650,000 SHARES
URSTADT XXXXXX PROPERTIES INC.
7.5% Series D Senior Cumulative Preferred Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
----------------------
April 29, 2005
Deutsche Bank Securities Inc.
As Representative of the Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Urstadt Xxxxxx Properties Inc., a Maryland corporation (the
"Company"), proposes to sell to the several underwriters (the "Underwriters")
named in Schedule I hereto, for whom you are acting as representative (the
"Representative"), an aggregate of 650,000 shares (the "Shares") of the
Company's 7.5% Series D Senior Cumulative Preferred Stock, $0.01 par value per
share (the "Series D Preferred Stock"). The respective amounts of the Shares to
be so purchased by the several Underwriters are set forth opposite their names
in Schedule I hereto.
As the Representative, 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 Underwriters are willing to purchase, acting severally and not
jointly, the number of Shares set forth opposite their respective names in
Schedule I hereto.
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. The Company represents
and warrants to each of the Underwriters as follows:
(i) A registration statement on Form S-3 (File No. 333-84774) 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 "Securities
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 under the Securities Act. The Company and
the transactions contemplated by this Agreement meet the requirements and
comply with the conditions for the use of Form S-3. Copies of such
registration statement, including any amendments thereto, the prospectuses
(meeting the requirements of the Rules and Regulations) contained therein,
the exhibits, financial
statements and schedules, as finally amended and revised, and all documents
incorporated by reference have heretofore been delivered by the Company to
you. Such registration statement, herein referred to as the "Registration
Statement," which shall be deemed to include all amendments to the date
hereof and all information incorporated by reference therein, has been
declared effective by the Commission under the Securities Act, and no
post-effective amendment to the Registration Statement has been filed as of
the date of this Agreement; and the Registration Statement and Prospectus
as referred to below comply, or will comply, as the case may be, in all
material respects with the Securities Act and the Rules and Regulations.
The combined prospectus included in the Registration Statement, as it is to
be supplemented by a prospectus supplement, dated on the date hereof,
substantially in the form delivered to the Representative prior to the
execution hereof, relating to the Shares, and all prior amendments or
supplements thereto filed with the Commission (other than amendments or
supplements relating to securities other than the Shares), including
documents incorporated therein by reference, is hereinafter referred as the
"Prospectus." Any reference herein to the Prospectus shall be deemed to
refer to and include any supplements or amendments thereto filed with the
Commission after the date of the filing of the Prospectus under Rule 424(b)
or 430A and prior to the termination of the offering of the Shares by the
Underwriters, and any reference to any amendment or supplement to any
Prospectus, as the case may be, shall be deemed to refer to and include any
documents filed after the date of such Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference into such Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by reference into
the Registration Statement. A registration statement on Form 8-A (File No.
1-12803) with respect to the Shares has been prepared by the Company in
conformity with the requirements of the Exchange Act, as amended, and the
Rules and Regulations of the Commission thereunder, and has been filed with
the Commission under the Exchange Act and is currently effective.
(ii) Each of the Company and its subsidiaries and the Partnerships (as
defined below) has been duly incorporated or formed, as the case may be,
and is validly existing as a corporation or partnership, as the case may
be, in good standing under the laws of the jurisdiction of its
incorporation or formation, as the case may be, and has power and authority
to own, lease and operate its properties and to conduct its business as
described in the Registration Statement and, in the case of the Company, to
enter into and perform its obligations under this Agreement. Each of the
Company and its subsidiaries
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and the Partnerships is duly qualified as a foreign corporation or
partnership, as the case may be, to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the
aggregate, result in (a) a material adverse change, or any development that
could reasonably be expected to result in a material adverse change, in or
affecting the condition, financial or otherwise, or the earnings, business,
operations, management or business prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and its
subsidiaries and the Partnerships, considered as one enterprise, (b)
adversely affect the issuance, validity or enforceability of the Shares or
(c) adversely affect the consummation of the transactions contemplated by
this Agreement (any of (a), (b) or (c), a "Material Adverse Change"). All
of the issued and outstanding equity interests of each subsidiary of the
Company that is a corporation have been duly authorized and validly issued,
are fully paid and nonassessable and are owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, claim, restriction or encumbrance. All corporations,
partnerships, associations, limited liability companies and other entities
owned or controlled, directly or indirectly, by the Company are set forth
in Schedule II hereto.
(iii) Each of the Certificates and Agreements of Limited Partnership
of the Limited Partnerships (as defined below), including any amendments
thereto, has been duly and validly authorized, executed and delivered by
the Company and constitutes the valid and binding agreement of the Company,
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by general principles of equity.
(iv) The authorized, issued and outstanding capital stock of the
Company as of January 31, 2005 is as set forth in the Prospectus under the
caption "Capitalization" (other than for subsequent issuances, if any,
pursuant to employee benefit plans described in the Registration Statement,
upon exercise of outstanding options or warrants described in the
Registration Statement or under the Company's current dividend reinvestment
plan (the "DRIP")). The capital stock (including the Series D Preferred
Stock) conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus. All of the
issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued, are fully paid and non-assessable and
have been issued in compliance with applicable federal and state securities
laws. None of the outstanding shares of capital stock of the Company was
issued in violation of any preemptive rights, rights of first refusal or
other similar rights to subscribe for or purchase securities of the
Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase, or
equity or debt securities convertible into or exchangeable or exercisable
for, any capital stock of the Company or any of its subsidiaries other than
those described in the Registration Statement. The description of the
Company's stock option, stock bonus and other stock plans or arrangements,
and of the options or other rights granted thereunder, set forth in the
Registration Statement, fairly and accurately presents the material terms
and provisions of such plans, arrangements, options and rights. The shares
of common stock and Class A common stock of the Company are duly listed on
the New York Stock Exchange.
