UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 5, 2006
BRT REALTY TRUST
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(Exact name of Registrant as specified in charter)
Massachusetts 001-07172 13-2755856
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(State or other (Commission file No.) (IRS Employer
jurisdiction of I.D. No.)
incorporation)
60 Cutter Mill Road, Suite 303, Great Neck, New York 11021
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code 516-466-3100
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
-- Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
-- Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
-- Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
-- Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On December 5, 2006, BRT Realty Trust (the "Company") entered into an
Underwriting Agreement (the "Agreement") with Friedman, Billings, Ramsey & Co.,
Inc., as representative of the several underwriters named in the Agreement (the
"Underwriters"), in connection with the public offering (the "Offering") of
2,800,000 shares of its beneficial interest, par value $3.00 per share (the
"Common Shares"). The Agreement also grants the Underwriters an option to
purchase up to an additional 420,000 Common Shares from the Company to cover
over-allotments, if any, until December 14, 2006. The net proceeds to the
Company of the offering described in the Agreement, after deducting the
underwriting discount and estimated offering expenses payable by the Company,
will be approximately $73.6 million (or, if the Underwriters' over-allotment
option is exercised in full, $84.8 million). The closing of the Offering is
expected to occur on December 11, 2006, and is subject to conditions customary
for an offering of its kind.
A copy of the Agreement is filed as Exhibit 10.1 to this Current Report on Form
8-K.
Item 9.01 Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Shell Company Transactions.
Not applicable.
(d) Exhibits.
10.1 Underwriting Agreement, dated December 5, 2006, between
BRT Realty Trust and Friedman, Billings, Ramsey & Co., Inc.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BRT REALTY TRUST
Date: December 5, 2006 By: /s/ Simeon Brinberg
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Simeon Brinberg
Senior Vice President and Secretary
EXHIBIT 10.1
BRT REALTY TRUST
2,800,000 SHARES OF BENEFICIAL INTEREST
UNDERWRITING AGREEMENT
BRT REALTY TRUST
2,800,000 SHARES OF BENEFICIAL INTEREST
UNDERWRITING AGREEMENT
December 5, 2006
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
STIFEL, NICOLAUS & COMPANY, INCORPORATED
BMO CAPITAL MARKETS CORP.
as Representatives of the several Underwriters
c/o Friedman, Billings, Ramsey & Co., Inc.
1001 19th Street North
Arlington, Virginia 22209
Ladies and Gentlemen:
BRT Realty Trust, a Massachusetts business trust (the "Company"),
confirms its agreement with each of the Underwriters listed on Schedule I hereto
(collectively, the "Underwriters"), for whom Friedman, Billings, Ramsey & Co.,
Inc., Stifel, Nicolaus & Company, Incorporated and BMO Capital Markets Corp. are
acting as representatives (in such capacity, the "Representatives") with respect
to (i) the sale by the Company of 2,800,000 shares of beneficial interest (the
"Initial Shares"), par value $3.00 per share, of the Company (the "Common
Shares"), to the Underwriters, acting severally and not jointly, set forth in
Schedule I hereto, and the purchase by the Underwriters, acting severally and
not jointly, of the respective number of Common Shares set forth opposite the
names of the Underwriters in Schedule I hereto, and (ii) the grant of the option
described in Section 1(b) hereof to purchase all or any part of 420,000
additional Common Shares to cover over-allotments (the "Option Shares"), if any,
from the Company to the Underwriters, acting severally and not jointly, in the
respective number of Common Shares set forth opposite the names of each of the
Underwriters listed in Schedule I hereto. The Initial Shares to be purchased by
the Underwriters and all or any part of the Option Shares subject to the option
described in Section 1(b) hereof are hereinafter called, collectively, the
"Shares." The Company understands that the Underwriters propose to make a public
offering of the Shares as soon as the Underwriters deem advisable after this
Underwriting Agreement (this "Agreement") has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (No. 333-128458) including a
related preliminary prospectus, for the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder (the "Securities Act Regulations"). The Company has
prepared and filed such amendments to the registration statement and such
amendments or supplements to the related preliminary prospectus as may have been
required to the date hereof, and will file such additional amendments or
supplements as may hereafter be required. The registration statement has been
declared effective under the Securities Act by the Commission. The registration
statement, as amended at the time it was declared effective by the Commission
(and, if the Company files a post-effective amendment to such registration
statement which becomes effective prior to the Closing Time (as defined below),
such registration statement as so amended) and including all information deemed
to be a part of the registration statement pursuant to incorporation by
reference, Rule 430B of the Securities Act Regulations or otherwise, is
hereinafter called the "Registration Statement." The term "Base Prospectus"
means the prospectus dated October 18, 2005 included in the Registration
Statement, including all information incorporated by reference therein. The term
"Prospectus Supplement" means the prospectus supplement specifically relating to
the Shares in the form first filed with the Commission pursuant to Rule 424
under the Securities Act, including all information incorporated by reference
therein. The term "Prospectus" means the Base Prospectus together with the
Prospectus Supplement. The term "Preliminary Prospectus" means any preliminary
form of the Prospectus in the form filed with the Commission pursuant to Rule
424 of the Securities Act Regulations.
The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus.
The term "Disclosure Package" means (i) the Base Prospectus and the
Preliminary Prospectus, as most recently amended or supplemented immediately
prior to the Initial Sale Time (as defined herein), (ii) the Issuer Free Writing
Prospectuses (as defined below), if any, identified in Schedule II hereto, and
(iii) any other Free Writing Prospectus (as defined below) that the parties
hereto shall hereafter expressly agree to treat as part of the Disclosure
Package.
The term "Issuer Free Writing Prospectus" means any issuer free writing
prospectus, as defined in Rule 433 of the Securities Act Regulations. The term
"Free Writing Prospectus" means any free writing prospectus, as defined in Rule
405 of the Securities Act Regulations.
The Company and the Underwriters agree as follows:
1. Sale and Purchase.
(a) Initial Shares. Upon the basis of the warranties and representations and
other terms and conditions herein set forth, at the purchase price per Common
Share of $26.53, the Company agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, the number of Initial Shares set forth in Schedule I opposite
such Underwriter's name, plus any additional number of Initial Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 8 hereof subject, in each case, to such adjustments among the
Underwriters as the Representatives in their sole discretion shall make to
eliminate any sales or purchases of fractional shares.
(b) Option Shares. In addition, upon the basis of the warranties and
representations and other terms and conditions herein set forth, at the purchase
price per Common Share set forth in paragraph (a) above, the Company hereby
grants an option to each Underwriter, severally and not jointly, to purchase
from the Company all or any part of the Option Shares set forth opposite such
party's name, plus, with respect to each Underwriter purchasing Option Shares,
any additional number of Option Shares which each Underwriter may become
obligated to purchase pursuant to the provisions of Section 8 hereof. The option
hereby granted will expire on December 14, 2006 and may be exercised in whole or
in part, but only at one time, on or prior to December 14, 2006 only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Shares upon written notice by the
Representatives to the Company setting forth the number of Option Shares as to
which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Shares. Any such time and date of
delivery (an "Option Closing Time") shall be determined by the Representatives,
but shall not be later than three full business days (or earlier, without the
consent of the Company, than one full business days) after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the Option Shares, each of
the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Shares then being purchased which the
number of Initial Shares set forth in Schedule I opposite the name of such
Underwriter bears to the total number of Initial Shares, subject in each case to
such adjustments as the Representatives in their sole discretion shall make to
eliminate any sales or purchases of fractional shares.
2. Payment and Delivery.
(a) Initial Shares. The Initial Shares to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior written notice to the Company shall be delivered by or
on behalf of the Company to the Representatives, including, at the option of the
Representatives, through the facilities of The Depository Trust Company ("DTC")
for the account of each Underwriter, against payment by or on behalf of each
Underwriter of the purchase price therefor by wire transfer of federal
(same-day) funds to the account specified to the Representatives by the Company
upon at least forty-eight hours' prior written notice. The Company will cause
the certificates representing the Initial Shares to be made available for
checking and packaging not later than 1:00 p.m. New York City time on the
business day prior to the Closing Time (as defined below) at the office of the
Representatives, 1001 19th Street North, Arlington, Virginia 22209, or at the
office of DTC or its designated custodian, as the case may be (the "Designated
Office"). The time and date of such delivery and payment shall be 9:30 a.m., New
York City time, on December 11, 2006 or on such other time and date as the
Company and the Representatives may agree upon in writing. The time at which
such payment and delivery are actually made is hereinafter sometimes called the
"Closing Time."
(b) Option Shares. Any Option Shares to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
twenty-four hours' prior written notice to the Company shall be delivered by or
on behalf of the Company to the Representatives, including, at the option of the
Representatives, through the facilities of DTC for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of federal (same-day) funds to the account
specified to the Representatives by the Company upon at least forty-eight hours'
prior written notice. The Company will cause the certificates representing the
Option Shares to be made available for checking and packaging at least
twenty-four hours prior to the Option Closing Time at the Designated Office. The
time and date of such delivery and payment shall be 9:30 a.m., New York City
time, on the date specified by the Representatives in the notice given by the
Representatives to the Company of the Underwriters' election to purchase such
Option Shares or on such other time and date as the Company and the
Representatives may agree upon in writing.
3. Representations and Warranties of the Company. The Company represents and
warrants to the Underwriters as of the date hereof, as of the Initial Sale Time
(as defined below), as of the Closing Time and as of any Option Closing Time (if
any), and agrees with each Underwriter, that:
(a) the Company has an authorized capitalization as set forth in both the
Prospectus and the Disclosure Package; the outstanding shares of capital stock
of the Company, each subsidiary of the Company set forth on Schedule III hereto
(each a "Subsidiary" and, collectively, the "Subsidiaries"), and each joint
venture and statutory trust of the Company as set forth on Schedule IV hereto
(each a "Joint Venture" and, collectively, the "Joint Ventures") have been duly
and validly authorized and issued and are fully paid and non-assessable, and all
of the outstanding shares of capital stock of the Subsidiaries are directly or
indirectly owned of record and beneficially by the Company and all of the
membership interests in each limited liability partnership Subsidiary have been
duly and validly authorized and issued and fully paid; except as disclosed in
both the Prospectus and the Disclosure Package, there are no outstanding (i)
securities or obligations of the Company or any of the Subsidiaries convertible
into or exchangeable for any capital stock of the Company or any such
Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from
the Company or any such Subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations, or (iii) obligations of
the Company or any such Subsidiary to issue any shares of capital stock, any
such convertible or exchangeable securities or obligation, or any such warrants,
rights or options;
(b) each of the Company, each Subsidiary (all of which are named in Exhibit 21
to the Registration Statement), and each Joint Venture has been duly formed or
incorporated, as the case may be, and is validly existing and in good standing
under the laws of its respective jurisdiction of formation or incorporation with
all requisite trust or corporate power and authority to own, lease and operate
its respective properties and to conduct its respective business as now
conducted and described in each of the Registration Statement, the Prospectus
and the Disclosure Package and, in the case of the Company, to authorize,
execute and deliver this Agreement, and to consummate the transactions
contemplated herein;
(c) each of the Subsidiaries in which the Company owns any interest, the
jurisdiction of formation of such Subsidiary and the Company's ownership
interest in such Subsidiary are listed in Schedule III hereto,
(d) each of the Joint Ventures in which the Company or any Subsidiary owns any
interest, the jurisdiction of formation of such Joint Venture and the Company's
or any Subsidiary's ownership interest in such Joint Venture are listed in
Schedule IV hereto,
(e) the Company, the Subsidiaries and the Joint Ventures are duly qualified or
registered to transact business in each jurisdiction in which the nature or
conduct of their respective businesses as now conducted requires such
qualification or in which they own or lease real property or otherwise maintain
an office and in which the failure, individually or in the aggregate, to be so
qualified or registered could reasonably be expected to have a material adverse
effect on the assets, operations, business, earnings, prospects or condition
(financial or otherwise), present or prospective, of the Company and the
Subsidiaries taken as a whole (any such effect or change, where context so
requires is hereinafter call a "Material Adverse Effect" or "Material Adverse
Change"); except as disclosed in both the Prospectus and the Disclosure Package,
no Subsidiary is prohibited or restricted, directly or indirectly, from paying
dividends to the Company, or from making any other distribution with respect to
such Subsidiary's capital stock or from repaying to the Company or any other
Subsidiary any amounts which may from time to time become due under any loans or
advances to such Subsidiary from the Company or such other Subsidiary, or from
transferring any such Subsidiary's property or assets to the Company or to any
other Subsidiary; other than the Subsidiaries, the Joint Ventures, the interests
described on Schedule V or as disclosed in both the Prospectus and the
Disclosure Package, the Company does not own, directly or indirectly, any
capital stock or other equity securities of any other corporation or any
ownership interest in any partnership, joint venture or other association;
(f) the Company and the Subsidiaries, and their assets, operations and business,
are in compliance in all material respects with all applicable laws, rules,
regulations, orders, decrees and judgments, including those relating to
transactions with affiliates;
(g) neither the Company nor any of the Subsidiaries is in breach of, or in
default under (nor has any event occurred which with notice, lapse of time, or
both would constitute a breach of, or default under), its respective declaration
of trust, charter, by-laws, certificate of limited liability company, agreement
of limited liability company or other organizational documents, as the case may
be, or in the performance or observance of any obligation, agreement, covenant
or condition contained in any license, advisory agreement, (including, without
limitation, that certain Advisory Agreement, dated February 7, 1983, as amended
(the "Advisory Agreement") by and between the Company and REIT Management
Corp.), management agreement, lease, guaranty, pledge agreement, indenture,
mortgage, deed of trust, deed to secure debt, loan or credit agreement or other
agreement or instrument, (including, without limitation, that certain Shared
Services Agreement, dated January 1, 2002, as amended (the "Shared Services
Agreement") by and among the Company, One Liberty Properties, Inc., Majestic
Property Management Corp., Majestic Property Affiliates, Inc. and REIT
Management Corp.) to which the Company or any of the Subsidiaries is a party or
by which any of them or their respective properties is bound, except for such
breaches or defaults which could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(h) the issuance, sale and delivery by the Company of the Shares, the execution,
delivery and performance of this Agreement and consummation of the transactions
contemplated herein will not (A) conflict with, or result in any breach of, or
constitute a default under (nor constitute any event which with notice, lapse of
time, or both would constitute a breach of, or default under), (i) any provision
of the declaration of trust, charter, by-laws, certificate of limited liability
