Exhibit 1.1
1,500,000 Shares
FIRST WASHINGTON REALTY TRUST, INC.
(a Maryland corporation)
Common Stock
($.01 Par Value per share)
UNDERWRITING AGREEMENT
November __, 1996
ALEX. XXXXX & SONS INCORPORATED
FRIEDMAN, BILLINGS, XXXXXX
& CO., INC.
XXXXXX XXXXXXX INCORPORATED
As Representatives of the
Several Underwriters
c/o Alex. Xxxxx & Sons Incorporated
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
First Washington Realty Trust, Inc., a Maryland corporation (the
"Company"), subject to the terms and conditions stated herein, proposes to sell
to the several Underwriters (the "Underwriters") named in Appendix I hereto for
whom you are acting as representatives (the "Representatives") an aggregate of
1,500,000 shares of the Company's Common Stock, $.01 par value per share (the
"Firm Shares"). The respective amounts of the Firm Shares to be so purchased by
the several Underwriters are set forth opposite their names in Appendix I
hereto. The Company also proposes to sell at the Underwriters' option an
aggregate of up to 225,000 additional shares of the Company's Common Stock (the
"Optional Shares") as set forth below.
As the Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several Underwriters,
and (b) that the several Underwriters are acting severally and not jointly, to
purchase the number of Firm Shares set forth opposite their respective names in
Appendix I, plus their pro rata portion of the Optional Shares if you elect to
exercise the over-allotment option in whole or in part for the accounts of the
several
Underwriters. The Firm Shares and the Optional Shares (to the extent the
aforementioned option is exercised) are herein collectively called the "Shares."
On or immediately following the Closing Date (as hereinafter defined), the
Company expects to use approximately $18.8 million of the net proceeds of the
Offering to acquire the six shopping centers set forth in the Prospectus under
the caption "Prospectus Summary -- New Retail Properties"(the "New Retail
Properties" and together with the Company's 35 other properties, the
"Properties").
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Company and the Operating
Partnership.
The Company and First Washington Realty Limited Partnership, a Maryland
limited partnership (the "Operating Partnership"), jointly and severally,
represent and warrant to, and agree with, the Representatives that:
(a) A registration statement on Form S-11 (File No. 333-15423) with respect
to the Shares has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
Rules and Regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission. Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial statements and
schedules, as finally amended and revised, have heretofore been delivered by the
Company to you. Such registration statement, together with any registration
statement filed by the Company pursuant to Rule 462(b) of the Act, herein
referred to as the "Registration Statement," which shall be deemed to include
all information omitted therefrom in reliance upon Rule 430A and contained in
the Prospectus referred to below, has become effective under the Act and no
post-effective amendment to the Registration Statement has been filed as of the
date of this Agreement. "Prospectus" means (a) the form of prospectus first
filed with the Commission pursuant to Rule 424(b) or (b) the last preliminary
prospectus included in the Registration Statement filed prior to the time it
becomes effective or filed pursuant to Rule 424(a) under the Act that is
delivered by the Company to the Underwriters for delivery to purchasers of the
Shares, together with the term sheet or abbreviated term sheet filed with the
Commission pursuant to Rule 424(b)(7) under the Act. Each preliminary prospectus
included in the Registration Statement prior to the time it became effective is
herein referred to as a "Preliminary Prospectus." Any reference herein to any
Preliminary Prospectus or the Prospectus
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shall be deemed to refer to and include any supplements relating to the Shares
being issued and sold pursuant thereto filed with the Commission after the date
of filing of the Prospectus under Rules 424(b) and 430A and prior to the
termination of the offering of the Shares by the Underwriters.
(b) The Commission has not issued an order preventing or suspending
the use of any Prospectus relating to the proposed offering of the Shares nor
instituted proceedings for that purpose. The Registration Statement contains and
the Prospectus and any amendments or supplements thereto will contain all
statements which are required to be stated therein by, and will conform, to the
requirements of the Act and the Rules and Regulations. The Registration
Statement and any amendment thereto do not contain, and will not contain, any
untrue statement of a material fact and do not omit, and will not omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus and any amendments and
supplements thereto do not contain, and will not contain, any untrue statement
of material fact; and do not omit, and will not omit, to state any 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;
provided, however, that the Company makes no representations or warranties as to
information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of
any Underwriter through the Representatives, specifically for use in the
preparation thereof.
(c) The financial statements, together with related notes and
schedules included in the Registration Statement, present fairly the financial
position and the results of operations and cash flows of the respective entity
or entities presented therein, at the indicated dates and for the indicated
periods. Such financial statements and related schedules have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein, and all
adjustments necessary for a fair presentation of results for such periods have
been made. The summary financial and statistical data included in the
Registration Statement present fairly the information shown therein and have
been compiled on a basis consistent with the financial statements presented
therein and the books and records of the Company. The pro forma financial
statements and other pro forma financial information included in the
Registration Statement and the Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements, have been properly
compiled on the pro forma bases described therein, and, in the opinion of the
Company, the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions or
circumstances referred to therein.
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(d) Coopers & Xxxxxxx L.L.P., who have certified certain of the
financial statements filed with the Commission as part of the Registration
Statement, are independent public accountants as required by the Act and the
Rules and Regulations.
(e) Since the respective dates as of which information is given in the
Registration Statement, except as otherwise stated therein, (i) there has been
no material adverse change in or affecting the condition, financial or
otherwise, or in the earnings, business, management, properties, assets, rights,
operations or prospects of the Company, the Operating Partnership, First
Washington Management, Inc. ("FWM"), the direct and indirect majority owned
subsidiaries of the Company and the Operating Partnership listed on Exhibit 22.1
to the Registration Statement (the "Subsidiaries") taken as a whole, whether or
not occurring in the ordinary course of business, and there has not been any
material transaction entered into or any material transaction that is probable
of being entered into by the Company, the Operating Partnership, FWM or the
Subsidiaries, other than transactions in the ordinary course of business and
changes and transactions described in the Registration Statement, as it may be
amended or supplemented. The Company, the Operating Partnership, FWM and the
Subsidiaries have no material contingent obligations which are not disclosed in
the Company's financial statements which are included in the Registration
Statement.
(f) Each of the Company and the Operating Partnership has all
corporate or partnership power and authority to enter into this Agreement and to
perform its obligations hereunder; and (i) this Agreement has been duly and
validly authorized, executed and delivered by the Company and the Operating
Partnership and (assuming the due authorization, execution and delivery thereof
by the Underwriters) is a valid and binding obligation of each of the Company
and the Operating Partnership, enforceable against them in accordance with its
terms; and (ii) all of the agreements filed (excluding agreements incorporated
by reference from prior Company filings) as exhibits to the Registration
Statement (the "Material Agreements") to which the Company and/or the Operating
Partnership are parties (including by assignment) have been duly and validly
authorized, executed and delivered by the parties thereto, and are valid and
binding agreements, enforceable in accordance with their terms, and there are no
dissenters' rights or rights of first refusal or similar rights which have not
been waived with respect to the transfer of any of the New Retail Properties,
partnership interests or assets that are the subject of any Material Agreement;
provided, however, that the enforceability of the documents specified in clauses
(i)-(ii) is subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws, now or hereafter in effect,
affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity), and except to the
extent that rights to indemnification and
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contribution hereunder may be limited by state or federal securities laws or the
public policy underlying such laws.
(g) The information set forth under the caption "Capitalization" in
the Prospectus is true and correct; and all of the outstanding shares of capital
stock of the Company have been duly authorized and validly issued and are fully
paid and non-assessable and conform to all statements and descriptions relating
thereto contained in the Registration Statement. Except as disclosed in the
Prospectus, no shares of capital stock of the Company are, or as of the Closing
Date will be, reserved for any purpose. Except as described in the Registration
Statement, there are, and at the Closing Date there will be, no outstanding
securities convertible into or exchangeable for any shares of stock of the
Company and no outstanding options, rights (preemptive or otherwise) or warrants
to purchase or to subscribe for such shares or any other securities of the
Company. Neither the filing of the Registration Statement nor the offering or
sale of the Shares as contemplated by this Agreement gives rise to any rights,
other than those which have been waived or satisfied, for or relating to the
registration of any shares of Common Stock.