(v) The issuance and sale of the Series D Preferred Stock have been
duly authorized by the Company; when issued and delivered against payment
therefor as provided in this Agreement, the shares of Series D Preferred
Stock will be validly issued, fully paid and nonassessable and the issuance
and sale of the Series D Preferred Stock will not be subject to any
preemptive or similar rights; no person or entity has a right of
participation or first refusal with respect to the sale of the Series D
Preferred Stock by the
3
Company; the form of certificates evidencing the Series D Preferred Stock
complies with all applicable legal requirements and with all applicable
requirements of the articles of incorporation of the Company, including all
amendments and supplements thereto (the "Articles of Incorporation") and
the bylaws of the Company (the "Bylaws");
(vi) 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 and
the Prospectus conform to or will conform to, as the case may be, the
requirements of the Securities Act and the Rules and Regulations of the
Commission thereunder in all material respects. The documents incorporated
by reference in the Prospectus, at the time they were or will be filed with
the Commission, as the case may be, conformed or will conform at the time
of filing in all material respects to the requirements of the Exchange Act
or the Securities Act, as applicable, and the Rules and Regulations of the
Commission thereunder. The Registration Statement did not, as of the date
it became effective, contain and any amendment thereto, including any
documents incorporated by reference therein, will not contain, any untrue
statement of a material fact and did 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 or
supplements thereto, as of the date of the Prospectus, the date such
amendment or supplement is filed with the Commission and the Closing Date,
including any documents incorporated by reference therein, do not contain
and will not contain, as the case may be, any untrue statement of a
material fact and do not omit and will not omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; 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, or any documents incorporated by reference
therein, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Underwriters through the
Representative, specifically for use in the preparation thereof.
(vii) There are no contracts or documents which are material to the
Company, which are not described in the Registration Statement. The
contracts so described in the Registration Statement to which the Company
or any of UB Stamford, L.P., Scarborough Associates L.P. or Eastchester
Mall Associates L.P., each a limited partnership for which the Company
serves as sole general PARTNER (each a "Limited Partnership" and,
collectively, the "Partnerships") is a party have been duly authorized,
executed and delivered by the Company or one or more of the Partnerships,
constitute valid and binding agreements of the Company or one or more of
the Partnerships, and are enforceable against and by the Company or one or
more of the Partnerships in accordance with their respective terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally or by general principles
of equity. Neither the Company, the Partnerships, nor, to the best of the
Company's knowledge, any other party is in material breach of, or material
default under, any such contracts.
4
(viii) The consolidated financial statements of the Company, including
the notes thereto, included in or incorporated by reference in the
Registration Statement present fairly and accurately the consolidated
financial position of the Company and its subsidiaries and the Partnerships
as of and at the dates indicated and the results of their operations and
cash flows for the periods specified. Any supporting schedules included in
or incorporated by reference in the Registration Statement present fairly
and accurately the information required to be stated therein. Such
financial statements, the notes thereto and the supporting schedules have
been prepared in conformity with generally accepted accounting principles
in the United States applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes thereto,
and all adjustments necessary for a fair presentation of results for such
periods have been made. No other financial statements or supporting
schedules are required to be included in the Registration Statement. The
financial data set forth or incorporated by reference in the Registration
Statement fairly and accurately present the information set forth therein
on a basis consistent with that of the financial statements contained in or
incorporated by reference in the Registration Statement when read in
conjunction with the textual information included in the related parts of
the Registration Statement.
(ix) There are no legal or governmental actions, suits or proceedings
pending or, to the best of the Company's knowledge, threatened (a) against
the Company or any of its subsidiaries or any of the Partnerships, (b)
which has as the subject thereof any officer or director of the Company or
any of its subsidiaries in their capacity as such, or property owned or
leased by the Company or any of its subsidiaries or any of the Partnerships
or (c) relating to environmental or discrimination matters, where in any
such case (A) there is a reasonable possibility that such action, suit or
proceeding might be determined adversely to the Company or such subsidiary
or such Partnership and (B) such action, suit or proceeding, if so
determined adversely, would result in a Material Adverse Change. No
material labor dispute with the employees of the Company, any of its
subsidiaries, or any of the Partnerships exists or, to the best of the
Company's knowledge, is threatened or imminent.
(x) The Company and each of its subsidiaries and each of the
Partnerships owns or leases all such properties as are necessary to its
operations as now conducted or as proposed to be conducted as described in
the Registration Statement, except where the failure to so own or lease,
individually or together with all such other failures, would not result in
a Material Adverse Change. The Company and its subsidiaries and the
Partnerships have good and marketable title in fee simple to all of the
Properties (as defined below) and other assets of the Company, free and
clear of all security interests, mortgages, pledges, liens, claims,
restrictions or encumbrances of any kind, except such as (a) are described
in the Registration Statement or (b) do not, individually or in the
aggregate, materially affect the value of such Property or assets and do
not interfere with the use made and proposed to be made of such Property or
assets. All security interests, mortgages, pledges, liens, claims,
restrictions and encumbrances of any kind on or affecting the Properties or
the other assets of the Company and its subsidiaries and the Partnerships
that are required to be disclosed in the Registration Statement are
disclosed therein. There is no violation by the Company of any municipal,
state or federal law, rule or regulation (including, but not limited to,
those pertaining to environmental matters)
5
concerning the Properties or any part thereof which would result in a
Material Adverse Change. Each of the Properties complies with all
applicable zoning laws, ordinances, regulations and deed restrictions or
other covenants and, if and to the extent there is a failure to comply,
such failure would not, individually or together with all such other
failures, result in a Material Adverse Change or result in a forfeiture or
reversion. Neither the Company nor any of its subsidiaries nor any of the
Partnerships has received any notice from any governmental or regulatory
authority or agency of any condemnation of or zoning change affecting the
Properties or any part thereof, and the Company does not know of any such
condemnation or zoning change which is threatened. The leases, agreements
to purchase and mortgages to which the Company or any of its subsidiaries
or the Partnerships is a party, and the guaranties of third parties (a) are
the legal, valid and binding obligations of the Company, its subsidiaries
and the Partnerships, as the case may be, and, to the knowledge of the
Company, of all other parties thereto, and the Company knows of no default
currently existing with respect thereto which would result in a Material
Adverse Change, and (b) conform to the descriptions thereof set forth in
the Registration Statement. Each mortgage that the Company or any of its
subsidiaries or the Partnerships holds on the properties described in the
Registration Statement constitutes a valid mortgage lien for the benefit of
the Company or its subsidiary or the Partnership, as the case may be, on
such property.
