FIRST POTOMAC REALTY TRUST Common Shares of Beneficial Interest (par value $.001 per share) UNDERWRITING AGREEMENT July 17, 2006
Exhibit 1.1
FIRST POTOMAC REALTY TRUST
Common Shares of Beneficial Interest
Common Shares of Beneficial Interest
(par value $.001 per share)
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
July 17, 2006
KeyBanc Capital Markets,
a division of McDonald Investments Inc.
Wachovia Capital Markets, LLC
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxx Xxxx & Co., Inc.
c/x XxXxxxxx Investments Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxx Xxxx & Co., Inc.
c/x XxXxxxxx Investments Inc.
XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Ladies and Gentlemen:
INTRODUCTORY. First Potomac Realty Trust, a Maryland real estate investment trust (the
“Company”), proposes to issue and sell to the several underwriters named in Schedule A (the
“Underwriters”) an aggregate of 3,000,000 of its common shares (the “Firm Shares”) of beneficial
interest, par value $.001 per share (the “Common Shares”). In addition, the Company has granted to
the Underwriters an option to purchase up to an additional 450,000 Common Shares (the “Option
Shares”), as provided in Section 2. The Firm Shares and, if and to the extent such option is
exercised, the Option Shares are collectively called the “Shares.” KeyBanc Capital Markets, a
division of McDonald Investments Inc. (“KCM”), has agreed to act as representative of the several
Underwriters (in such capacity, the “Representative”) in connection with the offering and sale of
the Shares.
The Company is the sole general partner of First Potomac Realty Investment Limited Partnership
(the “Operating Partnership”), a Delaware limited partnership that serves as the Company’s primary
operating partnership subsidiary.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”), under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Securities Act”), a registration statement on Form S-3
(File No. 333-120821), which contains a form of prospectus to be used in connection with the public
offering and sale of the Shares (the “Base Prospectus”). Such
registration statement, herein referred to as the “Registration Statement,” shall be deemed to
include all information omitted therefrom in reliance upon Rules 430A or 430B under the
Securities
Act and all information incorporated by reference therein. The form of final prospectus relating
to the Shares first filed by the Company with the Commission pursuant to Rule 424(b) under the
Securities Act is herein referred to as the “Prospectus.” The Base Prospectus, as supplemented by
any preliminary prospectus (including any preliminary prospectus supplement) relating to the Shares
used prior to the date hereof is herein referred to as a “Preliminary Prospectus.” Any reference
herein to the Registration Statement, any Preliminary Prospectus or the Prospectus or to any
amendment or supplement to any of the foregoing documents shall be deemed to refer to and include
any documents incorporated by reference therein and any supplements or amendments thereto, filed
with the Commission after the date of filing of the Prospectus under Rule 424(b) under the
Securities Act, and prior to the termination of the offering of the Shares by the Underwriters.
Each of the Company and the Operating Partnership hereby confirms its agreements with the
Underwriters as follows:
Each of the Company and the Operating Partnership hereby represents, warrants and covenants to
each Underwriter as follows:
“Applicable Time” means 11:00 p.m. (Eastern time) on the date of this Agreement or such other
time as agreed to by the Company and the Representative.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 under the Securities Act, relating to the Shares 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) under the Securities Act.
satisfied all
applicable requirements for the use of Form S-3 under the Securities Act when the Registration
Statement was filed.
The Commission has not issued an order preventing or suspending the use of any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus relating to the proposed offering
of the Shares and no proceedings for such purpose have been instituted or are pending or, to the
Company’s knowledge, are contemplated or threatened by the Commission. Each Preliminary Prospectus
and the Prospectus, if filed by electronic transmission pursuant to the Commission’s Electronic
Data Gathering, Analysis and Retrieval System (“XXXXX”) (except as may be permitted by Regulation
S-T under the Securities Act), was identical to the copy thereof delivered to the Underwriters for
use in connection with the offer and sale of the Shares. Each part of the Registration Statement,
when such part became effective or was deemed effective, complied or will comply in all material
respects with the Securities Act. Each part of the Registration Statement, when such part became
effective or was deemed effective, did not contain any 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. The Prospectus, as amended and supplemented, as of its date and at all subsequent
times up to and including the First Closing Date or the Second Closing Date (each, as defined
below), as the case may be, did not and will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The representations and warranties
set forth in the three immediately preceding sentences do not apply to statements in or omissions
from the Registration Statement, or any post-effective amendment thereto, any Preliminary
Prospectus, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company in writing by
the Representative expressly for use therein, it being understood and agreed that the only such
information is that described in Section 6(b) herein.
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 and any prospectus supplement
deemed to be a part thereof that has not been superseded or modified. The representations and
warranties set forth in the immediately preceding sentence do not apply to statements in or
omissions from any Issuer Free Writing Prospectus listed on Schedule C hereto made in reliance upon
and in conformity with information relating to any Underwriter furnished to the Company in writing
by the Representative expressly for use therein, it being understood and agreed that the only such
information is that described in Section 6(b) herein.
(i) The Underwriting Agreement. The Company has the trust power to enter into this Agreement
and to perform its obligations and consummate the transactions contemplated herein. The Company
has the trust power to issue, sell and deliver the Shares as provided herein. This Agreement has
been duly authorized, executed and delivered by the Company and constitutes the valid and binding
agreement of the Company enforceable against the Company in accordance with its terms, except to
the extent that the indemnification and contribution provisions set forth in Sections 6 and 7 of
this Agreement may be limited by the federal and state securities laws and public policy
consideration in respect thereof, and except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors’
rights generally. The Operating Partnership has the full legal right, power and authority to enter
into this Agreement and to perform its obligations and consummate the transactions contemplated
herein. This Agreement has been duly authorized, executed and delivered by the Operating
Partnership and constitutes the valid and binding agreement of the Operating Partnership
enforceable against the Operating Partnership in accordance with its terms, except to the extent
that the indemnification and contribution provisions set forth in Sections 6 and 7 of this
Agreement may be limited by federal and state securities laws and public policy considerations in
respect thereof, and except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforceability of creditors’ rights generally.