(h) The Shares have been duly authorized and when issued and paid for
as contemplated herein, will be validly issued, fully paid and non-assessable;
no preemptive or similar rights of stockholders exist with respect to any of the
Shares or the issue and sale thereof; and the terms of the Shares conform to all
statements and descriptions related thereto contained in the Registration
Statement and comply with all applicable legal requirements (including, without
limitation, federal and state securities laws). The Shares and all other shares
of stock of the Company conform to the provisions of the charter of the Company.
The form of certificates for the Shares conforms to Maryland corporate law.
Sections 4.4 and 4.6 of the Charter comply with all applicable legal
requirements and are enforceable in accordance with their terms against holders
of shares of stock of the Company. The units of limited partnership interest
issued by the Operating Partnership ("Units") since its formation, including,
without limitation, the Units issued to the Company, have been duly authorized
for issuance by the Operating Partnership to the holders thereof, and are
validly issued and fully paid. Such Units were offered and sold, and any Units
to be issued in connection with the acquisitions of the New Retail Properties
have been offered, in compliance with all applicable laws (including, without
limitation, federal and state securities laws), and all applicable filings in
connection therewith were made.
(i) Neither the Company, the Operating Partnership, FWM nor any of the
Subsidiaries is or with the giving of notice or lapse of time or both, will be,
in violation of or in default under its charter or bylaws or partnership
agreement or under any agreement, lease, contract, indenture or other instrument
or obligation to which it is a party or by which it, or any of its properties,
is bound
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and which default would have a material adverse effect on the condition
(financial or otherwise) of the Company, the Operating Partnership, FWM and its
Subsidiaries taken as a whole or the business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of the
Company, the Operating Partnership, FWM and the Subsidiaries taken as a whole
("Material Adverse Effect"). The execution and delivery of this Agreement and
the consummation of the transactions therein contemplated and the fulfillment of
the terms hereof will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, (i) any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company,
the Operating Partnership, FWM or any Subsidiary is a party, (ii) the charter,
bylaws or partnership agreement of the Company, the Operating Partnership, FWM
or any Subsidiary or (iii) any order, rule or regulation applicable to the
Company or any Subsidiary of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction, except in
the cases of clauses (i) and (iii) above for such conflicts, breaches or
defaults which would not have a Material Adverse Effect.
(j) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company and the Operating Partnership of this Agreement and the consummation of
the transactions herein contemplated (except such additional steps as may be
required by the Commission, the National Association of Securities Dealers, Inc.
(the "NASD") or such additional steps as may be necessary to qualify the Shares
for public offering by the Underwriters under state securities or Blue Sky laws)
has been obtained or made and is in full force and effect.
(k) Each of the Company and FWM is a corporation and the Operating
Partnership is a limited partnership, and each Subsidiary is either a
corporation, limited liability company or a limited partnership duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization and has all requisite corporate, limited liability
company or partnership power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement.
Each of the Company, FWM, the Operating Partnership and each Subsidiary is duly
qualified or licensed to transact business as a foreign corporation, limited
liability company or partnership, as applicable, and is in good standing in each
jurisdiction in which it owns or leases properties or in which the conduct of
its business requires it to so qualify or be licensed, except to the extent that
the failure to so qualify or be in good standing would not have a Material
Adverse Effect. The outstanding shares of (i) stock or partnership interests, as
the case may be, of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and are owned by the Company
or the Operating Partnership, and
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(ii) capital stock of FWM have been duly authorized and validly issued, are
fully paid and non-assessable and are owned as described in the Registration
Statement; and, with respect to clauses (i) and (ii), except as described in the
Registration Statement, are free and clear of all liens, encumbrances and
equities and claims; and except as described in the Registration Statement, no
options, warrants, or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into shares of stock or
ownership interests in FWM or the Subsidiaries are outstanding.
(l) The Company and the Operating Partnership do not have any
subsidiary companies or interests in any limited liability companies or
partnerships except as set forth in Exhibit 22.1 to the Registration Statement.
The Company is the sole general partner of the Operating Partnership and on the
Closing Date will own a ___% partnership interest therein.
(m) The Company, the Operating Partnership, FWM, and the Subsidiaries
have good and marketable title to all of the properties and assets reflected in
the financial statements (or described in the Registration Statement)
hereinabove described, and, if acquired, will acquire good and marketable title
to the New Retail Properties on or promptly following the Closing Date, subject
to no lien, mortgage, pledge, security interest, charge or encumbrance of any
kind ("Liens") except as described in the Registration Statement, or which are
not material in amount. Each lease of real property by the Company, the
Operating Partnership or any Subsidiary as lessor is the legal, valid and
binding obligation of the lessee in accordance with the terms of such lease
(except that the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought and to the
Bankruptcy Code of 1978, as amended (the "Bankruptcy Code")). The rents with
respect to the Properties which as of the date hereof are more than 30 days
overdue are not payable under leases such that, were no further rental payments
to be received from such tenants by the Operating Partnership or Subsidiaries
under those leases, there would be a Material Adverse Effect. The Company has no
reason to believe that any tenant which is responsible for aggregate annual
rental payments in excess of $200,000 under all of the leases at the Properties
is not financially capable of performing its obligations thereunder or intends
to terminate any of its leases prior to or upon expiration thereof, either as
the rejection of an executory contract under applicable bankruptcy laws
(including the Bankruptcy Code) or otherwise, except, with respect to each of
the foregoing, as set forth in the Registration Statement. The Company, the
Operating Partnership, FWM and the Subsidiaries occupy their leased properties
under valid and binding leases. Each of the management and leasing agreements to
which FWM is a party (the "Management Agreements") is in full force and effect,
except where the failure to be in full force and effect would not have a
Material Adverse Effect. There exist no defaults by FWM under any of the
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Management Agreements or, to the Company's knowledge, by the other parties
thereto that would have a Material Adverse Effect; and no fees payable
thereunder are more than 30 days overdue, except such amounts which, in the
aggregate, would not have a Material Adverse Effect. The Company has no reason
to believe that any party to any Management Agreement intends to terminate its
agreement prior to or upon expiration thereof, either as the rejection of an
executory contract under applicable bankruptcy laws (including the Bankruptcy
Code) or otherwise, except as set forth in the Registration Statement or except
where such termination would not have a Material Adverse Effect.
(n) The Company, the Operating Partnership, FWM and the Subsidiaries
have filed all federal, state, local and foreign income tax returns which have
been required to be filed, or filed extension requests with respect thereto
within the required time periods, and have paid all taxes indicated by said
returns and all assessments received by them or any of them to the extent that
such taxes have become due (and are not being contested in good faith). All tax
liabilities have been adequately provided for in the financial statements of the
Company.
(o) There is no action, suit, claim or proceeding pending or, to the
knowledge of the Company, threatened against the Company, the Operating
Partnership, FWM or any of the Subsidiaries before any court or administrative
agency or otherwise (i) which if determined adversely to the Company, the
Operating Partnership, FWM or any of the Subsidiaries might result in a Material
Adverse Effect or (ii) to prevent the consummation of the transactions
contemplated hereby, except as set forth in the Registration Statement.
(p) The Company qualified as a real estate investment trust ("REIT")
under the Internal Revenue Code of 1986, as amended (the "Code") with respect to
its taxable years ended December 31, 1994 and December 31, 1995, and is
organized in conformity with the requirements for qualification as a REIT under
the Code, and it has operated and will continue to operate in such a manner as
to enable it to meet the requirements for taxation as a REIT in the future; all
statements in the Registration Statement regarding the Company's qualification
as a REIT are true, complete and correct in all material respects.