company, agreement of limited liability company or other organization documents,
as the case may be, of the Company or any of the Subsidiaries, (ii) any
provision of any license, advisory agreement (including the Advisory Agreement),
management agreement, lease, guaranty, pledge agreement, indenture, mortgage,
deed of trust, deed to secure debt, loan or credit agreement or other agreement
or instrument (including the Shared Services Agreement) to which the Company or
any of the Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or (iii) any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order applicable to
the Company or any of the Subsidiaries, and no such license, advisory agreement
(including the Advisory Agreement), management agreement, lease, indenture,
mortgage, deed of trust, deed to secure debt, loan or credit agreement or other
agreement or instrument (including the Shares Services Agreement) to which the
Company or any of the Subsidiaries is a party or by which any of them or their
respective properties may be bound contains a materially burdensome restriction
that is not adequately disclosed in the Registration Statement and the
Prospectus; or (B) result in the creation or imposition of any lien, charge,
claim or encumbrance upon any property or asset of the Company or any
Subsidiary;
(i) the Third Amended and Restated Declaration of Trust of the Company (the
"Declaration of Trust"), 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;
(j) the Company has full legal right, power and authority to enter into and
perform this Agreement and to consummate the transactions contemplated herein;
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 of Section 9 hereof may be
limited by federal or state securities laws and public policy considerations in
respect thereof;
(k) each Joint Venture has full legal right, power and authority to enter into
and perform its obligations under its respective joint venture agreement (the
"Joint Venture Agreements"); each Joint Venture Agreement has been duly
authorized, executed and delivered by the respective Joint Venture and is a
legal, valid and binding agreement of the Joint Venture 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;
(l) the issuance and sale of the Shares to the Underwriters hereunder have been
duly authorized by the Company; when issued and delivered against payment
therefor as contemplated in this Agreement, the Shares will be validly issued,
fully paid and non-assessable, free and clear of any pledge, lien, encumbrance,
security interest or other claim, and the issuance and sale of the Shares by the
Company will not be subject to any preemptive or similar rights, arising by
operation of law, under the organization documents of the Company, under any
agreement to which the Company or any Subsidiary is a party or otherwise; except
as contemplated herein, no person or entity holds a right to require or
participate in the registration under the Securities Act of the Shares pursuant
to the Registration Statement; no person or entity has a right of participation
or first refusal with respect to the sale of the Shares by the Company; except
as contemplated herein, no holder of the Shares is or will be subject to
personal liability by reason of being such a holder; no person or entity has a
right to require the company to register any capital stock of the Company owned
by such person or entity under the Securities Act, there are no contracts,
agreements or understandings between the Company and any person or entity
granting such person or entity the right to require the Company to file a
registration statement under the Securities Act with respect to any securities
of the Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement;
(m) no approval, authorization, consent or order of or filing with any federal,
state or local governmental or regulatory commission, board, body, authority or
agency is required in connection with the execution, delivery and performance of
this Agreement, the consummation of the transactions contemplated hereby or the
sale and delivery of the Shares as contemplated hereby other than (i) such as
have been obtained, or will have been obtained at the Closing Time or the
relevant Option Closing Time, as the case may be, under the Securities Act or
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), (ii) such
approvals as will have been obtained prior to the Closing Time in connection
with the approval of the listing of the Shares on the New York Stock Exchange
and (iii) any necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Shares are being offered by the
Underwriters;
(n) each of the Company and the Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary filings
required under any federal, state or local law, regulation or rule, and has
obtained all necessary authorizations, consents and approvals from other persons
required in order to own their respective assets and to conduct their respective
operations and businesses as described in the Prospectus and the Disclosure
Package, except to the extent that any failure to have any such licenses,
authorizations, consents or approvals, to make any such filings or to obtain any
such authorizations, consents or approvals could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect; neither the
Company nor any of the Subsidiaries is required by any applicable law to obtain
accreditation or certification from any governmental agency or authority in
order to provide the products and services which it currently provides or which
it proposes to provide as set forth in both the Prospectus and the Disclosure
Package; neither the Company nor any of the Subsidiaries, nor any of their
assets, operations or businesses is in violation of, in default under, or has
received any notice regarding a possible violation, default or revocation of any
such license, authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment applicable to
the Company or any of the Subsidiaries, the effect of which could reasonably be
expected to result in a Material Adverse Change; and no such license,
authorization, consent or approval contains a materially burdensome restriction
that is not adequately disclosed in the Registration Statement, the Prospectus
and the Disclosure Package;
(o) each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the Securities Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are threatened by the Commission, and any request on
the part of the Commission for additional information has been complied with to
the Commission's satisfaction;
(p) the Registration Statement is an automatic shelf registration statement as
defined in Rule 405 under the Securities Act, and the Company is eligible to use
the Registration Statement as an automatic shelf registration statement and the
Company has not received notice that the Commission objects to the use of the
Registration Statement as an automatic shelf registration statement;
(q) the Company and the transactions contemplated by this Agreement meet the
requirements and conditions for using a registration statement on Form S-3 under
the Securities Act, set forth in the General Instructions to Form S-3; the
Preliminary Prospectus and the Registration Statement as of each effective date
and as of the date hereof complied or will comply and the Prospectus and any
further amendments or supplements to the Registration Statement, the Preliminary
Prospectus or the Prospectus will comply, when they have become effective or are
filed with the Commission, as the case may be, in all material respects with the
requirements of the Securities Act and the Securities Act Regulations and, in
each case, present, or will present, fairly the information required to be
shown;
(r) the Registration Statement, as of each effective date and as of the date
hereof, did not, does not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and the Preliminary Prospectus
does not, and the Prospectus or any amendment or supplement thereto will not, as
of the applicable filing date, the date hereof and at the Closing Time and on
each Option Closing Time (if any), contain an untrue statement of a material
fact or omit to state a 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 warranty or representation with
respect to any statement contained in or omitted from the Registration
Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in
conformity with the information concerning the Underwriters and furnished in
writing by or on behalf of the Underwriters through the Representatives to the
Company expressly for use therein (that information being limited to that
described in the last sentence of the first paragraph of Section 9(b) hereof);
(s) as of the date hereof, the Company (i) is subject to the requirement to file
reports pursuant to Section 13 or Section 15(d) of the Exchange Act, (ii) has
filed all reports and other materials required to be filed by Sections 13(a), 14
or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the Company was required to file such reports and materials), other
than not filing a Current Report on Form 8-K in connection with its earnings
release on August 8, 2006 (iii) has filed an Annual Report on Form 10-K required
under Section 13(a) or 15(d) under the Exchange Act for its most recently
completed fiscal year; (iii) is not, and during the past three years was not
(nor was any predecessor), (a) a blank check company as defined in Rule
419(a)(2), (b) a shell company, other than a business combination related shell
company, each as defined in Rule 405, or (c) a registrant for an offering of
penny stock as defined in Rule 3a51-1 of the Exchange Act Regulations, and (iv)
makes its periodic and current reports filed pursuant to Section 13 or Section
15(d) of the Exchange Act readily available and accessible on a web site
maintained by or for the Company and containing information about the Company;
(t) each document incorporated by reference in the Prospectus and the Disclosure
Package, when it became effective or was filed with the Commission, as
applicable, conformed in all material respects to the requirements of the
Securities Act and the Securities Act Regulations, or the Exchange Act or the
rules and regulations thereunder (the "Exchange Act Regulations"), as
applicable, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus and the
Disclosure Package or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as applicable, will
conform in all material respects to the requirements of the Securities Act and
the Securities Act Regulations, or the Exchange Act and the Exchange Act
Regulations, as applicable, and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(u) as of 6:00 p.m. (Eastern Standard Time) on the date of this Agreement (the
"Initial Sale Time"), the Disclosure Package did not, and at the time of each
sale of Shares and at the Closing Time and each Option Closing Time, the
Disclosure Package will not, contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; as of its issue date or date of first use and at all subsequent
times through the Initial Sale Time, each Issuer Free Writing Prospectus did
not, and at the time of each sale of Shares and at the Closing Time and each
Option Closing Time, each such Issuer Free Writing Prospectus will not, contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no warranty or representation with respect to any
statement contained in or omitted from the Disclosure Package in reliance upon
and in conformity with the information concerning the Underwriters and furnished
in writing by or on behalf of the Underwriters through the Representatives to
the Company expressly for use therein (that information being limited to that
described in the last sentence of the first paragraph of Section 9(b) hereof);
(v) each Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the
Shares did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration
Statement, including any document incorporated by reference therein that has not
been superseded or modified;
(w) the Company is eligible to use Free Writing Prospectuses in connection with
this offering pursuant to Rules 164 and 433 under the Securities Act; any Free
Writing Prospectus that the Company is required to file pursuant to Rule 433(d)
under the Securities Act Regulations has been, or will be, filed with the
Commission in accordance with the requirements of the Securities Act and the
Securities Act Regulations; and each Free Writing Prospectus that the Company
has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act Regulations or that was prepared by or on behalf of or used by the Company
complies or will comply in all material respects with the requirements of the
Securities Act and the Securities Act Regulations;
(x) except for the Issuer Free Writing Prospectuses identified in Schedule II
hereto, and any electronic road show relating to the public offering of shares
contemplated herein, the Company has not prepared, used or referred to, and will
not, without the prior consent of the Representatives, prepare, use or refer to,
any Free Writing Prospectus;
(y) the Preliminary Prospectus, the Prospectus and any Issuer Free Writing
Prospectuses (to the extent any such Issuer Free Writing Prospectus was required
to be filed with the Commission) delivered to the Underwriters for use in
connection with the public offering of the Shares contemplated herein have been
and will be identical to the versions of such documents transmitted to the
Commission for filing via the Electronic Data Gathering Analysis and Retrieval
System ("EDGAR"), except to the extent permitted by Regulation S-T;
(z) the Company filed the Registration Statement with the Commission before
using any Issuer Free Writing Prospectus; and each Issuer Free Writing
Prospectus was preceded or accompanied by the most recent Preliminary Prospectus
satisfying the requirements of Section 10 under the Securities Act;
(aa) all legal or governmental proceedings, contracts or documents which are
material and of a character required to be filed as exhibits to the Registration
Statement or to be summarized or described in the Prospectus have been so filed,
summarized or described as required;
(bb) there are no actions, suits, proceedings, inquiries or investigations
pending or, to the Company's knowledge, threatened against the Company or any of
the Subsidiaries or any of their respective officers and directors or to which
the properties, assets or rights of any such entity is subject, at law or in
equity, before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority, arbitration panel or agency which
could reasonably be expected to result in a judgment, decree, award or order
having a Material Adverse Effect, or which could adversely affect the
consummation of the transactions contemplated by this Agreement in any material
respect;
(cc) the financial statements, including the notes thereto, included in (or
incorporated by reference into) each of the Registration Statement, the
Prospectus and the Disclosure Package present fairly the consolidated financial
position of the entities to which such financial statements relate (the "Covered
Entities") as of the dates indicated and the consolidated results of operations
and changes in financial position and cash flows of the Covered Entities for the
periods specified; such financial statements have been prepared in conformity
with generally accepted accounting principles as applied in the United States
and on a consistent basis during the periods involved and in accordance with
Regulation S-X promulgated by the Commission; the financial statement schedules
included in (or incorporated by reference into) the Registration Statement and
the amounts in both the Prospectus and the Disclosure Package under the captions
"Summary - Summary Financial Information" and "Selected Financial Information"
fairly present the information shown therein and have been compiled on a basis
consistent with the financial statements included in each of the Registration
Statement, the Prospectus and the Disclosure Package; no other financial
statements or supporting schedules are required to be included in the
Registration Statement, the Prospectus or the Disclosure Package; the unaudited
pro forma financial information (including the related notes) included in each
of the Registration Statement, the Prospectus and the Disclosure Package
complies as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Securities Act Regulations, and
includes all adjustments and reconciliations necessary to present fairly in
accordance with United States generally accepted accounting principles the pro
forma financial position of the respective entity or entities presented therein
at the respective dates indicated and their cash flows and the results of
operations for the respective periods specified, and management of the Company
believes that the assumptions underlying the pro forma adjustments are
reasonable; such pro forma adjustments have been properly applied to the
historical amounts in the compilation of the information and such information
fairly presents with respect to the Company and the Subsidiaries, the financial
position, results of operations and other information purported to be shown
therein at the respective dates and for the respective periods specified; and no
other pro forma financial information is required to be included in (or
incorporated by reference into) the Registration Statement, the Prospectus or
the Disclosure Package;
(dd) the statistical, industry related and market related data included in the
Registration Statement, the Prospectus and the Disclosure Package are based on
or derived from sources which the Company reasonably and in good faith believes
are reliable and accurate, and such data agree with the sources from which they
are derived;
(ee) the Company is subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act and files reports with the Commission on the EDGAR System.
The Company's Common Shares are registered pursuant to Section 12(b) of the
Exchange Act and the outstanding Common Shares are listed on the New York Stock
Exchange and the Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Shares under the Exchange
Act or de-listing the Common Shares from the New York Stock Exchange, nor has
the Company received any notification that the Commission or the New York Stock
Exchange is contemplating terminating such registration or listing.
