
otherwise dispose of (or solicit any offers to purchase or otherwise acquire)
any of the Shares except in compliance with the Forward Stock Purchase Agreement
and with the Securities Act, the Rules and Regulations and any applicable state
securities or blue sky laws or pursuant to an available exemption or exclusion
therefrom; (iv) each UBS Party has completed or caused to be completed the
Registration Statement Questionnaire and the Stock Certificate Questionnaire,
both attached hereto as Appendix I, for use in preparation of the Registration
Statement and the answers thereto are true and correct to the best knowledge of
the UBS Parties as of the date hereof and will be true and correct as of the
effective date of the Registration Statement; (v) the UBS Parties have, in
connection with their decision to purchase the number of Purchase Shares set
forth in Section 2 above, relied solely upon the documents identified in Section
4.17, the information referred to in Section 7.7 and the representations and
warranties of the Company contained herein; (vi) each of the UBS Parties is an
"accredited investor" within the meaning of Rule 501 of Regulation D promulgated
under the Securities Act; (vii) the UBS Parties do not directly or indirectly
have an interest of five percent or more of the Common Shares outstanding as
shown in the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997 and (viii) the Purchaser understands that the Shares will
contain a legend to the following effect
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED [IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THESE SHARES UNDER THE SECURITIES ACT
OF 1933 OR AN OPINION OF THE COMPANY'S COUNSEL THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT.
5.2. Resale. Each UBS Party acknowledges and agrees that the Shares are not
transferable on the books of the Company unless the certificate submitted to the
transfer agent evidencing the Shares is accompanied by a separate officer's
certificate: (i) in the form of Appendix II hereto, (ii) executed by an officer
of, or other authorized person designated by, the UBS Parties, and (iii) to the
effect that (A) the Shares have been sold in accordance with the Registration
Statement, the Securities Act and the Rules and Regulations and any applicable
state securities or blue sky laws or pursuant to valid exemptions or exclusions
therefrom and (B) the requirement under the Securities Act of delivering a
current prospectus has been satisfied. Each UBS Party acknowledges that there
may occasionally be times when the Company must suspend the right of the UBS
Parties to effect sales of the Shares through use of the Prospectus forming a
part of the Registration Statement until such time as an amendment to the
Registration Statement has been filed by the Company and declared effective by
the SEC, or until such time as the Company has filed an appropriate report with
the SEC pursuant to the Exchange Act (each, a "Black-out Period"); provided that
no Black-out Period shall exceed 30 consecutive days and such Black-out Periods
shall not during any 12-month period exceed 90 days in the aggregate; provided
further however that in the case that the Company is required to make a filing
with the SEC, the Company's Black-out Period shall extend through the time
permitted by the SEC for such filing to be made. Each UBS Party hereby covenants
that it will not sell any Shares pursuant to said Prospectus during the period
commencing at the time at which the Company gives the UBS Parties written notice
of the suspension of the use of said Prospectus and ending at the time the
Company gives the UBS Parties written notice that the UBS Parties may thereafter
effect sales pursuant to said Prospectus. Each UBS Party further covenants to
notify the Company promptly of the sale of all of its Shares.
5.3. Due Execution, Delivery and Performance of this Agreement. The UBS
Parties further represent and warrant to, and covenant with, each of the Company
and the Operating Partnership that (i) each UBS Party has full right, power,
authority and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
valid and binding obligation of the UBS Parties enforceable in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
the indemnification agreements of the UBS Parties in Section 7.3 hereof may be
legally unenforceable.
10
5.4. Residence of UBS Limited. UBS Limited is organized under the laws of
England and has its principal place of business in London.
SECTION 6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Purchase Agreement,
all covenants, agreements, representations and warranties made by the Company
and the Operating Partnership, and the UBS Parties herein and in the
certificates for the Shares delivered pursuant hereto shall survive the
execution of this Purchase Agreement, the Forward Stock Purchase Agreement, the
delivery to UBS Limited of the Purchase Shares being purchased and the payment
therefor.
SECTION 7. Registration of the Shares; Compliance with the Securities Act.