(q) (A) All Liens on or affecting any of the Properties or the assets
of the Company, which are required to be disclosed in the Registration Statement
are disclosed therein; (B) neither any landlord nor any tenant of any of the
Properties is in default under any of the leases pursuant to which any Property
is leased (and the Company does not know of any event which, but for the passage
of time or the giving of notice, or both, would constitute a default under any
of such leases) other than such defaults that would not have a Material Adverse
Effect; (C) no person has an option or right of first refusal to purchase all or
part of any New Retail Properties or any interest therein, (D) each of the
Properties complies
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with all applicable codes, laws and regulations (including, without limitation,
building and zoning codes, laws and regulations and laws relating to access to
the Properties), except if and to the extent disclosed in the Registration
Statement and except for such failures to comply that would not have a Material
Adverse Effect; (E) there is in effect for the assets of the Company, the
Operating Partnership, FWM, the Subsidiaries and the Properties insurance
coverages that are commercially reasonable, and none of the Company, the
Operating Partnership, FWM or any Subsidiary has received from any insurance
company notice of any material defects or deficiencies affecting the
insurability of any such assets; and (F) the Company does not have any knowledge
of any pending or threatened condemnation proceedings, zoning change, or other
similar proceeding or action that will in any material respect affect the size
of, use of, improvements on, construction on or access to the Properties.
(r) Except as disclosed in the Registration Statement, (A) each
Property, including, without limitation, the Environment (as defined below)
associated with such Property, is free of any Hazardous Substance (as defined
below), except for Hazardous Substances that would not have a Material Adverse
Effect, (B) none of the Company, the Operating Partnership, FWM or any
Subsidiary has caused or suffered to occur any Release (as defined below) of any
Hazardous Substance into the Environment on, in, under or from any Property, and
no condition exists on, in, under or, to the knowledge of the Company and the
Operating Partnership, adjacent to any Property that could result in the
incurrence of material liabilities or any material violations of any
Environmental Law (as defined below), give rise to the imposition of any Lien
(as defined below) under any Environmental Law, or, to the Company's knowledge,
cause or constitute a health, safety or environmental hazard to any property,
person or entity which hazard would have a Material Adverse Effect; (C) none of
the Company, the Operating Partnership, FWM or any Subsidiary is engaged in or
intends to engage in any manufacturing or any other operations at the Properties
that (1) require the use, handling, transportation, storage, treatment or
disposal of any Hazardous Substance (other than cleaning solvents and similar
materials and other than insecticides and herbicides that are used in the
ordinary course of operating the Properties and in compliance with all
applicable Environmental Laws) or (2) require permits or are otherwise regulated
pursuant to any Environmental Law; (D) none of the Company, the Operating
Partnership, FWM or any Subsidiary has received any notice of a claim under or
pursuant to any Environmental Law or under common law pertaining to Hazardous
Substances on or originating from any Property; (E) none of the Company, the
Operating Partnership, FWM or any Subsidiary has received any notice from any
Governmental Authority (as defined below) claiming any violation of any
Environmental Law that is uncured or unremediated as of the date hereof; (F) no
Property is included or, to the knowledge of the Company and the Operating
Partnership, proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (as defined below) by the
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United States Environmental Protection Agency (the "EPA") or on the
Comprehensive Environmental Response, Compensation, and Liability Information
System database maintained by the EPA, and has not otherwise been identified by
the EPA as a potential CERCLA removal, remedial or response site or included or,
to the knowledge of the Company and the Operating Partnership, proposed for
inclusion on, any similar list of potentially contaminated sites pursuant to any
other Environmental Law and (G) except as disclosed in the environmental reports
furnished to the Underwriters, there are no underground storage tanks located on
or in any Property.
As used herein, "Hazardous Substance" shall include, without
limitation, any hazardous substance, hazardous waste, toxic or dangerous
substance, pollutant, solid waste or similarly designated materials, including,
without limitation, oil, petroleum or any petroleum-derived substance or waste,
asbestos or asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation or any constituent
of any such substance, pollutant or waste, including any such substance,
pollutant or waste identified or regulated under any Environmental Law
(including, without limitation, materials listed in the United States Department
of Transportation Optional Hazardous Material Table, 49 C.F.R. ss. 172.101, as
currently in effect, or in the EPA's List of Hazardous Substances and Reportable
Quantities, 40 C.F.R. Part 302, as currently in effect); "Environment" shall
mean any surface water, drinking water, ground water, land surface, subsurface
strata, river sediment, buildings, structures, and ambient, workplace and indoor
air; "Environmental Law" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601 et seq.)
("CERCLA"), the Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C. ss. 6901, et seq.), the Clean Air Act, as amended (42 U.S.C. ss. 7401, et
seq.), the Clean Water Act, as amended (33 U.S.C. ss. 1251, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. ss. 2601, et seq.), the
Occupational Safety and Health Act of 1970, as amended (29 U.S.C. ss. 651, et
seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. ss.
1801, et seq.), and all other applicable federal, state and local laws,
ordinances, regulations, rules, orders, decisions and permits relating to the
protection of the environment or of human health from environmental effects;
"Governmental Authority" shall mean any applicable federal, state or local
governmental office, agency or authority having the duty or authority to
promulgate, implement or enforce any Environmental Law; for purposes of this
paragraph (s), "Lien" shall mean, with respect to any Property, any mortgage,
deed of trust, pledge, security interest, lien, encumbrance, penalty, fine,
charge, assessment, judgment or other liability in, on or affecting such
Property; and "Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
emanating or disposing of any Hazardous Substance into the Environment,
including, without limitation, the abandonment or discard of barrels,
containers, tanks (including,
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without limitation, underground storage tanks) or other receptacles containing
or previously containing any Hazardous Substance or any release, emission,
discharge or similar term, as those terms are defined or used in any applicable
Environmental Law.
(s) None of the Company, the Operating Partnership, FWM or any of the
Subsidiaries is, or after giving effect to the issuance and sale of the Shares
by the Company will be, (i) an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act"), or (ii) a "holding company" or
a "subsidiary company" of a "registered holding company," as defined in the
Public Utility Holding Company Act of 1938, as amended.
(t) Neither the Company, nor to the Company's best knowledge, any of
its affiliates, has taken or may take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of the
Shares.
(u) The Company, the Operating Partnership, FWM and each of the
Subsidiaries holds all material licenses, certificates and permits from
governmental authorities which are necessary to the conduct of their businesses
except for such as the absence of which would not have a Material Adverse
Effect; and none of the Company, the Operating Partnership, FWM or any of the
Subsidiaries has infringed any patents, patent rights, trade names, trademarks
or copyrights, which infringement is material to the business of the Company,
the Operating Partnership, FWM and the Subsidiaries taken as a whole. The
Company knows of no material infringement by others of patents, patent rights,
trade names, trademarks or copyrights owned by or licensed to the Company, the
Operating Partnership, FWM or any Subsidiary which would have a Material Adverse
Effect.
(v) No statement, representation, warranty or covenant made by the
Company or the Operating Partnership in any certificate or document required by
this Agreement to be delivered to the Underwriters was or will be, when made,
inaccurate, untrue or incorrect in any material respect.
(w) Each of the Company, the Operating Partnership and FWM is in
compliance in all material respects with all presently applicable provisions of
the Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no "reportable
event" (as defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which any of the Company, the Operating Partnership or FWM
would have any liability; none of the Company, the Operating Partnership or FWM
has incurred or expects to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or
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(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the "Code");
and each "pension plan" for which the Company, the Operating Partnership or FWM
would have any liability that is intended to be qualified under Section 401(a)
of the Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which could cause the loss of such
qualification.
(x) 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 final 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.