(xi) Except as set forth in the Registration Statement and the
Prospectus, the mortgages and deeds of trust encumbering the Properties and
any other assets described in the Registration Statement are not
convertible and none of the Company, any of its subsidiaries, any of the
Partnerships or any other person affiliated therewith holds a participating
interest therein, and such mortgages and deeds of trust are not
cross-defaulted or cross-collateralized to any property not owned directly
or indirectly by the Company or any of its subsidiaries or any of the
Partnerships.
(xii) The Company and its subsidiaries and the Partnerships have filed
all necessary federal, state, local and foreign income and franchise tax
returns or have properly requested extensions thereof and have paid all
taxes required to be paid by them and, if due and payable, any related or
similar assessment, fine or penalty levied against any of them, except
such, of any, that are being contested in good faith. The Company has made
adequate charges, accruals and reserves in the applicable financial
statements referred to in Section 1(viii) above in respect of all federal,
state, local and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its subsidiaries or any of
the Partnerships has not been finally determined and the Company does not
know of any actual or proposed additional material tax assessments.
(xiii) Except as otherwise disclosed in the Registration Statement and
the Prospectus, subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus: (a) there has
been no Material Adverse Change; (b) the Company and its subsidiaries and
the Partnerships, considered as one enterprise, have not incurred any
material liability or obligation, indirect, direct or contingent, not in
the ordinary course of business, nor entered into any material transaction
or agreement not in the ordinary course of business; (c) there has been no
material casualty loss or condemnation or other material adverse event with
respect to the
6
real properties owned by the Company and its subsidiaries and the
Partnerships (collectively, the "Properties"); and (d) there has been no
dividend or distribution of any kind declared, paid or made by the Company
or, except for dividends or distributions paid to the Company or its
subsidiaries or the Partnerships, any of its subsidiaries or the
Partnerships on any class of capital stock or other equity interests, or
any repurchase or redemption by the Company or any of its subsidiaries or
the Partnerships of any class of capital stock or other equity interests.
(xiv) Neither the Company, the Partnerships nor any subsidiary is (a)
in breach of, or in default under, nor has any event occurred which with
notice, lapse of time, or both would constitute a breach of or default
under ("Default"), or in the performance or observance of any obligation,
agreement, covenant or condition contained in any license, lease,
indenture, mortgage, deed of trust, loan or credit agreement or other
agreement or instrument to which the Company, any Partnership or any
subsidiary is a party or by which any of them or their respective
properties is bound (each, an "Existing Instrument"), except for such
Defaults which would not result in a Material Adverse Change, (b) in
violation of its respective articles or certificate of incorporation,
bylaws, certificate of limited partnership or partnership agreement, as the
case may be, or (c) in violation of any law, administrative regulation or
administrative or court decree applicable to the Company or any of its
subsidiaries or any of the Partnerships or any of their respective
properties or assets, except for such violations which would not result in
a Material Adverse Change. The Company's execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated hereby (a) have been duly authorized by all necessary
corporate action and will not result in any violation of the provisions of
the Articles of Incorporation, including the articles supplementary to the
Company's Articles of Incorporation authorizing the Series D Preferred
Stock and designating the rights, preferences and restrictions relating
thereto, filed or to be filed prior to the Closing Date with the Department
of Assessments and Taxation of the State of Maryland, or By-Laws or other
organizational documents of the Company or any of its subsidiaries or any
of the Partnerships, (b) will not conflict with or constitute a Default (as
defined above) or Debt Repayment Triggering Event (as defined below) under,
or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries or
any of the Partnerships pursuant to, or require the consent of any other
party to, any Existing Instrument, and (c) will not result in any violation
of any law, administrative regulation or administrative or court decree
applicable to the Company or any of its subsidiaries or any of the
Partnerships or any of their respective properties or assets. No consent,
approval, authorization designation, declaration or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency, is required for the Company's execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated hereby, except (a) such as have been obtained or made by the
Company and are in full force and effect under the Securities Act, (b) such
as may be required under applicable state securities or blue sky laws, (c)
the filing of a final prospectus relating to the Shares with the SEC, (d)
such approvals as may be required by the National Association of Securities
Dealers, Inc. (the "NASD"), (e) the filing with the Department of
Assessments and Taxation of the State of Maryland of Articles
7
Supplementary of the Company's articles of incorporation and (f) the filing
of the applicable listing application with the New York Stock Exchange.
As used herein, a "Debt Repayment Triggering Event" means any event or
condition which gives, or with the giving of notice or lapse of time or
both would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries or any of the
Partnerships.
(xv) The Company and each of its subsidiaries and each of the
Partnerships possesses such valid and current certificates, authorizations,
licenses, registrations and permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct their
respective businesses, and neither the Company nor any such subsidiary nor
any such Partnership has received any notice of proceedings relating to the
revocation or modification of, or non-compliance with, any such
certificate, authorization, license, registration or permit which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Change.
(xvi) The Company and its subsidiaries and the Partnerships own or
possess sufficient trademarks, trade names, patents, patent rights,
copyrights, licenses, approvals, trade secrets and other similar rights
(collectively, the "Intellectual Property Rights") reasonably necessary to
conduct their businesses as now conducted or as proposed to be conducted as
described in the Registration Statement and the Prospectus; and the
expected expiration of any of such Intellectual Property Rights would not
result in a Material Adverse Change. Neither the Company nor any of its
subsidiaries nor any of the Partnerships has knowledge that it has
infringed or received any notice of infringement or conflict with asserted
Intellectual Property Rights of others, which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Change.
(xvii) Commencing with its taxable year ended October 31, 1970, and
through the date hereof, the Company has been and is organized in
conformity with the requirements for qualification as a real estate
investment trust ("REIT") under the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder
(collectively, the "Code"), and its method of operation has enabled and
will enable it to meet the requirements for qualification and taxation as a
REIT under the Code. No transaction or other event has occurred or is
contemplated which would cause the Company to fail to qualify as a REIT for
its current taxable year or future taxable years.