7.1. Registration Procedures and Expenses. The Company shall:
(a) as soon as practicable after the Closing, prepare and file with the
SEC a Registration Statement (as defined below) covering the resale by
the UBS Parties, from time to time, of up to a number of Shares equal
to 130% of the number of Purchase Shares through the facilities of the
New York Stock Exchange, the automated quotation system of The Nasdaq
Stock Market or the facilities of any other national securities
exchange on which the Company's common stock is then traded or in
privately negotiated transactions (the "Initial Registration
Statement"). If the total number of Shares exceeds the number of
Shares covered by the Initial Registration Statement, then the Company
shall prepare and file with the SEC such additional Registration
Statement or Statements as shall be necessary to cover the resale by
UBS-LB of such excess Shares in the same manner as contemplated by the
Initial Registration Statement for the Shares covered thereby (each,
an "Additional Registration Statement"); provided that prior to
issuing any such excess Shares to UBS-LB, the Company shall cause such
Registration Statement covering such excess shares to have become
effective. For purposes of this Purchase Agreement, "Registration
Statement" means a registration statement under the Securities Act on
Form S-3 covering the resale by one or both UBS Parties of up to a
specified number of Shares, filed and maintained effective by the
Company pursuant to the provisions of this Section 7, including the
Prospectus (as defined below) contained therein, any amendments and
supplements to such registration statement, including all post-
effective amendments thereto, and all exhibits and all material
incorporated by reference into such registration statement;
(b) use all reasonable best efforts to cause the SEC to notify the Company
of the SEC's willingness to declare the Initial Registration Statement
effective within 60 days after the Registration Statement is filed by
the Company; provided that the Company will use its best efforts to
cause such Initial
11
Registration Statement to become effective no later than 90 days after
the Closing Date;
(c) prepare and file with the SEC such amendments and supplements to the
Registration Statement and the prospectus used in connection therewith
(the "Prospectus") as may be necessary to keep the Registration
Statement effective until the date on which the Shares may be resold
by the UBS Parties without registration, by reason of Rule 144(k)
under the Securities Act or any other rule of similar effect;
(d) furnish to the UBS Parties with respect to the Shares registered under
the Registration Statement (and to each underwriter, if any, of such
Shares) such reasonable number of copies of Prospectuses, including
any supplements and amendments thereto, an opinion from counsel to the
Company covering the matters set forth on Exhibit B hereto and such
other documents, as the UBS Parties may reasonably request, in order
to facilitate the public sale or other disposition of all or any of
the Shares by the UBS Parties;
(e) use its best efforts to prevent the happening of any event that would
cause such Registration Statement to contain a material misstatement
or omission or to be not effective and usable for resale of the Shares
during the period that such Registration Statement is required to be
effective and usable; provided that this paragraph (e) shall in no way
limit the Company's right to suspend the right of the UBS Parties to
effect sales under the Registration Statement during any Black-out
Period as specified in Section 5.2 above;
(f) file documents required of the Company for normal blue sky clearance
in states specified in writing by the UBS Parties, provided, however,
that the Company shall not be required to qualify to do business or
consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented; and
(g) bear all expenses in connection with the procedures in paragraphs (a)
through (f) of this Section 7.1 and the registration of the Shares
pursuant to the Registration Statement, including the fees and
expenses of counsel or other advisers to the UBS Parties not to exceed
in the aggregate $5,000, other than underwriting discounts, brokerage
fees and commissions incurred by the UBS Parties, if any.