Company and the Subsidiaries on a consolidated basis, except for borrowings under the Company’s
line of credit in the ordinary course of business, consistent with past practice, and (v) there has
been no dividend or distribution of any kind declared, paid or made by the Company or, except for
dividends or distributions paid to the Company or the Subsidiaries, any of the Subsidiaries on any
class of capital stock or other equity interests, or any repurchase or redemption by the Company or
any of the Subsidiaries of any class of capital stock or other equity interests. The properties
currently owned by the Company’s Subsidiaries are referred to collectively herein as the
“Properties” and individually as a “Property.”
executive officer
and chief financial officer, or persons performing similar functions, as appropriate to allow
timely decisions regarding required disclosure; and the Company maintains a system of internal
control over financial reporting sufficient to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles and which includes policies
and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately
and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide
reasonable assurance that transactions are recorded as necessary to permit preparation of financial
statements in accordance with generally accepted accounting principles and that receipts and
expenditures of the Company are being made only in accordance with the authorization of management,
and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisitions, use or dispositions of assets that could have a material effect on the financial
statements. The Company’s disclosure controls and procedures have been evaluated for effectiveness
as of the end of the period covered by the Company’s most recently filed quarterly report on Form
10-Q which precedes the date of the Prospectus and were effective in all material respects to
perform the functions for which they were established. Based on the most recent evaluation of its
internal control over financial reporting, the Company was not aware of (i) any material weaknesses
in the design or operation of internal control over financial reporting or (ii) any fraud, whether
or not material, that involves management or other employees who have a significant role in the
registrant’s internal control over financial reporting. The Company is not aware of any change in
its internal control over financial reporting that has occurred during its most recent fiscal
quarter that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(p) Organization and Good Standing of the Company and the Subsidiaries. The Company has been
duly organized and is validly existing as a real estate investment trust in good standing with the
State Department of Assessments and Taxation of the State of Maryland and has the trust power and
authority to own, lease and operate its properties and to conduct its business as described in the
General Disclosure Package and the Prospectus and to enter into and perform its obligations under
this Agreement. The entities set forth on Schedule D hereto are the only subsidiaries (as defined
in Rule 1-02(x) of Regulation S-X of the Securities Act) of the Company (each, including the
Operating Partnership, except where noted, a “Subsidiary” and, collectively, the “Subsidiaries”).
Each Subsidiary (i) that is a corporation has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation and has
corporate power and authority to own, lease and operate its properties and to conduct its business
as described in the General Disclosure Package and the Prospectus, (ii) that is a limited liability
company has been duly organized and is validly existing as a limited liability company in good
standing under the laws of the jurisdiction of its organization and has limited liability company
power and authority to own, lease and operate its properties and to conduct its business as
described in the General Disclosure Package and the Prospectus and (iii) that is a limited
partnership has been duly organized and is validly existing as a limited partnership in good
standing under the laws of the jurisdiction of its organization and has the partnership power and
authority to own, lease and operate its properties and to conduct its business as described in the
General Disclosure Package and the Prospectus. The Operating Partnership has been duly organized and is validly existing as a limited partnership in good
standing under the laws of the jurisdiction of its organization and has limited partnership power
and authority to own, lease and operate its properties, to conduct its business
as described in the
General Disclosure Package and the Prospectus and to enter into and perform its obligations under
this Agreement. Each of the Company and the Subsidiaries is duly qualified as a foreign trust
corporation, limited partnership or limited liability company, as the case may be, to transact
business and is in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of business,
except for such jurisdictions where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse Change. All of the issued and
outstanding capital stock of each Subsidiary that is a corporation has been duly authorized and
validly issued, is fully paid and nonassessable and, except as described in the General Disclosure
Package and the Prospectus, is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, claim, restriction or encumbrance, and all
of the issued and outstanding membership interests of each Subsidiary that is a limited liability
company, and all of the partnership interests of each Subsidiary that is a limited partnership,
have been duly authorized and validly issued and are fully paid and, except as described in the
General Disclosure Package and the Prospectus, are owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, claim, restriction
or encumbrance. All of the issued and outstanding units of partnership interest of the Operating
Partnership (“Units”) have been duly authorized and validly issued and are fully paid and upon
completion of the offering of the Firm Shares, the Company will be the sole general partner of the
Operating Partnership and will own Units representing an approximately 95.79% interest in the
Operating Partnership, free and clear of any security interest, mortgage, pledge, lien, claim,
restriction or encumbrance. The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the Subsidiaries.
such plan, options or
other awards. Except as described in the Registration Statement, the General Disclosure Package
and the Prospectus or pursuant to the Company’s Equity Compensation Plan, the Company has not sold
or issued any Common Shares nor has the Operating Partnership sold or issued any Units during the
one-year period preceding the Applicable Time.
As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives,
or with the giving of notice or lapse of time or both would give, the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such indebtedness by the
Company or any of the Subsidiaries.
are disclosed therein. There is no violation by the Company of any municipal, state or federal
law, rule or regulation (including, but not limited to, those pertaining to environmental matters)
concerning the Properties or any part thereof which would result in a Material Adverse Change.
Each of the Properties complies with all applicable zoning laws, ordinances, regulations and deed
restrictions or other covenants and, if and to the extent there is a failure to comply, such
failure would not, individually or together with all such other failures, result in a Material
Adverse Change or result in a forfeiture or reversion. Neither the Company nor any of the
Subsidiaries has received any notice from any governmental or regulatory authority or agency of any
condemnation of or zoning change affecting the Properties or any part thereof, and the Company does
not know of any such condemnation or zoning change which is threatened. No lessee of any portion
of any of the Properties is in material default under any of the leases governing such Properties
and no event has occurred which, but for the passage of time or giving of notice or both, would
constitute a default under any of such leases.