2. Purchase, Sale and Delivery of the Firm Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters and each Underwriter
agrees, severally and not jointly, to purchase, at a price of $_____ per share,
the number of Firm Shares set forth opposite the name of each Underwriter in
Appendix I hereof, subject to adjustments in accordance with Section 9 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be made in
Federal funds or by certified or bank cashier's checks drawn to the order of the
Company against delivery of certificates therefor to the Representatives for the
several accounts of the Underwriters. Such payment and delivery are to be made
at the offices of Xxxxx & Xxxxxxx L.L.P., 000 Xxxxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, at 9:00 a.m., local time, on the third business day
after the date of this Agreement or at such other time and date not later than
five business days thereafter as you and the Company shall agree upon, such time
and date being herein referred to as the "Closing Date." (As used herein,
"business day" means a day on which the New York Stock Exchange is open for
trading and on which banks in New York are open for business and are not
permitted by law or executive order to be closed.) The certificates for the Firm
Shares will be delivered in such denominations and in such registrations as the
Representatives request in writing not later than the second full business day
prior to the Closing Date, and will be made available for inspection by the
Representatives at least one business day prior to the Closing Date.
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(c) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the several Underwriters to purchase the
Optional Shares at the price per share as set forth in the first paragraph of
this Section 2. The option granted hereby may be exercised in whole or in part
by giving written notice (i) at any time before the Closing Date and (ii) only
once thereafter within 30 days after the date of this Agreement, by you, as
Representatives of the several Underwriters, to the Company setting forth the
number of Optional Shares as to which the several Underwriters are exercising
the option, the names and denominations in which the Optional Shares are to be
registered and the time and date at which such certificates are to be delivered.
The time and date at which certificates for Optional Shares are to be delivered
shall be determined by the Representatives but shall not be earlier than three
nor later than 10 full business days after the exercise of such option, nor in
any event prior to the Closing Date (such time and date being herein referred to
as the "Option Closing Date"). If the date of exercise of the option is three or
more days before the Closing Date, the notice of exercise shall set the Closing
Date as the Option Closing Date. The number of Optional Shares to be purchased
by each Underwriter shall be in the same proportion to the total number of
Optional Shares being purchased as the number of Firm Shares being purchased by
such Underwriters bears to 1,500,000 adjusted by you in such manner as to avoid
fractional shares. The option with respect to the Optional Shares granted
hereunder may be exercised only to cover over-allotments in the sale of the Firm
Shares by the Underwriters. You, as Representatives of the several Underwriters,
may cancel the option at any time prior to its expiration by giving written
notice of such cancellation to the Company. To the extent, if any, that the
option is exercised, payment for the Optional Shares shall be made on the Option
Closing Date in New York Clearing House funds by certified or bank cashier's
check drawn to the order of the Company against delivery of certificates
therefor at the offices of Alex. Xxxxx & Sons Incorporated, 000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx.
3. Offering by the Underwriters.
It is understood that the several Underwriters are to make a public
offering of the Firm Shares as soon as the Representatives deem it advisable to
do so. The Firm Shares are to be initially offered to the public at the initial
public offering price set forth in the Prospectus. The Representatives may from
time to time thereafter change the public offering price and other selling
terms. To the extent, if at all, that any Optional Shares are purchased pursuant
to Section 2 hereof, the Underwriters will offer them to the public on the
foregoing terms.
It is further understood that you will act as the Representatives for the
Underwriters in the offering and sale of the Shares in accordance with an
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Agreement Among Underwriters entered into by you and the several other
Underwriters.
4. Covenants of the Company and the Operating Partnership.
The Company and the Operating Partnership each hereby covenants and agrees
with the Underwriters as follows:
(a) The Company will (i) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in Rule 430A of
the Rules and Regulations is followed, to prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form
approved by the Representatives containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rule 430A of
the Rules and Regulations and (ii) not file any amendment to the Registration
Statement or supplement to the Prospectus of which the Representatives shall not
previously have been advised and furnished with a copy or to which the
Representatives shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations.
(b) The Company will advise the Representatives promptly (i) when the
Registration Statement or any post-effective amendment thereto shall have become
effective, (ii) of the receipt of any comments from the Commission, and (iii) of
any request of the Commission for amendment of the Registration Statement or for
supplement to the Prospectus or for any additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of the institution of any
proceedings for that purpose. The Company will use its best efforts to prevent
the issuance of any such stop order preventing or suspending the use of the
Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Representatives in endeavoring
to qualify the Shares for sale under the securities laws of such jurisdictions
as the Representatives may reasonably have designated in writing and will make
such applications, file such documents, and furnish such information as may be
reasonably required for that purpose, provided the Company shall not be required
to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or required to file
such a consent. The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to continue
such qualifications in effect for so long a period as the Representatives may
reasonably request for distribution of the Shares.
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(d) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary Prospectus
as the Representatives may reasonably request. The Company will deliver to, or
upon the order of, the Representatives during the period when delivery of a
Prospectus is required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Representatives may
reasonably request. The Company will deliver to the Representatives at or before
the Closing Date, five signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will deliver to
the Representatives such number of copies of the Registration Statement
(including such number of copies of the exhibits filed therewith that may
reasonably be requested), and of all amendments thereto, as the Representatives
may reasonably request.
(e) The Company will comply with the Act and the Rules and
Regulations, and the Securities and Exchange Act of 1934 (the "Exchange Act")
and the rules and regulations of the Commission thereunder, so as to permit the
completion of the distribution of the shares as contemplated by this Agreement
and the Prospectus. If during the period in which a prospectus is required by
law to be delivered by an Underwriter or dealer 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 Prospectus to
make the statements therein, in the light of the circumstances existing at the
time the Prospectus is delivered to a purchaser, not misleading, or, if it is
necessary at any time to amend or supplement the Prospectus to comply with any
law, the Company promptly will prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus so that the Prospectus as so amended or supplemented will not, in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with applicable law.
(f) The Company will make generally available to its security holders,
as soon as it is practicable to do so, but in any event not later than 15 months
after the effective date of the Registration Statement, an earning statement
(which need not be audited) in reasonable detail, covering a period of at least
12 consecutive months beginning after the effective date of the Registration
Statement, which earning statement shall satisfy the requirements of Section
11(a) of the Act and Rule 158 of the Rules and Regulations.
(g) The Company will, for a period of five years from the Closing
Date, deliver to the Representatives copies of annual reports and copies of all
other documents, reports and information furnished by the Company to its
securityholders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the Act or the
Exchange Act. The Company will, upon request, deliver to the Representatives
similar reports
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with respect to significant subsidiaries, as that term is defined in the Rules
and Regulations, which are not consolidated in the Company's financial
statements.
(h) No offering, sale, short sale or other disposition of any shares
of Common Stock of the Company or other securities convertible into or
exchangeable or exercisable for shares of Common Stock or derivative of Common
Stock (or agreement for such) will be made for a period of 180 days after the
date of this Agreement, directly or indirectly, by the Company otherwise than
hereunder or with the prior written consent of Alex. Xxxxx Sons Incorporated,
except that the Company may, without such consent, (i) grant options and issue
shares upon the exercise of options issued pursuant to the Company's employee
benefit plans, (ii) issue Shares or Units in acquisition transactions, (iii)
issue shares in exchange for Common Units and Exchangeable Preferred Units of
the Operating Partnership (as defined in the Prospectus) or upon conversion of
the FS Note or exchange of the Exchangeable Debentures, or (iv) issue shares in
accordance with any dividend reinvestment plan instituted by the Company or as
consideration for future acquisitions.
(i) The Company will use its best efforts to list, subject to notice
of issuance, the Shares on the New York Stock Exchange.
(j) The Company shall apply the net proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(l) The Company has caused each officer and director of the Company to
furnish to you, on or prior to the date of this Agreement, a letter or letters,
in form and substance satisfactory to the Underwriters, pursuant to which each
such person shall agree not to offer, sell, short or otherwise dispose of any
shares of Common Stock of the Company or other capital stock of the Company, or
any other securities convertible, exchangeable (including Units) or exercisable
for Common Shares or derivative of Common Shares owned by such person or request
the registration for the offer or sale of any of the foregoing (or as to which
such person has the right to direct the disposition of) for a period of 90 days
after the date of this Agreement, directly or indirectly, except with the prior
written consent of Alex. Xxxxx & Sons Incorporated ("Lock-Up Agreements").