7.2. Covenants in Connection With Registration.
(a) The Company hereby covenants with the UBS Parties that (i) it shall
not file any Registration Statement or Prospectus or any amendment or supplement
thereto, unless a copy thereof shall have been first submitted to the UBS
Parties and the UBS Parties did not object
12
thereto in good faith (provided that if the UBS Parties do not object within two
business days of receiving any such material, they shall be deemed to have no
objection thereto); (ii) it shall immediately notify the UBS Parties of the
issuance by the SEC of any stop order suspending the effectiveness of such
Registration Statement or the initiation of any proceedings for such purpose;
(iii) it shall make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of such Registration Statement at the
earliest possible moment; (iv) it shall notify the UBS Parties of the receipt of
any notification with respect to the suspension of the qualification of the
Shares for sale under the securities or blue sky laws of any jurisdiction or the
initiation of any proceeding for such purpose; and (v) it shall as soon as
practicable notify the UBS Parties in writing of the existence of any fact which
results in any Registration Statement, any amendment or post-effective amendment
thereto, the Prospectus, any prospectus supplement, or any document incorporated
therein by reference containing an untrue statement of a material fact or
omitting to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and shall prepare a supplement or
post-effective amendment to such Registration Statement or the Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Shares, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading; provided
that this clause (v) shall in no way limit the Company's right to suspend the
right of the UBS Parties to effect sales under the Registration Statement during
any Black-out Period as specified at Section 5.2 above.
(b) The UBS Parties shall notify the Company at least four business days
prior to the date on which it intends to commence effecting any resales of
Shares under a Registration Statement and if the Company does not, within such
four-day period, advise the UBS Parties of the existence of any facts of the
type referred to in Section 7.2(a)(iv) above, then the Company shall be deemed
to have certified and represented to the UBS Parties that no such facts then
exist and the UBS Parties may rely on such certificate and representation in
making such sales. The preceding sentence shall in no way limit the Company's
obligations under Section 7.2(a) above.
7.3. Extension of Required Effectiveness. In the event that the Company
shall give any notice required by Section 7.2(a)(v) hereof, the period during
which the Company is required to keep such Registration Statement effective and
useable shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the date when
the UBS Parties are advised in writing by the Company that the use of the
Prospectus may be resumed.
7.4. Transfer of Shares After Registration. Each UBS Party agrees that it
will not effect any disposition of the Shares or its right to purchase the
Shares that would constitute a sale within the meaning of the Securities Act or
pursuant to any applicable state securities or blue sky laws except pursuant to
the Forward Stock Purchase Agreement and as contemplated in each Registration
Statement referred to in Section 7.1 or except pursuant to any exemption from
the registration requirements of the Securities Act (including, without
limitation, Rule 144 promulgated thereunder and any successor thereto) and that
it will promptly notify the Company of any changes in the information set forth
in any such Registration Statement regarding the UBS Parties or its Plan of
Distribution.
13
7.5. Indemnification. For the purpose of this Section 7.5, the term
"Registration Statement" shall include any final prospectus, exhibit, supplement
or amendment included in or relating to any Registration Statement referred to
in Section 7.1.
(a) Indemnification by Company. The Xxxxxxxx Entities jointly and
severally agree to indemnify and hold harmless the UBS Parties and each person,
if any, who controls either UBS Party within the meaning of the Securities Act,
against any losses, claims, damages, liabilities or expenses, joint or several,
to which the UBS Parties or such controlling person may become subject
(including in settlement of any litigation, if such settlement is effected with
the written consent of the Xxxxxxxx Entities), insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof as contemplated
below) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement,
including the Prospectus, financial statements and schedules, and all other
documents filed as a part thereof, as amended at the time of effectiveness of
such Registration Statement, including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A,
or pursuant to Rule 434, of the Rules and Regulations, or the Prospectus, in the
form first filed with the SEC pursuant to Rule 424(b) of the Regulations, or
filed as part of such Registration Statement at the time of effectiveness if no
Rule 424(b) filing is required, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state in any of
them a material fact required to be stated therein or necessary to make the
statements in any of them not misleading, and will reimburse each UBS Party and
each such controlling person for any legal and other expenses as such expenses
are reasonably incurred by the UBS Parties or such controlling person in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the Xxxxxxxx Entities will not be liable in any such case to the extent that any
such loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement, such Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Xxxxxxxx Entities (i) by or on behalf of the UBS Parties
expressly for use therein or (ii) any statement or omission in any Prospectus
that is corrected in any subsequent Prospectus that was delivered to a UBS Party
prior to the pertinent sale or sales by such UBS Party and not delivered by such
UBS Party in connection with such sale or sales.