(xviii) Ernst & Young LLP, which has expressed its opinion with
respect to the financial statements (which term as used in this Agreement
includes the related notes thereto) included or incorporated by reference
in the Registration Statement, is an independent registered public
accounting firm as required by the Securities Act, the Rules
8
and Regulations, the Exchange Act and the rules and regulations thereunder
and the rules and regulations of the Public Company Accounting Oversight
Board ("PCAOB").
(xix) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (a) transactions are
executed in accordance with management's general or specific authorization;
(b) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (c) access to assets
is permitted only in accordance with management's general or specific
authorization; and (d) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xx) The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rules 13a-14 and 15d-14 under the
Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including its
subsidiaries and the Partnerships, is made known to the Company's Chief
Executive Officer and its Chief Financial Officer by others within those
entities, and such disclosure controls and procedures are effective to
perform the functions for which they were established; the Company's
auditors and the Audit Committee of the Board of Directors of the Company
have been advised of: (a) any significant deficiencies and material
weaknesses in the design or operation of internal controls which could
adversely affect the Company's ability to record, process, summarize, and
report financial data; and (b) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
Company's internal controls; and since the date of the most recent
evaluation of such disclosure controls and procedures, there has been no
change in internal controls that has materially affected or is reasonably
likely to materially affect internal controls.
(xxi) To the knowledge of the Company, after inquiry of its officers
and directors, there are no affiliations or associations with the NASD
among the Company's officers, directors, or 5% or greater stockholders,
except as set forth in the Registration Statement or as otherwise disclosed
in writing to the Underwriters.
(xxii) This Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, and by general principles of equity,
and except to the extent that the indemnification and contribution
provisions herein and therein may be limited by federal or state securities
laws and public policy considerations in respect thereof.
(xxiii) Except for purchases or issuances of shares of the Company's
common stock and Class A common stock pursuant to the DRIP, neither the
Company nor, to the Company's knowledge, any of its affiliates has taken or
will take, directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the
9
sale or resale of the Shares. None of such purchases and issuances pursuant
to the DRIP was made by the administrator of the DRIP at the request of the
Company with the purpose or intent of stabilizing or manipulating the price
of any security of the Company to facilitate the sale or resale of the
Shares. The Company acknowledges that the Underwriters may engage in
transactions that stabilize, maintain or otherwise affect the price of the
Company's Series D Preferred Stock, including stabilizing bids, syndicate
covering transactions and the imposition of penalty bids and understands
that any such transactions will be conducted in accordance with applicable
laws and regulations.
(xxiv) The Company has been advised of the rules and requirements
under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the rules and regulations of the Commission thereunder.
None of the Company, its subsidiaries or the Partnerships are, and after
receipt of payment for the Shares and application of the net proceeds from
the sale of the Shares will be, an "investment company" within the meaning
of the Investment Company Act, and the Company, its subsidiaries and the
Partnerships will conduct their businesses in a manner so that they will
not become subject to the Investment Company Act.
(xxv) The Company and each of its subsidiaries and the Partnerships is
insured by recognized, financially sound and reputable institutions with
policies in such amounts and with such deductibles and covering such risks
as are generally deemed in the Company's industry to be adequate and
customary for their businesses, including, but not limited to, policies
covering real and personal property owned or leased by the Company and its
subsidiaries and the Partnerships against theft, damage, destruction and
acts of vandalism and, with respect to the Properties, defects in title.
The Company has no reason to believe that it or any of its subsidiaries or
any of the Partnerships will not be able (i) to renew its existing
insurance coverage as and when such policies expire or (ii) to obtain
comparable coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted or as proposed to be
conducted as described in the Registration Statement and at a cost that
would not result in a Material Adverse Change. Neither the Company nor any
of its subsidiaries nor any of the Partnerships has been denied any
insurance coverage which it has sought or for which it has applied.
(xxvi) There are no material business relationships or related-party
transactions involving the Company or any of its subsidiaries or any of the
Partnerships and an affiliate of the Company which have not been described
in the Registration Statement.
(xxvii) Neither the Company nor any of its subsidiaries nor any of the
Partnerships nor, to the best of the Company's knowledge, any employee or
agent of the Company or any subsidiary or any Partnership, has made any
contribution or other payment to any official of, or candidate for, any
federal, state or foreign office in violation of any law.
(xxviii) Except as otherwise disclosed in the Registration Statement,
or except as would not, individually or in the aggregate, result in a
Material Adverse Change, (a) the Company and its subsidiaries and the
Partnerships have been and are in compliance with
10
applicable Environmental Laws (as defined below), (b) none of the Company,
any of its subsidiaries, any of the Partnerships or, to the best of the
Company's knowledge, any other owners of any of the Properties at any time
or any other party, has at any time released (as such term is defined in
CERCLA (as defined below)) or otherwise disposed of Hazardous Materials (as
defined below) on, to, in, under or from the Properties or any other real
properties previously owned, leased or operated by the Company or any of
its subsidiaries or any of the Partnerships, (c) neither the Company nor
any of its subsidiaries nor any of the Partnerships intends to use the
Properties or any subsequently acquired properties other than in compliance
with applicable Environmental Laws, (d) neither the Company nor any of its
subsidiaries nor any of the Partnerships has received any notice of, or has
any knowledge of any occurrence or circumstance which, with notice or
passage of time or both, would give rise to a claim under or pursuant to
any Environmental Law with respect to the Properties, any other real
properties previously owned, leased or operated by the Company or any of
its subsidiaries or any of the Partnerships, or the assets described in the
Registration Statement or arising out of the conduct of the Company or its
subsidiaries or the Partnerships, (e) none of the Properties are included
or, to the best of the Company's knowledge, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA by the United States
Environmental Protection Agency or, to the best of the Company's knowledge,
proposed for inclusion on any similar list or inventory issued pursuant to
any other Environmental Law or issued by any other Governmental Authority
(as defined below), (f) none of the Company, any of its subsidiaries, any
of the Partnerships or, to the Company's knowledge, any other person or
entity for whose conduct any of them is or may be held responsible, has
generated, manufactured, refined, transported, treated, stored, handled,
disposed, transferred, produced or processed any Hazardous Material at any
of the Properties, except in compliance with all applicable Environmental
Laws, and has not transported or arranged for the transport of any
Hazardous Material from the Properties or any other real properties
previously owned, leased or operated by the Company or any of its
subsidiaries or any of the Partnerships to another property, except in
compliance with all applicable Environmental Laws, (g) no lien has been
imposed on the Properties by any Governmental Authority in connection with
the presence on or off such Property of any Hazardous Material, and (h)
none of the Company, any of its subsidiaries, any of the Partnerships or
any other person or entity for whose conduct any of them is or may be held
responsible, has entered into or been subject to any consent decree,
compliance order, or administrative order with respect to the Properties or
any facilities or improvements or any operations or activities thereon.