(aa) Company Not an “Investment Company.” The Company has been advised of the rules and
requirements under the Investment Company Act of 1940, as amended (the “Investment Company Act”).
The Company is not, and after receipt of payment for the
Shares will not be, an “investment company” within the meaning of the Investment Company Act
and will conduct its business in a manner so that it will not become subject to the Investment
Company Act.
generated, manufactured,
refined, transported, treated, stored, handled, disposed, transferred, produced or processed any
Hazardous Material at any of the Properties, except in compliance with all applicable Environmental
Laws, and has not transported or arranged for the transport of any Hazardous Material from the
Properties or any other real properties previously owned, leased or operated by the Company or any
of the Subsidiaries to another property, except in compliance with all applicable Environmental
Laws, (vii) no lien has been imposed on the Properties by any Governmental Authority in connection
with the presence on or off such Property of any Hazardous Material, and (viii) none of the
Company, any of the Subsidiaries or, to the Company’s knowledge, any other person or entity for
whose conduct any of them is or may be held responsible under any applicable Environmental Law, has
entered into or been subject to any consent decree, compliance order, or administrative order with
respect to the Properties or any facilities or improvements or any operations or activities
thereon.
As used herein, “Hazardous Material” shall include, without limitation, any flammable
materials, explosives, radioactive materials, hazardous materials, hazardous substances, hazardous
wastes, toxic substances or related materials, asbestos, petroleum, petroleum products and any
hazardous material as defined by any federal, state or local environmental law, statute, ordinance,
rule or regulation, including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9675 (“CERCLA”), the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. §§ 1801-1819, the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. §§ 6901-6992k, the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001-11050, the Toxic Substances Control Act, 15
U.S.C. §§ 2601-2692, the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136-136y,
the Clean Air Act, 42 U.S.C. §§ 7401-7642, the Clean Water Act (Federal Water Pollution Control
Act), 33 U.S.C. §§ 1251-1387, the Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-26, and the
Occupational Safety and Health Act, 29 U.S.C. §§ 651-678, and any analogous state laws, as any of
the above may be amended from time to time and in the regulations promulgated pursuant to each of
the foregoing (including environmental statutes and laws not specifically defined herein)
(individually, an “Environmental Law” and collectively, the “Environmental Laws”) or by any
federal, state or local governmental authority having or claiming jurisdiction over the properties
of the Company and the Subsidiaries (a “Governmental Authority”).
maintained by the Company or its
ERISA Affiliates (as defined below) are in compliance in all material respects with ERISA. “ERISA
Affiliate” means, with respect to the Company, any member of any group of organizations described
in Sections 414(b), (c), (m) or (o) of the Code of which the Company is a member. No “reportable
event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any
“employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates.
No “employee benefit plan” established or maintained by the Company or any of its ERISA Affiliates,
if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit
liabilities” (as defined under ERISA). Neither the Company nor any of its ERISA Affiliates has
incurred or reasonably expects to incur any liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or
4980B of the Code. Each “employee benefit plan” established or maintained by the Company or any of
its ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is a
prototype plan and the sponsor of the prototype plan document has received a favorable
determination letter from the Internal Revenue Service of the United States that such plan document
is so qualified and to the Company’s knowledge, nothing has occurred, whether by action or failure
to act, which would cause the loss of such qualification.
(hh) Doing Business with Cuba. The Company is in compliance with all provisions of Florida
Statutes Section 517.075 and the regulations thereunder, relating to issuers doing business with
Cuba.
Any certificate signed by an officer of the Company and delivered to the Representative or to
counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters set forth therein.
representations, warranties and
agreements herein contained, and upon the terms but subject to the conditions herein set forth, the
Underwriters agree, severally and not jointly, to purchase from the Company the respective number
of Firm Shares set forth opposite their names on Schedule A, plus any additional number of Firm
Shares which such Underwriter may become obligated to purchase pursuant to the provisions of
Section 8 hereof. The purchase price per Firm Share to be paid by the several Underwriters to the
Company shall be $26.16 per share.
It is understood that the Representative has been authorized, for its own account and the
accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of
the purchase price for, the Firm Shares and any Option Shares the Underwriters have agreed to
purchase. KCM, individually and not as Representative of the Underwriters, may (but shall not be
obligated to) make payment for any Shares to be purchased by any Underwriter whose funds shall not
have been received by the Representative by the First Closing Date or the Second Closing Date, as
the case may be, for the account of such Underwriter, but any such payment shall not relieve such
Underwriter from any of its obligations under this Agreement.
Second Closing Date or such date, as in the opinion of counsel for the Underwriters, the
Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is
no longer required by law to be delivered in connection with sales by an Underwriter or dealer (the
“Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, the
General Disclosure Package or the Prospectus, whether pursuant to the Securities Act or the
Exchange Act, the Company shall furnish to the Representative and to counsel for the Underwriters
for review a copy of each such proposed amendment or supplement, and the Company shall not file or
distribute any such proposed amendment or supplement if the Representative reasonably objects.
(b) Issuer Free Writing Prospectuses. The Company will (i) not make any offer relating to the
Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a
“free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by
the Company with the Commission under Rule 433 under the Securities Act unless the Representative
approves its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”);
provided that the prior written consent of the Representative hereto shall be deemed to have been
given in respect of the Issuer Free Writing Prospectus(es) included in Schedule C hereto, (ii)
comply with the requirements of Rules 164 and 433 under the Securities Act applicable to any
Permitted Free Writing Prospectus, including the requirements relating to timely filing with the
Commission, legending and record keeping and (iii) not take any action that would result in an
Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under
the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such
Underwriter otherwise would not have been required to file thereunder.
