SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT, dated as of November 7, 2005 (this
"Agreement"), is by and between Xxxxxxx Realty Trust, Inc., a Maryland
corporation (the "Company") and First Union Real Estate Equity and Mortgage
Investments, an Ohio business trust (the "Investor").
RECITALS:
WHEREAS, the Company has filed a registration statement on Form S-11 (as
the same may be amended from time to time, the "Registration Statement") with
the Securities and Exchange Commission (the "Commission") pursuant to which the
Company is making an initial public offering of its common stock, par value
$0.01 per share (the "Common Stock");
WHEREAS, the Company and the Investor are executing and delivering this
Agreement in reliance upon the exemptions from registration provided by
Regulation D ("Regulation D") promulgated by the Commission under the Securities
Act of 1933, as amended (the "Securities Act"), and/or Section 4(2) of the
Securities Act; and
WHEREAS, the Investor wishes to purchase, and the Company wishes to issue
and sell, shares of Common Stock having a value of $50,000,000, based on a
purchase price per share equal to the initial public offering price of the
Common Stock sold to the public pursuant to the Registration Statement, upon the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and undertakings hereunder and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
intending to be legally bound, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. As used in this Agreement, the following terms
have the meanings set forth below.
"Acquisition Agreement" shall mean that certain Acquisition Agreement,
dated of even date herewith, between the Company and the Investor with respect
to the assignment by the Investor to the Company of certain of Investor's rights
under the Exclusivity Services Agreement, dated as of December 31, 2003, between
the Investor and Xxxxxxx Xxxxxx.
"Affiliate" shall mean (a) with respect to an individual, any member of
such individual's family residing in the same household; (b) with respect to an
entity: (i) any executive officer, director, partner or Person that owns ten
percent (10%) or more of the outstanding beneficial interest of or in such
entity, or (ii) any brother, sister, brother-in-law, sister-in-law, lineal
descendant or ancestor of any executive officer, director, partner or Person
that owns ten percent (10%) or more of the outstanding beneficial interest of or
in such entity; and (c) with respect to a Person, any Person which directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with such Person or entity; provided, however, that for
purposes of the definition of "Affiliate," no Investor shall be deemed an
"Affiliate" of the Company.
"Agreement" shall have the meaning set forth in the preamble.
"Basket" shall have the meaning set forth in Section 9.03.
"Business Day" shall mean any day other than (i) a Saturday, (ii) a Sunday
or (iii) any other day on which banks in the City of New York are authorized or
required to close.
"By-Laws" shall mean, when used with respect to a specified Person, the
by-laws of a Person, as the same may be amended from time to time.
"Capital Stock" shall mean, with respect to any Person, any and all
shares, shares of beneficial interest, interests, participations, rights in or
other equivalents (however designated and whether voting or non-voting) of such
Person's capital stock or any form of membership, ownership or participation
interests, as applicable, including partnership interests, whether now
outstanding or hereafter issued and any and all securities, debt instruments,
rights, warrants or options exercisable or exchangeable for or convertible into
such capital stock.
"Closing" shall have the meaning set forth in Section 2.02(a).
"Closing Date" shall have the meaning set forth in Section 2.02(a).
"Commission Filings" shall have the meaning set forth in Section 3.08.
"Common Stock" shall mean the common shares, $0.01 par value per share, of
the Company.
"Company" shall have the meaning set forth in the preamble.
"Company Subsidiaries" and "Company Subsidiary" shall mean all of the
subsidiaries of the Company as set forth on Exhibit 21 of the Registration
Statement.
"Consents" shall mean all governmental and third party consents,
approvals, authorizations, qualifications and waivers necessary to be received
by a Person for the consummation of the transaction contemplated by the
Agreement.
"Contract" shall mean any legally binding contract, agreement, mortgage,
deed of trust, bond, loan, indenture, lease, license, note, option, warrant,
right, instrument, commitment or other similar document, arrangement or
agreement, whether written or oral.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis as used in the United States of America.
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"Governmental Body" shall mean any government or governmental or
quasi-governmental authority including, without limitation, any federal, state,
territorial, county, municipal or other governmental or quasi-governmental
agency, board, branch, bureau, commission, court, arbitral body (public or
private), department or other instrumentality or political unit or subdivision,
whether located in the United States or abroad, the National Association of
Securities Dealers, Inc., the New York Stock Exchange, the Nasdaq National
Market, the Nasdaq SmallCap Market or the American Stock Exchange.
"Indemnitee" shall have the meaning set forth in Section 9.01.
"Indemnitor" shall have the meaning set forth in Section 9.01.
"Investor" shall have the meaning set forth in the preamble.
"Law" shall mean any treaty, statute, ordinance, code, rule, regulation,
Order or other legal requirement enacted, adopted, promulgated, applied or
followed by any Governmental Body.
"Legal Proceeding" shall mean any judicial, administrative or arbitral
actions, suits, proceedings (public or private) or governmental proceedings.
"Legend" shall mean the Legend set forth in Section 4.02(e).
"Lien" shall mean any mortgage, pledge, lien (statutory or otherwise),
security interest, hypothecation, conditional sale agreement, encumbrance or
similar restriction or agreement.
"Lock-up Agreement" shall mean an agreement in substantially the form of
Annex C hereto pursuant to which the Investor agrees that its right to sell the
Common Stock to be acquired by it hereunder and pursuant to the Assignment
Agreement shall be subject to restriction.
"Loss" shall have the meaning set forth in Section 9.01.
"Material Adverse Effect" shall mean any event, condition or contingency
that has had, or is reasonably likely to have, a material adverse effect on (i)
the assets, business, condition (financial or otherwise), results of operations,
stockholders' equity, properties or prospects of the Company, the Operating
Partnership, Xxxxxxx REIT Advisor LLC, a Delaware limited liability company (the
"Manager") and the Company Subsidiaries, taken as a whole; (ii) the long-term
debt or capital stock of the Company, the Operating Partnership, the Manager or
any Company Subsidiary; or (iii) the offering contemplated by the Registration
Statement or consummation of any of the other transactions contemplated by this
Agreement, the Registration Statement or the Prospectus.
"Notice" shall have the meaning set forth in Section 9.02(a).
"NYSE" shall mean the New York Stock Exchange.