(b) Indemnification by UBS Parties. The UBS Parties will indemnify and
hold harmless the Xxxxxxxx Entities, each of its directors, each of its officers
who signed any Registration Statement and each person, if any, who controls the
Xxxxxxxx Entities within the meaning of the Securities Act, against any losses,
claims, damages, liabilities or expenses, joint and several, to which the
Xxxxxxxx Entities, each of its directors, each of its officers who signed any
Registration Statement or any controlling person may become subject (including
in settlement of any litigation, if such settlement is effected with the written
consent of the UBS Parties) insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon any untrue or alleged untrue statement of any material fact
contained in such Registration Statement, such Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein
14
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in such Registration Statement, such Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Xxxxxxxx Entities by or on behalf of the UBS Parties expressly
for use therein, and will reimburse the Xxxxxxxx Entities, each of its
directors, each of its officers who signed such Registration Statement and each
controlling person for any legal and other expense reasonably incurred by the
Xxxxxxxx Entities, each of its directors, each of its officers who signed such
Registration Statement or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action.
(c) Proceedings. Promptly after receipt by an indemnified party under this
Section 7.5 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 7.5 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 than under the indemnity agreement contained in this
Section 7.5 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 may wish, jointly with all other indemnifying parties similarly
notified, to 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 there may be a conflict
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 its 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 7.5 for any
reasonable legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the indemnified party
shall have employed such counsel in connection with the assumption of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall be not liable for the
expenses of more than one separate counsel, approved by such indemnifying party
in the case of paragraph (a), representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
action, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party.
(d) Contribution. If the indemnification provided for in this Section 7.5
is required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under paragraphs
(a), (b) or (c) of this Section 7.5 in respect
15
of any losses, claims, damages, liabilities or expenses referred to herein, then
each applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any losses, claims, damages,
liabilities or expenses referred to herein in such proportion as is appropriate
to reflect the relative benefits received by the Xxxxxxxx Entities and the UBS
Parties from the purchase and sale of the Shares and the relative fault of the
Xxxxxxxx Entities and the UBS Parties in connection with the statements or
omissions or inaccuracies in the representations and warranties in this
Agreement which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The respective
relative benefits received by the Xxxxxxxx Entities on the one hand and the UBS
Parties on the other shall be deemed to be in the same proportion as the amount
paid by the UBS Parties to the Xxxxxxxx Entities pursuant to this Agreement for
the Shares purchased by the UBS Parties that were sold pursuant to any
Registration Statement bears to the difference (the "Difference") between the
amount the UBS Parties paid for the Shares that were sold pursuant to such
Registration Statement and the amount received by the UBS Parties from such
sale. The relative fault of the Xxxxxxxx Entities and the UBS Parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact or the inaccurate or the alleged inaccurate representation
and/or warranty relates to information supplied by the Xxxxxxxx Entities or by
the UBS Parties 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 paragraph (c) of this Section 7.5 any
reasonable legal or other fees or expenses incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in
paragraph (c) of this Section 7.5 with respect to notice of commencement of any
action shall apply if a claim for contribution is to be made under this
paragraph (d); provided, however, that no additional notice shall be required
with respect to any action for which notice has been given under paragraph (c)
for purposes of indemnification. The Xxxxxxxx Entities and the UBS Parties agree
that it would not be just and equitable if contribution pursuant to this Section
7.5 were determined solely by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in this paragraph. Notwithstanding the provisions of this Section 7.5, the
UBS Parties shall not be required to contribute any amount in excess of the
amount by which the aggregate proceeds received by the UBS Parties from the
transactions contemplated hereby exceeds the amount of any damages that the UBS
Parties has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.6. Termination of Conditions and Obligations. The conditions precedent
imposed by Section 5 or this Section 7 upon the transferability of the Shares
shall cease and terminate as to any particular number of the Purchase Shares
upon the passage of twenty-four months from the purchase of such Shares by UBS
Limited, as to any particular number of the Additional Shares upon the passage
of twenty-four months from the issuance of such Shares to UBS-LB or as to any
particular number of the Shares at such time as an opinion of counsel
satisfactory to the Company shall have been rendered to the effect that such
conditions are not
16
necessary in order to comply with the Securities Act. At such time, the
Company's obligation to maintain an effective Registration Statement with
respect to such Shares shall cease.