(c) Securities Act Compliance. During the Prospectus Delivery Period, the Company shall
promptly advise the Representative of (i) the receipt of any comments of, or requests for amendment
of the Registration Statement or the filing of a new registration statement or any amendment or
supplement to the General Disclosure Package or the Prospectus or any document incorporated by
reference therein or otherwise deemed to be a part thereof or for any additional or supplemental
information from, the Commission during the period beginning on the date hereof and ending on the
later of the Second Closing Date or the date the Prospectus (or, in lieu thereof, the notice
referred to in Rule 173(a) under the Securities Act) is no longer required by law to be delivered
in connection with sales of Shares by an Underwriter or dealer, (ii) the time and date of any
filing of any post-effective amendment to the Registration Statement or new registration statement
or any amendment or supplement to any Preliminary Prospectus or the Prospectus, (iii) the time and
date that any post-effective amendment to the Registration Statement or new registration statement
becomes effective and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment thereto or such new
registration statement or of any order preventing or suspending the use of any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of any proceedings to remove,
suspend or terminate from listing or quotation the Common Shares from any securities exchange upon
which they are listed for trading or included or designated for quotation, or of the threatening or
initiation of any proceedings for any of such purposes of which the Company has knowledge. If the
Commission shall enter any such stop order at any time, the Company will use its best efforts to
obtain the lifting of such order at the earliest possible moment. Additionally, the Company agrees
that it
shall comply with the provisions of Rules 424(b) and 430A, as applicable, under the Securities
Act and will use its best efforts to confirm that any filings made by the Company under Rule 424(b)
were received in a timely manner by the Commission.
(d) Amendments and Supplements to the Prospectus and Other Securities Act Matters. If, during
the Prospectus Delivery Period, any event shall occur or condition exist as a result of which the
Prospectus, as then amended or supplemented, would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if in the opinion of the
Representative after consultation with counsel for the Underwriters it is otherwise necessary to
amend or supplement the Prospectus to comply with law, the Company agrees to promptly prepare
(subject to Section 3(a) hereof), file with the Commission and furnish at its own expense to the
Underwriters, and, if requested by the Underwriters, to dealers, amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or supplemented will not include
an untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading or
so that the Prospectus, as amended or supplemented, will comply with applicable laws.
(e) Amendments and Supplements to the General Disclosure Package. If the General Disclosure
Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet
available to prospective purchasers and any event shall occur as a result of which, in the judgment
of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or
supplement the General Disclosure Package in order to make the statements therein, in the light of
the circumstances, not misleading, or to make the statements therein not conflict with the
information contained in the Registration Statement then on file, or if it is necessary at any time
to amend or supplement the General Disclosure Package to comply with any law, the Company promptly
will (subject to Section 3(a) hereof) either (i) prepare, file with the Commission (if required)
and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the
General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under
the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that
the General Disclosure Package as so amended or supplemented will not, in the light of the
circumstances, be misleading or conflict with the Registration Statement then on file, or so that
the General Disclosure Package will comply with applicable laws.
(f) Copies of any Amendments and Supplements to the Prospectus. The Company agrees to furnish
the Representative, without charge, as many copies of any Preliminary Prospectus or any Issuer Free
Writing Prospectus as the Representative may reasonably request. The Company agrees to furnish the
Representative, without charge, during the Prospectus Delivery Period, as many written and
electronic copies of the Prospectus and any amendments and supplements thereto as the
Representative may reasonably request.
(g) Blue Sky Compliance. The Company shall cooperate with the Representative and counsel for
the Underwriters to qualify or register the Shares for sale under (or obtain exemptions from the
application of) the state securities or blue sky laws, if required, and shall comply with such laws
and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of the Shares provided that the
Company shall not be required to qualify as a foreign corporation or to file a general consent to
service of process in any such jurisdiction where it is not presently qualified or required to file
such a consent. The Company will advise the Representative promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Shares for offering, sale
or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose,
and in the event of the issuance of any order suspending such qualification, registration or
exemption, the Company shall use its reasonable best efforts to obtain the withdrawal thereof at
the earliest possible moment.
(h) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Shares
sold by it in the manner described under the caption “Use of Proceeds” in the Prospectus.
(i) Transfer Agent. The Company shall maintain, at its expense, a registrar and transfer
agent for the Common Shares.
(j) Earnings Statement. The Company will make generally available to its security holders and
to the Representative an earnings statement that satisfies the provisions of Section 11(a) of the
Securities Act.
(k) Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company shall
file, on a timely basis, and in compliance with the Exchange Act, with the Commission and the NYSE
all reports and documents required to be filed under the Exchange Act.
(l) Agreement Not to Offer or Sell Additional Securities. During the period of 45 days
following the date of the Prospectus, the Company will not, without the prior written consent of
KCM (which consent may be withheld at the sole discretion of KCM), directly or indirectly, sell,
offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent
position” within the meaning of Rule 16a-l(h) under the Exchange Act, or otherwise dispose of or
transfer, or announce the offering of, or file any registration statement under the Securities Act
in respect of, any Common Shares, options or warrants to acquire Common Shares or securities
exchangeable or exercisable for or convertible into Common Shares (other than as contemplated by
this Agreement with respect to the Shares); provided, however, that the Company may (i) grant
Common Share awards or grant options to purchase Common Shares and issue Common Shares upon the
exercise of options, in both cases, pursuant to the Equity Compensation Plan described in the
Registration Statement, the General Disclosure Package and the Prospectus, provided, that all of
the holders of such Common Share awards, options, or Common Shares issued upon the exercise of such
options, agree not to sell, offer, dispose of or otherwise transfer any such options or Common
Shares during such 45 day period without the prior written consent of KCM (which consent may be
withheld at the sole discretion of KCM), (ii) issue Units in connection with the Company’s or a
Subsidiary’s acquisition of properties or interests in the owners of properties, (iii) file a
resale registration statement under the Securities Act with respect to Common Shares issuable upon
exercise of outstanding Units, (iv) file a registration statement on Form S-8 under the Securities
Act with respect to the registration of Common Shares to be issued under the Equity Compensation
Plan described in
the Registration Statement, the General Disclosure Package and the Prospectus, and (v) file
and have declared effective by the Commission a shelf registration statement with respect to the
primary offering of Common Shares and other securities of the Company or the Operating Partnership;
provided that no securities may be issued pursuant to such shelf registration statement during the
45 day period following the date of the Prospectus.