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"Offering" shall mean the offering and sale of the Shares contemplated by
the Registration Statement and Prospectus.
"Operating Partnership" shall mean The Xxxxxxx Master Limited Partnership,
a Delaware limited partnership.
"Order" shall mean any order, injunction, judgment, decree, ruling, writ,
assessment or arbitration award.
"Ownership Waiver" shall have the meaning set forth in Section 5.03.
"Person" shall mean any individual, corporation, partnership, firm,
limited liability company, joint venture, trust, association, unincorporated
organization, group, joint-stock company, Governmental Body or other entity.
"Prospectus" shall mean the prospectus, in the form in which it is to be
filed with the SEC pursuant to Rule 424(b), or, if the prospectus is not to be
filed with the SEC pursuant to Rule 424(b), the prospectus in the form included
as part of the Registration Statement at the time the Registration Statement
becomes effective.
"Purchase Price" shall have the meaning set forth in Section 2.01.
"Qualified Institutional Buyer" shall mean a Person that is a "qualified
institutional buyer" within the definition contained in Rule 144A under the
Securities Act.
"Registration Rights Agreement" shall mean that certain Registration
Rights Agreement, dated of even date herewith, between the Company and the
Investor.
"Registration Statement" shall have the meaning set forth in the Recitals.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Shares" shall mean the shares of Common Stock purchased by the Investor
pursuant to the terms hereof.
"Subsidiary" shall mean, as to any Person, any other Person more than 50%
of the shares of the voting stock, voting interests, membership interests or
partnership interests of which are owned or controlled, or the ability to select
or elect more than 50% of the directors or similar managers is held, directly or
indirectly, by such first Person or one or more of its Subsidiaries or by such
first Person and one or more of its Subsidiaries.
Section 1.02. Rules of Construction. Unless the context otherwise
requires:
(a) an accounting term defined by GAAP that is not otherwise defined
herein has the meaning assigned to it in accordance with GAAP;
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(b) "or" is not exclusive;
(c) words in the singular include the plural, and words in the
plural include the singular;
(d) the words "include" and "including" shall be deemed to mean
"include, without limitation," and "including, without limitation";
(e) "herein," "hereof," "hereto," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
article, section, paragraph or clause where such terms may appear;
(f) references to sections mean references to such section in this
Agreement, unless stated otherwise; and
(g) the use of any gender shall be applicable to all genders.
ARTICLE II
ISSUANCE, SALE AND PURCHASE OF THE SHARES.
Section 2.01. Sale and Purchase of the Shares. Upon the terms and subject
to the conditions of this Agreement, the Company will sell to the Investor, and
the Investor will purchase from the Company, shares of its Common Stock having a
value of $50,000,000, based on a purchase price per share equal to the initial
public offering price of the Common Stock sold to the public pursuant to the
Registration Statement for a purchase price of $50,000,000 (the "Purchase
Price").
Section 2.02. Closing.
(a) Subject to the satisfaction or waiver of the conditions set
forth in this Agreement, the closing of the transaction contemplated by Section
2.01 (the "Closing") shall take place simultaneously with the closing of the
Company's initial public offering, or at such other time as may be mutually
agreed upon by the Investor and the Company (the "Closing Date"). The Closing
shall occur on the Closing Date at the offices of Xxxxxx Xxxxxx Xxxxxxxx, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
(b) At the Closing: (i) the Company will deliver to the Investor (x)
a certificate for the Shares registered in the name of the Investor and (y)
legal opinions of counsel to the Company addressed to the Investor, satisfactory
to counsel to the Investor (the "Company Counsel Opinions"); (ii) the Investor,
in full payment for the Shares, will deliver to the Company the Purchase Price
in immediately available funds, by wire transfer to such account as the Company
shall specify, and (iii) each party shall take or cause to happen such other
actions, and shall execute and deliver such other instruments or documents, as
shall be required under Article VII.
Section 2.03. Use of Proceeds. The Company shall use the proceeds from the
sale of the Shares for the purposes set forth in the Registration Statement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investor as follows:
Section 3.01. Organization and Good Standing. Each of the Company, the
Operating Partnership and the Subsidiaries has been duly organized and validly
exists as a corporation, partnership, limited partnership or limited liability
company in good standing under the laws of its jurisdiction of organization.
Each of the Company, the Operating Partnership and the Company Subsidiaries has
all requisite power and authority to carry on its business as it is currently
being conducted and as described in the Prospectus, and to own, lease and
operate its respective properties. Each of the Company, the Operating
Partnership and the Company Subsidiaries is duly qualified to do business and is
in good standing as a foreign corporation, partnership, limited partnership or
limited liability company in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which (individually and in the aggregate)
could not reasonably be expected to have a Material Adverse Effect. The Company
has heretofore delivered or made available to the Investor complete and correct
copies of the Articles of Incorporation of the Company, as amended to date (the
"Articles of Incorporation").
Section 3.02. Authority; Binding Effect. The Company has the full right,
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus. This Agreement and the
transactions contemplated by this Agreement, the Registration Statement and the
Prospectus have been duly and validly authorized by the Company. This Agreement
has been duly and validly executed and delivered by the Company. This Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms, except as such enforceability may be subject to
the effects of any applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar Laws affecting creditors' rights generally
and subject to the effects of general equitable principles
Section 3.03. Organization and Good Standing of Company Subsidiaries. The
Company Subsidiaries constitute all of the Subsidiaries of the Company and the
Operating Partnership. Each of the Company, the Operating Partnership and the
Company Subsidiaries has all necessary consents, approvals, authorizations,
orders, registrations, qualifications, licenses, filings and permits of, with
and from all judicial, regulatory and other legal or governmental agencies and
bodies and all third parties, foreign and domestic (collectively, the
"Consents"), to own, lease and operate its properties and conduct its business
as it is now being conducted and as disclosed in the Registration Statement and
the Prospectus except where the failure to obtain such consents would not have a
Material Adverse Effect, and each such Consent is valid and in full force and
effect, and none of the Company, the Operating Partnership nor any Company
Subsidiary has received notice of any investigation or proceedings which results
in or, if decided adversely to the Company, the Operating Partnership or any
Company Subsidiary, could reasonably be expected to result in, the revocation
of, or imposition of a materially burdensome restriction on, any Consent. Each
of the Company, the Operating Partnership and the Company Subsidiaries is in
compliance with all applicable laws, rules, regulations, ordinances, directives,
judgments, decrees and orders, foreign and domestic, except where failure to be
in compliance could not reasonably be expected to have a Material Adverse
Effect. No Consent contains a materially burdensome restriction not adequately
disclosed in the Registration Statement and the Prospectus.