(m) The Company will not invest, reinvest or otherwise use the
proceeds received by the Company from the sale of the Shares in such a manner,
or take any action, that would cause the Company or the Operating Partnership to
become an "investment company," as that term is defined in the Investment
Company Act.
(n) The Company will maintain a transfer agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar for the Common
Stock.
- 16 -
(o) The Company will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
securities of the Company.
(p) The Company will use its best efforts to continue to meet the
requirements to qualify as a REIT under the Code.
5. Costs and Expenses.
The Company and the Operating Partnership will pay all costs, expenses and
fees incident to the performance of the obligations of the Company and the
Operating Partnership under this Agreement, including, without limiting the
generality of the foregoing, the following: accounting fees of the Company; the
fees and disbursements of counsel for the Company; the cost of printing and
delivering to, or as requested by, the Underwriters copies of the Registration
Statement, Preliminary Prospectuses, the Prospectus, this Agreement, the
Underwriters' Invitation Letter, the Blue Sky Survey and any supplements or
amendments thereto; the filing fees of the Commission; the filing fees and
expenses (including legal fees and disbursements) incident to securing any
required review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Shares; the Listing Fee of the New York
Stock Exchange; and the expenses, including the fees and disbursements of
counsel for the Underwriters, incurred in connection with the qualification of
the Shares under State securities or Blue Sky laws. The Company shall not,
however, be required to pay for any of the Underwriters' expenses (other than
those related to qualification under NASD regulation and State securities or
Blue Sky laws) except that, if this Agreement shall not be consummated because
the conditions in Section 6 hereof are not satisfied, or because this Agreement
is terminated by the Representatives pursuant to Section 11 hereof, or by reason
of any failure, refusal or inability on the part of the Company to perform any
undertaking or satisfy any condition of this Agreement or to comply with any of
the terms hereof on its part to be performed, unless such failure to satisfy
said condition or to comply with said terms be due to the default or omission of
any Underwriter, then the Company and the Operating Partnership shall reimburse
the several Underwriters for reasonable out-of-pocket expenses, including fees
and disbursements of counsel, reasonably incurred in connection with
investigating, marketing and proposing to market the Shares or in contemplation
of performing their obligations hereunder; but the Company and the Operating
Partnership shall not in any event be liable to any of the several Underwriters
for damages on account of loss of anticipated profits from the sale by them of
the Shares.
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6. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the Firm Shares on
the Closing Date and the Option Shares, if any, on the Option Closing Date are
subject to the accuracy, as of the Closing Date or the Option Closing Date, as
the case may be, of the representations and warranties of the Company and the
Operating Partnership contained herein, and to the performance by them of their
covenants and obligations hereunder and to the following additional conclusions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by Rule 424
and Rule 430A of the Rules and Regulations shall have been made, and any request
of the Commission for additional information (to be included in the Registration
Statement or otherwise) shall have been disclosed to the Representatives and
complied with to their reasonable satisfaction. No stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall have been taken or,
to the knowledge of the Company, shall be contemplated by the Commission and no
injunction, restraining order or order of any nature by a Federal or state court
of competent, jurisdiction shall have been issued as of the Closing Date which
would prevent the issuance of the Shares.
(b) The Representatives shall have received an opinion, dated the
Closing Date and any Option Closing Date and satisfactory in form and substance
to the Underwriters (and stating that it may be relied upon by counsel to the
Underwriters), from Xxxxxx & Xxxxxxx, counsel to FWM, the Company and the
Operating Partnership, to the effect that:
(i) The Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no stop order
proceedings with respect thereto have been instituted or are pending
or threatened under the Act.
(ii) The Registration Statement, the Prospectus and each
amendment or supplement thereto comply as to form in all material
respects with the requirements of the Act and the applicable rules and
regulations thereunder (except that such counsel need express no
opinion as to the financial statements, notes and related schedules
thereto included therein).
(iii) Such counsel does not know of any contracts or
documents required to be filed as exhibits to the Registration
Statement or described in the Registration Statement or the Prospectus
which are not so filed or described as required.
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(iv) FWM has been duly incorporated and is validly existing
and in good standing under the laws of the District of Columbia, with
corporate power and authority to own, lease and operate its
properties, and to conduct its business as described in the
Prospectus. The outstanding shares of preferred stock of FWM are duly
authorized and validly issued, are fully paid and non-assessable, and
are owned as described in the Prospectus. The promissory notes of FWM
(the "FWM Notes") are duly authorized and validly issued by FWM and
are legally valid and binding obligations of FWM, and enforceable
against FWM in accordance with their terms. This opinion does not
include any opinion with respect to the perfection or priority of any
security interest or lien, and is further subject to the following
limitations, qualifications and exceptions: (a) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights or
remedies of creditors, (b) enforceability of the FWM Notes is subject
to the effect of general principles of equity, whether considered in a
proceeding in equity or at law, and the discretion of the court before
which any proceeding therefor may be brought, (c) the unenforceability
under certain circumstances under law or court decisions of provisions
providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is
contrary to public policy, and (d) the unenforceability of any
provision requiring the payment of attorney's fees, except to the
extent that a court determines such fees to be reasonable.
(v) Based solely on certificates from public officials, we
confirm that (a) FWM is qualified to do business in the following
jurisdictions: Delaware, District of Columbia, Georgia, Maryland,
North Carolina, Pennsylvania, South Carolina, Tennessee and Virginia;
(b) the Company is qualified to do business in the District of
Columbia; (c) the Operating Partnership is qualified to do business in
the following jurisdictions: District of Columbia, Maryland, North
Carolina, Pennsylvania, South Carolina and Virginia; and (d) JFD
Limited Partnership, a Maryland limited partnership, is qualified to
do business in South Carolina, Delaware and Virginia.
(vi) The statements set forth in the Prospectus under the
captions "Shares Available For Future Sale" and "Federal Income Tax
Considerations," insofar as such statements constitute matters of law,
summaries of legal matters or legal conclusions, including, without
limitation, with respect to federal tax consequences that are likely
to be material to purchasers of the Shares, and the description in the
Registration Statement of the contracts set forth on Schedule 1 have
been reviewed by us and are accurate in all material respects and with
respect to the information under "Federal Income Tax Considerations,"
fairly summarizes the federal
- 19 -
income tax considerations that are likely to be material to purchasers
of the Shares.
(vii) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and will
not conflict with or constitute a breach of, or default under, any of
the Material Agreements (excluding the Company's charter and bylaws)
to which any of the Company, the Operating Partnership, FWM or any
Subsidiary (the "FWM Entities") is a party or by which any of the FWM
Entities is bound, which breach or default could reasonably be
expected to have a Material Adverse Effect. The issuance and sale of
the Shares being delivered on the Closing Date by the Company and the
execution, delivery and performance by the Company and the Operating
Partnership of their obligations under this Agreement do not, to such
counsel's knowledge, result in any violation of any federal or
District of Columbia statute, rule or regulation applicable to the FWM
Entities.
(viii) To such counsel's knowledge, no consent, approval,
authorization or order of, or filing with, any federal or District of
Columbia court or governmental agency or body is required in
connection with the execution and delivery of this Agreement and the
consummation of the transactions herein contemplated, except such as
may be required under state securities laws in connection with the
purchase and distribution of such Shares by the Underwriters or real
estate syndication laws.
(ix) The Company has been organized and has operated in
conformity with the requirements for qualification as a REIT under the
Code, and its proposed method of operation has enabled and will enable
it to meet the requirements for qualification and taxation as a REIT
under the Code.
(x) None of the FWM Entities is, or after giving effect to
the consummation of the transactions contemplated by this Agreement,
and the application of the net proceeds therefrom as described in the
prospectus, will be required to register as an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(xi) To such counsel's knowledge, except as set forth in the
Prospectus there are no material legal or governmental proceedings
pending or threatened against any of the FWM Entities.
(xii) The Shares have been authorized for listing on New
York Stock Exchange.
