a Maryland real estate investment trust) 9,500,000 Shares of Beneficial Interest Classified as Common Stock PURCHASE AGREEMENT
Execution
Copy
(a
Maryland real estate investment trust)
9,500,000
Shares of Beneficial Interest Classified as Common Stock
Dated: March
26, 2010
(a
Maryland real estate investment trust)
9,500,000
Shares of Beneficial Interest Classified as Common Stock
(Par
Value $0.0001 Per Share)
March 26,
2010
Xxxxx
Fargo Securities, LLC
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Lexington Realty Trust, a Maryland real
estate investment trust (the “Company”), confirms
its agreement with Xxxxx Fargo Securities, LLC (the “Underwriter,”) with
respect to the issue and sale of a total of 9,500,000 shares of beneficial
interest of the Company (the “Initial Securities”)
classified as common stock, par value $0.0001 per share (the “Common Shares”), and
the purchase by the Underwriter of the Initial Securities, and with respect to
the grant by the Company to the Underwriter of the option described in
Section 2(b) hereof to purchase all or any part of 1,425,000 additional
Common Shares to cover over-allotments, if any. The Initial
Securities to be purchased by the Underwriter and all or any part of the
1,425,000 additional Common Shares subject to the option described in
Section 2(b) hereof (the “Option Securities”)
are hereinafter called, collectively, the “Securities.”
In addition to the Company, each of
Lepercq Corporate Income Fund L.P., a Delaware limited partnership, Lepercq
Corporate Income Fund II, L.P., a Delaware limited partnership, and Net 3
Acquisition L.P., a Delaware limited partnership (each, an “Operating
Partnership” and collectively, the “Operating
Partnerships”), also confirms as follows its respective agreements with
the Underwriter.
Each of the Company and the Operating
Partnerships understands that the Underwriter proposes to make a public offering
of the Securities pursuant to the terms of this Agreement.
The Company has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (No. 333-157858) covering the registration of
the Securities and certain other securities of the Company under the Securities
Act of 1933, as amended (the “1933
Act”). Promptly after execution and delivery of this
Agreement, the Company will prepare and file a prospectus and the related
prospectus supplement in accordance with the provisions of Rule 430B (“Rule 430B”) of the
rules and regulations of the Commission under the 1933 Act (the “1933 Act
Regulations”) and paragraph (b) of Rule 424 (“Rule 424(b)”) of the
1933 Act Regulations. Any information included in such prospectus and
the related prospectus supplement that was omitted from such registration
statement at the time it became effective but that is deemed to be part of and
included in such registration statement pursuant to Rule 430B is referred to as
“Rule 430B
Information.” Each prospectus and prospectus supplement used
in connection with the offering of the Securities that omitted Rule 430B
Information is herein called a “preliminary
prospectus.” Such registration statement, at any given time,
together with the amendments thereto to such time, the exhibits and any
schedules thereto at such time, the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act at such time, the documents
otherwise deemed to be a part thereof or included therein by 1933 Act
Regulations at such time and the Rule 430B Information, are herein called,
collectively, the “Registration
Statement.” Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the “Rule 462(b) Registration
Statement,” and after such filing the term “Registration Statement” shall
include the Rule 462(b) Registration Statement. The final prospectus
in the form first furnished (electronically or otherwise) to the Underwriter for
use in connection with the offering of the Securities (whether to meet the
requests of purchasers pursuant to Rule 173 under the 1933 Act Regulations or
otherwise) or, if not furnished to the Underwriter, in the form first filed by
the Company pursuant to Rule 424(b), together with the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at the time
of execution of this Agreement and any preliminary prospectuses that form a part
thereof is herein called the “Prospectus.” For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the Prospectus or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”).
All references in this Agreement to
financial statements and schedules and other information which is “contained,”
“included” or “stated” in the Registration Statement, any preliminary prospectus
or the Prospectus (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which is incorporated by reference in or otherwise deemed by the 1933 Act
Regulations to be a part of or included in the Registration Statement, any
preliminary prospectus or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement,
any preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as amended
(the “1934
Act”), which is incorporated by reference in or otherwise deemed by the
1933 Act Regulations to be a part of or included in the Registration Statement,
any preliminary prospectus or the Prospectus, as the case may be.
SECTION
1. Representations and
Warranties.
(a) Representations and Warranties by
the Company and the Operating Partnerships. The Company and
each Operating Partnership, jointly and severally, represents and warrants to
the Underwriter as of the date hereof, as of the Initial Sale Time (as defined
below), as of the Closing Date referred to in Section 2(c) hereof and as of
each Option Closing Date (if any) referred to in Section 2(b) hereof, and
agrees with the Underwriter, as follows:
(1) The
Company meets the requirements for use of Form S-3 under the 1933
Act. The Registration Statement and any post-effective amendments
thereto has become effective under the 1933 Act. No stop order
suspending the effectiveness of the Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional information has
been complied with.
At the
respective times the Registration Statement and any post-effective amendments
thereto became or become effective, at each deemed effective date of the
Registration Statement with respect to the Underwriter pursuant to Rule
430B(f)(2) of the 1933 Act Regulations and at the Closing Date (and, if any
Option Securities are purchased, at the applicable Option Closing Date), the
Registration Statement complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not and
will 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.
Neither
the Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the Closing
Date (and, if any Option Securities are purchased, at the applicable Option
Closing Date), complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not and will
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
-3-
Each
preliminary prospectus (including any prospectus or prospectuses filed as part
of the Registration Statement at the time it originally became effective or any
amendment thereto), complied when so filed in all material respects with the
1933 Act and the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriter for use in connection with the offering
of the Securities was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
As of the
Initial Sale Time, neither (x) the Issuer General Use Free Writing
Prospectus(es) (as defined below) issued at or prior to the Initial Sale Time
(as defined below), each preliminary prospectus issued at or prior to the
Initial Sale Time and the information included on Schedule II hereto,
all considered together (collectively, the “Disclosure Package”),
nor (y) any individual Issuer Limited Use Free Writing Prospectus (as defined
below), when considered together with the Disclosure Package, included any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As used
in this subsection and elsewhere in this Agreement:
“Initial Sale Time”
means 8:00 a.m. (Eastern time) on March 26 , 2010 or such other time as
agreed by the Company and the Underwriter.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the 1933 Act Regulations (“Rule 433”), relating
to the Securities that (i) is required to be filed with the Commission by the
Company, (ii) is a “road show that is a written communication” within the
meaning of Rule 433(d)(8)(i), whether or not required to be filed with the
Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because
it contains a description of the Securities or of the offering that does not
reflect the final terms, in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
“Issuer General Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus that is
intended for general distribution to prospective investors (other than a “road
show” (as defined in Rule 433(h)) that is not required to be filed with the
Commission pursuant to Rule 433(d)(8)(i)), as evidenced by its being specified
in Schedule I
hereto.
“Issuer Limited Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus that is not
an Issuer General Use Free Writing Prospectus.
Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until
any earlier date that the issuer notified or notifies the Underwriter as
described in Section 3(e) hereof, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any
document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or
modified.
-4-
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement, the Prospectus or any Issuer
Free Writing Prospectus made in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use
therein (the “Underwriter’s
Information”). The parties acknowledge and agree that the
Underwriter’s Information consists solely of the material included in the first
paragraph under the sub-heading “Price Stabilization and Short Positions” on
pages S-7 and S-8 in the Underwriting section of the Prospectus.
(2) The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, when they became effective or at the
time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations or 1934 Act and the rules and regulations of the Commission
thereunder (the “1934
Act Regulations”), as applicable, and, when read together with the other
information in the Prospectus, (a) at the time the Registration Statement became
effective, (b) at the earlier of the time the Prospectus was first used and the
date and time of the first contract of sale of Securities in this offering and
(c) at the Closing Date (and, if any Option Securities are purchased, at each
Option Closing Date), did not and will 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 light of the circumstances under
which they were made, not misleading.
(3) At
the time of filing the Registration Statement and any post-effective amendments
thereto, at the earliest time thereafter that the Company or another offering
participant made a bona
fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act
Regulations) of the Securities and at the date hereof, the Company was not and
is not an “ineligible issuer,” as defined in Rule 405 of the 1933 Act
Regulations.
(4) The
descriptions in the Registration Statement, the Disclosure Package and the
Prospectus of the contracts, leases and other legal documents therein described
present fairly the information required to be shown, and there are no contracts,
leases, or other documents of a character required to be described in the
Registration Statement, the Disclosure Package or the Prospectus or to be filed
as exhibits to the Registration Statement which are not described or filed as
required; there are no legal or governmental proceedings pending or threatened
to which the Company, the Operating Partnerships or any Subsidiary (as defined
below) is subject that are required to be described in the Registration
Statement, the Disclosure Package or the Prospectus and are not so described;
there are no statutes or regulations applicable to the Company, the Operating
Partnerships or any Subsidiary or certificates, permits or other authorizations
from governmental regulatory officials or bodies required to be obtained or
maintained by the Company, the Operating Partnerships or any Subsidiary of a
character required to be disclosed and properly described therein; all
agreements between the Company, the Operating Partnerships or any Subsidiary and
third parties expressly referenced in the Disclosure Package and the Prospectus
are legal, valid and binding obligations of the Company, the Operating
Partnerships or the Subsidiary, enforceable in accordance with their respective
terms, except to the extent enforceability may be limited by bankruptcy,
insolvency, reorganization or other laws of general applicability relating to or
affecting creditors’ rights and by general equity principles; there are no
business relationships or related-party transactions involving the Company, any
Operating Partnership or any Subsidiary required to be described in the
Registration Statement, Disclosure Package and the Prospectus which have not
been so described as required.