(ff) other than as set forth in subsection 3(s)(ii) above, the Company has filed
in a timely manner all reports required to be filed pursuant to Sections 13, 14,
15(d) of the Exchange Act during the preceding twelve calendar months and if
during such period the Company has relied on Rule 12b-25(b) under the Exchange
Act ("Rule 12b-25(b)") with respect to a report or a portion of a report, that
report or portion of a report has actually been filed within the time period
prescribed by Rule 12b-25(b);
(gg) Ernst & Young LLP, whose reports on the consolidated financial statements
of the Company and the Subsidiaries are filed with the Commission as part of
each of the Registration Statement, the Prospectus and the Disclosure Package or
are incorporated by reference therein, and any other accounting firm that has
certified Company financial statements and delivered its reports with respect
thereto, are, and were during the periods covered by their reports, independent
public accountants as required by the Securities Act and the Securities Act
Regulations and are registered with the Public Company Accounting Oversight
Board;
(hh) subsequent to the respective dates as of which information is given in each
of the Registration Statement, the Prospectus and the Disclosure Package, and
except as may be otherwise stated in such documents, there has not been (A) any
Material Adverse Change, whether or not arising in the ordinary course of
business, (B) any transaction that is material to the Company and the
Subsidiaries taken as a whole, contemplated or entered into by the Company or
any of the Subsidiaries, (C) any obligation, contingent or otherwise, directly
or indirectly incurred by the Company or any Subsidiary that is material to the
Company and Subsidiaries taken as a whole or (D) any dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock;
(ii) the authorized shares of beneficial interest of the Company, including the
Shares, conform in all material respects to the description thereof contained in
the Registration Statement, the Prospectus and the Disclosure Package; the
authorized, issued and outstanding shares of beneficial interest of the Company
is as set forth in the column entitled "Actual" under the Capitalization"
section contained in the Prospectus and the Disclosure Package as of the date
stated in such section, and, immediately after the Closing Time, will be as set
forth in the column entitled "As Adjusted" under the "Capitalization" section
contained in the Registration Statement, the Prospectus and the Disclosure
Package (subject to the Underwriters' option described in Section 1(b) hereof)
and no shares of any other class of capital stock will be issued and
outstanding. All of the issued and outstanding shares of beneficial interest of
the Company have been duly authorized and are validly issued, fully paid and
non-assessable, and have been offered, sold and issued by the Company in
compliance with all applicable laws (including, without limitation, federal and
state securities laws); none of the issued shares of beneficial interest of the
Company have been issued in violation of any preemptive or similar rights
granted by the Company; except as disclosed in the Prospectus, there is no
outstanding option, warrant or other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any shares of beneficial interest of
the Company or any security convertible into or exchangeable for shares of
beneficial interest of the Company;
(jj) except as disclosed in both the Prospectus and the Disclosure Package,
there are no persons with registration or other similar rights to have any
equity or debt securities, including securities which are convertible into or
exchangeable for equity securities, registered pursuant to the Registration
Statement or otherwise registered by the Company under the Securities Act,
except for those registration or similar rights which have been waived with
respect to the offering contemplated by this Agreement, all of which
registration or similar rights are fairly summarized in both the Prospectus and
the Disclosure Package;
(kk) each of the Company, the Subsidiaries, and each of their respective
officers, trustees, directors and controlling persons has not, directly or
indirectly, (A) taken, and will not take any action which is designed to or
which has constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares, or (B) since the filing of the
Registration Statement: (1) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Shares, or (2) paid or agreed to
pay to any person any compensation for soliciting another to purchase any other
securities of the Company;
(ll) prior to the Closing Time, the Shares have been approved for listing on the
New York Stock Exchange, subject to official notice of issuance; the Company has
taken all necessary actions to ensure that, upon and at all times after the New
York Stock Exchange shall have approved the Shares for listing, it will be in
compliance with all applicable corporate governance requirements set forth in
the New York Stock Exchange listing standards that are then in effect and is
taking such steps as are necessary to ensure that it will be in compliance with
other applicable corporate governance requirements set forth in the New York
Stock Exchange listing standards not currently in effect upon the effectiveness
of such requirements;
(mm) other than in the case of the Company's issuance of Common Shares upon the
exercise of options granted by the Company, neither the Company nor any of its
affiliates has sold or issued any Common Shares or any other such security
during the six-month period preceding the date of the Prospectus, including but
not limited to any sales pursuant to Rule 144A or Regulation D or S under the
Securities Act;
(nn) neither the Company nor any of its affiliates (i) is required to register
as a "broker" or "dealer" in accordance with the provisions of the Exchange Act
or the Exchange Act Regulations, or (ii) directly, or indirectly through one or
more intermediaries, controls or has any other association with (within the
meaning of Article 1 of the By-laws of the National Association of Securities
Dealers, Inc. (the "NASD")) any member firm of the NASD;
(oo) the Company has not relied upon the Representatives or legal counsel for
the Representatives for any legal, tax or accounting advice in connection with
the offering and sale of the Shares;
(pp) the form of certificate used to evidence the Shares complies with all
applicable legal requirements and with all applicable requirements of the
organization documents of the Company and the requirements of the New York Stock
Exchange;
(qq) the Company and each of its Subsidiaries have good and marketable title in
fee simple to all real property and all the improvements thereon owned, or
described in the Prospectus and Disclosure Package as owned, by them, good and
marketable title to the lessor's interest under each lease at each of such
properties, and good title to all personal property owned, or described in the
Prospectus and Disclosure Package as owned, by them, in each case free and clear
of all liens, security interests, pledges, charges, leases, encumbrances,
mortgages and defects, except such as are disclosed generally in the Prospectus
and Disclosure Package or the financial statements thereto or such as do not
materially and adversely affect the value to the Company of such property and do
not interfere with the use made or proposed to be made of such property by the
Company and the Subsidiaries and by the lessee under each lease at each of such
properties; all the leases of real property and buildings to which the Company
or any Subsidiary is a party are valid, existing and enforceable leases, with no
exceptions, and subject to no liens, security interests, pledges, charges,
encumbrances, mortgages or defects, other than as are disclosed in the
Prospectus and Disclosure Package or as are not material to the Company and do
not interfere with the use made or proposed to be made of such property and
buildings by the Company or such Subsidiary and by the lessee under each lease
at each of such properties and neither the Company nor any Subsidiary knows of
any default or possible default under any such lease by the Company or any
Subsidiary or any other party to such lease; the Company or a Subsidiary has
obtained a valid and enforceable owner's title insurance policy from a title
insurance company licensed to issue such policy on any real property owned by
the Company or any Subsidiary that remains in force and insures the Company's or
the Subsidiary's fee interest in such real property with coverage in an amount
at least equal to the greater of the original purchase price of such fee
interest in the real property and the maximum aggregate principal amount of any
indebtedness of the Company or any Subsidiary and secured by the real property;
(rr) the improvements at each real property owned by the Company or any of its
Subsidiaries are in good condition and repair in accordance with the terms of
each respective lease at each such property and are in compliance with all
applicable zoning and other applicable laws, ordinances and regulations, and no
such property or improvements presently is affected by an event of casualty, or
is presently subject to or threatened in writing with an event of condemnation,
in each case other than as does not interfere with the use made or proposed to
be made of such property and improvements by the Company or such Subsidiary and
by the lessee under each lease at each of such properties and will not
materially and adversely affect the value of such property and improvements; the
joint venture agreements, limited liability company agreements, limited
partnership agreements and other agreements pursuant to which the Company or its
Subsidiaries own real property or interests in entities which own real property,
and the agreements to which the Company or any its Subsidiaries is a party
pursuant to which the Company or any of its Subsidiaries has agreed to acquire
real property, are valid, legally binding and enforceable, except to the extent
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and by general
principles of equity, and neither the Company nor any Subsidiary knows of any
default or possible default under any such agreement by the Company or any
Subsidiary or any other party to such agreement; the Preliminary Prospectus
correctly states, and the Prospectus or any amendment or supplement thereto will
correctly state in all material respects, as of the applicable filing date and
at the Closing Time and on each Option Closing Time (if any), the rentable
square footage of the improvements at, the type of use presently being made of,
and the 2005 contractual rental revenue stated to be paid by the tenant at, each
real property owned by the Company and its Subsidiaries; (ss) to the knowledge
of the Company, there are no statutes or regulations applicable to the Company
or any of the Subsidiaries or the assets, operations, or businesses of any of
them or certificates, permits or other authorizations from governmental
regulatory officials or bodies required to be obtained or maintained by the
Company or any of the Subsidiaries of a character required to be disclosed in
the Registration Statement, the Prospectus or the Disclosure Package which have
not been so disclosed and properly described therein; all agreements between the
Company or any of the Subsidiaries and third parties expressly referenced in the
Registration Statement, the Prospectus and the Disclosure Package are legal,
valid and binding obligations of the Company or one or more of the Subsidiaries,
enforceable in accordance with their respective terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and by general
principles of equity;
(tt) to the knowledge of the Company, there is no breach of, or default under
(nor has any event occurred which with notice, lapse of time, or both would
constitute a breach of, or default under), (1) the Advisory Services Agreement
by and between the Company and REIT Management Corp., as amended or (2) the
Shared Services Agreement by and among One Liberty Properties, Inc., Majestic
Property Management Corp., Majestic Property Affiliates, Inc. and REIT
Management Corp., as amended;
(uu) to the knowledge of the Company, there are no statutes or regulations
applicable to the Company due to its existence as a Massachusetts business trust
required to be disclosed in the Registration Statement, the Prospectus or the
Disclosure Package which have not been so disclosed and properly described
therein;
(vv) no relationship, direct or indirect, exists between or among the Company,
any affiliate of the Company or any of the Subsidiaries on the one hand, and the
directors, trustees, officers, shareholders, customers or suppliers of the
Company, an affiliate of the Company or any of the Subsidiaries on the other
hand, which is required by the Securities Act and the Securities Act Regulations
to be described in the Registration Statement, the Prospectus or the Disclosure
Package which is not so described; there are no outstanding loans, advances
(except normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company to or for the benefit of
any of the officers, trustees or directors of the Company or any of their
respective family members, except as disclosed in the Registration Statement,
the Prospectus or the Disclosure Package; the Company has not, in violation of
the Sarbanes-Oxley Act of 2002, directly or indirectly, including through a
Subsidiary, extended or maintained credit, arranged for the extension of credit,
or renewed an extension of credit, in the form of a personal loan to or for any
director, trustee or executive officer of the Company or any Subsidiary;
(ww) the Company and each Subsidiary owns or possesses adequate license or other
rights to use all patents, trademarks, service marks, trade names, copyrights,
software and design licenses, trade secrets, manufacturing processes, other
intangible property rights and know-how, if any (collectively "Intangibles"),
necessary to entitle the Company and each Subsidiary to conduct its business as
described in the Prospectus and the Disclosure Package, and neither the Company,
nor any Subsidiary, has received notice of infringement of or conflict with (and
knows of no such infringement of or conflict with) asserted rights of others
with respect to any Intangibles which could have a Material Adverse Effect;
(xx) the Company owns, possesses, licenses or has other rights to use, on
reasonable terms, all patents, patent applications, trade and service marks,
trade and service mark registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") reasonably necessary for the conduct
of the Company's business as now conducted or as proposed in the Prospectus to
be conducted and (i) to the Company's knowledge, there is no material
infringement by third parties of any such Intellectual Property owned by or
exclusively licensed to the Company; (ii) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any such Intellectual Property, and
the Company is unaware of any facts which would form a reasonable basis for any
such claim; (iii) there is no pending or, to the Company's knowledge, threatened
action, suit, proceeding or claim by others challenging the validity or scope of
Intellectual Property owned by or exclusively licensed to the Company, and the
Company is unaware of any facts which would form a reasonable basis for any such
claim which could have a Material Adverse Effect; (iv) there is no pending or,
to the Company's knowledge, threatened action, suit, proceeding or claim by
others that the Company infringes, or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others, and the Company
is unaware of any other fact which would form a reasonable basis for concluding
that any such claim will be asserted, or if asserted, would be successful, or if
successfully asserted, could have a Material Adverse Effect; (v) the Company and
the Subsidiaries do not in the conduct of their business as now or proposed to
be conducted as described in both the Prospectus and the Disclosure Package
infringe or conflict with any right or patent of any third party, or any
discovery, invention, product or process which is the subject of a patent
application filed by any third party, known to the Company or any of the
Subsidiaries, which such infringement or conflict is reasonably likely to result
in a Material Adverse Change; (vi) there is no U.S. patent which contains claims
that interfere with the issued claims of any Intellectual Property owned by or
exclusively licensed to the Company; (vii) there is no art of which the Company
is aware that may render any U.S. patent held by the Company invalid or any U.S.
patent application held by the Company unpatentable which has not been
disclosed, or will not be disclosed in the required time period, to the U.S.