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(xiii) Except as described in or contemplated by the
Prospectus, to the knowledge of such counsel, there are no outstanding
securities of the Company convertible or exchangeable into or
evidencing the right to purchase or subscribe for any shares of
capital stock of the Company and there are no outstanding or
authorized options, warrants or rights obligating the Company to issue
any shares of its capital stock or any securities convertible or
exchangeable into or evidencing the right to purchase or subscribe for
any shares of such stock; and except as described in the Prospectus,
to the knowledge of such counsel, no holder of any securities of the
Company or any other person has the right, contractual or otherwise,
which has not been satisfied or effectively waived, to cause the
Company to sell or otherwise issue to them, or the right to have any
Shares or other securities of the Company included in the Registration
Statement or the right, as a result of the filing of the Registration
Statement, to require registration under the Act of any Shares or
other securities of the Company.
(xiv) The Units to be issued in connection with the
acquisitions of the New Retail Properties have been offered in
compliance with all applicable laws (including, without limitation,
federal and state securities laws), and all applicable filings in
connection therewith were made.
In addition, such opinion shall also include a statement to the effect that
such counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, and Representatives of the Underwriters, at which
the contents of the Prospectus and related matters were discussed and, although
such counsel need not pass upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Prospectus, and such counsel has made no independent check or verification
thereof, during the course of such participation (relying as to materiality, to
the extent such counsel deems appropriate, upon the statements of officers and
other representatives of the Company), no facts came to such counsel's attention
that caused them to believe that the (i) Registration Statement, at the time
such Registration Statement became effective (but after giving effect to any
modifications incorporated therein pursuant to Rule 430A under the Act), and as
of the date of such opinion, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (ii) the Prospectus, or any
supplement thereto, on the date it was filed pursuant to the Rules and
Regulations and as of the Closing Date or the Option Closing Date, as the case
may be, contained an untrue statement of a material fact or omitted 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; it being understood that such counsel need express no belief with
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respect to the financial statements, schedules and other financial and
statistical data included in the Registration Statement or Prospectus.
(c) The Representatives shall have received an opinion,
dated the Closing Date and satisfactory in form and substance to the
Representatives (and stating that it may be relied upon by counsel for
the Underwriters), from Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, Maryland
counsel to the Company and the Operating Partnership, to the effect
that:
(i) The Company is a corporation duly incorporated
and existing under the laws of the State of Maryland and is
in good standing with the Maryland State Department of
Assessments and Taxation (the "SDAT"), with corporate power
and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and
to enter into and perform its obligations under this
Agreement and the Material Agreements to which it is a
party.
(ii) The Operating Partnership is a limited
partnership duly formed and existing under the laws of the
State of Maryland and is in good standing with the SDAT,
with partnership power and authority to own, lease and
operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform
its obligations under this Agreement and the Material
Agreements to which it is a party. The Company is the sole
general partner of the Operating Partnership. The
outstanding Units of the Operating Partnership are fully
paid and the Certificate of Limited Partnership and
Agreement of Limited Partnership do not provide for any
assessments on the limited partnership interests of the
partners.
(iii) Each of Valley Center, Inc., a Maryland
corporation, JFD, Inc., a Maryland corporation, Bryans QRS,
Inc., a Maryland corporation, and Branchwood, Inc., a
Maryland corporation (collectively, the "QRSs"), is a
corporation duly incorporated and existing under the laws of
the State of Maryland and is in good standing with the SDAT,
with corporate power and authority to own, lease and operate
its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations
under the Material Agreements to which it is a party. The
outstanding shares of stock of each of the QRSs have been
duly authorized and validly issued, are fully paid and
nonassessable and are owned by the Company, free and clear
of all liens, encumbrances and equities and claims, and no
options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any
obligations into any shares of capital stock or of ownership
interests in such Subsidiaries are outstanding.
- 22 -
(iv) Each of JFD Limited Partnership, a Maryland
limited partnership, Branchwood Limited Partnership, a
Maryland limited partnership, SP Associates Limited
Partnership, a Maryland limited partnership, FW-Bryans Road
Limited Partnership, a Maryland limited partnership,
Greenspring Associates Limited Partnership, a Maryland
limited partnership, Woodholme Properties Limited
Partnership, a Maryland limited partnership, Southside
Market Place Limited Partnership, Allenbeth Associates, L.P.
and Coppers Mill Village Center L.L.C. (together, the
"BRPs"), is a limited partnership or limited liability
company, as the case may be, duly formed and existing under
the laws of the State of Maryland and is in good standing
with the SDAT, with the partnership or limited liability
company power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations
under the Material Agreements to which it is a party. The
outstanding partnership or limited liability company
interests of each of the BRPs are owned by a wholly owned
subsidiary of the Company or the Operating Partnership, free
and clear of all liens, encumbrances, equities and claims,
and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to
convert any obligations into any partnership or limited
liability company interests or ownership interests in such
Subsidiaries are outstanding.
(v) The Company has the numbers of authorized
shares of stock as set forth under the caption
"Capitalization" in the Prospectus. The Charter and Bylaws
of the Company are in full force and effect as of the
Closing Date and comply with the Maryland General
Corporation Law. The authorized shares of the Company's
Common Stock have been duly authorized. The outstanding
shares of the Company's stock have been duly authorized and
validly issued and are fully paid and nonassessable. The
Shares have been duly authorized for issuance and sale to
the Underwriters pursuant to this Agreement, and, when
issued and delivered by the Company pursuant to this
Agreement against full payment of the consideration therefor
as provided in the resolutions authorizing issuance thereof
of the Board of Directors of the Company or a duly appointed
committee thereof, will be validly issued and fully paid and
nonassessable. The terms of the Shares conform in all
material respects to all statements and descriptions related
thereto contained in the Prospectus under the caption
"Description of Capital Stock." The certificates
representing the Shares comply with all applicable statutory
requirements of the Maryland General Corporation Law. The
Shares to be issued and sold by the Company pursuant to this
Agreement are not subject to preemptive rights or any
similar rights to purchase under the Charter of the Company,
the Bylaws of the Company, the Maryland General Corporation
Law or any agreement or instrument known to such counsel.
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(vi) The statements set forth in the Prospectus
under the caption "Certain Provisions of Maryland Law and
the Company's Charter and Bylaws" and "Description of
Capital Stock," insofar as such statements constitute a
summary of legal matters or legal conclusions, have been
reviewed and are accurate in all material respects.
(vii) The partnership agreement of the Operating
Partnership has been duly executed and is in full force and
effect as of the Closing Date and complies with the Maryland
Revised Uniform Limited Partnership Act. The Units issued by
the Operating Partnership to date, including without
limitation the Units issued to the Company, are fully paid.
(viii) The execution and delivery of the Agreement
and the Material Agreements and the consummation of the
transactions herein and therein contemplated will not result
in any violation of the Charter or Bylaws of the Company or
Agreement of Limited Partnership of the Operating
Partnership or, so far as is known to such counsel, any
statute, rule or regulation of the State of Maryland
applicable to the Company, the Operating Partnership or the
Subsidiaries.
(ix) The execution and delivery of this Agreement
and the Material Agreements have been duly authorized by all
necessary corporate or partnership action, as applicable, of
the FWM Entities that are parties thereto, and this
Agreement and the Material Agreements have been duly
executed and delivered by the FWM Entities that are parties
thereto. Assuming due authorization, execution and delivery
of the Material Agreements by each other party thereto, the
Material Agreements are valid and binding agreements of the
FWM Entities that are parties thereto, enforceable against
the FWM Entities in accordance with their terms. This
opinion does not include any opinion with respect to the
perfection or priority of any security interest or lien, and
is further subject to the following limitations,
qualifications and exceptions: (a) the effect of bankruptcy,
insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect
relating to or affecting the rights or remedies of
creditors, (b) the effect of general principles of equity,
whether considered in a proceeding in equity or at law, and
the discretion of the court before which any proceeding
therefor may be brought, (c) the doctrine of commercial
reasonableness, (d) the unenforceability under certain
circumstances under law or court decisions of provisions
providing for the indemnification of or contribution to a
party with respect to a liability where such indemnification
or contribution is contrary to public policy, and (d) the
unenforceability of any provision requiring the payment of
attorney's fees, except to the extent that a court
determines such fees to be reasonable.
