Lock-Up Agreement - First Union
November 7, 2005
Bear, Xxxxxxx & Co. Inc.
Credit Suisse First Boston LLC
As Representatives of the several
Underwriters referred to below
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Equity Capital Markets
Xxxxxxx Realty Trust, Inc. Lock-Up Agreement
Ladies and Gentlemen:
This letter agreement (this "Agreement") relates to the proposed initial
public offering (the "Offering") by Xxxxxxx Realty Trust, Inc., a Maryland
corporation (the "Company"), of its common stock, $.01 par value (the "Stock").
In order to induce you and the other underwriters for which you act as
representatives (the "Underwriters") to underwrite the Offering, the undersigned
hereby agrees that, except as otherwise provided herein without the prior
written consent of Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), during the Lock-Up
Period (as hereinafter defined), the undersigned (a) will not, directly or
indirectly, offer, sell, agree to offer or sell, solicit offers to purchase,
grant any call option or purchase any put option with respect to, pledge, borrow
or otherwise dispose of any Relevant Security (as defined below), and (b) will
not establish or increase any "put equivalent position" or liquidate or decrease
any "call equivalent position" with respect to any Relevant Security (in each
case within the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder), or otherwise
enter into any swap, derivative or other transaction or arrangement that
transfers to another, in whole or in part, any economic consequence of ownership
of a Relevant Security, whether or not such transaction is to be settled by
delivery of Relevant Securities, other securities, cash or other consideration.
As used herein "Relevant Security" means the Stock, any other equity
security of the Company or any of its subsidiaries and any security convertible
into, or exercisable or exchangeable for, any Stock or other such equity
security held by the undersigned immediately following the Offering including,
without limitation, units of limited partnership interest in The Xxxxxxx Master
Limited Partnership, a Delaware limited partnership (the "Partnership"). As used
herein, the term "Lock-Up Period" means the period from the date hereof until
the earlier of (i) the third anniversary of the effective date of the Offering
and (ii) the date of termination or expiration of the Advisory Agreement among
the Company, the Partnership and NKT Advisors LLC.
Notwithstanding the foregoing:
(i) if (x) during the last 17 days of the Lock-Up Period the Company
issues an earnings release or material news or a material event relating
to the Company occurs; or (y) prior to the expiration of the Lock-Up
Period, the Company announces that it will release earnings results during
the 16-day period beginning on the last day of the Lock-Up Period; the
restrictions imposed in this Letter Agreement shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event;
provided, however, that this sentence shall not apply if the research
published or distributed on the Company is compliant with Rule 139 of the
Securities Act then in effect and the Company's securities are actively
traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act;
(ii) the undersigned shall be permitted to pledge Relevant
Securities in connection with a loan obtained by the undersigned so long
as the principal amount of such loan is no greater than 35% of the value
of all Relevant Securities held by the undersigned. For purposes hereof,
the value of the Relevant Securities shall be calculated assuming the
value of each Relevant Security is the Offering price of the Stock,
adjusted for stock splits; and
(iii) the undersigned shall be permitted to transfer or otherwise
assign Relevant Securities to an affiliate of the undersigned provided
that such affiliate agrees to be bound by the terms of this Agreement.
The undersigned hereby authorizes the Company during the Lock-Up Period to
cause any transfer agent for the Relevant Securities to decline to transfer, and
to note stop transfer restrictions on the stock register and other records
relating to, Relevant Securities for which the undersigned is the record holder
and, in the case of Relevant Securities for which the undersigned is the
beneficial but not the record holder, agrees during the Lock-Up Period to cause
the record holder to cause the relevant transfer agent to decline to transfer,
and to note stop transfer restrictions on the stock register and other records
relating to, such Relevant Securities. The undersigned hereby further agrees
that, except as contemplated in the final prospectus for the Offering, without
the prior written consent of Bear Xxxxxxx, during the Lock-up Period the
undersigned (x) will not file or participate in the filing with the Securities
and Exchange Commission of any registration statement, or circulate or
participate in the circulation of any preliminary or final prospectus or other
disclosure document with respect to any proposed offering or sale of a Relevant
Security and (y) will not exercise any rights the undersigned may have to
require registration with the Securities and Exchange Commission of any proposed
offering or sale of a Relevant Security.
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The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Agreement and that this Agreement
constitutes the legal, valid and binding obligation of the undersigned,
enforceable in accordance with its terms. Upon request, the undersigned will
execute any additional documents necessary in connection with enforcement
hereof. Any obligations of the undersigned shall be binding upon the successors
and assigns of the undersigned from the date first above written.
The Agreement may be terminated by (i) Bear, Xxxxxxx & Co. Inc. on behalf
of the several Underwriters at any time, in whole or in part, (ii) the
undersigned upon the earlier of (A) January 15, 2006 if the underwriting
agreement in respect of the Offering has not been executed by the parties
thereto prior to such date, or (B) the abandonment of the Offering and the
termination of the underwriting agreement (other than the provisions thereof
that survive termination) in respect of the Offering in accordance with its
terms.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. Delivery of a signed copy of this letter by
facsimile transmission shall be effective as delivery of the original hereof.
Very truly yours,
FIRST UNION REAL ESTATE EQUITY AND
MORTGAGE INVESTMENTS
By
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Xxxxx Xxxxxxxxx
President
[signature page to First Union Lock-up agreement]
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