Patent and Trademark Office; (viii) no security interests have been recorded in
the U.S. Patent and Trademark Office with respect to any Intellectual Property
and no liens have been recorded against the Company with respect to any
Intellectual Property and (ix) the Company has paid or will pay all maintenance
and issue fees that are due or will be due, within the required time period, and
has claimed small entity status only as appropriate;
(yy) neither the Company nor any of the Subsidiaries is in violation, or has
received notice of any violation with respect to, any applicable environmental,
safety or similar law applicable to the business of the Company or any of the
Subsidiaries; the Company and the Subsidiaries have received all permits,
licenses or other approvals required of them under applicable federal and state
occupational safety and health and environmental laws and regulations to conduct
their respective businesses, and the Company and the Subsidiaries are in
compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals which could not,
individually or in the aggregate, result in a Material Adverse Change;
(zz) the Company and each of the Subsidiaries are in compliance in all material
respects with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company or any of the Subsidiaries would have any material liability;
the Company and each of the Subsidiaries have not incurred and do not expect to
incur any material liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Section 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder ("Code"); and each "pension plan" for
which the Company and each of its Subsidiaries would have any material liability
that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by action
or by failure to act, which would cause the loss of such qualification; each
employee benefit plan for which the Company or any Subsidiary, would have any
material liability is in compliance in all material respects with applicable
law, including (without limitation) ERISA and the Internal Revenue Code of 1986,
as amended;
(aaa) each of the Company and the Subsidiaries has filed on a timely basis all
necessary federal, state, local and foreign income, franchise and real or
personal property tax returns, if any such returns were required to be filed,
through the date hereof and have paid all taxes shown as due thereon; and no tax
deficiency has been asserted against the Company or any of the Subsidiaries, nor
does the Company or any of the Subsidiaries know of any tax deficiency which is
likely to be asserted against any such entity which, if determined adversely to
any such entity, could have a Material Adverse Effect; all tax liabilities, if
any, are adequately provided for on the respective books of such entities;
(bbb) each of the Company and the Subsidiaries maintains insurance (issued by
insurers of recognized financial responsibility) of the types and in the amounts
generally deemed adequate for their respective businesses and consistent with
insurance coverage maintained by similar companies in similar businesses,
including, but not limited to, insurance covering real and personal property
owned or leased by the Company and the Subsidiaries against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against,
and such insurance includes coverage for each property in an amount not less
than the replacement cost (less the amount of a commercially reasonable
deductible) for the improvements at such property, all of which insurance is in
full force and effect, all of which insurance is in full force and effect; there
are no claims by the Company or the Subsidiaries under such policy or instrument
as to which any insurance company is denying liability or defending under a
reservation of rights clause;
(ccc) the Company has in effect insurance covering the Company, its directors,
trustees and officers for liabilities or losses arising in connection with the
transactions contemplated by this Agreement, including, without limitation,
liabilities or losses arising under the Securities Act Regulations, the Exchange
Act Regulations and applicable foreign securities laws;
(ddd) the Company and its Subsidiaries are, and at all times prior were, (i) in
compliance with any and all applicable federal, state, local and foreign laws,
regulations, ordinances, rules, orders, judgments, decrees, permits or other
legal requirements relating to the protection of human health and safety, the
environment, natural resources, petroleum or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), which compliance
includes obtaining, maintaining and complying with all permits and
authorizations and approvals required by Environmental Laws to conduct their
respective businesses and (ii) have not received notice of nor do they otherwise
have knowledge of any actual or potential liability for the investigation or
remediation of any disposal or release of petroleum, hazardous or toxic
substances or wastes, pollutants or contaminants, except in the case of clause
(i) or (ii) where such non-compliance with or liability under Environmental Laws
could not, individually or in the aggregate, have a Material Adverse Effect; and
neither the Company nor any of its Subsidiaries has been named as a "potentially
responsible party" under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, or any other similar Environmental Law,
except with respect to any matters that could not, individually or in the
aggregate, have a Material Adverse Effect. None of the Company and its
Subsidiaries (A) is a party to any proceeding under Environmental Laws in which
a governmental authority is also a party, other than such proceedings regarding
which it is believed no monetary penalties of $100,000 or more will be imposed,
and (B) anticipates material capital expenditures relating to Environmental
Laws;
(eee) neither the Company nor any Subsidiary knows of any violation of any
municipal, state or federal law, rule or regulation (including those pertaining
to environmental matters) concerning any real property currently leased or owned
or by any means controlled by the Company or any of the Subsidiaries or Joint
Ventures, and any real property underlying any loan held by the Company or any
Subsidiary or Joint Venture (the "Properties") or any part thereof which could
have a Material Adverse Effect; (B) each of the Properties complies with all
applicable zoning laws, ordinances, regulations and deed restrictions or other
covenants in all material respects and, if and to the extent there is a failure
to comply, such failure does not materially impair the value of any of the
Properties and will not result in a forfeiture or reversion of title; (C)
neither the Company nor any Subsidiary has received from any governmental
authority any written notice of any condemnation of or zoning change affecting
the Properties or any part thereof, and none of the Operating Partnership, the
Company nor any Subsidiary knows of any such condemnation or zoning change which
is threatened and which if consummated could have a Material Adverse Effect; (D)
all liens, charges, encumbrances, claims, or restrictions on or affecting the
properties and assets (including the Properties) of any of the Subsidiaries that
are required to be described in the Prospectus (or, the most recent Preliminary
Prospectus) are disclosed therein; (E) no lessee of any portion of any of the
Properties is in default under any of the leases governing such properties and
there is no event which, but for the passage of time or the giving of notice or
both would constitute a default under any of such leases, except such defaults
that could not have a Material Adverse Effect; and (F) no tenant under any lease
pursuant to which any of the Subsidiaries leases the Properties has an option or
right of first refusal to purchase the premises leased thereunder or the
building of which such premises are a part, except as such options or rights of
first refusal which, if exercised, could not have a Material Adverse Effect, and
except as provided by law;
(fff) except as otherwise disclosed in both the Prospectus and the Disclosure
Package, (i) none of the Company, any of the Subsidiaries nor, to the best of
the Company's knowledge, any other owners of the property at any time or any
other party has at any time, handled, stored, treated, transported,
manufactured, spilled, leaked, or discharged, dumped, transferred or otherwise
disposed of or dealt with, Hazardous Materials (as hereinafter defined) on, to
or from the Properties, other than by any such action taken in compliance with
all applicable Environmental Statutes or by the Company, any of the Subsidiaries
or any other party in connection with the ordinary use of residential, retail or
commercial properties owned or leased by the Company (ii) the Company does not
intend to use the Properties or any subsequently acquired properties for the
purpose of handling, storing, treating, transporting, manufacturing, spilling,
leaking, discharging, dumping, transferring or otherwise disposing of or dealing
with Hazardous Materials other than by any such action taken in compliance with
all applicable Environmental Statues or by the Company, any of the Subsidiaries
or any other party in connection with the ordinary use of residential, retail or
commercial properties owned or leased by the Company; (iii) neither the Company
nor any of the Subsidiaries knows of any seepage, leak, discharge, release,
emission, spill, or dumping of Hazardous Materials into waters on or adjacent to
the Properties or any other real property owned or occupied by any such party,
or onto lands from which Hazardous Materials might seep, flow or drain into such
waters; (iv) neither the Company nor any of the Subsidiaries 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 federal, state or local environmental statute or regulation or under
common law, pertaining to Hazardous Materials on or originating from any of the
Properties or any assets described in both the Prospectus and the Disclosure
Package, or any other real property owned or occupied by any such party or
arising out of the conduct of any such party, including without limitation a
claim under or pursuant to any Environmental Statute (hereinafter defined); (v)
neither the Properties nor any other land owned by the Company or any of the
Subsidiaries is included or proposed for inclusion on the National Priorities
List issued pursuant to CERCLA (as hereinafter defined) by the United States
Environmental Protection Agency (the "EPA") or proposed for inclusion on any
similar list or inventory issued pursuant to any other Environmental Statute or
issued by any other Governmental Authority (as hereinafter defined);
As used herein, "Hazardous Material" shall include, without limitation
any flammable explosives, radioactive materials, hazardous materials, hazardous
wastes, toxic substances, or related materials, asbestos or any hazardous
material as defined by any federal, state or local environmental law, ordinance,
rule or regulation including without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
Sections 9601-9675 ("CERCLA"), the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. Sections 1801-1819, the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Sections 6901-6992K, the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001-11050, the Toxic
Substances Control Act, 15 U.S.C. Sections 2601-2671, the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136-136y, the Clean Air Act, 42
U.S.C. Sections 7401-7642, the Clean Water Act (Federal Water Pollution Control
Act), 33 U.S.C. Sections 1251-1387, the Safe Drinking Water Act, 42 U.S.C.
Sections 300f-300j-26, and the Occupational Safety and Health Act, 29 U.S.C.
Sections 651-678, as any of the above statutes may be amended from time to time,
and in the regulations promulgated pursuant to each of the foregoing
(individually, an "Environmental Statute") or by any federal, state or local
governmental authority having or claiming jurisdiction over the properties and
assets described in the Prospectus (a "Governmental Authority");
(ggg) neither the Company nor any of the Subsidiaries nor, to the best of the
Company's knowledge, any officer, director or trustee purporting to act on
behalf of the Company or any of the Subsidiaries has at any time; (i) made any
contributions to any candidate for political office, or failed to disclose fully
any such contributions, in violation of law, (ii) made any payment to any state,
federal or foreign governmental officer or official, or other person charged
with similar public or quasi-public duties, other than payments required or
allowed by applicable law, (iii) made any payment outside the ordinary course of
business to any investment officer or loan broker or person charged with similar
duties of any entity to which the Company or any of the Subsidiaries sells or
from which the Company or any of the Subsidiaries buys loans or servicing
arrangements for the purpose of influencing such agent, officer, broker or
person to buy loans or servicing arrangements from or sell loans to the Company
or any of the Subsidiaries, or (iv) engaged in any transactions, maintained any
bank account or used any corporate funds except for transactions, bank accounts
and funds which have been and are reflected in the normally maintained books and
records of the Company and the Subsidiaries;
(hhh) except as otherwise disclosed in the Prospectus and the Disclosure
Package, there are no material outstanding loans, extensions of credit or
advances or material guarantees of indebtedness by the Company or any of the
Subsidiaries to or for the benefit of any of the officers, directors or trustees
of the Company or any of the Subsidiaries or any of the members of the families
of any of them;
(iii) neither the Company nor any of the Subsidiaries nor, to the Company's
knowledge, any employee or agent of the Company or any of the Subsidiaries, has
made any payment of funds of the Company or of any Subsidiary or received or
retained any funds in violation of any law, rule or regulation or of a character
required to be disclosed in the Prospectus or the Disclosure Package;
(jjj) all securities issued by the Company, any of the Subsidiaries or any
trusts established by the Company or any Subsidiary, have been or will be issued
and sold in compliance with (i) all applicable federal and state securities
laws, (ii) the laws of the applicable jurisdiction of incorporation of the
issuing entity and, (iii) to the extent applicable to the issuing entity, the
requirements of the New York Stock Exchange;
(kkk) in connection with this offering, the Company has not offered and will not
offer its Common Shares or any other securities convertible into or exchangeable
or exercisable for Common Shares in a manner in violation of the Securities Act
or the Securities Act Regulations; and the Company has not distributed and will
not distribute any offering material in connection with the offer and sale of
the Shares except for the Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus or the Registration Statement;
(lll) to the best knowledge of the Company, each of the properties owned by the
Company or any Subsidiary is in compliance with all presently applicable
provisions of the Americans with Disabilities Act, except for any failures to
comply which would not, singly or in the aggregate, result in a material adverse
change in the assets, operations, business, prospects or condition (financial or
otherwise) of the Company and the Subsidiaries, taken as a whole;
(mmm) neither the Company nor any Subsidiary is in violation of or has received
notice of any violation with respect to any federal or state law relating to
discrimination in the hiring, promotion or pay of employees, nor any applicable
federal or state wages and hours law, nor any state law precluding the denial of
credit due to the neighborhood in which a property is situated, the violation of
any of which could have a Material Adverse Effect;
(nnn) the Company is organized in conformity with the requirements for
qualification as a real estate investment trust (a "REIT") under the Code; the
Company qualified as a REIT for all taxable years prior to 2001 and the present
and contemplated method of operation of the Company and the Subsidiaries does
and will enable the Company to meet the requirements for taxation as a REIT
under the Code; and the Company intends to continue to qualify as a REIT for all
subsequent years;
(ooo) neither the Company nor any of the Subsidiaries is, or solely as a result
of transactions contemplated hereby and the application of the proceeds from the
sale of the Shares, will be an "investment company" or an entity "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act");
(ppp) there are no contracts, agreements or understandings between the Company
and any person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment in
connection with the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, or any arrangements, agreements,
understandings, payments or issuance with respect to the Company or any of its
officers, trustees, directors, shareholders, partners, employees, Subsidiaries
or affiliates that may affect the Underwriters' compensation as determined by
the NASD;
(qqq) there are no existing or, to the knowledge of the Company, threatened
labor disputes with the employees of the Company or any of the Subsidiaries
which could have, individually or in the aggregate, a Material Adverse Effect;
(rrr) the Company has complied and will comply with all the provisions of
Florida Statutes, Section 517.075 (Chapter 92-198, Laws of Florida); and neither
the Company nor any of the Subsidiaries or affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba;
(sss) the Company has not incurred any liability for any finder's fees or
similar payments in connection with the transactions herein contemplated;
(ttt) except for the interests in the Subsidiaries owned by the Company, the
Joint Ventures and the interests disclosed on Schedule V hereto, neither the
Company nor any Subsidiary owns any shares of stock or any other equity
securities of any corporation or real estate investment trust or has any equity
interest in any firm, partnership, association or other entity; and
(uuu) (x) the Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act),
which (i) are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the Company's
principal executive officer and its principal financial officer by others within
those entities, particularly during the periods in which the periodic reports
required under the Exchange Act are being prepared, (ii) have been evaluated for
effectiveness as of the end of the last fiscal period covered by the
Registration Statement, and (iii) are effective in all material respects to
perform the functions for which they were established, and (y) the Company is
not aware of (a) any significant deficiency or material weakness in the design
or operation of its internal controls over financial reporting which are
reasonably likely to adversely affect the Company's ability to record, process,
summarize and report financial information to management and the Board of
Directors, or (b) any fraud, whether or not material, that involves management
or other employees who have a significant role in the Company's internal control
over financial reporting. Since the most recent evaluation of the Company's
disclosure controls and procedures described above, there have been no
significant changes in internal control over financial reporting or in other
factors that could significantly affect internal control over financial
reporting;
(vvv) each of the Company and each Subsidiary maintains a system of internal
accounting controls sufficient to provide reasonable assurance that: (A)
transactions are executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (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
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(www) the Company, the Subsidiaries and any of the officers and directors of the
Company and the Subsidiaries, in their capacities as such, are, and at the
Closing Time and any Option Closing Time will be, in compliance in all material
respects with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated thereunder;
(xxx) none of the Company nor any of the Subsidiaries or, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of such
entities is aware of or has taken any action, directly or indirectly, that would
result in a violation by such persons of the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder (the "FCPA"),
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of
value to any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company and the
Subsidiaries and, to the knowledge of the Company, their affiliates have
conducted their businesses in compliance with the FCPA;
(yyy) neither the Company nor any of its Subsidiaries, nor, to the Company's
knowledge, any of its affiliates or any director, trustee, officer, agent or
employee of, or other person associated with or acting on behalf of, the
Company, has violated the Bank Secrecy Act, as amended, the Uniting and
Strengthening of America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001 or the rules and
regulations promulgated under any such law or any successor law;
(zzz) the operations of the Company and its Subsidiaries and, to the Company's
knowledge, its affiliates are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the Money
Laundering Control Act of 1986, as amended, any other money laundering statutes
of all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the "Money Laundering Laws"), except for
any such non-compliance as would not, singly or in the aggregate, result in a
Material Adverse Change, and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the
Company or any of it Subsidiaries, or, to the Company's knowledge, any of its
affiliates, with respect to the Money Laundering Laws is pending or, to the
Company's knowledge, threatened; and
(aaaa) neither the Company nor any of its Subsidiaries, nor, to the Company's
knowledge, any of its affiliates or any director, trustee, officer, agent or
employee of, or other person associated with or acting on behalf of, the
Company, is currently subject to any United States sanctions administered by the
Office of Foreign Assets Control of the United States Treasury Department
("OFAC"); and the Company will not directly or indirectly use the proceeds of
the offering, or lend, contribute or otherwise make available such proceeds to
any Subsidiary, partner or joint venturer or other person or entity, for the
purpose of financing the activities of any person currently subject to any
United States sanctions administered by OFAC.
Any certificate signed by or on behalf 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
covered thereby.