(m) Qualification as a REIT. The Company will use its reasonable best efforts to meet the
requirements to continue to qualify as a REIT under the Code for so long as the Company’s board of
trustees deems such qualification in the best interests of the shareholders of the Company.
(n) Company Not an “Investment Company.” The Company is familiar with the Investment Company
Act of 1940, as amended, and the rules and regulations thereunder, and will in the future use its
reasonable best efforts to ensure that the Company and the Operating Partnership will not be an
“investment company” within the meaning of the Investment Company Act of 1940 and the rules and
regulations thereunder.
(o) No Price Stabilization or Manipulation. The Company will not, and will use its reasonable
best efforts to cause its officers, trustees and affiliates not to, (i) take, directly or
indirectly prior to the termination of the underwriting syndicate contemplated by this Agreement,
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 Shares, (ii) sell, bid for, purchase or pay anyone any compensation
for soliciting purchases of the Shares or (iii) pay or agree to pay to any person any compensation
for soliciting any order to purchase any other securities of the Company.
(p) Listing. The Company will use its reasonable best efforts to maintain the listing of its
Common Shares (including the Shares) on the NYSE.
in closing the purchase of the Option Shares, if any) that are not otherwise specifically
provided for in this section. The Company, upon your request, will provide funds in advance for
filing fees in connection with “blue sky” qualifications and the review of the offering by the
NASD.
(a) Registration Statement. The Registration Statement, the General Disclosure Package and
the Prospectus, as they may then be amended or supplemented, shall contain all statements that are
required to be stated therein under the Securities Act and the regulations thereunder and in all
material respects shall conform to the requirements of the Securities Act and the regulations
thereunder, the Company shall have complied in all respects with Rule 430A (if it shall have
elected to rely thereon) and the Registration Statement, the General Disclosure Package and the
Prospectus, as they may then be amended or supplemented, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading.
(b) No Material Actions or Proceedings. No action, suit or proceeding at law or in equity
before or by any federal, state or other commission, court, board or administrative agency shall be
pending or, to the Company’s knowledge, threatened against the Company, the Operating Partnership
or any Subsidiary that would be required to be set forth in the Registration Statement, the General
Disclosure Package and the Prospectus, other than as set forth therein, wherein an unfavorable
decision, ruling or finding could result in a Material Adverse Change.
(c) Accountants’ Comfort Letter and Officers’ Accounting Certificate. On the date hereof, the
Representative shall have received (i) from KPMG LLP, an independent registered public accounting
firm with respect to the Company, a letter dated the date hereof addressed to the Underwriters, in
form and substance satisfactory to the Representative, containing statements and information of the
type ordinarily included in accountants’ “comfort letters” to underwriters, delivered according to
Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and
unaudited financial statements and certain financial information contained or incorporated by
reference in the Registration Statement, the General Disclosure Package and the Prospectus and (ii)
a certificate dated as of the date hereof, addressed to the Underwriters, in form and substance
satisfactory to the Representative, signed by Xxxxx X. Xxxx, in his capacity as Executive Vice
President and Chief Financial Officer of the Company, with respect to certain financial information
for the fiscal quarter ended June 30, 2006 included in the General Disclosure Package and the
Prospectus.
(d) Compliance with Registration Requirements; No Stop Order; No Objection from NASD. For the
period from and after effectiveness of this Agreement and prior to the First Closing Date and, with
respect to the Option Shares, the Second Closing Date:
(i) the Prospectus and any Issuer Free Writing Prospectus required to be filed shall
have been filed as required by Rules 424, 430A, 430B, 430C or 433 under the Securities Act,
as applicable, within the time period prescribed by, and in compliance with, the rules and
regulations under the Securities Act, and any request by the Commission for additional
information (to be included in the Registration Statement or otherwise) shall have been
disclosed to the Representative and complied with to its reasonable satisfaction;
(ii) no stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment to the Registration Statement, shall be in effect and no
proceedings for such purpose shall have been instituted or threatened by the Commission; and
(iii) the NASD shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements.
(e) No Material Adverse Change. For the period from and after the date of this Agreement and
prior to the First Closing Date and, with respect to the Option Shares, the First or Second Closing
Date, as the case may be, (i) in the reasonable judgment of the Representative, there shall not
have occurred any Material Adverse Change; (ii) the Company and the Subsidiaries, considered as one
enterprise, shall not have incurred any material liability or obligation, indirect, direct or
contingent, not in the ordinary course of business, nor entered into any material transaction or
agreement not in the ordinary course of business; (iii) there shall not have occurred any material
casualty loss or condemnation or other material adverse event with respect to any of the
Properties; (iv) there shall not have occurred any change in the capital stock, long-term debt or
short-term borrowings of the Company and the Subsidiaries on a consolidated basis, except for
short-term borrowings under the Company’s line of credit in the ordinary course of business,
consistent with past practice; and (v) there shall have been no dividend or distribution of any
kind declared, paid or made by the Company or, except for dividends or distributions paid to the
Company or Subsidiaries, any of the Subsidiaries on any class of capital stock or other equity
interests or repurchase or redemption by the Company or any of the Subsidiaries of any class of
capital stock or other equity interests, in each case except as disclosed in or contemplated by the
Registration Statement, the General Disclosure Package and the Prospectus.
(f) Opinion of Counsel for the Company. On each of the First Closing Date and any Second
Closing Date, the Representative shall have received an opinion of (i) Hunton & Xxxxxxxx LLP,
counsel for the Company, dated as of such Closing Date in substantially the forms attached hereto
as Exhibits B, C and D, and (ii) Xxxx X. Xxxxxx, General Counsel of the Company, dated as of such
Closing Date in substantially the form attached hereto as Exhibit E.
(g) Opinion of Counsel for the Underwriters. On each of the First Closing Date and the Second
Closing Date, the Representative shall have received the favorable opinion of Xxxxxx, Halter &
Xxxxxxxx LLP, counsel for the Underwriters, dated as of such Closing Date, in form and substance
satisfactory to the Representative.