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Section 3.04. Capitalization. The capitalization table set forth in the
Registration Statement and Prospectus accurately sets forth as of the date
indicated therein, (i) the authorized capitalization of the Company, the number
of shares of each class issued and outstanding and the number of shares reserved
for issuance in connection with the Company's stock option plans, and (ii) all
options, warrants, convertible securities, rights to subscribe to, calls,
contracts, undertakings, arrangements and commitments to issue which may result
in the issuance of stock of the Company. All of the issued and outstanding
shares of the Company's Capital Stock have been duly and validly authorized and
issued and are fully paid and non-assessable and are not subject to any
preemptive rights. No securities of the Company are entitled to preemptive or
similar rights, and no person has any right of first refusal, preemptive right,
right of participation, or any similar right to participate in the transaction
contemplated by this Agreement. All of the issued partnership interests, shares
of capital stock of or other ownership interests in the Operating Partnership
and in each Company Subsidiary have been duly and validly authorized and issued
and are fully paid and non-assessable and (except as otherwise set forth in the
Prospectus) at the Closing will be owned directly or indirectly by the Company
(in the case of the Operating Partnership) or by the Operating Partnership or a
Company Subsidiary, free and clear of any Lien, charge, mortgage, pledge,
security interest, claim, equity, trust or other encumbrance, preferential
arrangement, defect or restriction of any kind whatsoever.
Section 3.05. No Violations; Consents. Neither the execution, delivery or
performance by the Company of this Agreement nor the consummation of the
transaction contemplated hereby, will (a) conflict with, or result in the breach
of, any provision of the organizational documents of the Company, the Operating
Partnership or any Company Subsidiary, (b) conflict with, violate, result in the
breach or termination of, or constitute a default or give rise to any right of
termination, amendment, cancellation or acceleration or right to increase the
obligations or otherwise modify the terms thereof under any Contract or Order to
which the Company, the Operating Partnership or any Company Subsidiary is a
party or by which the Company or any Company Subsidiary or any of the properties
or assets of the Company, the Operating Partnership or any Company Subsidiary is
bound, (c) constitute a violation of any Law applicable to the Company, the
Operating Partnership or any Company Subsidiary; or (d) result in the creation
of any Lien upon the properties or assets of the Company, the Operating
Partnership or any Company Subsidiary. Except for the approval of the NYSE
referred to in Section 6.01(c) and the declaration by the SEC of the
effectiveness of the Registration Statement, no Consent is required on the part
of the Company, the Operating Partnership or the Company Subsidiaries in
connection with the execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby, including the issuance,
sale and deliver of the Shares to be issued, sold and delivered hereunder.
Section 3.06. Listing. The Company has applied to have its shares of
Common Stock listed on the NYSE.
Section 3.07. Financial Statements. The pro forma financial statements,
financial statement schedules and pro forma data set forth in the Registration
Statement and Prospectus accurately reflect the books and records of the Company
and the Operating Partnership and present fairly, in all material respects, the
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financial position of the Company and the Operating Partnership and the Company
Subsidiaries and the results of their operations and their cash flows for the
period and date covered thereby, in conformity with GAAP, except for changes
resulting from year-end adjustments (none of which will be material in amount).
The assumptions used in preparing the pro forma and financial information
included in the Registration Statement and the Prospectus provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions or events described therein.
Section 3.08. Commission Filings. The Operating Partnership has filed all
reports, registration statements, proxy statements and other materials, together
with any amendments required to be made with respect thereto, that were required
to be filed with the SEC under the Securities Act or the Exchange Act from and
after January 1, 2002 (all such reports and statements are collectively referred
to herein as the "Commission Filings"). As of their respective dates, the
Commission Filings, including the financial statements contained therein,
complied in all material respects with all of the statutes and published rules
and regulations enforced or promulgated by the regulatory authority with which
the Commission Filings were filed, and, except to the extent the information in
any Commission Filing has been revised or superseded by a later filed Commission
Filing, did not and do not as of the date hereof contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The financial
statements of the Operating Partnership included in the Commission Filings
comply in all material respects with applicable accounting requirements and the
rules and regulations of the SEC with respect thereto as in effect at the time
of filing.
Section 3.09. Absence of Certain Developments. Except as specifically
disclosed in the Commission Filings, since December 31, 2004 and as of the date
hereof no event or series of events has occurred which could reasonably have a
Material Adverse Effect.
Section 3.10. Litigation. There are no Legal Proceedings pending or, to
the knowledge of the Company, threatened, that question the validity of this
Agreement or the transaction contemplated hereby or any action taken or to be
taken by the Company, the Operating Partnership or any Company Subsidiary in
connection with the consummation of the transaction contemplated hereby. There
are no material Legal Proceedings pending or, to the knowledge of the Company,
threatened, against or involving the Company, the Operating Partnership or any
Company Subsidiary or any of their respective properties or assets, at Law or in
equity which in the aggregate could reasonably have a Material Adverse Effect.
There is no outstanding or, to the knowledge of the Company, threatened, Order
of any Governmental Body against the Company, the Operating Partnership or any
Company Subsidiary or any of their respective properties or assets, which Order
could reasonably have a Material Adverse Effect.
Section 3.11. Compliance with Laws. The Company, the Operating Partnership
and the Company Subsidiaries are in compliance in all material respects with all
Laws and Orders promulgated by any Governmental Body applicable to the Company,
the Operating Partnership and the Company Subsidiaries or to the conduct of the
business or operations of the Company, the Operating Partnership and the Company
Subsidiaries or the use of their properties (including any leased properties)
and assets, except where failure to comply would not have a Material Adverse
Effect. Since July 1, 2005 neither the Company, the Operating Partnership nor
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any Company Subsidiary has received any written notice of violation or alleged
material violation of any such Law or Order by any Governmental Body in any
material respect that has not been resolved. Since July 1, 2005 neither the
Company, the Operating Partnership nor any Company Subsidiary has received
written notice that it is the subject of an investigation by any Governmental
Body which has not been resolved or which could reasonably have a Material
Adverse Effect.