4. Certain Covenants of the Company. The Company hereby covenants and agrees
with each Underwriter:
(a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky
laws of such jurisdictions (both domestic and foreign) as the Representatives
may designate and to maintain such qualifications in effect as long as requested
by the Representatives for the distribution of the Shares, provided that the
Company shall not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary
for a post-effective amendment to the Registration Statement to be declared
effective before the offering of the Shares may commence, the Company will
endeavor to cause such post-effective amendment to become effective as soon as
possible and will advise the Representatives promptly and, if requested by the
Representatives, will confirm such advice in writing, when such post-effective
amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file
such Prospectus with the Commission pursuant to Rule 424(b) under the Securities
Act not later than 10:00 a.m. (New York City time), on the day following the
execution and delivery of this Agreement or on such other day as the parties may
mutually agree and to furnish promptly (and with respect to the initial delivery
of such Prospectus, not later than 10:00 a.m. (New York City time) on the day
following the execution and delivery of this Agreement or on such other day as
the parties may mutually agree to the Underwriters copies of the Prospectus (or
of the Prospectus as amended or supplemented if the Company shall have made any
amendments or supplements thereto after the effective date of the Registration
Statement) in such quantities and at such locations as the Underwriters may
reasonably request for the purposes contemplated by the Securities Act
Regulations, which Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the version transmitted to
the Commission for filing via EDGAR, except to the extent permitted by
Regulation S-T;
(d) to advise the Representatives promptly and (if requested by the
Representatives) to confirm such advice in writing, when the Registration
Statement has become effective and when any post-effective amendment thereto
becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the
Representatives and counsel for the Underwriters and obtain the consent of the
Representatives prior to referring to, using or filing with the Commission any
Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other
than the Issuer Free Writing Prospectuses, if any, identified in Schedule II
hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act
Regulations applicable to any Issuer Free Writing Prospectus, including timely
filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives immediately, confirming such advice in
writing, of (i) the receipt of any comments from, or any request by, the
Commission for amendments or supplements to the Registration Statement, the
Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or
for additional information with respect thereto, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of the Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes and, if the Commission or any other government agency or authority
should issue any such order, to make every reasonable effort to obtain the
lifting or removal of such order as soon as possible; to advise the
Representatives promptly of any proposal to amend or supplement the Registration
Statement or Prospectus and to file no such amendment or supplement to which the
Representatives shall reasonably object in writing, (iii) any examination
pursuant to Section 8(e) of the Securities Act concerning the Registration
Statement, or (iv) if the Company becomes subject to a proceeding under Section
8A of the Securities Act in connection with the public offering of Shares
contemplated herein; to advise the Representatives promptly of any proposal to
amend or supplement the Registration Statement, the Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus and to file no such amendment
or supplement to which the Representatives shall reasonably object in writing;
(h) to file promptly with the Commission any amendment or supplement to the
Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer
Free Writing Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission; to advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement or Prospectus and to file no such
amendment or supplement to which the Representatives shall reasonably object in
writing;
(i) to furnish to the Underwriters for a period of five years from the date of
this Agreement (i) as soon as available, copies of all annual, quarterly and
current reports or other communications supplied to holders of Common Shares,
(ii) as soon as practicable after the filing thereof, copies of all reports
filed by the Company with the Commission, the NASD or any securities exchange
and (iii) such other information as the Underwriters may reasonably request
regarding the Company and its Subsidiaries;
(j) to advise the Underwriters promptly of the happening of any event or
development known to the Company within the time during which a Prospectus
relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a)
under the Securities Act Regulations) is required to be delivered under the
Securities Act Regulations which, in the judgment of the Company or in the
reasonable opinion of the Representatives or counsel for the Underwriters, (i)
would require the making of any change in the Prospectus or the Disclosure
Package so that the Prospectus or the Disclosure Package would not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, (ii) as a result
of which any Issuer Free Writing Prospectus conflicted or would conflict with
the information contained in the Registration Statement relating to the Shares,
or (iii) if it is necessary at any time to amend or supplement the Prospectus or
the Disclosure Package to comply with any law and, during such time, to promptly
prepare and furnish to the Underwriters copies of the proposed amendment or
supplement before filing any such amendment or supplement with the Commission
and thereafter promptly furnish at the Company's own expense to the Underwriters
and to dealers, copies in such quantities and at such locations as the
Representatives may from time to time reasonably request of an appropriate
amendment or supplement to the Prospectus or the Disclosure Package so that the
Prospectus or the Disclosure Package as so amended or supplemented will not, in
the light of the circumstances when it (or in lieu thereof the notice referred
to in Rule 173(a) under the Securities Act Regulations) is so delivered, be
misleading or , in the case of any Issuer Free Writing Prospectus, conflict with
the information contained in the Registration Statement, or so that the
Prospectus or the Disclosure Package will comply with the law;
(k) to advise the Underwriters promptly during any period of time in which a
Prospectus relating to the Shares is required to be delivered under the
Securities Act Regulations of (i) any material change in the Company's assets,
operations, business, prospects or condition (financial or otherwise) or (ii)
the happening of any event which would require the making of any change in the
Prospectus then being used so that the Prospectus would not include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and, during such time,
to prepare and furnish, at the Company's expense, to the Underwriters promptly
such amendments or supplements to the Prospectus as may be necessary to reflect
any such change;
(l) prior to filing with the Commission any amendment or supplement to the
Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer
Free Writing Prospectus, to furnish a copy thereof to the Representatives and
counsel for the Underwriters and obtain the consent of the Representatives to
the filing;
(m) to furnish promptly to each Representative a signed copy of the Registration
Statement, as initially filed with the Commission, and of all amendments or
supplements thereto (including all exhibits filed therewith or incorporated by
reference therein) and such number of conformed copies of the foregoing as the
Representatives may reasonably request;
(n) to furnish to each Representative, not less than two business days before
filing with the Commission, during the period referred to in paragraph (i)
above, a copy of any document proposed to be filed with the Commission pursuant
to Section 13, 14, or 15(d) of the Exchange Act and during the period of five
years hereafter to file all such documents in the manner and within the time
periods required by the Exchange Act and the Exchange Act Regulations;
(o) to apply the net proceeds of the sale of the Shares substantially in
accordance with its statements under the caption "Use of Proceeds" in the
Prospectus and the Disclosure Package;
(p) to make generally available to its security holders and to deliver to the
Representatives as soon as practicable, but in any event not later than the end
of the fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement, an earnings statement complying
with the provisions of Section 11(a) of the Securities Act (in form, at the
option of the Company, complying with the provisions of Rule 158 of the
Securities Act Regulations) covering a period of 12 months after the effective
date of the Registration Statement;
(q) to use its best efforts to effect and maintain the listing of the Shares on
the New York Stock Exchange and to file with the New York Stock Exchange all
documents and notices required by the New York Stock Exchange of companies that
have securities that are listed on the New York Stock Exchange;
(r) to engage and maintain, at its expense, a registrar and transfer agent for
the Shares;
(s) to use its best efforts to continue to meet the requirements to qualify as a
real estate investment trust under the Code;
(t) to comply with all of the provisions of any undertakings in the Registration
Statement;
(u) to timely pay any filing fees due pursuant to Rule 457 under the Securities
Act Regulations;
(v) that it and the Subsidiaries will conduct their affairs in such a manner so
as to ensure that neither the Company nor any Subsidiary will be an "investment
company" or an entity "controlled" by an investment company within the meaning
of the 1940 Act;
(w) if, at any time during the 90-day period after the date of the Prospectus,
any rumor, publication or event relating to or affecting the Company shall occur
as a result of which, in the reasonable opinion of the Representatives, the
market price of the Common Shares has been or is likely to be materially
affected (regardless of whether such rumor, publication or event necessitates a
supplement to or amendment of the Prospectus) and after written notice from the
Representatives advising the Company to the effect set forth above, to forthwith
prepare, consult with the Representatives concerning the substance of, and
disseminate a press release or other public statement in compliance with the
Securities Act, the Securities Act Regulations and other applicable laws and
reasonably satisfactory to the Representatives, responding to or commenting on
such rumor, publication or event;
(x) to maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences;
(y) to refrain, from the date hereof until 180 days after the date of the
Prospectus, without the prior written consent of the Representatives, from,
directly or indirectly, (i) offering, pledging, selling, contracting to sell,
selling any option or contract to purchase, purchasing any option or contract to
sell, granting any option for the sale of, or otherwise disposing of or
transferring, (or entering into any transaction or device which is designed to,
or could be expected to, result in the disposition by any person at any time in
the future of), any Common Shares or any securities convertible into or
exercisable or exchangeable for Common Shares, or filing any registration
statement under the Securities Act with respect to any of the foregoing, or (ii)
entering into any swap or any other agreement or any transaction that transfers,
in whole or in part, directly or indirectly, the economic consequence of
ownership of the Common Shares, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Shares or
such other securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) the Shares to be sold hereunder, or (B) any Common Shares issued by
the Company upon the exercise of an option outstanding on the date hereof and
referred to in the Prospectus, or any shares of restricted stock awarded by the
Company pursuant to the BRT Realty Trust 2003 Incentive Plan;
(z) to cause each 1% or greater stockholder, officer and trustee of the Company
to furnish to the Representatives, prior to the Initial Sale Time, a letter or
letters, substantially in the form of Exhibit A hereto, pursuant to which each
such person shall agree not to, directly or indirectly, (1) offer for sale,
sell, pledge or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the disposition by any
person at any time in the future of) any Common Shares or securities convertible
into or exchangeable for Common Shares or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such Common Shares, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Shares or other securities, in cash or otherwise, in each
case for a period from the date hereof until 90 days after the date of the
Prospectus, without the prior written consent of the Representatives on behalf
of the Underwriters;
(aa) not to, and to use its best efforts to cause its officers, directors and
affiliates not to, (i) take, directly or indirectly prior to termination of the
underwriting syndicate contemplated by this Agreement, any action designed to
stabilize or manipulate the price of any security of the Company, or which may
cause or result in, or which might in the future reasonably be expected to cause
or result in, the stabilization or manipulation of the price of any security of
the Company, to facilitate the sale or resale of any of the Shares, (ii) sell,
bid for, purchase or pay anyone any compensation for soliciting purchases of the
Shares or (iii) pay or agree to pay to any person any compensation for
soliciting any order to purchase any other securities of the Company; and
(bb) that the Company shall obtain or maintain, as appropriate, Directors and
Officers liability insurance in the minimum amount of $5 million which shall
apply to the offering contemplated herein.
5. Payment of Expenses.
(a) The Company agrees to pay all costs and expenses incident to the performance
of the Company's obligations under this Agreement, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, including expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any
amendments or supplements thereto, and the printing and furnishing of copies of
each thereof to the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the preparation, issuance and delivery of the certificates for
the Shares to the Underwriters, including any stock or other transfer taxes or
duties payable upon the sale of the Shares to the Underwriters, (iii) the
printing of this Agreement and any dealer agreements and furnishing of copies of
each to the Underwriters and to dealers (including costs of mailing and
shipment), (iv) the qualification of the Shares for offering and sale under
state laws that the Company and the Representatives have mutually agreed are
appropriate and the determination of their eligibility for investment under
state law as aforesaid (including the legal fees and filing fees and other
disbursements of counsel for the Underwriters and the printing and furnishing of
copies of any blue sky surveys or legal investment surveys to the Underwriters
and to dealers, (v) filing for review of the public offering of the Shares by
the NASD (including the legal fees and filing fees and other disbursements of
counsel for the Underwriters relating thereto), (vi) the fees and expenses of
any transfer agent or registrar for the Shares and miscellaneous expenses
referred to in the Registration Statement, (vii) the fees and expenses incurred
in connection with the inclusion of the Shares in the New York Stock Exchange,
(viii) making road show presentations with respect to the offering of the
Shares, (ix) preparing and distributing bound volumes of transaction documents
for the Representatives and its legal counsel, (x) all legal fees and expenses
for counsel to the Underwriters and (xi) the performance of the Company's other
obligations hereunder for which provision is not otherwise made in this Section
5(a). Upon the request of the Representatives, the Company will provide funds in
advance for filing fees.
(b) The Company agrees to reimburse the Representatives for their reasonable
out-of-pocket expenses in connection with the performance of its activities
under this Agreement, including, but not limited to, costs such as printing,
facsimile, courier service, direct computer expenses, accommodations and travel
(other than the fees and expenses of counsel with respect to state securities or
blue sky laws and obtaining the filing for review of the public offering of the
Shares by the NASD, all of which shall be reimbursed by the Company pursuant to
the provisions of subsection (a) above).
(c) If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of Underwriters'
counsel and any other advisors, accountants, appraisers, etc.) reasonably
incurred by such Underwriters in connection with this Agreement or the
transactions contemplated herein.