As used herein, "Hazardous Material" shall include, without
limitation, any flammable materials, explosives, radioactive materials,
hazardous materials, hazardous substances, hazardous wastes, toxic
substances or related materials, asbestos, petroleum, oil, petroleum
products and any hazardous material as defined by any federal, state or
local environmental law, statute, bylaw, ordinance, rule or regulation,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. (S)(S)
9601-9675 ("CERCLA"), the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. (S)(S) 1801-1819, the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. (S)(S) 6901-K, the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. (S)(S) 1101-11050, the
11
Toxic Substances Control Act, 15 U.S.C. (S)(S) 2601-2671, the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. (S)(S) 136-136y, the
Clean Air Act, 42 U.S.C. (S)(S) 7401-7642, the Clean Water Act (Federal
Water Pollution Control Act), 33 U.S.C. (S)(S) 1251-1387, the Safe Drinking
Water Act, 42 U.S.C. (S)(S) 300f-300j-26, and the Occupational Safety and
Health Act, 29 U.S.C. (S)(S) 651-678, and any analogous state laws, as any
of the above may be amended from time to time and in the regulations
promulgated pursuant to each of the foregoing (including environmental
statutes and laws not specifically defined herein) (individually, an
"Environmental Law" and collectively, the "Environmental Laws") or by any
federal, state or local governmental authority having or claiming
jurisdiction over the properties and assets of the Company and its
subsidiaries (a "Governmental Authority").
(xxix) The Company reasonably believes that with respect to the effect
of Environmental Laws on the business, operations and properties of the
Company and its subsidiaries and the Partnerships, any capital or operating
expenditures required for clean-up or closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties would not, individually or in the aggregate, result in a Material
Adverse Change.
(xxx) The Company, its subsidiaries, the Partnerships and any
"employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or
maintained by the Company or its ERISA Affiliates (as defined below) are in
compliance in all material respects with ERISA. "ERISA Affiliate" means,
with respect to the Company, any member of any group of organizations
described in Sections 414(b), (c), (m) or (o) of the Code of which the
Company is a member. No "reportable event" (as defined under ERISA) has
occurred or is reasonably expected to occur with respect to any "employee
benefit plan" established or maintained by the Company or any of its ERISA
Affiliates. No "employee benefit plan" established or maintained by the
Company or any of its ERISA Affiliates, if such "employee benefit plan"
were terminated, would have any "amount of unfunded benefit liabilities"
(as defined under ERISA). Neither the Company nor any of its ERISA
Affiliates has incurred or reasonably expects to incur any liability under
(a) Title IV of ERISA with respect to termination of, or withdrawal from,
any "employee benefit plan" or (b) Sections 412, 4971, 4975 or 4980B of the
Code. Each "employee benefit plan" established or maintained by the Company
or any of its ERISA Affiliates that is intended to be qualified under
Section 401(a) of the Code is so qualified and nothing has occurred,
whether by action or failure to act, which would cause the loss of such
qualification.
(xxxi) There is and has been no failure on the part of the Company or,
to the Company's knowledge, any of the Company's directors or officers, in
their capacities as such, to comply in any material respects with any
applicable provision of the Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx
Act") and the rules and regulations promulgated by the Commission
thereunder, including Section 402 related to loans and Sections 302 and 906
related to certifications.
12
(xxxii) The Company has not identified any material deficiencies that
have not been or will not be remediated in time to meet the reporting
deadline imposed by Section 404 of the Xxxxxxxx-Xxxxx Act and the rules and
regulations promulgated by the Commission thereunder (collectively,
"Section 404") for compliance with the requirements of Section 404. The
Company has not received any notice, oral or written, from its auditor,
that the auditor believes the Company is behind schedule with respect to
the compliance requirements of Section 404. To the Company's knowledge, the
Company will be able to complete its required assessment under Section 404
before the related filing deadline with the Commission and in sufficient
time for the Company's auditor to complete its required assessment.
(xxxiii) Any certificate signed by an officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each
Underwriter as to the matters set forth therein.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(i) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter, severally
and not jointly, agrees to purchase from the Company, at a price of $24.55
per Share (which amount includes accrued interest of $0.09 per Share) the
number of Shares set forth opposite the name of each such Underwriter in
Schedule I hereto (plus any additional number of Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section11 hereof) .
(ii) Payment for the Shares to be sold hereunder is to be made by
Federal Funds wire transfer to an account designated by the Company against
delivery of the Shares therefor to the Representative. Such payment and
delivery are to be made at the offices of Deutsche Bank Securities Inc., 00
Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m., New York time,
on May 3, 2005 or at such other time and date 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 not permitted by law or executive order to be closed). The
certificates for the Shares will be delivered by The Bank of New York (the
"Transfer Agent") in such denominations and in such registrations as the
Representative requests in writing not later than the second full business
day prior to the Closing Date, and will be delivered through book entry
facilities of The Depository Trust Company ("DTC") and made available for
inspection by the Representative at least one business day prior to the
Closing Date at such place as the Representative, DTC and the Company shall
agree.
(iii) [Intentionally Omitted.]