7.7. Information Available. So long as any Registration Statement covering
the resale of any Shares owned by either UBS Party is effective, the Company
will furnish to the UBS Parties:
(a) as soon as practicable after available, one copy of (i) its Annual
Report to Shareholders, (ii) its Annual Report on Form 10-K, (iii) its
Quarterly Reports to Shareholders, (iv) its quarterly reports on Form
10-Q, (v) a full copy of the particular Registration Statement
covering the Shares (the foregoing, in each case, excluding exhibits)
and (vi) upon request, any or all other public filings under the
Exchange Act by the Company; and
(b) upon the reasonable request of either UBS Party, a reasonable number
of copies of the Prospectuses to supply to any other party requiring
such Prospectuses;
and the Company, upon the reasonable request of the UBS Parties, will meet with
the UBS Parties or a representative thereof at the Company's headquarters to
discuss all information relevant for disclosure in such Registration Statement
covering the Shares, subject to appropriate confidentiality limitations.
7.8. Non-Exclusivity. The rights and remedies provided under Section 7.5
hereof shall not be in limitation or exclusion of any other rights or remedies
available to a party, whether by agreement, at law, in equity or otherwise, with
respect to the inaccuracy of any representation or warranty by, or the breach of
any covenant of, the other party made herein or in the Forward Stock Purchase
Agreement.
7.9. Notice Requirement. The Company covenants and agrees that it will
notify the UBS Parties at any time it becomes aware that as a result of a change
in the Company's capital stock the UBS Parties beneficially hold more than 4.9%
of the Company's Common Shares.
7.10. Transfer of Shares. The Company covenants and agrees to use its best
efforts to cause the transfer agent to effect promptly any transfer of the
Shares requested by the UBS Parties and to cause the transfer agent to remove
promptly the restrictive legend from the Shares upon presentation to the
transfer agent of all necessary documentation.
SECTION 8. Reporting Obligations. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act, the Company
covenants that it will file the reports required to be filed by it under the
Securities Act and Section 13(a) and 15(d) of the Exchange Act and the rules and
regulations adopted by the Commission thereunder.
SECTION 9. Broker's Fee. Other than any fees payable under or in connection
with the Forward Stock Purchase Agreement, each of the parties hereto hereby
represents that, on
17
the basis of any actions and agreements by it, there are no brokers or finders
entitled to compensation in connection with the sale or issuance of the Shares
to the UBS Parties.
SECTION 10. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, by telegram or telecopy or sent by nationally
recognized overnight express courier postage prepaid, and shall be deemed given
when so mailed or for telecopies, when transmitted and receipt confirmed, and
shall be delivered as addressed as follows:
(a) if to the Company or the Operating Partnership, to:
Xxxxxx X. August
President and Chief Operating Officer
Xxxxxxx X. Xxxxx
Vice President and Treasurer
The Plaza on Xxxxxxx Creek
0000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
with a copy so mailed to:
Xxxxxxx X. Xxxxx, Esq.
Hunton & Xxxxxxxx
Riverfront Plaza
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
or to such other person at such other place as the Company shall
designate to the UBS Parties in writing; and
(b) if to the UBS Parties, c/o UBS Securities, LLC, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other address or addresses as may have been
furnished to the Company in writing.
18
SECTION 11. Changes. Agreement may not be modified or amended except
pursuant to an instrument in writing signed by each of the Company and the
Operating Partnership and the UBS Parties.
SECTION 12. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 13. Severability. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
SECTION 14. Governing Law; Jurisdiction.
14.1. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF) AND OF THE FEDERAL LAW OF THE UNITED STATES OF AMERICA.