(h) Officers’ Certificate. On each of the First Closing Date and the Second Closing Date, the
Representative shall have received a written certificate executed by the Chief Executive Officer or
President of the Company and the Chief Financial Officer or Chief Accounting Officer of the
Company, dated as of such Closing Date, to the effect that:
(i) the Registration Statement has become effective under the Securities Act and no
stop order suspending the effectiveness of the Registration Statement or no order preventing
or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or
the Prospectus has been issued, and no proceedings for that purpose have been instituted or
are pending or, to their knowledge, threatened under the Securities Act;
(ii) they have reviewed the Registration Statement, the General Disclosure Package, any
Issuer Free Writing Prospectus and the Prospectus, and (1) as of the Applicable Time, the
statements contained in the General Disclosure Package and any Issuer Free Writing
Prospectus, when considered together, did not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, misleading; (2) as of the
effective date or deemed effective date of the Registration Statement, the Registration
Statement contained all statements and information required to be included therein or
necessary to make the statements therein not misleading and the Registration Statement did
not include any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein not
misleading, (3) at the date of the Prospectus and any supplement thereto, and at the First
Closing Date or the Second Closing Date, as the case may be, such Prospectus (together with
any supplement thereto) contained and contains all statements and information required to be
included therein or necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading, and such Prospectus (together with any supplement
thereto) did not and does not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to make the
statement therein, in light of the circumstances in which they were made, not misleading;
(4) since the effective date of the Registration Statement, there has occurred no event
required to be set forth in an amended or supplemented Prospectus that has not been so set
forth; and (5) for the period from and after the date of this Agreement and prior to such
Closing Date, there has been no development that could reasonably be expected to result in a
Material Adverse Change;
(iii) the representations, warranties and covenants of the Company set forth in this
Agreement are true and correct with the same force and effect as though expressly made on
and as of such Closing Date; and
(iv) the Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to such Closing
Date.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representative by notice to the Company at any
time on or prior to the First Closing Date and, with respect to the Option Shares, at any time
prior to the Second Closing Date, which termination shall be without liability on the part of any
party to any other party, except that Section 4, Section 6 and Section 7 shall at all times be
effective and shall survive such termination.
(a) Indemnification of the Underwriters. The Company and the Operating Partnership, jointly
and severally, agree to indemnify and hold harmless each Underwriter, its officers, directors,
employees, partners, members, agents and representatives and each person, if any, who controls any
Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim,
damage, liability or expense (including the
reasonable cost of investigation), as incurred, to which such Underwriter or such person may
become subject, under the Securities Act, the Exchange Act or other federal or state statutory law
or regulation or the laws or regulations of foreign jurisdictions, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent
of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or any amendment
thereto, including any information deemed to be a part thereof pursuant to Rule 430A under the
Securities Act, or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue
statement or alleged untrue statement of a material fact contained in the General Disclosure
Package, 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; and to reimburse each Underwriter and each such person for any and all expenses
(including the fees and disbursements of counsel chosen by KCM) as such expenses are reasonably
incurred by such Underwriter or such person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action; provided,
however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by the Representative expressly for
use in the Registration Statement, the General Disclosure Package, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto), as the same is described in
Section 6(b) below. The indemnity agreement set forth in this Section 6(a) shall be in addition to
any liabilities that the Company may otherwise have.
(b) Indemnification of the Company, its Trustees and Officers. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of its trustees, each
of its officers who signed the Registration Statement, its agents and representatives and each
person, if any, who controls the Company within the meaning of the Securities Act or the Exchange
Act, against any loss, claim, damage, liability or expense (including the reasonable cost of
investigation), as incurred, to which the Company, or any such person may become subject, under the
Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such settlement is effected
with the written consent of such Underwriter), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of or is based upon any
untrue or alleged untrue statement of a material fact contained in the Registration Statement, the
General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus (or any amendment
or supplement thereto), or arises out of or is based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement,
any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance
upon and in conformity with written information furnished to the Company by the Representative
expressly for use therein; and to reimburse the Company, or any such controlling person for any
legal and other expenses
reasonably incurred by the Company, or any such director, officer or controlling person in
connection with investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. The Company hereby acknowledges that the only information
that the Underwriters have furnished to the Company expressly for use in the Registration
Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto) are the statements set forth in the fifth, eleventh, twelfth and
thirteenth paragraphs under the caption “Underwriting” in the Prospectus. The indemnity agreement
set forth in this Section 6(b) shall be in addition to any liabilities that each Underwriter may
otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 6, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise under the indemnity agreement contained
in this Section 6 to the extent it is not prejudiced as a proximate result of such failure, but the
omission so to notify the indemnifying party will not in any event relieve the indemnifying party
from any liability that it may have to any indemnified party otherwise than under this Section 6.
In case any such action is brought against any indemnified party and such indemnified party seeks
or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties
similarly notified, by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such
action include both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that a conflict may arise between the positions of the indemnifying
party and the indemnified party in conducting the defense of any such action or that there may be
legal defenses available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of such indemnifying
party’s election so to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party under this Section 6
for any legal or other expenses subsequently incurred by such indemnified party in connection with
the defense thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one separate counsel (together
with local counsel) representing the indemnified parties who are parties to such action) or (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice of commencement of
the action, in each of which cases the reasonable fees and expenses of counsel shall be at the
expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 6 shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of judgment in any
pending or threatened action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity was or could have been sought hereunder by such indemnified
party, unless such settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such action, suit or
proceeding.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 6(c), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in Section 6(c) with
respect to notice of commencement of any action shall apply if a claim for contribution is to be
made under this Section 7; provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under Section 6(c) for purposes of
indemnification.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 7.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the underwriting discount and commissions received by such
Underwriter in connection with the Shares underwritten by it and distributed to the public. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section
7 are several, and not joint, in proportion to their respective underwriting commitments as set
forth opposite their names in Schedule A. For purposes of this Section 7, each officer, director,
employee, partner, member, agent or representative of an Underwriter and each person, if any, who
controls an Underwriter within the meaning of the Securities Act and the Exchange Act shall have
the same rights to contribution as such Underwriter, and each trustee of the Company, each officer
of the Company who signed the Registration Statement, each agent or representative and each person,
if any, who controls the Company within the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as the Company.