3. OFFERING BY THE UNDERWRITERS. It is understood that the several
Underwriters are to make a public offering of the Shares as soon as the
Representative deems it advisable to do so. The Shares are to be initially
offered to the public at the price and upon the
13
terms set forth in the Prospectus. The Representative may from time to time
thereafter change the public offering price and other selling terms.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriters that:
(i) The Company will (a) prepare and timely file with the Commission
under Rule 424(b) of the Rules and Regulations, if the final form of the
prospectus is not included in the Registration Statement at the time the
Registration Statement is declared effective, a Prospectus containing
information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rule 430A of the Rules and
Regulations, if applicable, (b) use its best efforts to cause the
Registration Statement to remain in effect as to the Shares for so long as
the Representative may deem necessary in order to complete the distribution
of the Shares, (c) not file any amendment to the Registration Statement or
supplement to the Prospectus, or document incorporated by reference
therein, of which the Representative shall not previously have been advised
and furnished with a copy or to which the Representative shall have
reasonably objected in writing promptly upon receipt of a copy or which is
not in compliance with the Rules and Regulations for so long as the
Representative may deem necessary in order to complete the distribution of
the Shares and (d) file on a timely basis all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission subsequent to the date of the Prospectus and prior to the
termination of the offering of the Shares by the Underwriters; provided,
however, that for each such report or definitive proxy or information
statement, the Company will not file any such report or definitive proxy or
information statement, or amendment thereto, of which the Representative
shall not previously have been advised and furnished with a copy or to
which the Representative shall have reasonably objected in writing promptly
upon receipt of a copy or which is not in compliance with the Rules and
Regulations.
(ii) The Company will advise the Representative promptly of any
request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, 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 for so long as the
Representative may deem necessary in order to complete the distribution of
the Shares, or of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, and the Company will use its
reasonable best efforts to prevent (a) the issuance of any such stop order
preventing or suspending the use of the Prospectus, and (b) any such
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, and to obtain as soon as possible the lifting of any such
stop order, if issued, or such suspension of qualification.
(iii) The Company will cooperate with the Representative in
endeavoring to qualify the Shares for sale under the securities laws of
such U.S. jurisdictions as the Representative 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
14
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
Representative may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the
Representative, during the period when delivery of a Prospectus is required
under the Securities Act, as many copies of the Prospectus in final form,
or as thereafter amended or supplemented, as the Representative may
reasonably request. The Company will deliver to the Representative at or
before the Closing Date, one copy of the Registration Statement and all
amendments thereto, including all exhibits filed therewith, and will
deliver to the Representative such number of copies of the Registration
Statement (including such number of copies of the exhibits filed therewith
that may reasonably be requested), including documents incorporated by
reference therein, and of all amendments thereto, as the Representatives
may reasonably request.
(v) If during the period in which a prospectus is required by law to
be delivered by an Underwriter or a dealer any event shall occur as a
result of which, in the judgment of the Company or in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement
the Prospectus in order 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
either (a) prepare and file with the Commission an appropriate amendment to
the Registration Statement or supplement to the Prospectus or (b) prepare
and file with the Commission an appropriate filing under the Exchange Act
which shall be incorporated by reference in 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 law.
(vi) The Company will make generally available to security holders as
soon as practicable, but in any event not later than 15 months after the
date of the Prospectus, an earnings statement in conformity with Rule 158
under the Securities Act for the purpose of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(vii) The Company will, for a period of five years from the Closing
Date, deliver to the Representative copies of annual reports and copies of
all other documents, reports and information furnished by the Company to
its stockholders and copies of all reports, information and financial
statements filed with any securities exchange pursuant to the requirements
of such exchange or with the Commission pursuant to the Securities Act or
the Exchange Act; provided, however, that the Company may satisfy the
requirements of this subsection by making any such reports, communications
or information generally available on its website or by filing such
information with the Commission via Xxxxx. The Company will deliver to the
Representative similar reports
15
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.
(viii) Prior to the Closing Date, the Company will furnish to the
Underwriters, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim financial statements of the
Company for any period subsequent to the period covered by the most recent
financial statements appearing in the Registration Statement and the
Prospectus.
(ix) Prior to the Closing Date, the Company will duly and validly
authorize, by all necessary corporate action, the resolutions creating the
Shares and designating the rights, preferences, restrictions,
qualifications and limitations of the Shares (the "Designating
Resolutions").
(x) The Company will use its commercially reasonable efforts to list
the Shares on the New York Stock Exchange.
(xi) The Company will not, for a period of 30 days after the date of
this Agreement, directly or indirectly, offer, sell, contract to sell, sell
short or otherwise dispose of any debt securities with a tenure of more
than one year or any securities of the Company which are substantially
similar to the Shares, or any securities convertible into or exchangeable
or exercisable for such securities otherwise than hereunder or with the
prior written consent of the Representative.
(xii) The Company shall apply the net proceeds of its sale of the
Shares as set forth in the Prospectus, and shall not invest, or otherwise
use the proceeds received by the Company from its sale of the Shares in
such a manner as would require the Company or any of the subsidiaries or
the Partnerships to register as an investment company under the Investment
Company Act.
(xiii) 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 during the period in which the
Underwriters are engaged in distribution of the Shares.
(xiv) The Company will comply in all material respects with all
applicable securities and other applicable laws, rules and regulations,
including, without limitation, the Xxxxxxxx-Xxxxx Act, and will use its
commercially reasonable efforts to cause the Company's directors and
officers, in their capacities as such, to comply with such laws, rules and
regulations, including, without limitation, the provisions of the
Xxxxxxxx-Xxxxx Act.
5. COSTS AND EXPENSES. The Company will pay all costs, expenses and fees
incident to the performance of its obligations under this Agreement, including,
without limiting the generality of the foregoing, the following: the fees
incident to the issuance and delivery of the Shares; 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, the Prospectus, this Agreement, the applicable listing
agreement for
16
the New York Stock Exchange; the filing fees of the Commission; the filing fees
and expenses (including legal fees and disbursements) incident to securing any
required review by the NASD of the terms of the sale of the Shares; the fees
incident to the listing agreement for the New York Stock Exchange; and the
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters, incurred in connection with the qualification of the Shares under
state securities or Blue Sky laws, up to a maximum aggregate amount of $3,000
(excluding filing fees imposed by the relevant jurisdictions). Any transfer
taxes imposed on the sale of the Shares to the several Underwriters will be paid
by the Company. 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 7 hereof are not
satisfied, or because this Agreement is terminated by the Representative
pursuant to Section 6 hereof, or this Agreement is terminated pursuant to
Section 10(i)(a) 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, refusal or inability is due primarily to the
default or omission of any Underwriter, then the Company 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 respective obligations hereunder, but the Company 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 any of them of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. The several obligations
of the Underwriters to purchase the Shares on the Closing Date are subject to
the accuracy, as of the Closing Date, of the representations and warranties of
the Company contained herein, and to the performance by the Company of its
covenants and obligations hereunder and to the following additional conditions:
(i) 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 Securities Act shall have been made within
the applicable time period prescribed by, and in compliance with, the Rules
and Regulations, and any request of the Commission for additional
information (to be included in the Registration Statement or otherwise)
shall have been disclosed to the Representative and complied with to their
reasonable satisfaction.