6. Conditions of the Underwriters' Obligations.
The obligations of the Underwriters to purchase the Shares hereunder
are subject to (i) the accuracy of the representations and warranties on the
part of the Company on the date hereof and at the Closing Time and on each
Option Closing Time, as applicable, as if made on and as of such date, (ii) the
performance by the Company of its obligations, covenants and agreements
hereunder, and (iii) the satisfaction of the following further conditions at the
Closing Time or on each Option Closing Time, as applicable:
(a) The Registration Statement shall be effective under the Securities Act
and no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Underwriters' and
their counsel's reasonable satisfaction. A prospectus containing
information relating to the description of the Shares, the specific
method of distribution and similar matters shall have been filed within
the prescribed time period, and prior to the Closing Time with the
Commission in accordance with Rule 424(b) (or any required
post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of
Rule 430A). There shall not have come to the Underwriters' attention
any facts that would cause the Underwriters to reasonably believe that
the Prospectus, together with the Prospectus Supplement, at the time it
was required to be delivered to purchasers of the Shares, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading. If, at the time
this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement to be declared
effective before the offering of the Shares may commence, such
post-effective amendment shall have become effective not later than
5:30 p.m., New York City time, on the date hereof, or at such later
date and time as shall be consented to in writing by you; if the
Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement, shall have been declared effective not later
than the earlier of (i) 11:00 a.m., New York City time, on the date on
which the amendment to the Registration Statement originally filed with
respect to the Shares or to the Registration Statement, as the case may
be, containing information regarding the public offering price of the
Shares has been filed with the Commission and (ii) the time
confirmations are sent or given as specified by Rule 462(b) or, with
respect to the Registration Statement, such later time and date as
shall have been consented to in writing by you; if required, the
Prospectus and any amendment or supplement thereto shall have been
filed with the Commission in the manner and within the time period
required by Rule 424(b) under the Securities Act;
(b) The Company shall furnish to the Underwriters at the Closing Time and
on each Option Closing Time an opinion of McCarter & English, LLP,
counsel for the Company and the Subsidiaries, addressed to the
Underwriters and dated the Closing Time and each Option Closing Time
and in form satisfactory to Winston & Strawn LLP, counsel for the
Underwriters, stating that:
(i) the authorized Common Shares and preferred shares of beneficial
interest, par value $1.00 per share, of the Company conform as to
legal matters, including with respect to the requirements of Form S-3
under the Securities Act, to the description thereof contained in
the Prospectus and the Disclosure Package; the Company has an
authorized capitalization as set forth in both the Prospectus and the
Disclosure Package under the caption "Capitalization"; the outstanding
shares of capital stock of the Company and the Subsidiaries have
been duly and validly authorized and, to the best of such
counsel's knowledge, issued and are fully paid and non-assessable
and, except as set forth in the Prospectus or contemplated by the
Agreement, and to the best of such counsel's knowledge, all of the
outstanding and validly issued shares of capital stock of the
Subsidiaries are directly or indirectly owned of record and
beneficially by the Company; to the best of such counsel's knowledge,
except as disclosed in the both the Prospectus and Disclosure Package,
there are no outstanding and validly issued (A) securities or
obligations of the Company or any of the Subsidiaries convertible
into or exchangeable for any capital stock of the Company or any
capital stock or interests in any such Subsidiary, (B) warrants, rights
or options to subscribe for or purchase from the Company or
any such Subsidiary any such shares, capital stock, interests or any
such convertible or exchangeable securities or obligations or (C)
obligations of the Company or any such Subsidiary to issue any
shares of capital stock, any such convertible or exchangeable
securities or obligation, or any such warrants, rights or options;
(ii) each of the Company and the Subsidiaries (all of which are
named in an exhibit to the Registration Statement) has been duly
formed or incorporated, as the case may be, and is validly existing
and in good standing under the laws of its respective jurisdiction
of formation or incorporation with the requisite corporate power
and authority to own its respective properties and to conduct its
respective business as described in the Registration Statement, the
Prospectus and the Disclosure Package, and in the case of the Company,
to execute and deliver this Agreement and to consummate the
transactions described in this Agreement;
(iii) to the best of such counsel's knowledge, (A) the Subsidiaries are the
only subsidiaries of the Company within the meaning of Rule 405 under
the Securities Act; the Joint Ventures are the only joint ventures of
the Company; the Subsidiaries and the Joint Ventures are duly qualified
in or registered by and are in good standing in each jurisdiction set
forth opposite its name in Schedule III or Schedule IV hereto and (B)
other than the Subsidiaries, the Joint Ventures and the interests
disclosed on Schedule V hereto, the Company does not own, directly or
indirectly, any capital stock or other equity securities of any other
corporation or any ownership interest in any limited liability
company, partnership, joint venture or other association;
(iv) the Company and the Subsidiaries are duly qualified or licensed by
each jurisdiction in which, to the best of such counsel's knowledge,
they conduct their respective businesses and in which the failure,
individually or in the aggregate, to be so licensed could have a
Material Adverse Effect, and the Company and the Subsidiaries are duly
qualified, and are in good standing, in each jurisdiction in which,
to the best of such counsel's knowledge, they own or lease real
property or maintain an office and in which such qualification is
necessary except where the failure to be so qualified and in good
standing could not have a Material Adverse Effect; except as
disclosed in both the Prospectus and the Disclosure Package, to
the best of such counsel's knowledge, no Subsidiary is prohibited or
restricted, directly or indirectly, from paying dividends to the
Company, or from making any other distribution with respect to such
Subsidiary's capital stock or from repaying to the Company or any other
Subsidiary any amounts which may from time to time become due under
any loans or advances to such Subsidiary from the Company or such
other Subsidiary, or from transferring any such Subsidiary's property
or assets to the Company or to any other Subsidiary;
(v) to the best of such counsel's knowledge, based solely on discussions of
such counsel with representatives of the Company, the Company, the
Subsidiaries and the Joint Ventures are in compliance in all material
respects with all applicable laws, orders, rules, regulations and
orders, including those relating to transactions with affiliates;
(vi) except as disclosed in the Registration Statement, the Prospectus and
the Disclosure Package, none of the Company, any of the Subsidiaries
or any of the Joint Ventures, is in breach of, or in default under
(nor has any event occurred which with notice, lapse of time, or both
would constitute a breach of, or default under) its respective
charter, declaration of trust, by-laws, certificate of limited
liability company or agreement of limited liability company,
certificate of limited partnership, partnership agreement or other
organizational documents, as the case may be, or with respect to the
Company and its Subsidiaries or Joint Ventures, to the best of such
counsel's knowledge, in the performance or observation of any
obligation, agreement, covenant, or condition contained in any material
license, lease, guaranty, pledge agreement, indenture, mortgage, deed
of trust, deed to secure debt, loan or credit agreement or
any other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected or under any law, regulation or
rule or any decree, judgment or other order applicable to the
Company, the Subsidiaries or the Joint Ventures;
(vii) the execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions
contemplated under this Agreement do not and will not result in the
creation or imposition of any lien, encumbrance, or to the best of such
counsel's knowledge, charge or claim upon any property or assets of
the Company or the Subsidiaries, or conflict with, or result in any
breach of, or constitute a default under (nor constitute any
event which with notice, lapse of time, or both would constitute a
breach of or default under), (i) any provisions of the charter,
declaration of trust, by-laws, certificate of limited liability
company, agreement of limited liability company or other organizational
documents, as the case may be, of the Company or any Subsidiary, (ii)
to the best of such counsel's knowledge, any provision of any material
license, lease, guaranty, pledge agreement, indenture, mortgage,
deed of trust, deed to secure debt, loan or credit agreement or other
agreement or instrument to which the Company or any Subsidiary is a
party or by which any of them or their respective properties may be
bound or affected, or (iii) to the best of such counsel's knowledge,
any law or regulation or any decree, judgment or order applicable to
the Company or any Subsidiary (other than State and foreign
securities or blue sky laws and the rules and regulations of the NASD,
as to which counsel need express no opinion);
(viii) this Agreement has been duly authorized, executed and delivered by the
Company 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 that enforceability of the indemnification and
contribution provisions set forth in Section 9 hereof may be limited by
the federal or state securities laws of the United States or public
policy underlying such laws;
(ix) no approval, authorization, consent or order of or filing with any
federal or state governmental or regulatory commission, board,
body, authority or agency is required in connection with the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated herein by the Company,
or the sale and delivery of the Shares by the Company as contemplated
hereby, other than such as have been obtained or made under the
Securities Act and Securities Act Regulations and the Exchange
Act and Exchange Act Regulations, and such approvals as have been
obtained in connection with the listing of the Shares on the New York
Stock Exchange, and except that such counsel need express no opinion as
to any necessary qualification under the state securities or blue
sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters or any approval of the underwriting terms
and arrangements by the NASD;
(x) to the best of such counsel's knowledge, each of the Company and the
Subsidiaries has all necessary licenses, authorizations, consents
and approvals and has made all necessary filings required under any
federal, state or local law, regulation or rule, and has obtained all
necessary authorizations, consents and approvals from other persons,
required to conduct their respective businesses, as described in the
Registration Statement, the Prospectus and the Disclosure Package,
except to the extent that any failure to have such licenses,
authorizations, consents and approvals, to make such filings or have
any such authorizations, consents or approvals would not have a
Material Adverse Effect; to the best of such counsel's knowledge,
neither the Company nor any of the Subsidiaries is in violation of,
in default under, or has received any notice regarding a possible
violation, default or revocation of any such license, authorization,
consent or approval or any federal, state, local or foreign law,
regulation or decree, order or judgment applicable to the Company
or any of the Subsidiaries, the effect of which could have a Material
Adverse Effect;
(xi) the issuance and sale of the Shares by the Company is not subject to
any preemptive rights to subscribe for or purchase securities or other
rights arising by operation of law, under the organizational documents
of the Company (including the declaration of trust), or under any
agreement known to such counsel to which the Company or any of the
Subsidiaries is a party, or, to the best of such counsel's knowledge,
otherwise;
(xii) the Shares have been issued in compliance with all federal securities
laws; the Shares have been duly authorized and when the Shares have
been issued and duly delivered against payment therefor as contemplated
by this Agreement, the Shares will be validly issued, fully paid and
non-assessable, and, to the best of such counsel's knowledge, the
Underwriters will acquire good and marketable title to the Shares, free
and clear of any pledge, lien, encumbrance, security interest, or other
claim, except as may be caused by an action taken by such Underwriter;
(xiii) neither the Company nor any of its Subsidiaries is, or solely as a
result of the transactions contemplated hereby and the application of
the proceeds from the sale of the Shares as described in the
Registration Statement, Prospectus and Disclosure Package under the
caption "Use of Proceeds" will become an "investment company" or a
company "controlled" by an "investment company" within the meaning of
the 1940 Act;
(xiv) to the best of such counsel's knowledge, there are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company under the Securities Act;
(xv) the Shares conform in all material respects to the descriptions thereof
contained or incorporated by reference in each of the Registration
Statement, the Prospectus and the Disclosure Package;
(xvi) the form of certificate used to evidence the Shares complies in all
material respects with all applicable statutory requirements, with any
applicable requirements of the organizational documents of the Company
(including the declaration of trust) and with all requirements of the
New York Stock Exchange;
(xvii) the Registration Statement has become effective under the Securities
Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule
424(b); and to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and, to the best of such counsel's knowledge, no proceedings
with respect thereto have been commenced or threatened;
(xviii) as of each effective date of the Registration Statement, the Base
Prospectus and the Prospectus (except as to the financial statements
and other financial and statistical data contained therein, as to which
such counsel need express no opinion) complied as to form in all
material respects with the requirements of the Securities Act, the
Exchange Act, the Securities Act Regulations and the Exchange Act
Regulations; and each document filed pursuant to the Exchange Act and
incorporated or deemed to be incorporated by reference in the
Prospectus or the Disclosure Package complied when so filed as to form
in all material respects with the requirements of the Exchange Act and
the Exchange Act Regulations (it being understood that such counsel
need express no opinion as to the financial statements or schedules or
other financial or statistical data derived therefrom, included or
incorporated by reference therein);
(xix) the information in the Registration Statement under "About BRT Realty
Trust," "Provisions of Our Declaration of Trust," "Risk Factors,"
"Description of Securities," "Certain Relationships and Related Party
Transactions," "Certain Federal Income Tax Considerations" and under
Item 15 of Part II, and in the Prospectus and the Disclosure Package
under "Our Company," "Additional Risk Factors," "Description of Common
Shares," and "Certain Federal Income Tax Considerations," or the
Company's declaration of trust in the Registration Statement, the
Prospectus and the Disclosure Package, to the extent that it
constitutes a summary of legal matters referred to therein, including
with respect to the laws of the Commonwealth of Massachusetts, has
been reviewed by them and is correct and constitutes accurate summaries
thereof in all material respects;
(xx) the Company's Registration Statement on Form 8-A (No. 001-07172) (the
"Form 8-A Registration Statement"), when filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act; the Form 8-A Registration Statement has become
effective under the Exchange Act; and the Initial Shares and the Option
Shares have been validly registered under the Securities Act, the
Exchange Act and the Securities Act Regulations and the Exchange Act
Regulations;
(xxi) the Shares have been approved for listing on the New York Stock
Exchange;
(xxii) to the best of such counsel's knowledge, there are no actions, suits or
proceedings, inquiries, or investigations pending or threatened against
the Company or any of the Subsidiaries or any of their respective
officers and directors or to which the properties, assets or rights of
the Company or any of its Subsidiaries are subject, at law or in
equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority, arbitration panel or
agency that are required to be described in the Registration Statement,
the Prospectus or the Disclosure Package but are not so described;
(xxiii) to the best of such counsel's knowledge, the Company and each
Subsidiary owns or possesses adequate licenses or other rights to use
all intangible property rights (collectively "Intangibles") necessary
to entitle the Company and each Subsidiary to conduct its business as
described in both the Prospectus and the Disclosure Package, and
neither the Company, nor any Subsidiary, has received notice of
infringement of or conflict with (and knows of no such infringement of
or conflict with) asserted rights of others with respect to any
Intangibles which could have a Material Adverse Effect;
(xxiv) there are no contracts or documents of a character that are required
to be filed as exhibits to the Registration Statement or to be
described, summarized or incorporated by reference in the
Registration Statement, the Prospectus or the Disclosure Package
which have not been so filed, described, summarized or incorporated;
and each filing incorporated by reference or deemed to be incorporated
by reference in the Registration Statement and in the Prospectus and
Disclosure Package, when each became effective or was filed with
the Commission, as the case may be, conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and the Securities Act Regulations and the Exchange Act
Regulations; and
(xxv) communications by the Company provided or transmitted simultaneously
with its live, in-real-time road show to a live audience conducted in
connection with the sale of the Shares, is not a written communication
under Rule 433 of the Securities Act and accordingly not a free writing
prospectus thereunder.
Such counsel shall state that the Underwriters are entitled and
authorized to rely upon such counsel's opinion, contained in a letter to the
Company dated the Closing Date (the "2006 REIT Opinion") as if the 2006 REIT
Opinion were addressed to the Underwriters and effective as of the Closing Date
and such counsel shall either advise the Underwriters in writing at the Option
Closing Time that the Underwriters may rely on the 2006 REIT Opinion as of the
Option Closing Time, or such counsel shall state that the Underwriters are
entitled and authorized to rely upon such counsel's opinion contained in a
letter to the Company dated the Option Closing Time (the "Option Closing REIT
Opinion") as if the Option Closing REIT Opinion were addressed to the
Underwriters and effective as of the Option Closing Time, regarding the
Company's organization in conformity with the requirements of Sections 856
through 860 of the Internal Revenue Code of 1986, as amended, and that the
Company's method of operation will enable it to continue to meet such
requirements (as qualified by the assumptions and limitations included in the
2006 REIT Opinion and, if applicable, the Option Closing REIT Opinion).
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, independent
public accountants of the Company and representatives of the Representatives, at
which the contents of the Registration Statement, the Prospectus and the
documents constituting the Disclosure Package were discussed and, although such
counsel is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the Disclosure Package (except as and to the extent
stated in subparagraphs (i), (xv), (xviii), (xix), (xx), (xxii) and (xxiv)
above), nothing has caused them to believe that (i) either the Registration
Statement, any amendment thereto, or any document deemed to be a part thereof,
at the time of any effective date applicable thereto, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements in the Registration
Statement not misleading; or (ii) the Prospectus, as of its date or at the
Closing Time or any Option Closing Time, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; or (iii) the Disclosure Package as of the
Initial Sale Time contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein, in
the light of circumstances under which they were made, not misleading (it being
understood that, in each case, such counsel need express no belief with respect
to the financial statements or schedules or other financial and statistical data
derived therefrom, included or incorporated by reference in the Registration
Statement the Prospectus, the Disclosure Package or any amendments or
supplements thereto).
(c) As of November 24, 2006 and at the Closing Time and each Option Closing Time
(if applicable), the Representatives shall have received from Ernst & Young LLP
letters dated the respective dates of delivery thereof and addressed to the
Representatives, in form and substance satisfactory to the Representatives,
containing statements and information of the type specified in AU Section 634
"Letters for Underwriters and Certain other Requesting Parties" issued by the
American Institute of Certified Public Accountants with respect to the financial
statements, including any pro forma financial statements, and certain financial
information of the Company and the Subsidiaries included or incorporated by
reference in the Registration Statement, the Prospectus and the Disclosure
Package, and such other matters customarily covered by comfort letters issued in
connection with registered public offerings; provided, that the letters
delivered at the Closing Time and each Option Closing Time (if applicable) shall
use a "cut-off" date no more than three business days prior to such Closing Time
or such Option Closing Time, as the case may be.