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(d) The Representatives shall have received an opinion, dated the
Closing Date and any Option Closing Date and satisfactory in form and substance
to the Representatives (and stating that it may be relied upon by counsel to the
Underwriters), from Xxxxxxx X. Xxxxxxxxxx, general counsel to the Company, FWM
and the Operating Partnership, to the effect that:
To such counsel's knowledge, except as set forth in the Prospectus
there are no material legal proceedings pending or threatened against the
Company, the Operating Partnership, FWM or any Subsidiary.
(e) The Representatives shall have received from Xxxxx & Xxxxxxx
L.L.P., counsel for the Underwriters, an opinion dated the Closing Date or the
Option Closing Date, as the case may be, substantially to the effect specified
in subparagraphs (i) and (ii) of Paragraph (b) of this Section 6, and that this
Agreement has been duly authorized, executed and delivered by the Company and
the Operating Partnership, the Company was incorporated and is existing under
the laws of the State of Maryland and that the Shares have been authorized and
will upon issuance be validly issued, fully paid and non-assessable. In
rendering such opinion, Xxxxx & Xxxxxxx L.L.P. may rely as to all matters
governed other than by the laws of the State of Maryland or federal laws on the
opinions of counsel referred to in paragraph (b) of this Section 6. In addition
to the matters set forth above, such opinion shall also include a statement to
the effect that no facts have come to the attention of such counsel which causes
them to believe that (i) the Registration Statement, as of the time it became
effective under the Act, as of the Closing Date or the Option Closing Date, as
the case may, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (ii) the Prospectus, or any supplement
thereto, on the date it was filed pursuant to the Rules and Regulations and as
of the Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact,
necessary in order to make the statements, in the light of the circumstances
under which they are made, not misleading (except that such counsel need express
no view as to financial statements, notes and supporting schedules and other
financial and statistical information and data included in or omitted from the
Registration Statement or the Prospectus). With respect to such statement, Xxxxx
& Xxxxxxx L.L.P. may state that their belief is based upon the procedures set
forth therein, but is without independent check and verification.
(f) The Representatives shall have received at or prior to the Closing
Date from Xxxxx & Xxxxxxx L.L.P. a memorandum or summary, in form and substance
satisfactory to the Representatives, with respect to the qualification for
offering and sale by the Underwriters of the Shares under the state securities
or
- 25 -
"blue sky" laws of such jurisdictions as the Representatives may reasonably have
designated to the Company.
(g) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, a certificate or certificates of the
Chief Executive Officer and the Chief Financial Officer of the Company in their
capacities as such, on behalf of the Company and the Operating Partnership, to
the effect that, as of the Closing Date or the Option Closing Date, as the case
may be:
(i) The Registration Statement has become effective under
the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purposes have been initiated or are, to his knowledge, contemplated by
the Commission.
(ii) The representations and warranties of the Company and
the Operating Partnership contained in Section 1 hereof are true and
correct as of the Closing Date or the Option Closing Date, as the case
may be.
(iii) All filings required to have been made pursuant to
Rules 424 or 430A under the Act have been made.
(iv) He has carefully examined the Registration Statement
and the Prospectus and, in his opinion, as of the effective date of
the Registration Statement, the statements contained in the
Registration Statement and Prospectus were true and correct in all
material respects, and such Registration Statement and Prospectus did
not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading and,
since the effective date of the Registration Statement, no event has
occurred which should have been set forth in a supplement to or an
amendment of the Prospectus which has not been so set forth in such
supplement or amendment.
(v) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, there has not been
any material adverse change in or affecting the condition, financial
or otherwise, of the Company, the Operating Partnership, FWM and the
Subsidiaries taken as a whole or the earnings, business, management,
properties, assets, rights, operations, condition (financial or
otherwise) or prospects of the Company, the Operating Partnership, FWM
and the taken as a whole, whether or not arising in the ordinary
course of business.
- 26 -
(h) The Shares shall be qualified for sale in such jurisdictions as
the Representatives may reasonably request, each such qualification shall be in
effect and not subject to any order or other proceeding on the Closing Date.
(i) The Representatives shall have received, on each of the dates
hereof, the Closing Date and the Option Closing Date, as the case may be, a
letter dated the date hereof, the Closing Date or the Option Closing Date, as
the case may be, in form and substance satisfactory to you, of Coopers & Xxxxxxx
LLP confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations thereunder and
stating that in their opinion the financial statements and schedules examined by
them and included in the Registration Statement comply in form in all material
respects with the applicable accounting requirements of the Act and the related
published Rules and Regulations; and containing such other statements and
information as is ordinarily included in accountants' "comfort letters" to
Underwriters with respect to the financial statements and certain financial and
statistical information contained in the Registration Statement and Prospectus.
(j) The Lock-Up Agreements described in Section 4(1) are in full force
and effect.
(k) Prior to the Closing Date, the Company shall have furnished to you
such further information, certificates and documents, confirming the
representations and warranties, covenants and conditions contained herein, the
performance of obligations hereunder and related matters as the Representatives
may reasonably have requested.
(l) The Firm Shares and Option Shares, if any have been approved for
listing upon notice of issuance on the New York Stock Exchange.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to the Representatives and counsel for the Underwriters.
If any of the conditions herein above provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Representatives by notifying the Company of such termination in writing or by
telegram at or prior to the Closing Date or the Option Closing Date, as the case
may be.
In such event, the Company and the Underwriters shall not be under any
obligation to each other (except to the extent provided in Sections 5 and 8
hereof).
- 27 -
7. Condition of the Obligations of the Company.
The obligations of the Company to sell and deliver the Shares required to
be delivered as and when specified in this Agreement are subject to the
condition that at the Closing Date or the Option Closing Date, as the case may
be, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and in effect or proceedings therefor initiated or
threatened.
8. Indemnification.
(a) The Company and the Operating Partnership, jointly and severally
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of the Act against any losses,
claims, damages or liabilities to which such Underwriter or such controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendment thereto, or 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, or (ii) any untrue statement or alleged untrue statement
of any material fact contained in any Preliminary Prospectus or the Prospectus
or any supplement thereto, or the omission or alleged omission to state therein
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. The Company and the Operating Partnership agree to
reimburse each Underwriter and each such controlling person upon demand for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding or in responding to a subpoena or
governmental inquiry related to the offering of the Shares, whether or not such
Underwriter or controlling person is a party to any action or proceeding;
provided, however, that the Company and the Operating Partnership will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement, or omission or alleged omission made in the Registration Statement,
any Preliminary Prospectus, the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company or the Operating Partnership by or through the Representatives
specifically for use in the preparation thereof.
The foregoing indemnity agreement is subject to the condition that,
insofar as it relates to any such untrue statement, alleged untrue statement,
omission or alleged omission made in a Preliminary Prospectus but eliminated or
remedied in the Prospectus, such indemnity agreement shall not inure to the
- 28 -
benefit of any Underwriter from whom the person asserting any loss, liability,
claim or damage purchased the Shares (or to the benefit of any person who
controls such Underwriter) if a copy of the Prospectus was not furnished to such
person at or prior to the time such action is required by the Act.