(ii) 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 or threatened 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.
(iii) The certificate, setting forth a copy of the Designating
Resolutions, shall have been executed on behalf of the Company, shall have
been filed with the Department of Assessments and Taxation of the State of
Maryland and shall have become effective.
17
(iv) The Representative shall have received on the Closing Date the
opinions of Coudert Brothers LLP, counsel for the Company, and Miles &
Stockbridge P.C., special Maryland counsel for the Company, dated the
Closing Date and addressed to the Representative, as representative of the
several Underwriters, substantially in the forms attached hereto as
Exhibits A and B, respectively.
(v) The Representative shall have received from Hunton & Xxxxxxxx LLP,
counsel for the Underwriters, an opinion dated the Closing Date, in form
and substance satisfactory to the Representative.
(vi) At the Closing Date, the Representative shall have received from
Ernst & Young LLP a signed letter, in form and substance satisfactory to
the Representative, dated the date hereof (a) confirming that they are an
independent registered public accounting firm within the meaning of the
Securities Act and the rules and regulations of the PCAOB and are in
compliance with the applicable requirements relating to the qualification
of accountants under Rule 2-01 of Regulation S-X of the Commission and (b)
stating, as of the Closing Date (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more
than three days prior to the date hereof), the conclusions and findings of
such firm with respect to the financial information and other matters
ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(vii) [Intentionally Omitted]
(viii) The Representative shall have received on the Closing Date a
certificate or certificates of the Chairman of the Board, the Chief
Executive Officer or President of the Company and the Chief Financial
Officer of the Company to the effect that, as of the Closing Date, each of
them severally represents as follows:
(a) The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been taken or are, to his knowledge, threatened by the
Commission.
(b) He does not know of any litigation instituted or threatened
against the Company of a character required to be disclosed in the
Registration Statement which is not so disclosed; he does not know of
any material contract required to be filed as an exhibit to the
Registration Statement which is not so filed; and the representations
and warranties of the Company contained in Section 1 hereof that are
not qualified by Material Adverse Change or another materiality
qualifier are true and correct as of the Closing Date in all material
respects; and the representations and warranties of the Company
contained in Section 1 hereof that are qualified by Material Adverse
Change or another materiality qualifier are true and correct as of the
Closing Date.
18
(c) He has carefully examined the Registration Statement and the
Prospectus and, in his opinion, (i) the Registration Statement, as of
the date it became effective, and any amendment thereto, including any
documents incorporated by reference therein, did not contain any
untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading and (ii) the Prospectus and
any amendments or supplements thereto, as of the date of the
Prospectus and the date such amendment or supplement was filed with
the Commission, including any documents incorporated by reference
therein, did not contain any untrue statement of a material fact and
did not omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; 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.
(d) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been
any Material Adverse Change.
(ix) The Company shall have furnished to the Representative such
further certificates and documents confirming the representations and
warranties, covenants and conditions contained herein and related matters
as the Representative may reasonably have requested.
(x) The Shares shall have been duly listed, subject to notice of
issuance, on the New York Stock Exchange.
The opinions and certificates described 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 Representative and to Hunton & Xxxxxxxx
LLP, counsel for the Underwriters.
If any of the conditions hereinabove 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 Representative by notifying the Company of such termination in writing at or
prior to the Closing Date. 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).
7. CONDITIONS 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 conditions that at the Closing
Date, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and in effect or proceedings therefor initiated or
threatened.
19
8. INDEMNIFICATION.
(i) The Company agrees to indemnify and hold harmless each
Underwriter, its officers and directors, and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which such Underwriter or such
controlling person may become subject under the Securities 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
(a) any untrue statement or alleged untrue statement of any material fact
contained or incorporated by reference in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or (b) the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances under which they were made, and will reimburse each
such Underwriter and each such controlling person for any legal or other
out-of-pocket 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 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 or incorporated by
reference in the Registration Statement, the Prospectus, or such amendment
or supplement, in reliance upon and in conformity with written information
furnished to the Company by or through the Representative specifically for
use in the preparation thereof. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(ii) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of the Securities Act, against any
losses, claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject under the
Securities 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 any untrue statement or alleged untrue statement of any
material fact contained or incorporated by reference in the Registration
Statement, the Prospectus or any amendment or supplement thereto, or arise
out of or are based upon 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 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 or incorporated by reference in
the Registration Statement, the Prospectus or such amendment or supplement,
in reliance upon and in conformity with written information furnished to
the Company by or through
20
the Representative specifically for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which such
Underwriter may otherwise have.
(iii) 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 Sections 8(i) or (ii) shall be available to
any party who shall fail to give notice as provided in this Section 8(iii)
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 Sections 8(i) or (ii). In case any such
proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the 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 satisfactory to such
indemnified party and shall pay as incurred 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 in the event (a) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel, (b) 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 due to actual or
potential differing interests between them, in which case the indemnifying
party shall not be entitled to assume the defense of such suit
notwithstanding its obligation to bear the fees and expenses of such
counsel, or (c) 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 and one local counsel. Such firm shall be
designated in writing by you in the case of parties indemnified pursuant to
Section 8(i) and by the Company in the case of parties indemnified pursuant
to Section 8(ii). 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 be 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
21
such claim, action or proceeding and does not include a statement as to, or
an admission of, fault, culpability or failure to act by or on behalf of an
indemnified party.