If, on the First Closing Date or the Second Closing Date, as the case may be, any one or more
of the Underwriters shall fail or refuse to purchase Shares and the aggregate number of Shares with
respect to which such default occurs exceeds 10% of the aggregate number of Shares to be purchased
on such date, and arrangements satisfactory to the Representative and the Company for the purchase
of such Shares are not made within two business days after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter, except that the
provisions of Section 4, Section 6 and Section 7 shall at all times be effective and shall survive
such termination. In any such case, either the Representative or the Company shall have the right
to postpone the First Closing Date or the Second Closing Date, as the case may be, but in no event
for longer than seven business days in order that the required changes, if any, to the Registration
Statement, the General Disclosure Package and the Prospectus or any other documents or arrangements
may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 8. Any action taken under this Section
8 shall not relieve any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If to the Representative:
McDonald Investments Inc.
XxXxxxxx Investment Center
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxx
XxXxxxxx Investment Center
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxx
with a copy to:
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
If to the Company:
First Potomac Realty Trust
0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
First Potomac Realty Trust
0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
with a copy to:
Hunton & Xxxxxxxx LLP
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Hunton & Xxxxxxxx LLP
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
unenforceable, there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
SECTION 14. GOVERNING LAW. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Maryland applicable to agreements made and to be performed
in such state.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 6 and the contribution provisions of
Section 7, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Section 6 and 7 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus and the Prospectus (and any amendments and
supplements thereto), as required by the Securities Act and the Exchange Act.
The Company acknowledges and agrees that (i) the purchase and sale of the Shares pursuant to
this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other, (ii) in connection therewith and with the process leading
to such transaction, each Underwriter is acting solely as a principal and not the agent or
fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility
in favor of the Company with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
on other matters) or any other obligation to the Company except the obligations expressly set forth
in this Agreement or any other effective agreement between such Underwriter and the Company and
(iv) the Company has consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has
rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the
Company, in connection with such transaction or the process leading thereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, | ||||||
First Potomac Realty Trust | ||||||
By: | /s/ Xxxx X. Xxxxxx | |||||
Name: | Xxxx X. Xxxxxx | |||||
Title: | Executive Vice President | |||||
First Potomac Realty Investment Limited Partnership | ||||||
By: | First Potomac Realty Trust, Its General Partner | |||||
By: | /s/ Xxxx X. Xxxxxx | |||||
Name: | Xxxx X. Xxxxxx | |||||
Title: | Executive Vice President |
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Underwriters as of the
date first above written.
KeyBanc Capital Markets,
a division of McDonald Investments Inc.
Wachovia Capital Markets, LLC
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxx Xxxx & Co., Inc.
a division of McDonald Investments Inc.
Wachovia Capital Markets, LLC
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxx Xxxx & Co., Inc.
By: | McDonald Investments Inc. | |||||
as representative of the several Underwriters | ||||||
By: | /s/ Xxxxx Xxxxxx | |||||
Name: | Xxxxx Xxxxxx | |||||
Title: | Managing Director |
SCHEDULE A
Number of Firm | ||||
Shares to be | ||||
Underwriters | Purchased | |||
KeyBanc Capital Markets,
a division of McDonald Investments Inc. |
1,128,600 | |||
Wachovia Capital Markets, LLC |
594,000 | |||
Xxxxxx X. Xxxxx & Co. Incorporated |
356,400 | |||
Xxxxxxx Xxxxx & Associates, Inc. |
356,400 | |||
Xxxxxx, Xxxxxxxx & Company, Incorporated |
356,400 | |||
X.X. Xxxxxxx & Sons, Inc. |
178,200 | |||
Xxxx Xxxx & Co., Inc. |
30,000 | |||
Total |
3,000,000 | |||
SCHEDULE B
Public Offering Price Per Share: $27.46
Number of Shares Subject to the Offering: 3,000,000
Over-allotment Option: 450,000
SCHEDULE C
None.
SCHEDULE D
SUBSIDIARIES
1400 Cavalier, LLC
0000 Xxxxxxxxx Xxxxxxxxx I, LLC
0000 Xxxxxxxxx Xxxxxxxxx II, LLC
0000 Xxxxxxxxx Xxxxxxxxx II, LLC
00000 Xxxx Xxxxxxxx Xxxxxxx, LLC
403 & 000 Xxxxx Xxxxx Manager, LLC
403 & 000 Xxxxx Xxxxx, LLC
0000 Xxxx Xxxxx, LLC
Airpark Place Holdings, LLC
Airpark Place, LLC
Aquia One, LLC
Aquia Two, LLC
Bren Mar Holdings, LLC
Bren Mar, LLC
Columbia Holdings Associates LLC
Crossways Associates LLC
Crossways II LLC
Crossways Land, LLC
Enterprise Center I, LLC
Enterprise Center Manager, LLC
First Potomac Realty Investment Limited Partnership
First Xxxxxx LLC
First Xxxxxxx LLC
First Potomac Management, Inc.