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(5) KPMG
LLP, who certified the financial statements and supporting schedules of the
Company and its subsidiaries and Net Lease Strategic Assets Fund L.P. and its
subsidiaries, in each case which are included or incorporated by reference in
the Registration Statement, the Disclosure Package and the Prospectus, is an
independent registered public accounting firm with respect to the Company and
Net Lease Strategic Assets Fund L.P. as required by the 1933 Act and the 1933
Act Regulations, the 1934 Act, 1934 Act Regulations and the Public Company
Accounting Oversight Board (“PCAOB”). PricewaterhouseCoopers
LLP, who certified the financial statements and supporting schedules of Lex-Win
Concord LLC and its subsidiaries, which are incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus, is an
independent registered public accounting firm with respect to Lex-Win Concord
LLC as required by the 1933 Act and the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations and the PCAOB.
(6) The
financial statements of the Company and its subsidiaries, the financial
statements of Net Lease Strategic Assets Fund L.P. and its subsidiaries and the
financial statements of Lex-Win Concord LLC and its subsidiaries, together with
the related schedules and notes thereto (collectively, the “Company Financial
Statements”), included or incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus, and any financial
statements required by Rule 3-14 of Regulation S-X (the “Acquisition Financial
Statements”), which are incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus, present fairly the
financial position of the Company and its consolidated subsidiaries, Net Lease
Strategic Assets Fund L.P. and its subsidiaries and Lex-Win Concord LLC and its
subsidiaries, in each case at the dates indicated, or, if applicable, with
respect to the Acquisition Financial Statements, the respective property or
tenant; and all such financial statements have been prepared in conformity with
United States generally accepted accounting principles (“GAAP”) applied on a
consistent basis throughout the periods involved and comply with all applicable
accounting requirements under the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations. The supporting schedules, if
any, included or incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus present fairly, in accordance with GAAP,
the information required to be stated therein. There are no financial
statements or schedules required to be included or incorporated by reference in
the Registration Statement, the Disclosure Package or the Prospectus under the
1933 Act or the 1933 Act Regulations which are not so included or
incorporated. If applicable, the unaudited pro forma financial
information (including the related notes) included or incorporated by reference
in the Registration Statement, the Disclosure Package or the Prospectus complies
as to form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations, and management of the Company
believes that the assumptions underlying the pro forma adjustments are
reasonable. If applicable, such pro forma adjustments have been
properly applied to the historical amounts in the compilation of the information
and such information fairly presents with respect to the Company and its
consolidated subsidiaries, the financial position, results of operations and
other information purported to be shown therein at the respective dates and for
the respective periods specified. No pro forma financial information
is required to be included or incorporated by reference in the Registration
Statement, the Disclosure Package or the Prospectus which is not so included or
incorporated. Any non-GAAP financial measures, as defined under
Regulation G of the 1933 Act, included or incorporated by reference in the
Registration Statement, the Disclosure Package, and the Prospectus are permitted
for use in documents filed with the Commission and comply with Regulation G
under the 1934 Act and Item 10 of Regulation S-K of the 1933 Act, to the extent
applicable. The ratio of earnings to fixed charges contained in the
Registration Statement, the Disclosure Package and the Prospectus has been
calculated in accordance with Item 503(d) of Regulation S-K.
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(7) Since
the respective dates as of which information is given in the Registration
Statement, the Disclosure Package or the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, investment portfolio, business
affairs or business prospects of the Company, the Operating Partnerships and the
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse Effect”), (B) there have been
no transactions entered into by any of the Company, the Operating Partnerships
or the Subsidiaries, which are material with respect to the Company, the
Operating Partnerships and the Subsidiaries, considered as one enterprise, and
(C) except as disclosed in the Company’s press releases, there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its shares of beneficial interest.
(8) The
Company has been duly organized and is an existing statutory real estate
investment trust in good standing under the laws of the State of Maryland, with
power and authority (trust and other) to own its properties and conduct its
business as described in the Disclosure Package and the
Prospectus. Except where the failure to so qualify or to be in good
standing would not result in a Material Adverse Effect, the Company is duly
qualified to do business as a foreign entity in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification.
(9) Schedule
III hereto is a true, correct and complete list, as of the date hereof, of all
of the subsidiaries of the Company controlled directly or indirectly by the
Company (each, a “Subsidiary” and
collectively, the “Subsidiaries”),
including the jurisdiction of incorporation or organization of each such
Subsidiary; and each Subsidiary that is a “significant subsidiary” as defined by
Rule 1-02 of Regulation S-X (each, a “Significant
Subsidiary” and collectively, the “Significant
Subsidiaries”) is included in Exhibit 21 thereto.
(10) Each
Operating Partnership and each Subsidiary has been duly incorporated or formed,
as the case may be, and each is existing and in good standing under the laws of
its respective jurisdiction of incorporation or formation, with power and
authority (corporate and other) to own or lease its properties and conduct its
business as described in the Disclosure Package and the
Prospectus. Except where the failure to so qualify or to be in good
standing would not result in a Material Adverse Effect, each Operating
Partnership and each Subsidiary is duly qualified to do business as a foreign
entity in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification.
All of the issued and outstanding equity interests of each Operating Partnership
and each Subsidiary have been duly authorized and validly issued and are fully
paid and non-assessable; and the equity interests of each Subsidiary owned by
the Company or an Operating Partnership, directly or through subsidiaries, are
owned free from security interests, liens, claims, encumbrances and defects,
except (i) as disclosed in the Disclosure Package and the Prospectus or (ii)
where such security interests, liens, claims, encumbrances and defects would not
have a Material Adverse Effect. Immediately prior to the consummation
of the transactions contemplated hereby and the application of the net proceeds
from the sale of the Securities, the Company owns the sole general partner
interest and a majority of the limited partner interests in each Operating
Partnership.
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(11) The
authorized, issued and outstanding shares of beneficial interest of the Company
as of December 31, 2009 are as set forth in the column entitled “Actual” and in
the corresponding line items under the caption “Capitalization” in each of the
Disclosure Package and the Prospectus. On the date of this Agreement,
121,996,422 Common Shares are issued and outstanding. This Agreement
and the issuance and sale of the Securities hereunder has been duly authorized
by all appropriate action of the Company, all outstanding shares of beneficial
interest of the Company are, and, when the Securities have been delivered and
paid for in accordance with this Agreement on the Closing Date and each Option
Closing Date, if any, such Securities will be, validly issued, fully paid and
non-assessable and will conform to the description thereof contained in the
Disclosure Package and the Prospectus; the issued and outstanding units of
limited partnership interest in the Operating Partnerships (the “OP Units”) have been
duly authorized by the Operating Partnerships and validly issued in accordance
with the applicable Partnership Agreement; all of the issued and outstanding
shares of beneficial interest of the Company and outstanding OP Units have been
offered, sold and issued by the Company or the applicable Operating Partnership
in compliance with all applicable laws, including without limitation, federal
and state securities laws; except as described in the Disclosure Package and the
Prospectus, there is no outstanding option, warrant or other right calling for
the issuance of, and no commitment, plan or arrangement to issue, any shares of
beneficial interest of the Company or equity interests in the Operating
Partnerships or any security convertible into or exchangeable for shares of
beneficial interest of the Company or equity interests in the Operating
Partnerships, and the shareholders of the Company have no preemptive or similar
rights with respect to any shares of beneficial interest of the
Company.
(12) Except
as described in the Disclosure Package and the Prospectus, there are no
contracts, agreements or understandings between the Company or any of the
Operating Partnerships and any person that would give rise to a valid claim
against the Company or the Underwriter for a brokerage commission, finder’s fee
or other like payment in connection with the offering, issuance and sale of the
Securities.
(13) Except
as described in the Disclosure Package and the Prospectus, there are no
contracts, agreements or understandings between the Company or the Operating
Partnerships and any person granting such person the right to require the
Company to file a registration statement under the 1933 Act with respect to any
securities of the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the 1933 Act other than
the registration rights granted to (a) holders of limited partnership interests
in the Operating Partnerships, (b) Vornado Realty Trust and (c) holders of the
5.45% Exchangeable Guaranteed Notes due in 2027 originally issued by The
Lexington Master Limited Partnership.
(14) The
Securities will be approved for listing on the New York Stock Exchange on or
prior to the Closing Date, subject to final notice of issuance.