14.2. EACH OF THE COMPANY AND THE OPERATING PARTNERSHIP (i) HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF, AND AGREES THAT ANY SUIT SHALL BE
BROUGHT IN, THE STATE AND FEDERAL COURTS LOCATED IN THE CITY AND COUNTY OF NEW
YORK FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR
BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND (ii)
HEREBY WAIVES TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, AND AGREES NOT TO
ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH PROCEEDING, ANY
CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED
COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT
ANY SUCH PROCEEDING BROUGHT IN ONE OF THE ABOVE-NAMED COURTS IS BROUGHT IN AN
INCONVENIENT FORUM, THAT THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN ONE OF THE
ABOVE-NAMED COURTS IS IMPROPER, OR THAT THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED HEREBY MAY NOT BE ENFORCED IN OR BY SUCH COURT.
SECTION 15. Transfer to Affiliate. Notwithstanding anything herein to the
contrary, UBS Limited may transfer the Purchase Shares to any affiliate of UBS
Limited, together with all of UBS Limited's rights hereunder; provided that (i)
such affiliate shall assume and be subject to all of UBS Limited's obligations
hereunder and (ii) such affiliate shall be an "accredited investor" within the
meaning of Rule 501 of Regulation D promulgated under the Securities Act. In the
event of such an assignment, such affiliate shall in all respects be substituted
for UBS Limited as a party hereto.
SECTION 16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
SECTION 17. Waiver of Trial by Jury. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE TO JURY TRIAL IN
19
CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
XXXXXXXX PROPERTIES TRUST
By: /s/ XXXXXXX XXXXX
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: VP & Treasurer
XXXXXXXX PROPERTIES ACQUISITION
PARTNERS, L.P.
By: Xxxxxxxx Properties I, Inc.,
its general partner
By: /s/ XXXXXXX XXXXX
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: VP & Treasurer
UBS LIMITED
By: /s/ XXXXX XXXX
----------------------------------------------
Name: Xxxxx Xxxx
Title: Executive Director
By: /s/ XXXX XXXXXXXX
----------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Director
UNION BANK OF SWITZERLAND
LONDON BRANCH
By: /s/ X. XXXX
----------------------------------------------
Name: X. Xxxx
Title: Vice President
By: /s/ X.X. XXXXXXXX
----------------------------------------------
Name: X.X. Xxxxxxxx
Title: Vice President
21
Appendix I
(one of two)
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with the
following information:
1. The exact name that your Shares are to be registered in (this is the name
that will appear on your stock certificate(s)). You may use a nominee name
if appropriate:
----------------------------------
2. All relationships between each UBS Party and the Registered Holder listed
in response to Item 1 above:
----------------------------------
----------------------------------
----------------------------------
3. The mailing address of the Registered Holder listed in response to item I
above:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
4. The Social Security Number or Tax Identification Number of the Registered
Holder listed in response to item 1 above:
----------------------------------
Appendix I
(two of two)
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please
provide us with the following information:
1. Pursuant to the "Selling Shareholders" section of the
Registration Statement, please state your or your organization's name exactly as
it should appear in the Registration Statement:
2. Please provide the number of shares that you or your organization
will own immediately after Closing, including those Shares purchased by you or
your organization pursuant to this Purchase Agreement and those shares purchased
by you or your organization through other transactions:
3. Have you or your organization had any position, office or other
material relationship within the past three years with the Company or its
affiliates?
Yes No
--- ---
If yes, please indicate the nature of any such relationships below:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
APPENDIX II
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, [an officer of, or other person duly authorized by]
___________________________________________________ hereby certifies that he/she
[fill in official name of individual or institution]
[said institution] is the Purchaser of the shares evidenced by the attached
certificate, and as such, sold such shares on __________ in accordance with
[date]
Registration Statement number _________________________________________________,
[fill in the number of or otherwise identify Registration Statement]
the Securities Act of 1933, as amended, and any applicable state securities or
blue sky laws and the requirement of delivering a current prospectus by the
Company has been complied with in connection with such sale.