Section 3.12. Financial Advisors. Except as set forth on Schedule 3.12, no
agent, broker, investment banker, finder, financial advisor or other Person is
or will be entitled to any broker's or finder's fee or any other commission or
similar fee from the Company, directly or indirectly, in connection with the
transaction contemplated hereby.
Section 3.13. Registration Statement. At the time of the effectiveness of
the Registration Statement, the Registration Statement and Prospectus and any
amendments thereof and supplements thereto will comply in all material respects
with the applicable provisions of the Securities Act and the rules and
regulations promulgated thereunder ("Rules and Regulations"), and will not
contain an untrue statement of a material fact and will not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein (i) in the case of the Registration Statement, not misleading
and (ii) in the case of the Prospectus or any related preliminary prospectus in
light of the circumstances under which they were made, not misleading. The
statistical, industry-related and market-related data included in the
Registration Statement and the Prospectus are based on or derived from sources
which the Company reasonably and in good faith believes are reliable and
accurate, and such data agree with the sources from which they are derived.
Section 3.14. No Default. The Company is not in default in the payment or
performance of any of its Contracts, except where such default would not have a
Material Adverse Effect.
Section 3.15. Other Registration Rights. Except as provided in the
Registration Statement, the Company has not entered into any agreement to
register its debt or equity securities under the Securities Act.
Section 3.16. Disclosure Controls. The Company has established disclosure
controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for
the Company and designed such disclosure controls and procedures to ensure that
material information relating to the Company, including its subsidiaries, is
timely made known to the certifying officers by others within those entities,
particularly during the period in which the Company's Form 10-K or 10-Q, as the
case may be, is being prepared. The Operating Partnership's certifying officers
have evaluated the effectiveness of the Operating Partnership's controls and
procedures as of June 30, 2005 (such date, the "Evaluation Date"). The Operating
Partnership presented in its Form 10-Q for the quarter ended June 30, 2005 the
conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date.
Since the Evaluation Date, there have been no significant changes in the
Operating Partnership's internal controls (as such term is defined in Item
307(b) of Regulation S-K under the Exchange Act) or, to the knowledge of the
Company, in any factors that could significantly affect the Company's or the
Operating Partnership's internal controls.
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Section 3.17 Taxes. Since January 1, 2002, the Operating Partnership and
each Company Subsidiary has timely filed or caused to be filed any and all
material tax returns required to be filed by it under applicable federal, state,
local and foreign Law, except where the failure to failure to do so could not
reasonably be expected to have a Material Adverse Effect. The reserves for taxes
contained in the financial statements of the Operating Partnership or carried on
the books and records of the Operating Partnership are in the aggregate adequate
to cover all tax liabilities and deferred taxes of the Operating Partnership and
the Company Subsidiaries as of the date of this Agreement, except to the extent
that any inadequacy could not in the aggregate reasonably have a Material
Adverse Effect. Commencing with its initial taxable year beginning on the
business day prior to the Closing Date and ending December 31, 2005, the Company
will be organized in conformity with the requirements for qualification as a
real estate investment trust (a "REIT") pursuant to Sections 856 through 860 of
the Internal Revenue Code of 1986, as amended (the "Code"); the Company's
proposed method of operation as described in the Registration Statement and in
the Prospectus will enable it to meet the requirements for qualification and
taxation as a REIT under the Code; and all statements in the Registration
Statement and the Prospectus regarding the Company's qualification and taxation
as a REIT are true, complete and correct in all material respects.
Section 3.18 Non-Integration. None of the Company, the Operating
Partnership nor any of their respective affiliates has, prior to the date
hereof, made any offer or sale of any securities which could be "integrated" for
purposes of the Securities Act and the Rules and Regulations with the offer and
sale of the Shares pursuant to the Registration Statement. Except as disclosed
in the Registration Statement and the Prospectus, none of the Company, the
Operating Partnership nor any of their respective affiliates has sold or issued
any Common Stock or other security of the Company, the Operating Partnership or
any Subsidiary or any security convertible into, or exercisable or exchangeable
for, Common Stock or any other such security during the six-month period
preceding the date of the Prospectus, including but not limited to any sales
pursuant to Rule 144A or Regulation D or S under the Securities Act or the Rules
and Regulations.
Section 3.19 Affiliations. No relationship, direct or indirect, exists
between or among any of the Company, the Operating Partnership, the Manager or
any of their respective affiliates, on the one hand, and any director, officer,
stockholder, tenant or supplier of the Company, the Operating Partnership, the
Manager or any of their respective affiliates, on the other hand, which is
required by the Securities Act or the Rules and Regulations to be described in
the Registration Statement or the Prospectus which is not so described and
described as required. There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or guarantees
of indebtedness by the Company or the Operating Partnership to or for the
benefit of any of the officers or directors of the Company or the Operating
Partnership or any of their respective family members, except as disclosed in
the Registration Statement and the Prospectus.
Section 3.20 Investment Company. Neither the Company nor the Operating
Partnership is and, at all times up to and including consummation of the
transactions contemplated by this Agreement, the Registration Statement and the
Prospectus, and after giving effect to application of the net proceeds of the
Offering, will not be, subject to registration as an "investment company" under
the Investment Company Act of 1940, as amended, and is not and will not be an
entity "controlled" by an "investment company" within the meaning of such act.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
Section 4.01. Investor Representations. The Investor represents and
warrants to the Company as follows:
(a) Authorization. The Investor is a trust organized and validly
existing under the Laws of the State of Ohio. The Investor has the full power
and authority to enter into this Agreement and to consummate the transaction
contemplated hereby. The execution and delivery of this Agreement and the
consummation by the Investor of the transaction contemplated hereby have been
duly authorized by all necessary action on the part of the Investor. This
Agreement has been duly executed and delivered by the Investor and constitutes
the legal, valid and binding obligations of the Investor, enforceable in
accordance with its respective terms, except as such enforceability may be
subject to the effects of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar Laws affecting creditors'
rights generally and subject to the effects of general equitable principles.
(b) Investment Representations. The Investor is a Qualified
Institutional Buyer and is acquiring the Shares for the Investor's own account,
for investment, and not with a view to, or for sale in connection with, the
distribution thereof or of any interest therein. The Investor understands that
the Shares have not been registered under the Securities Act by reason of its
issuance in a transaction exempt from the registration requirements of the
Securities Act pursuant to the exemption provided in Section 4(2) and/or
Regulation D promulgated under the Securities Act, and that the Shares may not
be sold or otherwise disposed of unless registered under the Securities Act or
exempted from such registration.
(c) Investor's Acknowledgment. The Investor has had the opportunity,
directly or through its representatives, to ask questions of and receive answers
from Persons acting on behalf of the Company concerning the transactions
contemplated by this Agreement.
(d) Financial Advisors. No agent, broker, investment banker, finder,
financial advisor or other Person is or will be entitled to any broker's or
finder's fee or any other commission or similar fee from the Investor, directly
or indirectly, in connection with the transaction contemplated by this
Agreement.
(e) Legend.
(i) The certificate evidencing the Shares will bear a legend
(the "Legend") substantially similar to the following:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED.
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AS PROVIDED FOR IN THAT CERTAIN LOCK-UP
AGREEMENT, DATED NOVEMBER 7, 2005, BETWEEN XXXXXXX REALTY TRUST,
INC. AND FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND TRANSFER
FOR THE PURPOSE OF XXXXXXX REALTY TRUST, INC.'S MAINTENANCE OF ITS
STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED. SUCH RESTRICTIONS ARE SET FORTH IN XXXXXXX
REALTY TRUST, INC.'S ARTICLES OF ORGANIZATION, AS THE SAME MAY BE
AMENDED FROM TIME TO TIME, A COPY OF WHICH, INCLUDING THE
RESTRICTIONS ON TRANSFER AND OWNERSHIP, WILL BE FURNISHED TO THE
HOLDER OF THE SHARES REPRESENTED BY THIS CERTIFICATE ON REQUEST AND
WITHOUT CHARGE."
(ii) The first paragraph of the legend endorsed on the
certificate pursuant to Section 4.01 (e) hereof shall be removed and the Company
shall issue a certificate without such portion of the legend to the holder
thereof at such time as the securities evidenced thereby cease to be restricted
securities upon the earliest to occur of (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) the securities shall have been sold to
the public pursuant to Rule 144 (or any successor provision) under the
Securities Act, and (iii) the expiration of the restrictions on transfers under
the Lock-up Agreement provided that such securities may then be sold by the
holder without restriction or registration under Rule 144(k) under the
Securities Act (or any successor provision).
(f) Ownership and Transfer Limitations. The Investor has received a
copy of the Articles of Incorporation of the Company, and understands, and will
be in compliance with, the restrictions on transfer and ownership of the
Company's Capital Stock included therein at the Closing and at all times
thereafter.
ARTICLE V
COVENANTS OF THE COMPANY
The Company covenants and agrees as follows:
Section 5.01. Maintain Listing. The Company will use commercially
reasonable efforts to (x) maintain the listing and trading of its Common Stock
on the NYSE, for so long as the Company qualifies for such listing under the
rules and regulations of the NYSE and (y) comply in all material respects with
the Company's reporting, filing, and other obligations, under the rules and
regulations of the NYSE. In the event that the Common Stock is no longer
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eligible for listing and trading on the NYSE, the Company will use commercially
reasonable efforts to secure the listing or quotation of the Common Stock on the
Nasdaq National Market, the Nasdaq SmallCap Market or the American Stock
Exchange (if such listing is permitted by the bylaws, rules or regulations of
any of the foregoing) and to comply in all material respects with the Company's
reporting, filing and other obligations under the bylaws or rules of such
exchanges or the National Association of Securities Dealers, Inc., as
applicable. The Company will promptly provide to the Investor copies of any
notices it receives from the NYSE and any other exchange or quotation system on
which the Common Stock is then listed regarding the continued eligibility of the
Common Stock for listing on such exchanges or quotation systems.
Section 5.02. Secure Listing. Following the execution of this Agreement,
the Company shall promptly file with the NYSE an application to list the Shares
on the NYSE.
Section 5.03 Exemption from Ownership Limitation. The Company will grant
the Investor an exemption (the "Ownership Waiver") from the ownership limitation
contained in the Company's Articles of Incorporation to permit ownership by it
of Common Stock to the extent that such ownership does not exceed the greater of
(i) 17.5% of the outstanding Common Stock on a fully diluted basis, and (ii) the
percentage of Common Stock owned by Investor immediately following the
consummation of the transactions hereunder, assuming in either case the
redemption of all interests in the Operating Partnership that are redeemable in
exchange for shares of Common Stock, whether or not such interests are then
redeemable.
Section 5.04 REIT Certifications. The Company shall deliver to the
Investor, at such time as may reasonably be requested by the Investor (but in
any event no less frequently than on a quarterly basis), a certificate or
certificates signed by an authorized officer of the Company to the effect that
the Company has complied with and is then in compliance with the asset and
income tests set forth in Section 856 of the Code, and that such officer
anticipates that the Company will continue to comply with such requirements. In
addition, the Company shall cooperate with the Investor, including, without
limitation, by providing information and documents in its control relating to
the income and assets of the Company at such times as may reasonably be
requested by the Investor, even if the Investor at such time no longer holds an
interest in the Company, in addressing issues raised by any taxing authority in
any audit or similar proceeding that relates to or arises out of the Investor's
investment in the Company. The Investor shall reimburse the Company for any
increased out of pocket costs attributable to providing the certifications and
information described in this paragraph to the Investor. The Company shall give
the Investor at least sixty (60) days advance notice of any determination by the
Company to elect to cease to be treated as a REIT for federal income tax
purposes and will not cease to qualify as a REIT for any period prior to the end
of such 60-day notice period.
ARTICLE VI
ACTIONS PRIOR TO CLOSING
Section 6.01. Consent. Each of the Company and the Investor will use its
reasonable best efforts and shall fully cooperate with each other to make
promptly all registrations, filings and applications, give all notices and
obtain all Consents in connection with the transaction contemplated hereby.
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Section 6.02. Publicity. The parties agree not to issue any announcement,
press release, public statement or other information to the press or any third
party with respect to this Agreement or the transaction contemplated hereby
without obtaining the prior written approval of the other party hereto (which
approval shall not be unreasonably withheld); provided, however, that nothing
contained herein shall prevent either party, at any time, from furnishing any
required information to any Governmental Body or from issuing any announcement,
press release, public statement or other information to the press or any third
party with respect to this Agreement or the transaction contemplated hereby if
required by Law, although, the parties agree to consult with each other as to
the content of any release so required and consider in good faith the comments
of the other thereon.
ARTICLE VII
CONDITIONS TO CLOSING
Section 7.01. Conditions to Obligations of the Investor. The obligation of
the Investor to consummate the transaction contemplated hereby shall be subject
to the fulfillment on or prior to the Closing Date of the following conditions:
(a) No Governmental Order or Other Proceeding or Litigation. No
Order of any Governmental Body shall be in effect that restrains or prohibits
the issuance of the Shares.
(b) Stock Certificates. The Company shall have delivered to the
Investor (i) a certificate representing the Shares, duly registered in the name
of the Investor, which Shares shall have been duly and validly authorized and
issued and, assuming delivery of the Purchase Price, fully paid and
non-assessable, and (ii) the Company Counsel Opinions, which opinions shall
include opinions acceptable to Investor with respect to the Operating
Partnership and the Joinder Agreement as well as to the Company as herein
provided.
(c) Shares. The Shares shall be issued in compliance with all
applicable state, federal and foreign securities laws and will not have been
issued in violation of or subject to any preemptive or similar right that does
or will entitle any person to acquire any equity security from the Company, the
Operating Partnership or any Subsidiary upon issuance or sale of the Shares and
the Common Stock and the Shares shall conform to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(d) NYSE Listing. The Shares have been duly listed on the NYSE,
pending notice of issuance and the Company shall not be in violation of the
listing requirements of the NYSE in any material respect nor shall the Company
have received any written notice from the NYSE that the Common Stock is to be
delisted by the NYSE.
(e) Representations and Warranties. The representations and
warranties of the Company contained herein shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made on and as of such date (except for representations and warranties that
speak of a specific date, which need only be true and correct as of such date).
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(f) Absence of Material Developments. Since June 30, 2005, no event
or series of events shall have occurred that reasonably would be expected to
have a Material Adverse Effect.
(g) Performance. The Company shall have performed, satisfied and
complied in all material respects with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by it at
or prior to the Closing Date.
(h) No New Information. The Investor shall not have become aware of
any information or other matter with respect to legal matters affecting the
Company that is inconsistent with the financial and other information disclosed
to the Investor prior to the date hereof including the disclosures in the
Registration Statement as filed with the SEC on the date hereof, in a manner
that constitutes or would reasonably be expected to have a Material Adverse
Effect.
(i) Effectiveness of Registration Statement. The Registration
Statement shall have been declared effective by the Commission and the Offering
shall have been consummated and the Registration Statement and all amendments
thereto, or modifications thereof, if any, shall not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Prospectus and all amendments or supplements thereto, or modifications thereof,
if any, shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they are made,
not misleading.
(j) Officer's Certificate. The Investor shall have received a
certificate of an officer of the Company, dated the Closing Date, certifying on
behalf of the Company as to the fulfillment of the conditions specified in this
Section 7.01.
(k) Acquisition Agreement. The transactions contemplated by the
Acquisition Agreement shall have been consummated or shall be consummated
simultaneously with the Closing.
(l) Registration Rights Agreement. The Registration Rights Agreement
shall have been executed and delivered by the Company.
(m) Ownership Waiver. The Ownership Waiver shall have been granted
by the Company.
(n) Advisory Agreement. The Company and the Operating Partnership
shall have retained NKT Advisors LLC as its advisor pursuant to an agreement on
the terms and conditions described in the Registration Statement and such
agreement shall have been duly and validly authorized, executed and delivered by
the Company and the Operating Partnership and shall constitute the legal, valid
and binding obligation 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' 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).
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(o) Joinder by the Operating Partnership. The Operating Partnership
shall have executed and delivered an Agreement of Joinder, in form and substance
satisfactory to the Investor, for the purpose of joining in and becoming a party
to this Agreement, jointly and severally with the Company, with the effect of
amending this Agreement by adding the Operating Partnership as a party, and the
Operating Partnership shall therein make with the Company, jointly and
severally, all representations, warranties, covenants and agreements made herein
by the Company, and shall make the representations and warranties set forth in
Section 3.02 hereof with respect to the authority of the Operating Partnership
to enter into this Agreement and the binding effect of this Agreement on the
Operating Partnership, among others.
(o) No Stop Order or Suspension. No stop order with respect to the
effectiveness of the Registration Statement shall have been issued under the Act
or proceedings initiated under Section 8(d) or 8(e) of the Act, and no order
directed at or in relation to any document incorporated by reference therein and
no order preventing or suspending the use of the Prospectus has been issued by
the Commission, and no suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or to the knowledge of the Company of the
initiation or threatening of any proceedings for any such purposes, has
occurred.
Section 7.02. Conditions to Obligations of the Company. The obligation of
the Company to consummate the transaction contemplated hereby shall be subject
to the fulfillment on or prior to the Closing Date of the following conditions:
(a) No Governmental Order or Other Proceeding or Litigation. No
Order of any Governmental Body shall be in effect that restrains or prohibits
the issuance of the Shares.
(b) Purchase Price. The Investor shall have delivered to the Company
the Purchase Price.
(c) Effectiveness of Registration Statement. The Registration
Statement shall have been declared effective by the Commission and the IPO shall
have been consummated.
(d) Acquisition Agreement. The transactions contemplated by the
Acquisition Agreement shall have been consummated or shall be consummated
simultaneously with the Closing.
(e) Lock-up Agreement. The Lock-up Agreement shall have been
executed and delivered by the Investor.
ARTICLE VIII
SURVIVAL
Section 8.01. Survival. The representations and warranties and covenants
to be performed at or prior to Closing of the parties set forth in this
Agreement shall survive for a period of 12 months following the execution and
delivery of this Agreement and thereafter shall be of no further force or
effect, provided that the representations and warranties set forth in (i)
Sections 3.01 (Organization), 3.02 (Authorization), and 3.04 (Capitalization)
shall survive indefinitely (or if indefinite survival is not permitted by Law,
then for the maximum period permitted by applicable Law) and (ii) 3.17 (Taxes)
shall survive for the applicable statute of limitations. Except as set forth
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herein, all of the covenants, agreements and obligations of the parties hereto
shall survive the Closing indefinitely (or if indefinite survival is not
permitted by Law, then for the maximum period permitted by applicable Law).
Anything herein to the contrary notwithstanding, any claim for indemnification
that is asserted by written notice which notice specifies in reasonable detail
the facts upon which such claim is made within the survival period as provided
in this Section 8.01 shall survive until resolved pursuant to a final
non-appealable judicial determination or otherwise.
ARTICLE IX
INDEMNIFICATION
Section 9.01. Generally. Subject to the limitations and other provisions
of this Article IX, the Company covenants and agrees to indemnify, defend and
hold harmless the Investor and its directors, officers, shareholders, employees
and agents (each, an "Investor Party") from and against any and all Losses
resulting from, incurred in connection with or arising out of (a) any breach of
any representation, warranty, agreement or covenant of the Company contained
herein, or (b) the failure of the Company to perform any of the agreements,
covenants or obligations of the Company contained herein (other than if any such
claim was a result of a breach by the Investor under this Agreement). Subject to
the limitations and other provisions of this Article IX, the Investor covenants
and agrees to indemnify, defend and hold harmless the Company from and against
(but only to the extent of) any and all Losses resulting from, incurred in
connection with or arising out of (but only to the extent of) (a) any breach of
any representation, warranty, covenant or agreement of the Investor contained
herein, or (b) the failure of the Investor to perform any of the agreements,
covenants or obligations of the Investor contained herein. The term "Loss" or
any similar term shall mean any and all damages, reduction in value of the
original investment in the Shares, deficiencies, costs, claims, fines,
judgments, amounts paid in settlement, expenses of investigation, interest,
penalties, assessments, out-of-pocket expenses (including reasonable attorneys'
and auditors' fees and disbursements, witness fees and court costs). The party
or parties being indemnified are referred to herein as the "Indemnitee" and the
indemnifying party is referred to herein as the "Indemnitor."
Section 9.02. Indemnification Procedure.
(a) Any party who receives notice of a potential claim that may, in
the judgment of such party, result in a Loss shall use all reasonable efforts to
provide the parties hereto notice thereof, provided that failure or delay or
alleged delay in providing such notice shall not adversely affect such party's
right to indemnification hereunder, unless and then only to the extent that such
failure or delay or alleged delay has resulted in actual prejudice to the
Indemnitor, including, without limitation, by the expiration of a statute of
limitations. In the event that any party shall incur or suffer any Losses in
respect of which indemnification may be sought by such party hereunder, the
Indemnitee shall assert a claim for indemnification by written notice (a
"Notice") to the Indemnitor stating the nature and basis of such claim. In the
case of Losses arising by reason of any third party claim, the Notice shall be
given within thirty (30) days of the filing or other written assertion of any
such claim against the Indemnitee, but the failure of the Indemnitee to give the
Notice within such time period shall not relieve the Indemnitor of any liability
that the Indemnitor may have to the Indemnitee, except to the extent that the
Indemnitor demonstrates that the defense of such action has been materially
prejudiced by the Indemnitee's failure to timely give such Notice.
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(b) In the case of third party claims for which indemnification is
sought, the Indemnitor shall, if necessary, retain counsel reasonably
satisfactory to the Indemnitee, and have the option (i) to conduct any
proceedings or negotiations in connection therewith, (ii) to take all other
steps to settle or defend any such claim (provided that the Indemnitor shall not
settle any such claim without the consent of the Indemnitee which consent shall
not be unreasonably withheld) and (iii) to employ counsel to contest any such
claim or liability in the name of the Indemnitee or otherwise. In any event, the
Indemnitee shall be entitled to participate at its own expense and by its own
counsel in any proceedings relating to any third party claim. The Indemnitor
shall, within 15 Business Days of receipt of the Notice, notify the Indemnitee
of its intention to assume the defense of such claim. If (i) the Indemnitor
shall decline to assume the defense of any such claim, (ii) the Indemnitor shall
fail to notify the Indemnitee within 15 Business Days after receipt of the
Notice of the Indemnitor's election to defend such claim, (iii) the Indemnitee
shall have reasonably concluded that there may be defenses available to it which
are different from or in addition to those available to the Indemnitor (in which
case the Indemnitor shall not have the right to direct the defense of such
action on behalf of the Indemnitee), or (iv) a conflict exists between the
Indemnitor and the Indemnitee which the Indemnitee has reasonably concluded
would prejudice the Indemnitor's defense of such action, then in each such case
the Indemnitor shall not have the right to direct the defense of such action on
behalf of the Indemnitee and the Indemnitee shall, at the sole expense of the
Indemnitor, defend against such claim and (x) in the event of a circumstance
described in clause (i) and (ii), the Indemnitee may settle such claim without
the consent of the Indemnitor (and the Indemnitor may not challenge the
reasonableness of any such settlement) and (y) in the event of a circumstance
described in clause (iii) and (iv), the Indemnitee may not settle such claim
without the consent of the Indemnitor (which consent will not be unreasonably
withheld or delayed). The reasonable expenses of all proceedings, contests or
lawsuits in respect of such claims shall be borne and paid by the Indemnitor if
the Indemnitee is entitled to indemnification hereunder and the Indemnitor shall
pay the Indemnitee, in immediately available funds, the amount of any Losses,
within a reasonable time of the incurrence of such Losses. Regardless of which
party shall assume the defense or negotiation of the settlement of the claim,
the parties agree to cooperate fully with one another in connection therewith.
In the event that any Losses incurred by the Indemnitee do not involve payment
by the Indemnitee of a third party claim, then, the Indemnitor shall, within 20
days after written notice from the Indemnitee specifying the amount of Losses,
pay to the Indemnitee, in immediately available funds, the amount of such
Losses. Anything in this Article IX to the contrary notwithstanding, the
Indemnitor shall not, without the Indemnitee's prior written consent, settle or
compromise any claim or consent to entry of any judgment in respect thereof
which imposes any future obligation on the Indemnitee or which does not include,
as an unconditional term thereof, the giving by the claimant or plaintiff to the
Indemnitee, a release from all liability in respect of such claim.
Section 9.03. Limitations on Indemnification.
Neither party shall be entitled to be indemnified hereunder unless and
until the aggregate of all Losses incurred by such party shall exceed $50,000
(the "Basket"); provided, however, that the Basket shall not apply to any Losses
incurred by such party with respect to any third party claim against such party
for which such party is entitled to indemnity pursuant to Section 9.01.
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Notwithstanding anything to the contrary contained herein, the liability of (i)
the Company under this Article IX shall be limited to an amount equal to the
Purchase Price; and (ii) the Investor under this Article IX shall be limited to
an amount equal to the Purchase Price.
ARTICLE X
TERMINATION
Section 10.01. Termination. This Agreement may be terminated on or any
time prior to the Closing by the mutual written consent of each of the Investor
and the Company.
Section 10.02. Offering of Common Stock. In the event that the
Registration Statement has not been declared effective and the Offering
contemplated thereby has not been consummated on or before March 31, 2006, the
Investor shall have the right, but not the obligation, to terminate this
Agreement.
Section 10.03 Effect Of Termination. In the event of the termination of
this Agreement as provided in Section 10.01, all obligations and agreements of
the parties set forth in this Agreement shall forthwith become void except for
the obligations set forth in: (i) Section 6.02 (Publicity) and (ii) Article IX
(Indemnification), and there shall be no liability or obligation on the part of
the parties hereto except as otherwise provided in this Agreement.
Notwithstanding the foregoing, the termination of this Agreement shall not
relieve either party of any liability for breach of this Agreement prior to the
date of termination.
ARTICLE XII
MISCELLANEOUS
Section 11.01 Notices and Addresses. Any notice, demand, request, waiver,
or other communication under this Agreement shall be in writing and shall be
deemed to have been duly given on the date of service, if personally served or
sent by facsimile; on the Business Day after notice is delivered to a courier or
mailed by express mail, if sent by courier delivery service or express mail for
next day delivery; and on the third day after mailing, if mailed to the party to
whom notice is to be given, by first class mail, registered, return receipt
requested, postage prepaid and addressed as follows:
If to the Company:
Xxxxxxx Realty Trust, Inc.
Two Xxxxxxx Xxxxx
Xxxx X, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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If to the Investor:
First Union Real Estate Equity and Mortgage Investments
0 Xxxxxxxx Xxxxx, Xxxxx 000
P.O. Box 9507
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Section 11.02 Captions. The captions in this Agreement are for convenience
of reference only and shall not be given any effect in the interpretation of
this Agreement.
Section 11.03 No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver must be
in writing. Any of the covenants or agreements contained in this Agreement may
be waived only by the written consent of the Investor.
Section 11.04 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable Law, such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms so long as the economic or legal substance of the
transactions contemplated by this Agreement are not affected in any manner
materially adverse to any party.
Section 11.05 Exclusive Agreement; Amendment. This Agreement supersedes
all prior agreements among the parties with respect to its subject matter, is
intended (with the documents referred to herein) as a complete and exclusive
statement of the terms of the agreement among the parties with respect thereto
and cannot be changed or terminated except by a written instrument executed by
the party or parties against whom enforcement thereof is sought, except that,
with respect to the Investor, this Agreement may be amended by a written
instrument executed by the Investor.
Section 11.06 Limitation on Assignment; Parties in Interest.
(a) No assignment of this Agreement or of any rights or obligations
hereunder may be made by the Company without the prior written consent of the
Investor and any attempted assignment without the required consent shall be
void. No assignment of this Agreement or of any rights or obligations hereunder
may be made by the Investor (by operation of Law or otherwise) except as
permitted by the Lock-up Agreement.
(b) This Agreement shall be binding upon, and shall inure to the
benefit of, and be enforceable by, the parties and their respective successors,
transferees and assigns.
Section 11.07 Governing Law. This Agreement and (unless otherwise
provided) all amendments hereof and waivers and consents hereunder shall be
governed by the internal Laws of the State of New York, without regard to the
conflicts of Law principles thereof which would specify the application of the
Law of another jurisdiction.
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Section 11.08 Jurisdiction. Each of the Investor and the Company (a)
hereby irrevocably and unconditionally submits to the exclusive jurisdiction of
any state or federal court sitting in New York County, New York for the purposes
of any suit, action or other proceeding arising out of this Agreement or the
subject matter hereof brought by the Company, or the Investor and (b) hereby
waives and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or 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 the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Agreement or the subject matter
hereof may not be enforced in or by such court.
Section 11.09 No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any other Person other
than (i) any Person entitled to indemnity under Article IX and (ii) with respect
to the representations and warranties set forth in Articles III and IV, any
placement agent identified on Schedule 3.12 hereof.
Section 11.10 Injunctive Relief. In the event that any party threatens to
take any action prohibited by this Agreement, the parties agree that there may
not be an adequate remedy at law. Accordingly, in such an event, a party may
seek and obtain preliminary and permanent injunctive relief (without the
necessity of posting any bond or undertaking). Such remedies shall, however, be
cumulative and not exclusive and shall be in addition to any other remedies
which any party may have under this Agreement or otherwise.
Section 11.11 Counterparts. This Agreement may be executed via facsimile
and in any number of counterparts, each of which shall be deemed to be an
original instrument and all of which together shall constitute one and the same
instrument.
Section 11.12 Actions Simultaneous. All actions to be taken and all
documents to be executed and delivered by all parties at the Closing shall be
deemed to have been taken and executed and delivered simultaneously and no
actions shall be deemed to have been taken nor shall any documents be deemed to
have been executed and delivered until all actions have been taken and all
documents have been executed and delivered.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXXXX REALTY TRUST, INC.
By:
------------------------------------
Xxxxx Xxxxxxxxx
President
FIRST UNION REAL ESTATE EQUITY AND
MORTGAGE INVESTMENTS
By:
------------------------------------
Name:
Title:
[signature page to securities purchase agreement]
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