(iv) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless to the extent required
therein an indemnified party under Sections 8(i) or (ii) 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 and the Underwriters
from the offering of the Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law, 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 and
the Underwriters 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 and the
Underwriters shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by each of
the Company and the Underwriters bear to the total proceeds of the offering
(the proceeds received by the Underwriters being equal 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 Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(iv) were determined
by pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
Section 8(iv). 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(iv)
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 Section 8(iv),
(a) 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 (b) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in this
Section 8(iv) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(v) In any proceeding relating to the Registration Statement, the
Prospectus or any supplement or amendment thereto, each party against whom
contribution may be
22
sought under this Section 8 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.
(vi) 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, its directors or officers or any
persons controlling the Company, (ii) acceptance of any Shares and payment
therefor hereunder, and (iii) any termination of this Agreement. A
successor to any Underwriter, or any person controlling any Underwriter, or
to the Company, its directors or officers, or any person controlling the
Company, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 8.
9. NOTICES. All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered or telecopied and confirmed
as follows: if to the Underwriters, to Deutsche Bank Securities Inc., 00 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or via fax at (000) 000-0000,
Attention: Debt Capital Markets - Corporate Group, with a copy to the General
Counsel via fax at (000) 000-0000; if to the Company, to Urstadt Xxxxxx
Properties Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, or via fax
at (000) 000-0000, Attention: Willing X. Xxxxxx.
10. TERMINATION. This Agreement may be terminated by you by notice to the
Company as follows:
(i) at any time prior to the Closing Date, if any of the following has
occurred: (a) since the date hereof, any Material Adverse Change, (b) any
outbreak or escalation of hostilities involving the United States or
declaration of war or national emergency by the United States after the
date hereof or other national or international calamity or crisis or change
in economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the
financial markets of the United States would, in your reasonable judgment,
make the offering or delivery of the Shares impracticable or inadvisable on
the terms and in the manner contemplated by the Prospectus, (c) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or NASDAQ, or in the Company's securities on the New York Stock
Exchange, shall have been suspended or materially limited (other than
limitations on hours or numbers of days of trading) or minimum prices shall
have been established for securities on any such exchange, (d) the
enactment, publication, decree or other promulgation of any federal or
state statute, regulation, rule or order of any court or other governmental
authority which in your opinion materially and adversely affects or
23
may materially and adversely affect the business or operations of the
Company, (e) declaration of a banking moratorium by either federal or New
York State authorities or material disruption in securities settlement or
clearance services in the United States, (f) any downgrading, or placement
on any watch list for possible downgrading, in the rating of any 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), (g) the taking of any action by any federal, state or local
government 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 (h) any litigation or proceeding is
pending or threatened against any Underwriter which seeks to enjoin or
otherwise restrain, or seeks damages in connection with, or questions the
legality or validity of this Agreement or the transactions contemplated
hereby; or
(ii) as provided in Sections 6 and 11 of this Agreement.
11. DEFAULT BY UNDERWRITERS. If on the Closing Date, 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 Representative 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 Shares
which the defaulting Underwriter or Underwriters failed to purchase. If during
such 36 hours you, as such Representative, shall not have procured such other
Underwriters, or any others, to purchase the Shares 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
Shares to be purchased on the Closing Date, the other Underwriters shall be
obligated, severally, in proportion to the respective numbers of Shares which
they are obligated to purchase hereunder, to purchase the Shares which such
defaulting Underwriter or Underwriters failed to purchase, or (b) if the
aggregate number of Shares with respect to which such default shall occur
exceeds 10% of the Shares to be purchased on the Closing Date, the Company or
you, as the Representative 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 Sections 5 and
8 hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section 11, the Closing Date may be postponed for such period, not
exceeding seven days, as you, as Representative, 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 11 shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
12. SUCCESSORS. This Agreement has been and is made solely for the benefit
of the Underwriters and the Company 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. The term "successors" shall not include any purchaser of
the Shares merely because of such purchase.
24
13. INFORMATION PROVIDED BY UNDERWRITERS. The Company and the Underwriters
acknowledge and agree that the only information furnished or to be furnished by
the Underwriters to the Company for inclusion in any Prospectus or the
Registration Statement consists of the information set forth in the first and
second sentences of the third paragraph and the ninth and tenth paragraphs under
the caption "Underwriting" in the Prospectus.
14. MISCELLANEOUS. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants (to the extent such covenants by their terms survive termination of
this Agreement or delivery of and payment for the Shares) in this Agreement
shall remain in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or
controlling person thereof, or by or on behalf of the Company or its directors
or officers and (iii) 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 New York without regard to any conflict of law
provision that would require application of the laws of any other jurisdiction.
25
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 and the several
Underwriters in accordance with its terms.
Very truly yours,
URSTADT XXXXXX PROPERTIES INC.
By: /s/ Willing X. Xxxxxx
----------------------------------
Name: Willing X. Xxxxxx
--------------------------------
Title: President
-------------------------------
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
As Representative of the Underwriters listed on Schedule I
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ Nigel X. X. Xxxx
-------------------------------------
Name: Nigel X. X. Xxxx
Title: Managing Director/Debt Syndicate
By: /s/Xxxx Xxxx
-------------------------------------
Name: Xxxx Xxxx
Title: Director
[Underwriting Agreement for Series D Preferred Stock]
SCHEDULE I
SCHEDULE OF UNDERWRITERS
NUMBER OF SHARES TO BE
UNDERWRITER PURCHASED
----------------------
Deutsche Bank Securities Inc............................ 450,000
Xxxxxx X. Xxxxx & Co. Incorporated...................... 125,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc........................ 50,000
Xxxxxx Xxxxxx & Company, Inc............................ 25,000
----------------------
Total.......................................... 650,000
I-1
SCHEDULE II
SUBSIDIARIES OF THE COMPANY
323 Railroad Corp.
UB Danbury, Inc.
UB Darien, Inc.
Scarborough Associates, L.P.
Eastchester Mall Associates, L.P.
UB Stamford, L.P.
UB Xxxxxx, Inc.
UB Dockside, LLC
UB Railside, LLC
II-1