In the event that the letters referred to above set forth any
changes in indebtedness, decreases in total assets or retained earnings or
increases in borrowings, it shall be a further condition to the obligations of
the Underwriters that (A) such letters shall be accompanied by a written
explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Shares as contemplated by the Registration Statement.
(d) The Underwriters shall have received at the Closing Time and on each
Option Closing Time the favorable opinion of Winston & Strawn LLP,
dated the Closing Time or such Option Closing Time, addressed to the
Representatives and in form and substance satisfactory to the
Representatives.
(e) The Registration Statement shall be effective on the date hereof, the
Closing Time and each Option Closing Time;
(f) No amendment or supplement to the Registration Statement, the
Prospectus or any document in the Disclosure Package shall have been
filed to which the Underwriters shall have objected in writing.
(g) Prior to the Closing Time and each Option Closing Time (i) no stop
order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of the Prospectus or any
document in the Disclosure Package shall have been issued, and no
proceedings for such purpose shall have been initiated or threatened,
by the Commission, and no suspension of the qualification of the Shares
for offering or sale in any jurisdiction, or the initiation or
threatening of any proceedings for any of such purposes, has occurred;
(ii) all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction
of the Representatives; (iii) the Registration Statement shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and (iv) the Prospectus and the
Disclosure Package shall not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(h) All filings with the Commission required by Rule 424 under the
Securities Act to have been filed by the Closing Time shall have been
made within the applicable time period prescribed for such filing by
such Rule.
(i) Between the time of execution of this Agreement and the Closing Time or
the relevant Option Closing Time (i) there shall not have been any
Material Adverse Change, (ii) no transaction which is material and
unfavorable to the Company shall have been entered into by the Company
or any of the Subsidiaries, in each case, which in the Representatives'
sole judgment, makes it impracticable or inadvisable to proceed with
the public offering of the Shares as contemplated by the Registration
Statement (iii) neither the Company nor any Subsidiary has incurred any
obligation, direct or contingent, that is material to the Company and
the Subsidiaries taken as a whole, except obligations incurred in the
ordinary course of business, (iv) there has not been any change in the
capital stock or outstanding indebtedness of the Company or the
Subsidiaries that is material to the Company and the Subsidiaries taken
as a whole or (v) neither the Company nor any Subsidiary has sustained
any loss or damage (whether or not insured) to the property of the
Company or such Subsidiary which could have a Material Adverse Effect.
(j) At the Closing Time, the Shares shall have been approved for listing on
the New York Stock Exchange.
(k) The NASD shall have stated that it will raise no objection with respect
to the fairness and reasonableness of the underwriting terms and
arrangements.
(l) The Representatives shall have received lock-up agreements from each
officer, director, and 1% or greater shareholder of the Company, in the
form of Exhibit A attached hereto, and such letter agreements shall be
in full force and effect.
(m) The Company will, at the Closing Time and on each Option Closing Time,
deliver to the Underwriters a certificate of two principal executive
officers to the effect that:
(i) the representations and warranties of the Company and any affiliate in
this Agreement are true and correct, as if made on and as of the
Closing Time or any Option Closing Time, as applicable, and the Company
has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing
Time or any Option Closing Time, as applicable;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto and no order directed
at any document incorporated by reference therein ("Incorporated
Document") has been issued and no proceedings for that purpose have
been instituted or are pending or threatened under the Securities Act;
(iii) the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, the Disclosure Package, any
amendment or supplement thereto, and this Agreement, and that when the
Registration Statement became effective and at all times subsequent
thereto up to the Closing Time or any Option Closing Time, as
applicable, the Registration Statement and the Prospectus and the
Preliminary Prospectus, and any amendments or supplements thereto
and any Incorporated Documents, when such Incorporated Documents
became effective or were filed with the Commission, contained all
material information required to be included therein by the
Securities Act or the Exchange Act and the applicable rules and
regulations of the Commission thereunder, as the case may be, and in
all material respects conformed to the requirements of the Securities
Act or the Exchange Act and the applicable rules and regulations
of the Commission thereunder, as the case may be; the Registration
Statement and any amendments thereto, did not and, as of the Closing
Time or any Option Closing Time, as applicable, does not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and the Prospectus and the Disclosure Package,
and any amendments or supplements thereto, did not and as of the
Closing Time or any Option Closing Time, as applicable, do not include
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and, since the effective date of the Registration
Statement, there has occurred no event required to be set forth
in an amendment or supplement to the Prospectus or the Disclosure
Package which has not been so set forth; and
(iv) subsequent to the respective dates as of which information is
given in the Registration Statement, the Prospectus and the
Disclosure Package, there has not been (a) any Material Adverse
Change, (b) any transaction that is material to the Company and
the Subsidiaries considered as one enterprise, except transactions
entered into in the ordinary course of business, (c) any obligation,
direct or contingent, that is material to the Company and the
Subsidiaries considered as one enterprise, incurred by the Company or
the Subsidiaries, except obligations incurred in the ordinary course
of business, (d) any change in the capital stock or outstanding
indebtedness of the Company or any Subsidiary that is material to the
Company and the Subsidiaries considered as one enterprise, (e) any
dividend or distribution of any kind declared, paid or made on the
capital stock of the Company or any Subsidiary, or (f) any loss
or damage (whether or not insured) to the property of the Company or
any Subsidiary which has been sustained or will have been sustained
which has a Material Adverse Effect.
(n) The Company shall have furnished to the Underwriters such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement, the Prospectus and the
Disclosure Package, the representations, warranties and statements of
the Company contained herein and the performance by the Company of its
covenants contained herein, and the fulfillment of any conditions
contained herein, as of the Closing Time or any Option Closing Time, as
the Underwriters may reasonably request.
(o) All filings with the Commission required by Rule 424 under the
Securities Act shall have been made within the applicable time period
prescribed for such filing by such Rule.
(p) The Company shall perform such of its obligations and satisfy all
conditions under this Agreement that are to be performed or satisfied
by the terms hereof at or before the Closing Time or the relevant
Option Closing Time.
The several obligations of the Underwriters to purchase Shares
hereunder are also subject to the delivery to the Representatives on the
relevant Option Closing Time of such documents as the Representatives may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of the Shares and other matters related to the
issuance of the Shares.
7. Termination.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of the Representatives, at any time
prior to the Closing Time or any Option Closing Time, (i) if any of the
conditions specified in Section 6 shall not have been fulfilled when and as
required by this Agreement to be fulfilled, or (ii) if there has been since the
respective dates as of which information is given in the Registration Statement,
the Prospectus or the Disclosure Package, any Material Adverse Change, or any
development involving a prospective Material Adverse Change, or a material
change in the management of the Company or any Subsidiary, whether or not
arising in the ordinary course of business, or (iii) if there has occurred
outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic, political or other conditions the
effect of which on the United States or international financial markets is such
as to make it, in the judgment of the Representatives, impracticable to market
or deliver the Shares or enforce contracts for the sale of the Shares, or (iv)
if trading in any securities of the Company has been suspended by the
Commission, the New York Stock Exchange or the NASD, or if trading generally on
the New York Stock Exchange, the American Stock Exchange or in the Nasdaq
over-the-counter market has been suspended (including automatic halt in trading
pursuant to market-decline triggers other than those in which solely program
trading is temporarily halted), or limitations on prices for trading (other than
limitations on hours or numbers of days in trading) have been fixed, or maximum
ranges for prices for securities have been required, by such exchange or the
NASD or by order of the Commission or any other governmental authority, or (v)
if there has been any downgrading in the rating of any of the Company's debt
securities or preferred stock by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities Act),
or (vi) any federal or state statute, regulation, rule or order of any court or
other governmental authority has been enacted, published, decreed or otherwise
promulgated which in the reasonable opinion of the Representatives materially
adversely affects or will materially adversely affect the assets, operations,
business, prospects or condition (financial or otherwise) of the Company, or
(vii) any action has been taken by any federal, state or local government or
agency in respect of its monetary or fiscal affairs which in the reasonable
opinion of the Representatives could have a material adverse effect on the
securities markets in the United States, or (viii) the declaration of a banking
moratorium by either federal or New York authorities, or (ix) in the case of any
of the events specified in clauses (i) through (viii), in such event, singly or
together with any other such events, makes it, in the judgment of the
Representatives, impracticable to market or deliver the shares on the terms and
in the manner contemplated in the Prospectus and Delivery Package.
If the Representatives elect to terminate this Agreement as provided in
this Section 7, the Company and the Underwriters shall be notified promptly by
telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply in all material respects with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 5 and 9 hereof) and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder. Notwithstanding any termination of this Agreement, the Company shall
be liable for all expenses which it has agreed to pay pursuant to Section 5
hereof. The Company also agrees to reimburse the several Underwriters, their
directors and officers and any persons controlling any of the Underwriters for
any and all fees and expenses (including, without limitation, the fees
disbursements of Underwriters' counsel) incurred by them in connection with
enforcing their rights hereunder (including, without limitation, pursuant to
Section 9 hereof).
8. Increase in Underwriters' Commitments.
If any Underwriter shall default at the Closing Time or on an Option
Closing Time in its obligation to take up and pay for the Shares to be purchased
by it under this Agreement on such date, the Representatives shall have the
right, within 36 hours after such default, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Shares which such Underwriter shall have agreed
but failed to take up and pay for (the "Defaulted Shares"). Absent the
completion of such arrangements within such 36 hour period, (i) if the total
number of Defaulted Shares does not exceed 10% of the total number of Shares to
be purchased on such date, each non-defaulting Underwriter shall take up and pay
for (in addition to the number of Shares which it is otherwise obligated to
purchase on such date pursuant to this Agreement) the portion of the total
number of Shares agreed to be purchased by the defaulting Underwriter on such
date in the proportion that its underwriting obligations hereunder bears to the
underwriting obligations of all non-defaulting Underwriters; and (ii) if the
total number of Defaulted Shares exceeds 10% of such total, the Representatives
may terminate this Agreement by notice to the Company, without liability to any
non-defaulting Underwriter, except that the provisions of Sections 5 and 9 shall
at all times be effective and survive such termination.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Shares hereunder on such date unless all of the Shares to be
purchased on such date are purchased on such date by the Underwriters (or by
substituted Underwriters selected by the Representatives with the approval of
the Company or selected by the Company with the approval of the
Representatives).
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter in accordance with the foregoing provision, the Company or the
non-defaulting Underwriters shall have the right to postpone the Closing Time or
the relevant Option Closing Time for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term "Underwriter" as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with the like effect as
if such substituted Underwriter had originally been named in this Agreement.
9. Indemnity and Contribution by the Company and the Underwriters.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter
and any person who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, and the respective
directors, officers, employees and agents of each Underwriter from and against
any loss, expense, liability, damage or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or controlling
person may incur under the Securities Act, the Exchange Act or otherwise,
insofar as such loss, expense, liability, damage or claim arises out of or is
based upon (A) any breach of any representation, warranty or covenant of the
Company contained herein, (B) any failure on the part of the Company to comply
with any applicable law, rule or regulation relating to the offering of
securities being made pursuant to the Prospectus, (C) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment or part thereof), any Issuer Free Writing Prospectus
that the Company has filed or was required to file with the Commission, or the
Prospectus (the term Prospectus for the purpose of this Section 9 being deemed
to include the Base Prospectus, any Preliminary Prospectus, the Prospectus and
the Prospectus as amended or supplemented by the Company), (D) any application
or other document, or any amendment or supplement thereto, executed by the
Company or based upon written information furnished by or on behalf of the
Company filed in any jurisdiction (domestic or foreign) in order to qualify the
Shares under the securities or blue sky laws thereof or filed with the
Commission or any securities association or securities exchange (each an
"Application"), (E) any omission or alleged omission to state a material fact
required to be stated in any such Registration Statement, or necessary to make
the statements made therein not misleading, (F) any omission or alleged omission
from any such Issuer Free Writing Prospectus, Prospectus or any Application of a
material fact necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading, (G) any untrue
statement or alleged untrue statement of any material fact contained in any
audio or visual materials used in connection with the marketing of the Shares,
including, without limitation, slides, videos, films and tape recordings; except
in the case of (C), (E) and (F) above only insofar as any such loss, expense,
liability, damage or claim arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission of a material fact
contained in and in conformity with information furnished in writing by the
Underwriters through the Representatives to the Company expressly for use in
such Registration Statement, Prospectus or Application. The indemnity agreement
set forth in this Section 9(a) shall be in addition to any liability which the
Company may otherwise have.
If any action is brought against an Underwriter or controlling person
in respect of which indemnity may be sought against the Company pursuant to
subsection (a) or subsection (b) above, such Underwriter shall promptly notify
the Company in writing of the institution of such action, and the Company shall
assume the defense of such action, including the employment of counsel and
payment of expenses; provided, however, that any failure or delay to so notify
the Company will not relieve the Company of any obligation hereunder, except to
the extent that its ability to defend is actually impaired by such failure or
delay. Such Underwriter or controlling person shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
the employment of such counsel shall have been authorized in writing by the
Company in connection with the defense of such action, or the Company shall not
have employed counsel to have charge of the defense of such action within a
reasonable time or such indemnified party or parties shall have reasonably
concluded (based on the advice of counsel) that there may be defenses available
to it or them which are different from or additional to those available to the
Company and which counsel to the Underwriters believes may present a conflict
for counsel representing the Company and the Underwriters (in which case the
Company shall not have the right to direct the defense of such action on behalf
of the indemnified party or parties), in any of which events such fees and
expenses shall be borne by the Company and paid as incurred (it being
understood, however, that the Company shall not be liable for the expenses of
more than one separate firm of attorneys for the Underwriters or controlling
persons in any one action or series of related actions in the same jurisdiction
(other than local counsel in any such jurisdiction) representing the indemnified
parties who are parties to such action). Anything in this paragraph to the
contrary notwithstanding, the Company shall not be liable for any settlement of
any such claim or action effected without its written consent.