(15) No
consent, approval, license, authorization, certificate, permit or order of, or
filing with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement including the
valid authorization, issuance, sale and delivery of the Securities, except such
as may be required under the 1933 Act, the 1933 Act Regulations, the 1934 Act,
the 1934 Act Regulations, the rules of the New York Stock Exchange and state
securities laws.
(16) The
execution, delivery and performance of this Agreement and the issuance and sale
of the Securities will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute, rule, regulation
or order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company, the Operating Partnerships or the
Subsidiaries or any of their properties, or any agreement or instrument to which
the Company, the Operating Partnerships or Subsidiary is a party or by which the
Company, the Operating Partnerships or any Subsidiary is bound or to which any
of the Properties of the Company, the Operating Partnerships or any Subsidiary
is subject, or the charter, by-laws, partnership agreement, certificate of
limited partnership, operating agreement or other organizational documents of
the Company, the Operating Partnerships or any Subsidiary, and the Company, has
full power and authority to authorize, issue, sell and deliver the Securities as
contemplated by this Agreement.
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(17) This
Agreement has been duly authorized, executed and delivered by the Company and
the Operating Partnerships and constitutes the legal, valid and binding
obligation of the Company and the Operating Partnerships enforceable against the
Company and the Operating Partnerships in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(18) Except
as described in the Disclosure Package and the Prospectus, the Company, the
Operating Partnerships or their Subsidiaries, and the joint ventures in which
the Company, the Operating Partnerships or their Subsidiaries has an ownership
interest, have good and marketable title to all real properties and all other
properties and assets owned by them (each, a “Property” and
collectively, the “Properties”), in each
case free from liens, encumbrances and defects, except where the existence of
any lien, encumbrance or defect would not have a Material Adverse Effect; the
Company, each Operating Partnership or the Subsidiary has obtained an owner’s
title insurance policy in an amount at least equal to the cost of acquisition
from a title insurance company with respect to each of its real estate
properties, except where the failure to obtain such owner’s title insurance
policy would not have a Material Adverse Effect; except as disclosed in the
Disclosure Package and the Prospectus, the Company, the Operating Partnerships
and the Subsidiaries hold any leased real or personal property under valid and
enforceable leases, except where the invalidity or unenforceability of such
leases, individually or collectively, would not have a Material Adverse Effect;
no person has an option or right of first refusal to purchase all or part of any
Property or any interest therein for other than the fair market value, except
where the exercise of such option or right would not have a Material Adverse
Effect; neither the Company, the Operating Partnerships nor any Subsidiary has
knowledge of any pending or threatened condemnation proceeding, zoning change,
or other proceeding or action that will in any material manner affect the size
of, use of, improvements on, construction on or access to any of the
Properties.
(19) The
Company, the Operating Partnerships and the Subsidiaries possess adequate
permits, licenses, franchises, certificates, authorities, consents, orders or
approvals issued by appropriate governmental agencies or bodies necessary to
conduct the business now conducted by them or contemplated by the Disclosure
Package and the Prospectus and have not received any notice of proceedings
relating to the revocation or modification of any such permits, licenses,
franchises, certificates, authorities, consents, orders or approvals that, if
determined adversely to the Company, the Operating Partnerships or any
Subsidiary, would, individually or in the aggregate, have a Material Adverse
Effect.
(20) No
labor dispute with the employees of the Company, the Operating Partnerships or
any subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
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(21) The
Company, the Operating Partnerships and the Subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, “intellectual property
rights”) necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of infringement of
or conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company, the Operating
Partnerships or any of the Subsidiaries, would individually or in the aggregate
have a Material Adverse Effect.
(22) Except
as (x) otherwise described in the Disclosure Package and the Prospectus and (y)
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, neither the Company, the Operating Partnerships nor any
Subsidiary has authorized or conducted or has knowledge of the generation,
transportation, storage, presence, use, treatment, disposal, release, or other
handling of any hazardous substance, hazardous waste, hazardous material,
hazardous constituent, toxic substance, pollutant, contaminant, asbestos, radon,
polychlorinated biphenyls (“PCBs”), petroleum
product or waste (including crude oil or any fraction hereof, natural gas,
liquefied gas, synthetic gas or other material defined, regulated, controlled or
potentially subject to any remediation requirement under any environmental law
(collectively, “Hazardous
Materials”), on, in, under or affecting any Property, except in material
compliance with applicable laws; except as disclosed in the Disclosure Package
and the Prospectus, to the knowledge of the trustees and officers of the
Company, the Properties are in compliance with all federal, state and local
laws, ordinances, rules, regulations and other governmental requirements
relating to pollution, control of chemicals, management of waste (collectively,
“Environmental
Laws”), and the Company, the Operating Partnerships and the Subsidiaries
are in compliance with all licenses, permits, registrations and government
authorizations necessary to operate under all applicable Environmental Laws in
all material respects; except as otherwise described in the Disclosure Package
and the Prospectus, neither the Company, any Operating Partnership or any
Subsidiary has received any written or oral notice from any governmental entity
or any other person and there is no pending, or, to the knowledge of the
trustees and officers of the Company, threatened claim, litigation or any
administrative agency proceeding that: alleges a violation of any
Environmental Laws by the Company, the Operating Partnerships or any Subsidiary;
or that the Company, any Operating Partnership or any Subsidiary is a liable
party or a potentially responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601, et. seq., or
any state superfund law; has resulted in or could result in the attachment of an
environmental lien on any of the properties; or alleges that the Company, any
Operating Partnership or any Subsidiary is liable for any contamination of the
environment, contamination of the Property, damage to natural resources,
property damage, or personal injury based on their activities or the activities
of their predecessors or third parties (whether at the properties or elsewhere)
involving Hazardous Materials, whether arising under the Environmental Laws
common law principles, or other legal standards. In the ordinary
course of its business, the Company, the Operating Partnerships and the
Subsidiaries conduct Phase I environmental assessments on each of the Properties
at the time such Property is acquired and periodic reviews of the effect of
Environmental Laws on the business, operations and properties of the Company,
the Operating Partnerships and the Subsidiaries.
(23) Except
as described in the Disclosure Package and the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any Operating
Partnership or any Subsidiary or any of their respective Properties that, if
determined adversely to the Company, any Operating Partnership or such
Subsidiary, would individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the ability of the Company or
the Operating Partnerships to perform their obligations under this Agreement, or
which are otherwise material in the context of the offering, issuance, sale and
delivery of the Securities; and no such actions, suits or proceedings are
threatened or, to the Company’s or any Operating Partnership’s knowledge,
contemplated.
-10-
(24) The
Company has implemented controls and other procedures that are designed to
ensure that information required to be disclosed by the Company in the reports
that it files or submits under the 1934 Act is recorded, processed, summarized
and reported, within the time periods specified in the Commission’s rules and
forms and is accumulated and communicated to the Company’s management, including
its chief executive officer and chief financial officer, or persons performing
similar functions, as appropriate to allow timely decisions regarding required
disclosure; and the Company makes and keeps books, records, and accounts, which,
in reasonable detail, accurately and fairly reflect the transactions and
dispositions of the assets of the Company; and the Company maintains a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences; and, to the Company’s and each
Operating Partnership’s knowledge, neither the Company, any Operating
Partnership nor any Subsidiary, nor any employee or agent thereof, has made any
payment of funds of the Company, the Operating Partnerships or any of the
Subsidiaries, as the case may be, or received or retained any funds, and no
funds of the Company, the Operating Partnerships or any of the Subsidiaries, as
the case may be, have been set aside to be used for any payment, in each case in
violation of any law, rule or regulation.
(25) Neither
the Company, any Operating Partnership nor any Subsidiary is and, after giving
effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Disclosure Package and the Prospectus, will
not be an “investment company” or a company “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended
(the “1940
Act”).
(26) The
Limited Partnership Agreement of each Operating Partnership, including any
amendments thereto (each a “Partnership
Agreement” and, together, the “Partnership
Agreements”), has been duly and validly authorized, executed and
delivered by all partners of the Operating Partnership and constitutes a valid
and binding agreement, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(27) The
Company, the Operating Partnership and the Subsidiaries have complied in all
respects with all laws, regulations and orders applicable to them or their
respective businesses, except as would not have a Material Adverse Effect;
neither the Company, the Operating Partnerships nor any Subsidiary is in breach
of, or in default under (nor has any event occurred which with notice, lapse of
time, or both would constitute a breach of, or default under), (A) its
respective declaration of trust, by-laws, certificate of limited partnership,
partnership agreement or operating agreement, as the case may be, or (B) in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any material license, indenture, mortgage, deed of trust,
loan or credit agreement or other material agreement or instrument to which the
Company, any Operating Partnership or such Subsidiary is a party or by which any
of them or their respective properties is bound, except in the case of (B) where
such breach, default or event would not have a Material Adverse
Effect.
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(28) Each
of the Company, the Operating Partnerships and the Subsidiaries has filed on a
timely basis all necessary federal, state, local and foreign income and
franchise tax returns, if any such returns were required to be filed, through
the date hereof and have paid all taxes shown as due thereon, except where
failure to so file or pay would not have a Material Adverse Effect; and no tax
deficiency has been asserted against the Company, any Operating Partnership or
any Subsidiary, nor, to the knowledge of the trustees and officers of the
Company, is any tax deficiency likely to be asserted against the Company or any
Operating Partnership; all tax liabilities, if any, are adequately provided for
on the respective books of the entities.
(29) Commencing
with its taxable year ended December 31, 1993, the Company has been organized
and operated in conformity with the requirements for qualification as a real
estate investment trust (“REIT”) under the
Internal Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the “Code”), and the
Company’s current and proposed method of operations will enable it to continue
to meet the requirements for taxation as a REIT under the Code; no transaction
or other event has occurred which could reasonably be expected to cause the
Company not to be able to qualify as a REIT for its taxable years ending
December 31, 2010 or future years.
(30) To
the Company’s knowledge, commencing with its taxable year ended December 31,
2006, Concord Debt Funding Trust (“Concord REIT”) has
been organized and operated in conformity with the requirements for
qualification as a REIT under the Code; to the Company’s knowledge, Concord
REIT’s current and proposed method of operations will enable Concord REIT to
continue to meet the requirements for taxation as a REIT under the Code; to the
Company’s knowledge, no transaction or other event has occurred which could
reasonably be expected to cause Concord REIT not to be able to qualify as a REIT
for its taxable years ending December 31, 2010 or future years.
(31) Each
of the Operating Partnerships has been and will continue to be treated as a
partnership for federal income tax purposes and not as a corporation or
association taxable as a corporation.
(32) Each
of the Company, each Operating Partnership and the Subsidiaries maintains
insurance (issued by insurers of recognized financial responsibility) of the
types and in the amounts generally deemed adequate, if any, for their respective
businesses and consistent with insurance coverage maintained by similar
companies in similar businesses, including, but not limited to, insurance
covering real and personal property owned or leased by the Company, the
Operating Partnerships and the Subsidiaries against theft, damage, destruction,
acts of vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
(33) There
are no material outstanding loans or advances or material guarantees of
indebtedness by the Company, any Operating Partnership or any Subsidiary to or
for the benefit of any of the executive officers or trustees of the Company or
any of their family members.
(34) In
connection with the offering of the Securities, the Company has not offered and
will not offer its Common Shares or any other securities convertible into or
exchangeable or exercisable for Common Shares in a manner in violation of the
Act or the 1933 Act Rules and Regulations; the Company and its affiliates have
not distributed and will not distribute, prior to the completion of the
Underwriter’s distribution of the Securities, any written offering materials in
connection with the offer and sale of the Securities other than (i) the
Registration Statement, (ii) the preliminary prospectus dated Xxxxx 00, 0000,
(xxx) the Prospectus and (iv) the Issuer General Use Free Writing Prospectuses
set forth on Schedule
I hereto, if any.
-12-
(35) None
of the entities which prepared appraisals of the Properties or Phase I
environmental assessment reports with respect to such Properties was employed
for such purpose on a contingent basis or has any substantial interest in the
Company, any Operating Partnership or any Subsidiary, and none of their
trustees, trustees, managers, officers or employees is connected with the
Company, any Operating Partnership or any Subsidiary as a promoter, selling
agent, voting trustee, officer or employee.
(36) The
Company is in material compliance with applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002, as amended from time to time (the “Xxxxxxxx-Xxxxx Act”)
that are effective, including Section 404 thereof, and is actively taking steps
to ensure that it will be in compliance with other applicable provisions of the
Xxxxxxxx-Xxxxx Act upon the effectiveness of such provisions.
(37) The
Company is in material compliance with the current listing standards of the New
York Stock Exchange and has made all material filings and/or certifications to
the New York Stock Exchange on a timely basis.
(38) The
Company has implemented the “disclosure controls and procedures” (as defined in
Rules 13a-15(e) of the 0000 Xxx) required in order for the Chief Executive
Officer and Chief Financial Officer of the Company to engage in the review and
evaluation process mandated by the 1934 Act. The Company’s
“disclosure controls and procedures” are reasonably designed to ensure that all
information (both financial and non-financial) required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported within the specified time periods, and that
all such information is accumulated and communicated to the Company’s management
as appropriate to allow timely decisions regarding required disclosure and to
make the certifications of the Chief Executive Officer and Chief Financial
Officer of the Company required under the 1934 Act with respect to such
reports.
(39) The
section entitled “Management’s Discussion and Analysis of Financial Condition
and Results of Operation—Critical Accounting Policies” in the Company’s Annual
Report on Form 10-K for the year ended December 31, 2009 which is incorporated
by reference into the Registration Statement, the Disclosure Package and the
Prospectus, accurately and fully describes (i) accounting policies which the
Company believes are the most important in the portrayal of the financial
condition and results of operations of the Company and its consolidated
subsidiaries and which require management’s most difficult, subjective or
complex judgments (“critical accounting
policies”), (ii) judgments and uncertainties affecting the application of
critical accounting policies and (iii) the explanation of the likelihood that
materially different amounts would be reported under different conditions or
using different assumptions. The Company’s board of trustees, senior
management and audit committee have reviewed and agreed with the selection,
application and disclosure of critical accounting policies and have consulted
with the Company’s legal counsel and independent accountants with regard to such
disclosure.
(40) Since
the date of the filing of the Company’s Annual Report 10-K for the year ended
December 31, 2009, the Company’s auditors and the audit committee of the board
of trustees of the Company (or persons fulfilling the equivalent function) have
not been advised of (i) any significant deficiencies in the design or operation
of internal controls over financial reporting which are reasonably likely to
adversely affect the Company’s ability to record, process, summarize and report
financial reporting or (ii) fraud, whether or not material, that involves
management or other employees who have a significant role in the Company’s
internal controls.
-13-
(41) Since
the date of the filing of the Company’s Annual Report on Form 10-K for the year
ended December 31, 2009, except as disclosed in the Disclosure Package and the
Prospectus, there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies in such
controls.
(42) Neither
the Company’s nor any Operating Partnership’s or Subsidiary’s performance of its
respective obligations under its joint venture agreements nor the consummation
of any transactions contemplated thereby nor the fulfillment of the terms
thereof by the Company or any Operating Partnership will conflict with or,
result in a breach or violation of (A) the charter, by-laws, partnership
agreement, operating agreement, limited liability company certificate or
certificate of limited partnership of the Company or any Operating Partnership;
(B) the terms of any material indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or such Operating Partnership is a
party or bound or to which its or their property is subject; or (C) any
statute, law, rule, regulation, judgment, order or decree applicable to the
Company or any Operating Partnership of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such Operating Partnership or any of its or
their properties or, result in the creation or imposition of any lien, charge,
claim or encumbrance upon any property or asset of the Company or any Operating
Partnership, except in the case of (B) and (C) where such conflict, breach,
violation, creation or imposition, as the case may be, wound not have a Material
Adverse Effect.
(43) The
form of certificate used to evidence the Common Shares complies in all material
respects with all applicable statutory requirements, with any applicable
requirements of the Declaration of Trust and Bylaws of the Company and the
requirements of the New York Stock Exchange.
(44) The
Securities will conform in all material respects to the respective statements
relating thereto contained in the Disclosure Package and the
Prospectus. The Common Shares conforms to all statements relating
thereto contained or incorporated by reference in the Disclosure Package and the
Prospectus and such description conforms to the rights set forth in the
instruments defining the same.
(45) Each
of the Company and the Operating Partnerships has not taken and will not take,
directly or indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security to facilitate the sale or resale of
the Securities.
(46) None
of the Company, the Operating Partnerships, any of the Subsidiaries or, to the
knowledge of the Company, any trustee, officer, agent, employee, affiliate or
other person acting on behalf of the Company, the Operating Partnerships or any
of the Subsidiaries is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder (the
“FCPA”), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company and, to the
knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
-14-
(47) The
operations of the Company, the Operating Partnerships and the Subsidiaries are
and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any Governmental Entity (collectively, the “Money Laundering Laws”); and no
action, suit or proceeding by or before any Governmental Entity involving the
Company, the Operating Partnerships or any of the Subsidiaries with respect to
the Money Laundering Laws is pending or, to the best knowledge of the Company,
threatened.
(48) None
of the Company, the Operating Partnerships, any of the Subsidiaries or, to the
knowledge of the Company, any trustee, officer, agent, employee, affiliate or
other person acting on behalf of the Company, the Operating Partnerships or any
of the Subsidiaries is currently subject to any U.S. sanctions administered by
the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”);
and neither the Company nor any of the Operating Partnerships will directly or
indirectly use the proceeds of the sale of the Securities, or lend, contribute
or otherwise make available such proceeds to any of its subsidiaries, joint
venture partners or other person, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by
OFAC.
(49) Except
as set forth in the Company’s financial statements, each of the Company, the
Operating Partnerships and the Subsidiaries do not have any material liabilities
under the Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as amended from time to
time.
(50) Except
as disclosed in the Disclosure Package and the Prospectus, neither the Company
nor any of its Subsidiaries or any of its affiliates has any outstanding
borrowings from, or is a party to any line of credit, credit agreement or other
credit facility or otherwise has a borrowing relationship with, any bank or
other lending institution affiliated with the Underwriter, and, except as
disclosed in the Disclosure Package and the Prospectus, the Company does not
intend to use any of the proceeds from the sale of the Securities to repay any
debt owed to the Underwriter or any of their respective affiliates.
(b) Statistical and Market-Related
Data. Any statistical and market-related data included in the
Disclosure Package or the Prospectus are based on or derived from sources that
the Company believes, after reasonable inquiry, to be reliable and accurate and,
to the extent required, the Company has obtained the written consent to the use
of such data from such sources.
(c) Officer’s
Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Underwriter or to counsel
for the Underwriter shall be deemed a representation and warranty by the Company
or any Operating Partnership to the Underwriter as to the matters covered
thereby.
-15-
SECTION
2. Sale and Delivery to
Underwriter; Closing.
(a) Initial
Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriter, and the Underwriter agrees to
purchase from the Company, at a price of $6.486 per share (the “Purchase Price”), the
Initial Securities. The Underwriter hereby acknowledges that it will resell all
of the Initial Securities.
(b) Option
Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions set
forth herein, the Company hereby grants an option to the Underwriter to purchase
up to 1,425,000 additional Common Shares at a price per share equal to the
Purchase Price referred to in Section 2(a) above; provided that the price
per share for any Option Securities shall be reduced by an amount per share
equal to any dividends or distributions declared by the Company and payable on
the Initial Securities but not payable on such Option Securities. The
option hereby granted will expire at the close of business on the 30th day after
the date hereof and may be exercised in whole or in part from time to time only
for the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Initial Securities upon notice by the
Underwriter to the Company setting forth the number of Option Securities as to
which the Underwriter is then exercising the option and the time and date of
payment and delivery for such Option Securities. Any such time and
date of delivery (an “Option Closing Date”)
shall be determined by the Underwriter, and may be the Closing Date (as
hereinafter defined), but shall not be later than seven full business days after
the exercise of said option, nor in any event prior to the Closing
Date. If the option is exercised as to all or any portion of the
Option Securities, the Company will sell to the Underwriter the total number of
Option Securities then being purchased, and the Underwriter will purchase the
total number of Option Securities then being purchased.
(c) Payment. Payment
of the purchase price for, and delivery of certificates for, the Initial
Securities shall be made at the offices of Hunton & Xxxxxxxx LLP, 000 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000-0000 or at such other place as shall be
agreed upon by the Underwriter and the Company, at 9:00 a.m. (New York City
time) on March 31, 2010, unless postponed to such other time not later than ten
business days after such date as shall be agreed upon by the Underwriter and the
Company (such time and date of payment and delivery being herein called the
“Closing
Date”).
In
addition, in the event that any or all of the Option Securities are purchased by
the Underwriter, payment of the purchase price for, and delivery of certificates
for, such Option Securities shall be made at 9:00 a.m. at the above-mentioned
offices, or at such other place as shall be agreed upon by the Underwriter and
the Company, on each Option Closing Date as specified in the notice from the
Underwriter to the Company.
(d) Denominations;
Registration. Certificates for the Initial Securities and the
Option Securities, if any, shall be in such denominations and registered in such
names as the Underwriter may request in writing at least one full business day
before the Closing Date or the relevant Option Closing Date, as the case may
be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Underwriter in the City of New York not later than noon (New York time) on the
business day prior to the Closing Date or the relevant Option Closing Date, as
the case may be.
SECTION
3. Covenants of the
Company. The Company covenants with the Underwriter as
follows:
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(a) Compliance with Securities
Regulations and Commission Requests. Prior to the first to
occur of the final Option Closing Date or the expiration of the option set forth
in Section 2(b), the Company, subject to Section 3(b), will comply with the
requirements of Rule 430B, and will promptly notify the Underwriter, and confirm
the notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
any document incorporated by reference therein or for additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes or of
any examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes the subject of a
proceeding under Section 8A of the 1933 Act in connection with the offering of
the Securities. The Company will effect the filings required under Rule 424(b),
in the manner and within the time period required by Rule 424(b) (without
reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments and 1934 Act
Documents. Prior to the first to occur of the final Option
Closing Date or the expiration of the option set forth in Section 2(b), the
Company will give the Underwriter notice of its intention to file or prepare any
amendment to the Registration Statement or any amendment, supplement or revision
to either any preliminary prospectus (including any prospectus included in the
Registration Statement at the time it originally became effective or amendment
thereto at the time it became effective) or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, and the Company will furnish the
Underwriter with copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file or use any
such document to which the Underwriter or counsel for the Underwriter shall
object. The Company has given the Underwriter notice of any filings
made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to
the execution of this Agreement; the Company will give the Underwriter notice of
its intention to make any such filing from the execution of this Agreement to
the Closing Date and will furnish the Underwriter with copies of any such
documents a reasonable amount of time prior to such proposed filing and will not
file or use any such document to which the Underwriter or counsel for the
Underwriter shall object.
(c) Delivery of Registration
Statements. Upon request, the Company will deliver to the
Underwriter and counsel for the Underwriter, without charge, a signed copy of
the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith) and signed copies of all consents and
certificates of experts. The copies of such Registration Statement and each
amendment thereto furnished to the Underwriter and counsel for the Underwriter
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) Delivery of
Prospectuses. The Company has delivered or will deliver to the
Underwriter, without charge, as many copies of the Prospectus as the Underwriter
reasonably requested and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to
the Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act in connection with the sales of the
Securities (the “Prospectus Delivery
Period”), such number of copies of the Prospectus (as amended or
supplemented) as the Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriter will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
-17-
(e) Continued Compliance with Securities
Laws. The Company will comply with the 1933 Act and the 1933
Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and the Prospectus. If, at any time
during the Prospectus Delivery Period, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of counsel for the
Underwriter or for the Company, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to
Section 3(b) hereof, such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, the Company will use its best efforts
to have any such amendment to the Registration Statement declared effective as
soon as practicable, and the Company will furnish to the Underwriter such number
of copies of such amendment or supplement as the Underwriter may reasonably
request. If at any time following the issuance of an Issuer Free
Writing Prospectus there occurred or occurs, prior to the completion of the
distribution of the Securities by the Underwriter, an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the Registration Statement, or any preliminary
prospectus or the Prospectus or included or would include an untrue statement of
a material fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, the Company will promptly
notify the Underwriter and will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission.
(f) Permitted Free Writing
Prospectuses. The Company agrees that, unless it obtains the
prior written consent of the Underwriter, and the Underwriter agrees that,
unless it obtains the prior written consent of the Company, it will not make any
offer relating to the Securities that would constitute an “issuer free writing
prospectus” as defined in Rule 433, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405 of the 1933 Act, required to be
filed with the Commission; provided that the prior
written consent of the Underwriter or the Company, as the case may be, shall be
deemed to have been given in respect of any Issuer General Use Free Writing
Prospectuses listed in Schedule I
hereto. Any such free writing prospectus consented to by the Underwriter or the
Company and the Underwriter, as the case may be, is hereinafter referred to as a
“Permitted Free
Writing Prospectus.” The Company agrees that (i) it has
treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and
(ii) has complied and will comply, as the case may be, with the requirements of
Rules 164 and 433 of the 1933 Act applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending
and record keeping.
(g) Blue Sky
Qualifications. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Underwriter may designate and to maintain such
qualifications in effect so long as required to complete the distribution of the
Securities; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
-18-
(h) Rule 158. The
Company will timely file such reports pursuant to the 1934 Act as are necessary
in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(i) Use of
Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Disclosure
Package and the Prospectus under “Use of Proceeds.”
(j) DTCC. The Company
will cooperate with the Underwriter and use its best efforts to permit the
Securities to be eligible for clearance and settlement through the facilities of
The Depository Trust & Clearing Corporation (“DTCC”).
(k) Listing. The
Company will use its best efforts to effect the listing of the Securities on the
NYSE.
(l) Restriction on Sale of
Securities. During a period of 45 days from the date of the
Prospectus, the Company will not, without the prior written consent of the
Underwriter, (i) directly or indirectly, offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of any Common Shares or any securities convertible into or exercisable
or convertible for Common Shares or file any registration statement under the
1933 Act with respect to any of the foregoing; provided, however, that the
foregoing restrictions shall not prohibit the Company from filing a shelf
registration statement or a prospectus supplement under the 1933 Act relating to
an “at the market” offering of its Common Shares after the Closing Date, or (ii)
enter into any swap or any other agreement or any transaction that transfers, in
whole or in part, directly or indirectly, the economic consequence of ownership
of the Common Shares, whether any such swap or transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Shares or such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) the Securities to be sold hereunder, (B) any Common Shares issued
by the Company upon (x) the exercise of an option or warrant or (y) the
conversion of a security, in either case outstanding on the date hereof and
referred to (by incorporation by reference or otherwise) in the Disclosure
Package and the Prospectus, (C) any Common Shares issued or options to purchase
Common Shares granted pursuant to existing employee benefit plans of the Company
referred to in the Disclosure Package and the Prospectus or (D) any Common
Shares issued pursuant to any non-employee director stock plan, direct stock
purchase plan or dividend reinvestment plan referred to in the Disclosure
Package and the Prospectus, or (E) any limited partner interests in the
Operating Partnerships that are issued in exchange for real property or
interests therein in the ordinary course of business. Notwithstanding
the foregoing, in the event that either (x) during the last 17 days of the
Lock-Up Period, such 45-day period, the Company issues an earnings release or
(y) prior to the expiration of such 45-day period, the Company announces that it
will release earnings results during the 16-day period beginning on the last day
of such 45-day period, the restrictions described above shall continue to apply
until the expiration of the 18-day period beginning on the date of the earnings
release or the announcement of the material news or the occurrence of the
material event.
(m) Reporting
Requirements. The Company, during the Prospectus Delivery
Period, will file all documents required to be filed with the Commission
pursuant to, and in accordance with, the 1934 Act and the 1934 Regulations
within the time periods required by the 1934 Act and the 1934 Act
Regulations.
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(n) Preparation of
Prospectus. Immediately following the execution of this
Agreement, the Company will, subject to Section 3(b) hereof, prepare the
Prospectus containing the Rule 430B Information and other selling terms of the
Securities, the plan of distribution thereof and such other information as may
be required by the 1933 Act or the 1933 Act Regulations or as the Underwriter
and the Company may deem appropriate, and will file or transmit for filing with
the Commission, in accordance with Rule 424(b), copies of the
Prospectus.
(o) REIT
Qualification. The Company will use its best efforts to
continue to meet the requirements to qualify as a “real estate investment trust”
under the Code for so long as the Company intends to so qualify.
(p) Company Not an “Investment
Company.” Each of the Company and the Operating Partnerships
is familiar with the 1940 Act and the rules and regulations thereunder and will
in the future conduct its and each Subsidiary’s affairs in such a manner, and
will use its best efforts, to ensure that the Company and each such Operating
Partnership and Subsidiary will not be an “investment company” within the
meaning of the 1940 Act and the rules and regulations thereunder.
(q) No Price Stabilization or
Manipulation. The Company will not, and will use its best
efforts to cause its officers, trustees and affiliates not to, and the Operating
Partnerships will not, prior to the completion of the distribution of the
Securities by the Underwriter contemplated by this Agreement, (i) take, directly
or indirectly any action designed to stabilize or manipulate the price of any
security of the Company, or which may cause or result in, or which might in the
future reasonably be expected to cause or result in, the stabilization or
manipulation of the price of any security of the Company, to facilitate the sale
or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone
any compensation for soliciting purchases of the Securities or (iii) pay or
agree to pay to any person (other than the Underwriter) any compensation for
soliciting any order to purchase any other securities of the
Company.
SECTION
4. Payment of
Expenses.
(a) Expenses. The
Company will pay or cause to be paid all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and any
schedules or exhibits and any document incorporated therein by reference) and of
each amendment or supplement thereto, (ii) preparation, issuance and delivery of
the Securities to the Underwriter and any charges of DTCC in connection
therewith, (iii) the fees and disbursements of the Company’s counsel,
accountants and other advisors (iv) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(d) hereof,
including filing fees and expenses incident thereto and in connection with the
preparation of the Blue Sky Survey and any supplement thereto (but not including
the fees of counsel for the Underwriter incurred in connection therewith), (v)
the preparation, printing and delivery to the Underwriter of copies of the
Prospectus and any amendments or supplements thereto and any costs associated
with electronic delivery of any of the foregoing by the Underwriter to
investors, (vi) all fees and expenses of the transfer agent or registrar for the
Securities, (vii) the fees and expenses incurred in connection with the listing
of the Securities on the New York Stock Exchange and (x) the costs and expenses
(including, without limitation, any damages or other amounts payable in
connection with legal or contractual liability) associated with the
reforming of any contracts for sale of the Securities made by the Underwriter
caused by a breach of the representation contained in Section 1(a).
(b) Termination of
Agreement. If this Agreement is terminated by the Underwriter
in accordance with the provisions of Section 5(o) (other than due to the
failure to satisfy any conditions therein due to events set forth in Sections
9(a)(ii), (iv), (v) and (vi)); Section 9(a)(i) or Section 9(a)(iii) hereof, the
Company shall reimburse the Underwriter for all of its reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriter.
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SECTION
5. Conditions of Underwriter’s
Obligations. The obligations of the Underwriter hereunder are
subject to the accuracy of the representations and warranties of the Company and
the Operating Partnerships contained herein or in certificates of any officer of
the Company or Lex GP-1 Trust (“Lex GP”), as the
general partner of the Operating Partnerships, or any of the Subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) No Stop Orders; Filing of
Prospectus. The Registration Statement has become effective
and at the Closing Date (or the applicable Option Closing Date, as the case may
be), no stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor initiated or,
to the knowledge of the Company, threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the satisfaction of counsel to the Underwriter. The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the time period prescribed by such Rule, and prior to the Closing Date,
the Company shall have provided evidence satisfactory to the Underwriter of such
timely filing and such number of copies of the Prospectus as the Underwriter
shall have reasonably requested.
(b) No Material Adverse
Change. At the Closing Date (or the applicable Option Closing
Date, as the case may be), there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), any material adverse change in the condition, financial or
otherwise, or in the earnings, investment portfolio, business affairs or
business prospects of the Company, the Operating Partnerships and the
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business.
(c) Opinions of Counsel for
Company. Xxxxxx X. Xxxxxxxxx, Esq., Executive Vice President
and General Counsel of the Company, shall have furnished to the Underwriter, at
the request of the Company and the Operating Partnerships, his written opinion,
dated the Closing Date, and addressed to the Underwriter, substantially in the
form of Exhibit
B. Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the
Company and the Operating Partnerships, shall have furnished to the Underwriter,
at the request of the Company and the Operating Partnerships, their written
opinion, dated the Closing Date, and addressed to the Underwriter, substantially
in the form of Exhibit
C-1, and their negative assurance letter, dated the Closing Date, and
addressed to the Underwriter, substantially in the form of Exhibit
C-2. Xxxxxxx LLP, Maryland counsel for the Company, shall have
furnished to the Underwriter, at the request of the Company, their written
opinion, dated the Closing Date, and addressed to the Underwriter, substantially
in the form of Exhibit
D. Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, tax counsel for
the Company and the Operating Partnerships, shall have furnished to the
Underwriter, at the request of the Company and the Operating Partnerships, their
written tax opinion, dated the Closing Date, and addressed to the Underwriter,
substantially in the form of Exhibit
E.
(d) Opinion of Counsel for
Underwriter. At the Closing Date, the Underwriter shall have
received an opinion, dated as of the Closing Date, of Hunton & Xxxxxxxx LLP,
counsel for the Underwriter, with respect to the issuance and sale of the
Securities, the Registration Statement, the Disclosure Package and the
Prospectus and such other related matters as the Underwriter may reasonably
request. In giving such opinion, Hunton & Xxxxxxxx LLP may rely
without investigation, as to all matters arising under or governed by the laws
of the State of Maryland, on the opinion of Xxxxxxx LLP referred to
in Section 5(c) above.
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(e) Officers’
Certificate.
(1) At
the Closing Date, the Underwriter shall have received a certificate of the Chief
Executive Officer and the Chief Financial Officer of the Company, dated as of
the Closing Date, to the effect that (i) there has been no material adverse
change as described in Section 5(b) hereof, (ii) the representations
and warranties of the Company and the Operating Partnerships in this Agreement
are true and correct with the same force and effect as though expressly made at
and as of the Closing Date, (iii) the obligations of the Company and the
Operating Partnerships to be performed at or prior to the Closing Date under or
pursuant to this Agreement have been duly performed, (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or, to their
knowledge, contemplated by the Commission and (v) none of the Registration
Statement, as of the date it first became effective, as of each deemed effective
date with respect to the Underwriter pursuant to Rule 430B(f)(2) of the 1933 Act
Regulations or as of the Closing Date, or the Disclosure Package, as of the
Initial Sale Time, or the Prospectus, as of its date or as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(2) The
Underwriter shall have received a certificate of the Chief Executive Officer and
the Chief Financial Officer of the Company, dated the Closing Date, certifying
that estimates contained in certain financial data contained in the Disclosure
Package and Prospectus are based on reasonable assumptions based on a review of
the Company’s internal accounting records, including assumptions with respect to
normal adjustments that have been or are expected to be recorded in connection
with preparation of the Company’s financial statements for the corresponding
fiscal period, as applicable.
(f) General Partner’s
Certificate. At the Closing Date, the Underwriter shall have
received a certificate signed by the secretary of Lex GP-1 Trust (“Lex GP”), in
its capacity as the general partner of each Operating Partnership, dated as of
the Closing Date, to the effect that (i) there has been no material adverse
change as described in Section 5(b) hereof, (ii) the representations
and warranties of the Operating Partnerships in this Agreement are true and
correct with the same force and effect as though expressly made at and as of the
Closing Date, and (iii) the obligations of the applicable Operating
Partnership to be performed at or prior to the Closing Date under or pursuant to
this Agreement have been duly performed.
(g) Accountants’ Comfort
Letters. At the time of the execution of this Agreement, the
Underwriter shall have received from each of KPMG LLP and PricewaterhouseCoopers
LLP a letter, dated such date, in form and substance satisfactory to the
Underwriter, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement, the Disclosure Package and the Prospectus.
(h) Bring-down Comfort
Letters. At the Closing Date, the Underwriter shall have
received from each of KPMG LLP and PricewaterhouseCoopers LLP a letter, dated as
of the Closing Date to the effect that they reaffirm the statements made in the
letters furnished pursuant to subsection (g) of this Section 5, except that
the “specified date” referred to shall be a date not more than one business day
prior to the Closing Date.
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(i) Approval of
Listing. At the Closing Date and each Option Closing Date, if
any, the Securities shall have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
(j) Lock-up
Agreements. At the date of this Agreement, the Underwriter
shall have received an agreement substantially in the form of Exhibit A hereto
signed by each person listed in Schedule IV
hereto.
(k) No
Objection. Prior to the date of this Agreement, FINRA shall
have confirmed in writing that it has no objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements.
(l) Maintenance of
Rating Since the execution of this Agreement, there shall not
have been any decrease in or withdrawal of the rating of any securities of the
Company or any of its subsidiaries by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the 0000 Xxx)
or any notice given of any intended or potential decrease in or withdrawal of
any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(m) Conditions to Purchase of Option
Securities. In the event that the Underwriter exercises its
option provided in Section 2(b) hereof to purchase all or any portion of
the Option Securities on any Option Closing Date that is after the Closing Date,
the obligations of the Underwriter to purchase the applicable Option Securities
shall be subject to the conditions specified in the introductory paragraph of
this Section 5 and to the further condition that, at the applicable Option
Closing Date, the Underwriter shall have received:
(1) Officers’
Certificate. A certificate, dated such Option Closing Date, to
the effect set forth in, and signed by the Chief Executive Officer and the Chief
Financial Officer of the Company, as specified in Section 5(e) hereof,
except that the references in such certificate to the Closing Date shall be
changed to refer to such Option Closing Date.
(2) General Partner’s
Certificate. A certificate, dated such Option Closing Date, to
the effect set forth in, and signed by the secretary of Lex GP, in its capacity
as the general partner of each Operating Partnership, as specified in Section
5(f) hereof, except that the references in such certificate to the Closing Date
shall be changed to refer to such Option Closing Date.
(3) Opinions of Counsel for the
Company and the Operating Partnerships. The opinions of
(i) Xxxxxx X. Xxxxxxxxx, Esq., (ii) Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP and (iii) Xxxxxxx LLP, in form and substance satisfactory to counsel
for the Underwriter, dated such Option Closing Date, relating to the Option
Securities to be purchased on such Option Closing Date and otherwise to the same
effect as the opinions required by Section 5(c) hereof.
(4) Opinion of Counsel for
Underwriter. The opinion of Hunton & Xxxxxxxx LLP, counsel
for the Underwriter, dated such Option Closing Date, relating to the Option
Securities to be purchased on such Option Closing Date and otherwise to the same
effect as the opinion required by Section 5(d) hereof.
(5) Bring-down Comfort
Letters. A letter from each of KPMG LLP and
PricewaterhouseCoopers LLP, in form and substance satisfactory to the
Underwriter and dated such Option Closing Date, substantially in the same form
and substance as the letters furnished to the Underwriter pursuant to
Section 5(h) hereof, except that the “specified date” in the letter
furnished pursuant to this paragraph shall be a date not more than one business
day prior to such Option Closing Date.
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(n) Additional
Documents. At the Closing Date and at each Option Closing
Date, counsel for the Underwriter shall have been furnished with such other
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, contained in this
Agreement; and all proceedings taken by the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be satisfactory
in form and substance to the Underwriter and counsel for the
Underwriter.
(o) Termination of
Agreement. If any condition specified in this Section 5
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on an Option Closing Date which is after the Closing Date, the obligations of
the Underwriter to purchase the relevant Option Securities, may be terminated by
the Underwriter by notice to the Company at any time on or prior to the Closing
Date or such Option Closing Date, as the case may be, and such termination shall
be without liability of any party to any other party except as provided in
Section 4 hereof and except that, Sections 1, 6, 7, 8, 12, 13 and 16 hereof
shall survive any such termination and remain in full force and
effect.
SECTION
6. Indemnification.
(a) Indemnification of Underwriter
. The Company and each Operating Partnership, jointly and
severally, agrees to indemnify and hold harmless the Underwriter, its
affiliates, as such term is defined in Rule 501(b) under the 1933 Act (each, an
“Affiliate”), its selling agents and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(1) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto),
including the Rule 430B Information, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(2) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission or any such alleged untrue statement or omission; provided that
(subject to Section 6(d) below) any such settlement is effected with the written
consent of the Company;
(3) against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Underwriter), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (1) or (2) above;
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provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by the Underwriter expressly for
use in the Registration Statement (or any amendment thereto), including the Rule
430B Information, or any preliminary prospectus, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification of Company,
Directors and Officers. The Underwriter agrees to indemnify
and hold harmless the Company, its trustees, its officers and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section 6, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430B Information or any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by the Underwriter expressly for
use therein, which information is described in Section 1(a)(1)
hereof.
(c) Actions against Parties;
Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section
6(a) above, counsel to the indemnified parties shall be selected by the
Underwriter, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in
the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if
Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, such indemnifying party agrees that it shall
be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
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SECTION
7. Contribution. If
the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Operating Partnerships, on the
one hand and the Underwriter on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Operating Partnerships,
on the one hand and of the Underwriter on the other hand in connection with the
statements or omissions, which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The
relative benefits received by the Company and the Operating Partnerships, on the
one hand, and the Underwriter, on the other hand, in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total proceeds received by the Company
from the sale of the Securities pursuant to this Agreement (before deducting
expenses) and the total net proceeds received by the Underwriter from the resale
of the Securities (after deducting the purchase price paid by the Underwriter to
the Company for the Securities), in each case as set forth on the cover of the
Prospectus bear to the aggregate public offering price of the Securities as set
forth on the cover of the Prospectus.
The
relative fault of the Company and the Operating Partnerships, on the one hand
and the Underwriter on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company and the Operating Partnerships or by the
Underwriter and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The
Company, the Operating Partnerships and the Underwriter agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriter was treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 7, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which the Underwriter has otherwise
been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
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For
purposes of this Section 7, each person, if any, who controls the Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and the Underwriter’s Affiliates and selling agents shall have the same rights
to contribution as the Underwriter, and each trustee of the Company, each
officer of the Company, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
SECTION
8. Representations, Warranties
and Agreements to Survive. All representations, warranties and
agreements contained in this Agreement or in certificates of officers of the
Company or any of its Subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of the Underwriter or its Affiliates or
selling agents, or any person controlling the Underwriter, any officers or
trustees of the Company or any person controlling the Company and (ii) delivery
of and payment for the Securities.
SECTION
9. Termination of
Agreement.
(a) Termination;
General. The Underwriter in its absolute discretion may
terminate this Agreement without liability to the Company, by notice to the
Company, at any time at or prior to the Closing Date (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Prospectus (exclusive of any supplement
thereto) or the Disclosure Package, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, the Operating Partnerships and the
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Underwriter, impracticable or inadvisable to proceed with the completion of the
offering or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the New York Stock Exchange, or (iv) if
trading generally on the New York Stock Exchange or in the Nasdaq Global Market
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by any
of said exchanges or by order of the Commission, FINRA or any other governmental
authority, or (v) a material disruption has occurred in commercial banking
or securities settlement or clearance services in the United States, or (vi) if
a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If
this Agreement is terminated pursuant to this Section, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7, 8, 12, 13 and 16 shall
survive such termination and remain in full force and effect.
SECTION
10. Default by the
Underwriter. If the Underwriter shall fail at the Closing Date
or an Option Closing Date to purchase the Securities which it is obligated to
purchase under this Agreement, the obligation of the Underwriter to purchase and
of the Company to sell the Securities shall terminate. No action taken pursuant
to this Section 10 shall relieve the Underwriter from liability in respect of
its default.
SECTION
11. Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriter shall be directed to
Xxxxx Fargo Securities, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Xxxxxxx X. Xxxxxx, with a copy to Hunton & Xxxxxxxx,
LLP, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. XxXxx, Esq. Notices to the
Company and the Operating Partnerships shall be directed to them c/o Lexington
Realty Trust, Xxx Xxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, XX,
Attention: Xxxxxx X. Xxxxxxxxx, Esq., General Counsel, with a copy to
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Xxxx Xxxxxxxxxxx, Esq.