Print or Type:
Name of Purchaser
(Individual or
Institution):
----------------------------------
Name of Individual
representing
Purchaser (if an
Institution)
----------------------------------
Title of Individual
representing
Purchaser (if an
Institution):
----------------------------------
Signature by:
Individual Purchaser
or Individual repre-
senting Purchaser:
----------------------------------
EXHIBIT A
[Form of Closing Opinion of Counsel to the Company and the Operating
Partnership]
January __, 1998
Union Bank of Switzerland
London Branch
[Address]
Ladies and Gentlemen:
We have acted as counsel to Xxxxxxxx Properties Trust, a Maryland real
estate investment trust (the "Company"), and Xxxxxxxx Properties Acquisition
Partners, L.P., a Delaware limited partnership (the "Operating Partnership") in
connection with (i) the issuance and sale by the Company of [Number] shares of
the Company's common stock, par value $.01 per share ("Common Shares"), pursuant
to that certain Purchase Agreement, dated January __, 1998 (the "Purchase
Agreement"), by and among the Company, the Operating Partnership and Union Bank
of Switzerland, London Branch, acting through its agent UBS Securities LLC,
(the "Purchaser") and (ii) the forward stock purchase transaction evidenced by
the letter agreement, dated January __, 1998 (the "Confirmation") among the
Company, the Operating Partnership and the Purchaser. This opinion is being
rendered to you pursuant to Section 4.17 of the Purchase Agreement in connection
with the Closing of the sale of the Shares. Capitalized terms not otherwise
defined in this opinion have the meaning given them in the Purchase Agreement.
In connection with the opinions expressed herein we have made such
examination of matters of law and of fact as we considered appropriate or
advisable for purposes hereof. As to matters of fact material to the opinions
expressed herein, we have relied upon the representations and warranties as to
factual matters contained in and made by the Company and the Operating
Partnership pursuant to the Purchase Agreement and upon certificates and
statements of government officials and of officers of the Company and the
Operating Partnership. We have also examined originals or copies of such
corporate documents or records of the Company and the Operating Partnership as
we have considered appropriate for the opinions expressed herein. We have
assumed for the purposes of this opinion that the signatures on documents and
instruments examined by us are authentic, that each document is what it purports
to be, and that all documents submitted to us as copies conform with the
originals, which facts we have not independently verified.
Union Bank of Switzerland
London Branch
[Date]
Page 2
In rendering this opinion we have also assumed that the Purchase Agreement
and the Confirmation have each been duly and validly executed and delivered by
the other parties to such agreements and constitute valid, binding and
enforceable obligations of such other parties.
In our capacity as counsel to the Company and the Operating Partnership, we
have examined, among other things, originals, or copies identified to our
satisfaction as being true copies, of the following: [LIST]
This opinion relates solely to the laws of the State of _____________, and
the federal securities law of the United States, and we express no opinion with
respect to the effect or applicability of the laws in other areas or of other
jurisdictions.
Our opinion in paragraph 4 below is subject to the effect of bankruptcy,
insolvency, moratorium, fraudulent conveyance and similar laws relating to or
affecting creditors' rights generally and we express no opinion with respect to
the application of equitable principles in any proceeding, whether at law or in
equity.
Based upon the foregoing and subject to the limitations, exceptions,
qualifications and assumptions set forth herein, we are of the opinion that as
of the date hereof:
1. The Company is its jurisdiction of incorporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and the Company has the requisite corporate power and authority
to own its properties and to conduct its business as presently conducted.
[include the Operating Partnership]
2. The Purchase Shares and the Additional Shares have been duly
authorized and, when issued and delivered by the Company in accordance with and
subject to the terms of the Purchase Agreement or the Confirmation (as the case
may be), will be validly issued, nonassessable and fully paid, and are not
subject to any preemptive or similar rights. [include the Operating Partnership]
3. The Company has the power and authority to execute, deliver and
perform the Purchase Agreement and the Confirmation, including issuing, selling
and delivering the Purchase Shares and Additional Shares as contemplated
thereby. [include the Operating Partnership]
4. Each of the Purchase Agreement and the Confirmation have been duly
authorized, executed and delivered by the Company and is a valid and binding
obligation of the Company, enforceable in accordance with its terms. [include
the Operating Partnership]
5. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Purchase Agreement and the
Confirmation will not contravene any provision of applicable law or the
declaration of trust or bylaws of the Company,
Union Bank of Switzerland
London Branch
[Date]
Page 3
or, to the best of our knowledge, any judgment order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
of its property, or, to the best of our knowledge, constitute a breach or
default under any agreement or other instrument binding upon the Company and
filed as an exhibit to the Company's filings with the Securities and Exchange
Commission. [include the Operating Partnership]
6. No consent, approval, authorization or order of or qualification with
any governmental body or agency is required for the performance by the Company
of its obligations under the Purchase Agreement and the Confirmation, except
such as may be required by the securities or blue sky laws of the various states
(on which we express no opinion) in connection with the purchase and sale of the
Shares and except such as may be required in connection with providing the
registration statements contemplated by the Purchase Agreement or the
Confirmation. [include the Operating Partnership]
7. To the best of our knowledge, and except as disclosed in the Company's
public filings with the Securities and Exchange Commission, there is no action,
suit or proceeding pending or threatened in writing against the Company, at law
or in equity, or before any court or governmental agency or instrumentality
which, if resolved against the Company, may materially adversely affect the
financial or business condition of the Company or would prevent the Company from
entering into or performing its obligations under the Purchase Agreement or the
Confirmation.
8. The authorized capital stock of the Company conforms as to legal
matters in all material respects under the heading ["Capitalization"] in the
Company's public filings with the Securities and Exchange Commission, and the
form of certificate used to evidence the Shares complies in all material
respects with all applicable statutory requirements. The outstanding shares of
Common Stock of the Company have been duly and validly authorized and issued,
and are, to our knowledge, fully paid and nonassessable.
Our opinions expressed above are specifically subject to the following
limitations, exceptions, qualifications and assumptions:
(A) We are not called upon to express, and do not express, any view,
opinion or belief as to the financial statements, schedules, statistical data
and other financial data contained in any filings with the Securities and
Exchange Commission.
(B) We express no opinion as to the Company's compliance or noncompliance
with applicable federal or state antitrust statutes, laws, rules and
regulations.
(C) We express no opinion concerning the past, present or future fair
market value of any securities.
This opinion is rendered solely for your benefit in connection with the
Purchase Agreement and the Confirmation and may not be delivered to, quoted or
relied upon by any
Union Bank of Switzerland
London Branch
[Date]
Page 4
person other than you, or for any other purpose, without our prior written
consent. Our opinion is expressly limited to the matters set forth above and we
render no opinion, whether by implication or otherwise, as to any other matters
relating to the Company or the Operating Partnership. We assume no obligation to
advise you of facts, circumstances, events or developments which hereinafter may
be brought to our attention and which may alter, affect or modify the opinions
expressed herein.
Very truly yours,
EXHIBIT B
Opinion Matters for Additional Registration Statements
[opinion paragraphs to be delivered in connection with resale registration
statements]
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and the
Company has the requisite corporate power and authority to own its properties
and to conduct is business as presently conducted. [include the Operating
Partnership]
2. The Additional Shares have been duly authorized and are validly
issued, nonassessable and fully paid, and are not subject to any preemptive or
similar rights.
3. The Registration Statement has been declared effective under the
Securities Act; to our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or threatened; and the Registration Statement, the Final
Prospectus, and each amendment thereof or supplement thereto (except for the
financial statements, schedules and the notes thereto and the other financial
data included or incorporated by reference therein, as to which we express no
opinion) comply as to form in all material respects with the requirements of the
Securities Act and the Exchange Act and the respective rules of the Commission
thereunder.
While we have not verified, and are not passing upon and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Final Prospectus, we have
participated in reviews and discussions in connection with the preparation of
the Registration Statement and Final Prospectus, and advise you that, in the
curse of such reviews and discussions, nothing has come to our attention which
would lead us to believe (i) that the Registration Statement at the time it
became effective (except for the financial statements and the notes thereto,
schedules, statistical data and the other financial data included or
incorporated by reference therein, as to which we express no belief) contained
any untrue statement of a material fact or omitted to state any material fact
necessary to make the statements therein not misleading or (ii) that the Final
Prospectus on the date thereof or on the date of this opinion (except for the
financial statements and the notes thereto and the other financial data included
or incorporated by reference therein, as to which we express no belief)
contained any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