(b) Each Underwriter severally and not jointly will indemnify and hold
harmless the Company and the Operating Partnership, each of their directors,
each of their officers who have signed the Registration Statement and each
person, if any, who controls the Company or the Operating Partnership within the
meaning of the Act, against any losses, claims, damages or liabilities to which
the Company and the Operating Partnership or any such director, officer or
controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company and the Operating Partnership or any such director,
officer or controlling person in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding; provided, however,
that each Underwriter will be liable in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company or the Operating
Partnership by or through the Representatives specifically for use in the
preparation thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 8, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in Section
8(a) or (b) shall be available to any party who shall fail to give notice as
provided in this Section 8(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
materially prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the indemnifying party or parties from any
liability which it or they may have to the indemnified party for contribution or
otherwise than on account of the provisions of Section 8(a) or (b). In case any
such proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the
- 29 -
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as
incurred (or within 30 days of presentation) the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay as incurred the
fees and expenses of the counsel retained by the indemnified party if (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate, in the reasonable determination of the indemnified party or
its counsel, due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to assume the defense and employ
counsel acceptable to the indemnified party within a reasonable period of time
after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified
pursuant to Section 8(a) and by the Company or the Operating Partnership in the
case of parties indemnified pursuant to Section 8(b); the indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there is a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. In addition, the indemnifying party will not, without the prior
written consent of the indemnified party, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action or proceeding
of which indemnification may be sought hereunder (whether or not any indemnified
party is an actual or potential party to such claim, action or proceeding)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action
or proceeding.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company or the
Operating Partnership on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the
- 30 -
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under Section 8(c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company or the Operating Partnership on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company or the Operating
Partnership on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company or the Operating Partnership bear to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Operating Partnership on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Operating Partnership and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 8(d) 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 above in this Section 8(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 8(d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), (i) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased by
such Underwriter and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 8(d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8
- 31 -
hereby consents to the jurisdiction of any court having jurisdiction over any
other contributing party, agrees that process issuing from such court may be
served upon him or it by any other contributing party and consents to the
service of such process and agrees that any other contributing party may join
him or it as an additional defendant in any such proceeding in which such other
contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company or the Operating Partnership, the Company's
directors or officers or any persons controlling the Company or the Operating
Partnership, (ii) acceptance of any Shares and payment therefor hereunder, and
(iii) any termination of this Agreement. A successor to any Underwriter, or to
the Company or the Operating Partnership, the Company's directors or officers,
or any person controlling the Company or the Operating Partnership, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. Default by Underwriters.
If on the Closing Date or the Option Closing Date, as the case may be, any
Underwriter shall fail to purchase and pay for the portion of the Shares which
such Underwriter has agreed to purchase and pay for on such date (otherwise than
by reason of any default on the part of the Company), you, as Representatives of
the Underwriters, shall use your reasonable efforts to procure within 36 hours
thereafter one or more of the other Underwriters, or any others, to purchase
from the Company such amounts as may be agreed upon and upon the terms set forth
herein, the Firm Shares or Optional Shares, as the case may be, which the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Optional Shares, as
the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to which
such default shall occur does not exceed 10% of the Firm Shares or Optional
Shares, as the case may be, covered hereby, the other Underwriters shall be
obligated, severally, in proportion to the respective numbers of Firm Shares or
Optional Shares, as the case may be, which they are obligated to purchase
hereunder, to purchase the Firm Shares or Optional Shares, as the case may be,
which such defaulting Underwriter or Underwriters failed to purchase, or (b) if
the aggregate number of shares of Firm Shares or Optional Shares, as the case
may be, with
- 32 -
respect to which such default shall occur exceeds 10% of the Firm Shares or
Optional Shares, as the case may be, covered hereby, the Company or you as the
Representatives of the Underwriters will have the right, by written notice given
within the next 36-hour period to the parties to this Agreement, to terminate
this Agreement without liability on the part of the non-defaulting Underwriters
or of the Company except to the extent provided in Section 8 hereof. In the
event of a default by any Underwriter or Underwriters, as set forth in this
Section 9, the Closing Date or Option Closing Date, as the case may be, may be
postponed for such period, not exceeding seven days, as you, as Representatives
may determine in order that the required changes in the Registration Statement
or in the Prospectus or in any other documents or arrangements may be effected.
The term "Underwriter" includes any person substituted for a defaulting
Underwriter. Any action taken under this Section 9 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. Notice.
All communications hereunder, except as may be otherwise specifically
provided herein, shall be in writing and shall be mailed, delivered or
transmitted by any standard form of telecommunication, and confirmed in writing,
as follows: if to the Underwriters, to Alex. Xxxxx & Sons Incorporated, 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx,
Managing Director, with a copy to Xxxxx & Xxxxxxx L.L.P., 000 Xxxxxxxxxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000, Attention: J. Xxxxxx Xxxxxxx, Xx., Esq.; if to the
Company or the Operating Partnership, to First Washington Realty Trust, Inc.,
0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx
X. Xxxxxxx with a copy to Xxxxxx & Xxxxxxx, 0000 Xxxxxxxxxxxx Xxxxxx, X.X.,
Xxxxx 0000, Xxxxxxxxxx, X.X. 00000-0000, Attention: R. Xxxxxx Xxxxxxxxx, Esq.
11. Termination.
This Agreement may be terminated by you by notice to the Company as
follows:
(a) at any time prior to the earlier of (i) the time the Shares are
released by you for sale by notice to the Underwriters, or (ii) 11:30 a.m. on
the first business day following the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in or
affecting the condition, financial or otherwise, of the Company, the Operating
Partnership, FWM and the Subsidiaries taken as a whole or the earnings,
business, management, properties, assets, rights, operations, condition
- 33 -
(financial or otherwise) or prospects of the Company, the Operating Partnership,
FWM and the Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, (ii) any outbreak or escalation or hostilities or
declaration of war or national emergency, calamity, crisis or change on the
financial markets of the United States would, in your reasonable judgment, make
it impracticable to market the Shares or to enforce contracts for the sale of
the Shares, or (iii) suspension of trading in securities generally on the New
York Stock Exchange or the American Stock Exchange or limitation on prices
(other than limitations on hours or numbers of days of trading) for securities
on either such Exchange, (iv) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects or
may materially and adversely affect the business or operations of the Company,
the Operating Partnership, FWM and the Subsidiaries taken as a whole, (v)
declaration of a banking moratorium by United States or New York State
authorities, (vi) any downgrading in the rating of the Company's debt securities
by any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Exchange Act), (vii) the suspension of trading
of the Company's common stock by the Commission on the New York Stock Exchange
or (viii) the taking of any action by any governmental body or agency in respect
of its monetary or fiscal affairs which in your reasonable opinion has a
material adverse effect on the securities markets in the United States; or
(c) as provided in Sections 6 and 9 of this Agreement.
12. Successors.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and the Operating Partnership and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
13. Information Provided by Underwriters.
The Company, the Operating Partnership and the Underwriters acknowledge and
agree that only information furnished or to be furnished by any Underwriter to
the Company for inclusion in any Prospectus or the Registration Statement
consists of the information set forth in the last paragraph of the front cover
page (insofar as such information relates to the Underwriters), legends required
by Item 502(d) of Regulation S-K under the Act and the information under the
caption "Underwriting" in the Prospectus.
- 34 -
14. Miscellaneous.
The reimbursement, indemnification and contribution agreements contained in
this Agreement and the representations, warranties and covenants in this
Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
the Operating Partnership or their directors or officers and (c) delivery of and
payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Maryland.
- 35 -
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Operating
Partnership and the several Underwriters in accordance with the terms.
Very truly yours,
FIRST WASHINGTON REALTY FIRST WASHINGTON REALTY
TRUST, INC., LIMITED PARTNERSHIP,
a Maryland corporation a Maryland limited partnership
By By: First Washington Realty
--------------------- Trust, Inc.,
Xxxxxxx X. Xxxxx its general partner
President
By
--------------------------
Xxxxxxx X. Xxxxx
President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of
the date first above written.
ALEX. XXXXX & SONS INCORPORATED
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
XXXXXX XXXXXXX INCORPORATED
As Representatives of the Several
Underwriters listed on Appendix I
By: ALEX. XXXXX & SONS INCORPORATED
By _______________________________
________________, Authorized Officer
- 36 -
APPENDIX I
SCHEDULE OF UNDERWRITERS
Number of Firm Shares
Underwriter to be Purchased
----------- ---------------------
Alex. Xxxxx & Sons Incorporated
Friedman, Billings, Xxxxxx & Co., Inc.
Xxxxxx Xxxxxxx Incorporated
TOTAL 1,500,000
SCHEDULE 1
[TO BE PROVIDED]