-27-
SECTION
12. Parties. This
Agreement shall each inure to the benefit of and be binding upon the
Underwriter, the Company and the Operating Partnerships and their respective
successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriter, the Company and the Operating Partnerships and their
respective successors and the controlling persons and officers and trustees
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit of
the Underwriter, the Company, and the Operating Partnerships and their
respective successors, and said controlling persons and officers and trustees
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from the
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION
13. GOVERNING LAW AND
TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
SECTION
14. Effect of
Headings. The section and exhibit headings herein
are for convenience only and shall not affect the construction
hereof.
SECTION
15. Absence of Fiduciary
Relationship. Each of the Company and the Operating Partnerships,
severally and not jointly, acknowledge and agree that:
(a) the
Underwriter is acting solely as an underwriter in connection with the public
offering of the Securities and no fiduciary, advisory or agency relationship
between the Company or any of the Operating Partnerships, on the one hand, and
the Underwriter, on the other hand, has been or will be created in respect of
any of the transactions contemplated by this Agreement, irrespective of whether
or not the Underwriter has advised or is advising the Company or any of the
Operating Partnerships on other matters, and the Underwriter does not have any
obligation to the Company or any of the Operating Partnerships with respect to
the transactions contemplated by this Agreement except the obligations expressly
set forth in this Agreement;
(b) it
is capable of evaluating and understanding, and understands and accepts, the
terms, risks and conditions of the transactions contemplated by this
Agreement;
(c) in
connection with each transaction contemplated by this Agreement and the process
leading to such transactions, the Underwriter is and has been acting solely as
principal and not as fiduciary, advisor or agent of the Company or any of the
Operating Partnerships or any of their respective affiliates, stockholders (or
other equity holders), creditors or employees or any other party;
(d) the
Underwriter has not provided any legal, accounting, regulatory or tax advice
with respect to the transactions contemplated by this Agreement and it has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate;
-28-
(e) it
is aware that the Underwriter and its affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company
and the Operating Partnerships and that the Underwriter does not have any
obligation to disclose such interests and transactions to the Company or any
of the Operating Partnerships by virtue of any fiduciary, advisory or
agency relationship or otherwise; and
(f) it
waives, to the fullest extent permitted by law, any claims it may have against
the Underwriter for breach of fiduciary duty or alleged breach of fiduciary duty
and agrees that the Underwriter shall not have any liability (whether direct or
indirect, in contract, tort or otherwise) to it in respect of such a fiduciary
duty claim or to any person asserting a fiduciary duty claim on its behalf or in
right of it or the Company or any shareholders, employees or creditors of the
Company or any partners, employees or creditors of any of the Operating
Partnerships.
SECTION
16. Trial by
Jury. The Company (on its behalf and, to the extent permitted
by applicable law, on behalf of its shareholders and affiliates), each Operating
Partnership (on its behalf and, to the extent permitted by applicable law, on
behalf of its limited partners and affiliates) and the Underwriter hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.
SECTION
17. Time. TIME
SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET
FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION
18. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
SECTION
19. Partial Unenforceability.
The invalidity or unenforceability of any section, paragraph or provision
of this Agreement shall not affect the validity or enforceability of any other
section, paragraph or provision hereof. If a section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and
enforceable.
[Signature Pages
Follow.]
-29-
If the foregoing is in accordance with
your understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the Underwriter, the Company and the Operating
Partnerships in accordance with its terms.
|
Very
truly yours,
|
||
|
By:
|
/s/ Xxxxxx X.
Xxxxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxxxx
|
|
|
Title:
|
Executive
Vice President
|
|
|
LEPERCQ
CORPORATE INCOME FUND L.P.
|
||
|
By:
|
Lex
GP-1 Trust, its General Partner
|
|
|
By:
|
/s/ Xxxxxx X.
Xxxxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxxxx
|
|
|
Title:
|
Vice
President
|
|
|
LEQERCQ
CORPORATE INCOME FUND II L.P.
|
||
|
By:
|
Lex
GP-1 Trust, its General Partner
|
|
|
By:
|
/s/ Xxxxxx X.
Xxxxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxxxx
|
|
|
Title:
|
Vice
President
|
|
|
NET
3 ACQUISITION L.P.
|
||
|
By:
|
Lex
GP-1 Trust, its General Partner
|
|
|
By:
|
/s/ Xxxxxx X.
Xxxxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxxxx
|
|
|
Title:
|
Vice
President
|
|
[Signature
Page to Purchase Agreement]
|
CONFIRMED
AND ACCEPTED,
|
||
|
as
of the date first above written:
|
||
|
XXXXX
FARGO SECURITIES, LLC
|
||
|
By
|
/s/ Xxxxx Xxxxxx
|
|
|
Authorized
Signatory
|
||
|
Xxxxx
Xxxxxx
|
||
|
Director
|
||
[Signature
Page to Purchase Agreement]
Schedule I
Issuer
General Use Free Writing Prospectuses
None
I-1
Schedule II
Oral
Pricing Information
|
1.
|
The
number of common shares sold in the offering is 9,500,000 common
shares.
|
|
2.
|
Lexington
Realty Trust granted the underwriter an option to purchase up to an
additional 1,425,000 common shares to cover any
over-allotments.
|
|
3.
|
Lexington
Realty Trust expects that the net proceeds from the sale of
9,500,000 common shares will be approximately $ 61.5 millioin, after
deducting Lexington Realty Trust’s estimated offering
expenses. If the underwriter exercises its over-allotment
option in full, Lexington Realty Trust expects that the net proceeds will
be approximately $70.7 million. The price per share paid by the
underwriter to Lexington Realty Trust for any option shares will be equal
to the purchase price per share paid by the underwriter for the 9,500,000
initial shares less the amount per share of any distributions or dividends
declared or paid by Lexington Realty Trust on such
initial shares.
|
II-1
Schedule III
Subsidiaries
(Omitted
from filing)
III-1
Schedule IV
Trustees
and Executive Officers Required to Execute Lock-Up Agreements
Xxxxxx
Xxxxxxxxx
Xxxxxxxx
Xxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxxxx
Xxxxxxxx
X. Xxxxxx
Xxxxx
Xxxxxx
First
Xxxxxxx
X. Xxxxx
Xxxx X.
Xxxxxxxx
Xxxxx
Xxxxxxxx
Xxxxx X.
Xxxxx
E. Xxxxxx
Xxxxxxx
Xxxxxxx
X. Xxxxx
Xxxx X.
Xxxx
XX-1
Exhibit A
Form
of Lock-Up Agreement
March 26,
2010
XXXXX
FARGO SECURITIES, LLC
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
|
|
Re:
|
Proposed Public
Offering by Lexington Realty
Trust
|
Dear
Sirs:
The
undersigned, a shareholder and an officer and/or trustee of Lexington Realty
Trust, Maryland real estate investment trust (the “Company”), understands that
Xxxxx Fargo Securities, LLC (“Xxxxx Fargo”), propose to enter into a Purchase
Agreement (the “Purchase Agreement”) with the Company, Lepercq Corporate Income
Fund L.P., a Delaware limited partnership, Lepercq Corporate Income II L.P., a
Delaware limited partnership, and Net 3 Acquisition L.P., a Delaware limited
partnership (collectively, the “Operating Partnerships”) providing for the
public offering of shares of beneficial interests classified as common stock,
par value $0.0001 per share (the “Common Shares”). In recognition of
the benefit that such an offering will confer upon the undersigned as a
shareholder and an officer and/or trustee of the Company, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with Xxxxx Fargo that, during a period of
45 days from the date of the Purchase Agreement (the “Lock-up Period”), the
undersigned will not, without the prior written consent of Xxxxx Fargo, directly
or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise dispose of or transfer any shares
of the Common Shares, or any securities convertible into or convertible or
exercisable for Common Shares, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition, or file, or cause to be filed, any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing (collectively, the “Lock-Up Securities”) or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Lock-Up Securities, whether any such swap or transaction is to be settled by
delivery of Common Shares or other securities, in cash or
otherwise.
The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company’s transfer
agent and registrar against the transfer of the Lock-Up Securities except in
compliance with the foregoing restrictions.
|
Very
truly yours,
|
||
|
Signature:
|
|
|
|
Print
Name:
|
|
|
A-1
Exhibit B
Opinion
of Xxxxxx X. Xxxxxxxxx, Esq.,
Executive
Vice President and General Counsel of the Company
(Omitted
from filing)
B-1
Exhibit
C-1
Form
of Opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP,
Counsel
to the Company and the Operating Partnerships
(Omitted
from filing)
C-1-1
Exhibit C-2
Form
of 10b-5 Negative Assurance Letter of Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP
(Omitted
from filing)
X-0-0
Xxxxxxx X
Xxxxxxx
xx Xxxxxxx XXX, Xxxxxxxx Counsel to the Company
(Omitted
from filing)
D-1
Exhibit E
Form
of Tax Opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP,
Counsel
to the Company and the Operating Partnerships
(Omitted
from filing)
E-1