First Potomac Management LLC
FPR Holdings Limited Partnership
Greenbrier Holding Associates LLC
Greenbrier/Norfolk Holding LLC
Greenbrier/Norfolk Investment LLC
GTC II First LLC
Xxxxxxx Corporate Center, LLC
Interstate Plaza Holding LLC
Interstate Plaza Operating LLC
Newington Terminal Associates, LLC
Newington Terminal LLC
Xxxxxxxx Way Investments LLC
Norfolk First LLC
Xxxxxx First LLC
Xxxxxx/Xxxxxxx Holding LLC
Xxxxxx/Xxxxxxx Investment LLC
Xxxxxxx First LLC
Tech Court, LLC
0000 Xxxxxxxxx Xxxxxxxxx I, LLC
0000 Xxxxxxxxx Xxxxxxxxx II, LLC
0000 Xxxxxxxxx Xxxxxxxxx II, LLC
00000 Xxxx Xxxxxxxx Xxxxxxx, LLC
403 & 000 Xxxxx Xxxxx Manager, LLC
403 & 000 Xxxxx Xxxxx, LLC
0000 Xxxx Xxxxx, LLC
Airpark Place Holdings, LLC
Airpark Place, LLC
Aquia One, LLC
Aquia Two, LLC
Bren Mar Holdings, LLC
Bren Mar, LLC
Columbia Holdings Associates LLC
Crossways Associates LLC
Crossways II LLC
Crossways Land, LLC
Enterprise Center I, LLC
Enterprise Center Manager, LLC
First Potomac Realty Investment Limited Partnership
First Xxxxxx LLC
First Xxxxxxx LLC
First Potomac Management, Inc.
First Potomac Management LLC
FPR Holdings Limited Partnership
Greenbrier Holding Associates LLC
Greenbrier/Norfolk Holding LLC
Greenbrier/Norfolk Investment LLC
GTC II First LLC
Xxxxxxx Corporate Center, LLC
Interstate Plaza Holding LLC
Interstate Plaza Operating LLC
Newington Terminal Associates, LLC
Newington Terminal LLC
Xxxxxxxx Way Investments LLC
Norfolk First LLC
Xxxxxx First LLC
Xxxxxx/Xxxxxxx Holding LLC
Xxxxxx/Xxxxxxx Investment LLC
Xxxxxxx First LLC
Tech Court, LLC
First Potomac TRS Holdings, Inc
FP 0000 Xxxxxxxxx Xxx, LLC
FP Airpark AB, LLC
FP Campostella Road, LLC
FP Chesterfield ABEF, LLC
FP Chesterfield CDGH, LLC
FP Diamond Hill, LLC
FP Gateway Center, LLC
FP Gateway West II, LLC
XX Xxxxxx Business Center, LLC
XX Xxxxxx Place, LLC
FP Goldenrod Lane, LLC
XX Xxxx Manager, LLC
XX Xxxx, LLC
FP Hanover AB, LLC
FP Hanover C, LLC
FP Hanover D, LLC
FP Navistar Investors, LLC
FP Navistar Manager, LLC
FP Northridge, LLC
XX Xxxxxxx Center, LLC
FP Properties II, LLC
FP Properties, LLC
FP Prosperity, LLC
FP Realty Investment Manager, LLC
XX Xxxxxx Bend, LLC
XX Xxxxxxxx Park I, LLC
XX Xxxxxxxx Park II, LLC
XX Xxx Xxxxx, LLC
XX Xxxx Park, LLC
FPR General Partner, LLC
FPR Holdings Limited Partnership
Gateway Hampton Roads, LLC
Gateway Manassas I, LLC
Gateway Manassas II, LLC
Xxxxx Xxxx Business Center, LLC
Greenbrier Land, LLC
Landover Xxxxxx Xxxxx, LLC
Linden I Manager, LLC
Linden I, LLC
Xxxxxx XX, LLC
Linden III, LLC
Xxxxx Way Hampton, LLC
Norfolk Commerce Park LLC
Norfolk Land, LLC
Plaza 500, LLC
FP 0000 Xxxxxxxxx Xxx, LLC
FP Airpark AB, LLC
FP Campostella Road, LLC
FP Chesterfield ABEF, LLC
FP Chesterfield CDGH, LLC
FP Diamond Hill, LLC
FP Gateway Center, LLC
FP Gateway West II, LLC
XX Xxxxxx Business Center, LLC
XX Xxxxxx Place, LLC
FP Goldenrod Lane, LLC
XX Xxxx Manager, LLC
XX Xxxx, LLC
FP Hanover AB, LLC
FP Hanover C, LLC
FP Hanover D, LLC
FP Navistar Investors, LLC
FP Navistar Manager, LLC
FP Northridge, LLC
XX Xxxxxxx Center, LLC
FP Properties II, LLC
FP Properties, LLC
FP Prosperity, LLC
FP Realty Investment Manager, LLC
XX Xxxxxx Bend, LLC
XX Xxxxxxxx Park I, LLC
XX Xxxxxxxx Park II, LLC
XX Xxx Xxxxx, LLC
XX Xxxx Park, LLC
FPR General Partner, LLC
FPR Holdings Limited Partnership
Gateway Hampton Roads, LLC
Gateway Manassas I, LLC
Gateway Manassas II, LLC
Xxxxx Xxxx Business Center, LLC
Greenbrier Land, LLC
Landover Xxxxxx Xxxxx, LLC
Linden I Manager, LLC
Linden I, LLC
Xxxxxx XX, LLC
Linden III, LLC
Xxxxx Way Hampton, LLC
Norfolk Commerce Park LLC
Norfolk Land, LLC
Plaza 500, LLC
Reston Business Campus, LLC
Virginia Center, LLC
Windsor at Battlefield, LLC
Virginia Center, LLC
Windsor at Battlefield, LLC
SCHEDULE E
LOCK-UP AGREEMENTS
Xxxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Chess
R. Xxxxxxx XxXxxxxxxx
Xxxxx X. Xxxxxxx
J. Xxxxxxxx Xxxxxx, III
Xxxxxxxx X. Xxxxx
Xxxxx X. Xxxx
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
DKEPA#7 Partnership
X.X. Xxxxxx & Company, LLC
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Chess
R. Xxxxxxx XxXxxxxxxx
Xxxxx X. Xxxxxxx
J. Xxxxxxxx Xxxxxx, III
Xxxxxxxx X. Xxxxx
Xxxxx X. Xxxx
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
DKEPA#7 Partnership
X.X. Xxxxxx & Company, LLC