(b) Each Underwriter agrees, severally and not jointly, to indemnify, defend and
hold harmless the Company, the Subsidiaries, their trustees and directors, the
Company's officers that signed the Registration Statement, and any person who
controls the Company or any Subsidiary within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any loss,
expense, liability, damage or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person may
incur under the Securities Act, the Exchange Act or otherwise, insofar as such
loss, expense, liability, damage or claim arises out of or is based upon (A) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment or part thereof), any Issuer Free
Writing Prospectus that the Company has filed or was required to file with the
Commission, or the Prospectus, or any Application, (B) any omission or alleged
omission to state a material fact required to be stated in any such Registration
Statement, or necessary to make the statements made therein not misleading, or
(C) any omission or alleged omission from any such Issuer Free Writing
Prospectus, Prospectus or any Application of a material fact necessary to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading, but in each case only insofar as such untrue
statement or alleged untrue statement or omission or alleged omission was made
in such Registration Statement, Issuer Free Writing Prospectus, Prospectus or
Application in reliance upon and in conformity with information furnished in
writing by the Underwriters through the Representatives to the Company expressly
for use therein. The statements set forth in paragraphs 6, 7 and 8 under the
caption "Underwriting" in the Preliminary Prospectus, the Disclosure Package and
the Prospectus (to the extent such statements relate to the Underwriters)
constitute the only information furnished by or on behalf of any Underwriter
through the Representatives to the Company for purposes of Section 3(r), Section
3(t) and Section 3(u) and this Section 9.
If any action is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company, or such person shall promptly notify the
Representatives in writing of the institution of such action and the
Representatives, on behalf of the Underwriters, shall assume the defense of such
action, including the employment of counsel and payment of expenses. The
Company, or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company or such person unless the employment of such counsel shall have been
authorized in writing by the Representatives in connection with the defense of
such action or the Representatives shall not have employed counsel to have
charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which are
different from or additional to those available to the Underwriters (in which
case the Representatives shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by such Underwriter and paid as incurred
(it being understood, however, that the Underwriters shall not be liable for the
expenses of more than one separate firm of attorneys in any one action or series
of related actions in the same jurisdiction (other than local counsel in any
such jurisdiction) representing the indemnified parties who are parties to such
action). Anything in this paragraph to the contrary notwithstanding, no
Underwriter shall be liable for any settlement of any such claim or action
effected without the written consent of the Representatives.
(c) If the indemnification provided for in this Section 9 is unavailable or
insufficient to hold harmless an indemnified party under subsections (a) and (b)
of this Section 9 in respect of any losses, expenses, liabilities, damages or
claims referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, expenses,
liabilities, damages or claims (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Underwriters from
the offering of the Shares or (ii) if (but only if) the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and of the Underwriters in
connection with the statements or omissions which resulted in such losses,
expenses, liabilities, damages or claims, 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 proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company bear to the underwriting discounts
and commissions received by the Underwriters. The relative fault of the Company
and of the Underwriters shall be determined by reference to, among other things,
whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the Company or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages
and liabilities referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any claim or action.
(d) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in subsection (c)(i) and, if applicable
(ii), above. Notwithstanding the provisions of this Section 9, 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. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to their respective underwriting commitments
and not joint.
10. Survival.
The indemnity and contribution agreements contained in Section 9 and
the covenants, warranties and representations of the Company and the
Subsidiaries contained in Sections 3, 4 and 5 of this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter, or any person who controls any Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or
on behalf of the Company, the Subsidiaries, their trustees or directors and
officers or any person who controls the Company, any Subsidiary within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and shall survive any termination of this Agreement or the sale and delivery of
the Shares. The Company and each Underwriter agree promptly to notify the others
of the commencement of any litigation or proceeding against it and, in the case
of the Company, against any of the Company's officers and directors, in
connection with the sale and delivery of the Shares, or in connection with the
Registration Statement or Prospectus.
11. Duties.
Nothing in this Agreement shall be deemed to create a partnership,
joint venture or agency relationship between the parties. The Underwriters
undertake to perform such duties and obligations only as expressly set forth
herein. Such duties and obligations of the Underwriters with respect to the
Shares shall be determined solely by the express provisions of this Agreement,
and the Underwriters shall not be liable except for the performance of such
duties and obligations with respect to the Shares as are specifically set forth
in this Agreement. The Company acknowledges and agrees that: (i) the purchase
and sale of the Shares pursuant to this Agreement, including the determination
of the public offering price of the Shares and any related discounts and
commissions, is an arm's-length commercial transaction between the Company, on
the one hand, and the several Underwriters, on the other hand, and the Company
is capable of evaluating and understanding and understands and accepts the
terms, risks and conditions of the transactions contemplated by this Agreement;
(ii) in connection with each transaction contemplated hereby and the process
leading to such transaction each Underwriter is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary of the Company or
its affiliates, shareholders, creditors or employees or any other party; (iii)
no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters);
and (iv) the several Underwriters and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of the Company and that the several Underwriters have no obligation to disclose
any of such interests. The Company acknowledges that the Underwriters disclaim
any implied duties (including any fiduciary duty), covenants or obligations
arising from the Underwriters' performance of the duties and obligations
expressly set forth herein. The Company hereby waives and releases, to the
fullest extent permitted by law, any claims that the Company may have against
the several Underwriters with respect to any breach or alleged breach of agency
or fiduciary duty.
12. Notices. Except as otherwise herein provided, all statements, requests,
notices, communications and agreements shall be in writing, and:
(a) if sent to any Underwriter, shall be sufficient in all respects if delivered
to Friedman, Billings, Ramsey & Co., Inc., 1001 19th Street North, Arlington,
Virginia 22209, Attention: Syndicate Department, with a copy to counsel for the
Underwriters at Winston & Strawn LLP, 35 West Wacker Drive, Chicago, Illinois
60601, Attention: Wayne D. Boberg, Esq.; and
(b) if sent to the Company, shall be sufficient in all respects if delivered to
the Company at the offices of the Company at 60 Cutter Mill Road, Great Neck,
New York 11021.
13. Governing Law; Consent to Jurisdiction; Headings. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. The parties hereto agree
to be subject to, and hereby irrevocably submit to, the nonexclusive
jurisdiction of any United States Federal or Virginia state court sitting in
Alexandria, Virginia, in respect of any suit, action or proceeding arising out
of or relating to this Agreement or the transactions contemplated herein, and
irrevocably agree that all claims in respect of any such suit, action or
proceeding may be heard and determined in any such court. Each of the parties
hereto irrevocably waives, to the fullest extent permitted by applicable law,
any objection to the laying of the venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or proceeding
has been brought in an inconvenient forum. The section headings in this
Agreement have been inserted as a matter of convenience of reference and are not
a part of this Agreement.
14. Parties in Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriters, the Company and the controlling
persons, directors and officers referred to in Sections 9 and 10 hereof, and
their respective successors, assigns, executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties in counterparts
which together shall constitute one and the same agreement among the parties. A
facsimile signature shall constitute an original signature for all purposes.
16. Headings. The headings herein are inserted for convenience of reference only
and are not intended to be part of, or to affect the meaning or interpretation
of, this Agreement.
[signature pages follow]
[Signature Page to Underwriting Agreement]
If the foregoing correctly sets forth the understanding among the
Company and the several Underwriters, please so indicate in the space provided
below for the purpose, whereupon this Agreement and your acceptance shall
constitute a binding agreement among the Company and the Underwriters,
severally.
Very truly yours,
BRT REALTY TRUST
/s/ Simeon Brinberg
---------------------
By: Simeon Brinberg
Its:Senior Vice President
Accepted and agreed to as of the date first above written:
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
STIFEL, NICOLAUS & COMPANY, INCORPORATED
BMO CAPITAL MARKETS CORP.
BY: FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
/s/ James R. Kleeblatt
-----------------------
By: James R. Kleeblatt
Its: Senior Managing Director
For itself and on behalf of the Representatives as Representatives of the
several Underwriters named on Schedule I hereto.
Schedule I
----------
Number of Option Shares
Number of Initial to be Purchased if
Underwriter Shares to be Purchased Option is Fully Exercised
----------- ---------------------- -------------------------
Friedman, Billings, Ramsey & Co., Inc. 1,680,000 252,000
Stifel, Nicolaus & Company, Incorporated 700,000 105,000
BMO Capital Markets Corp. 420,000 63,000
-------------------------------------------------------------
Total 2,800,000 420,000
Schedule II
-----------
ISSUER FREE WRITING PROSPECTUSES
None.
Schedule III
------------
SUBSIDIARIES OF THE COMPANY
Jurisdiction of Jurisdiction Ownership
Incorporation or Qualified to Interest by the
Formation Transact Business Company
--------- ----------------- -------
Forest Green Corporation New York New York 100%
TRB No. 1 Corp. New York New York 100%
Blue Realty Corp. Delaware Delaware 100%
TRB No. 3 Owners Corp. Wyoming Wyoming 100%
2190 Boston Post Road Realty Corp. New York New York 100%
TRB Ashbourne Road Corp. Pennsylvania Pennsylvania 100%
BRT Funding Corp. New York New York 100%
TRB 69th Street Corp. New York New York 100%
TRB Yonkers Corp. New York New York 100%
TRB Lawrence Realty Corp. New York New York 100%
TRB Hartford Corp. Connecticut Connecticut 100%
TRB Stroudsberg Realty LLC Pennsylvania Pennsylvania 100%
TRB Charlotte Apartments LLC North Carolina North Carolina 100%
TRB New York Corp. New York New York 100%
TRB Realty Atlanta LLC Georgia Georgia 100%
BRT Joint Venture No. 1 LLC Delaware Delaware 100%
Schedule IV
-----------
JOINT VENTURES
Jurisdiction of
Joint Venture Formation Ownership
------------- --------- ---------
Blue Hen Venture, LLC Delaware 50%
West 69th LLC New York 50%
Lawrence Realty Associates LLC New York 50%
Watertown Commons, LLC Connecticut 50%
Watertown Main Street, LLC Connecticut 50%
Rutherford Glen Apartments LLC Georgia 50%
800 South Main, LLC Connecticut 50%
Union Square Southbury, LLC Connecticut 50%
Ripco-TRB Venture 1, LLC New York 90%
BRT Funding LLC Delaware 25%
STATUTORY TRUSTS
Jurisdiction of
Joint Venture Formation Ownership
------------- --------- ---------
BRT Realty Trust Statutory Trust I Delaware 100%
BRT Realty Trust Statutory Trust II Delaware 100%
Schedule V
----------
INVESTMENTS IN SECURITIES
Security Number of Shares
-------- ----------------
Entertainment Properties Trust 1,009,600
Flushing Financial 107,822
Eastgroup Properties 21,600
Acadia Realty Trust 13,300
Innkeepers USA Trust 8,500
Malan Liquidating Trust 7,900
Exhibit A
FORM OF LOCK-UP LETTER
Friedman, Billings, Ramsey & Co., Inc.
Stifel, Nicolaus & Company, Incorporated
BMO Capital Markets Corp.
c/o Friedman, Billings, Ramsey & Co., Inc.
1001 19th Street North
Arlington, Virginia 22209
December , 2006
Ladies and Gentlemen:
The undersigned understands that Friedman, Billings, Ramsey & Co., Inc.
("FBR") proposes to enter into an Underwriting Agreement (the "Underwriting
Agreement") with BRT Realty Trust, a Massachusetts business trust (the
"Company"), providing for the public offering (the "Public Offering") by the
several Underwriters, including FBR (the "Underwriters"), of shares of
beneficial interest, par value $3.00 per share (the "Common Shares") of the
Company. Capitalized terms used herein but not otherwise defined shall have the
meanings assigned to them in the Underwriting Agreement.
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of FBR on
behalf of the Underwriters, during the period commencing on the date hereof and
ending ninety (90) days from the date of the Prospectus Supplement for the
Public Offering (the "Restricted Period"), the undersigned will not, directly or
indirectly (a) offer, sell, agree to offer, contract to sell, solicit offers to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, pledge, lend, borrow or otherwise dispose of any Relevant
Security (as defined below), and (b) 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 (the "Exchange Act"), 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 consequences of ownership of a Relevant Security,
whether or not such transaction described in clause (a) or (b) above is to be
settled by delivery of Relevant Securities, other securities, in cash or other
consideration. As used herein "Relevant Security" means the Common Shares, any
other equity security of the Company or any of its subsidiaries and any security
convertible into, or exercisable or exchangeable for, any Common Shares or other
such equity security (whether such Common Shares or other security is now owned
or hereafter acquired by the undersigned). The foregoing shall not apply to (i)
transfers of Common Shares as a bona fide gift, (ii) transfers of Common Shares
to any trust, partnership or limited liability company for the direct or
indirect benefit of the undersigned or the immediate family of the undersigned
and (iii) transfers of Common Shares to any beneficiary of the undersigned
pursuant to a will or other testamentary document or applicable laws of descent;
provided that in the case of any transfer pursuant to clause (i), (ii) or (iii)
above, (A) each donee or transferee shall sign and deliver a lock-up letter
substantially in the form of this letter and (B) no filing under Section 16(a)
of the Exchange Act reporting a reduction in beneficial ownership of Common
Shares shall be required or shall be voluntarily made during the Restricted
Period. For purposes of this lock-up letter, "immediate family" shall mean any
relationship by blood, marriage, domestic partnership or adoption, not more
remote than first cousin.
The undersigned hereby authorizes the Company during the Restricted
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 Restricted 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. In addition, the undersigned
agrees that, without the prior written consent of FBR on behalf of the
Underwriters, it will not, during the Restricted Period, make any demand for or
exercise any right with respect to, the registration of any Common Shares or any
security convertible into or exercisable or exchangeable for Common Shares.
If (1) during the last 17 days of the Restricted Period the Company
issues an earnings release or material news or a material event relating to the
Company occurs; or (2) prior to the expiration of the Restricted Period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the Restricted Period; the restrictions imposed by
this lock-up letter shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the occurrence of
material news or a material event relating to the Company.
The undersigned shall not engage in any transaction that may be
restricted by this lock-up letter during the 34-day period beginning on the last
day of the Restricted Period unless the undersigned requests and receives prior
written confirmation from the Company or FBR that the restrictions imposed by
this lock-up letter have expired.
This lock-up letter shall be terminated (i) if for any reason the
Underwriting Agreement is terminated prior to the closing of the Public
Offering, (ii) the Company withdraws the registration statement registering the
Common Shares, (iii) the Company deregisters all of the Common Shares covered by
such registration statement or (iv) if, prior to the execution and delivery of
the Underwriting Agreement, (a) December 31, 2006 occurs or (b) the Company
publicly announces that it will not be proceeding with the Public Offering.
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 agreement
by telecopier or facsimile transmission shall be effective as delivery of the
original hereof.
The undersigned understands that the Company and the Underwriters are
relying upon this agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this agreement is irrevocable
and shall be binding upon the undersigned's heirs, legal representatives,
successors and assigns.
Whether or note the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
By:
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Name:
Title: