Exhibit 1.1
EXECUTION COPY
TANGER FACTORY OUTLET CENTERS, INC.
COMMON SHARES
UNDERWRITING AGREEMENT
September 4, 2002
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
Tanger Factory Outlet Centers, Inc., a North Carolina corporation (the
"Company"), proposes to issue and sell to the Underwriters on Schedule I hereto,
(the "Underwriters"), for whom Credit Suisse First Boston Corporation is acting
as representative (the "Representative"), an aggregate of 1,000,000 shares of
the Company's common shares, $.01 par value per share (the "Common Shares")
pursuant to the terms of this Underwriting Agreement (the "Agreement"). The
1,000,000 Common Shares to be purchased from the Company are hereinafter
referred to as the "Firm Shares." The respective amounts of the Firm Shares to
be so purchased by the several Underwriters are set forth opposite their names
in Schedule I hereto. The Company also proposes to sell at the Underwriters'
option an aggregate of up to 150,000 additional Common Shares (the "Option
Shares") as set forth below. The Firm Shares and the Option Shares (to the
extent the aforementioned option is exercised) are herein collectively called
the "Shares." The Company and Tanger Properties Limited Partnership, a North
Carolina limited partnership (the "Operating Partnership") hereby confirm their
agreements with the Representative.
The Company has filed with the Securities and Exchange Commission (the
"Commission") (i) a registration statement on Form S-3 (No. 333-61394) dated May
22, 2001 (the "Base Registration Statement") covering the registration of the
Shares under the Securities Act of 1933, as amended (the "1933 Act"), including
a related prospectus, (ii) a post effective amendment number one to Form S-3
(No. 333-61394) dated July 18, 2002, which did not become effective, and (iii) a
post effective amendment number two to Form S-3 (No. 333-61394) covering the
registration of the Shares under the 1933 Act, including a related prospectus
dated August 15, 2002, which has become effective. The post effective amendment
number two (including the exhibits thereto and schedules thereto, if any)
(including the information (if any) deemed to be part of such post effective
amendment number two at the time of effectiveness pursuant to Rule 430A under
the 1933 Act), is hereinafter referred to as the "Registration Statement." The
term "Effective Date" shall mean the date that the Base Registration Statement
or amendments thereto became or become effective or the date that the
Registration Statement or amendments thereto became or become effective. The
term "Base Prospectus" shall mean the prospectus contained in the Registration
Statement at the Effective Date. "Preliminary Prospectus" means any preliminary
prospectus supplement to the Base Prospectus used prior to the filing of the
Prospectus in connection with the public offering contemplated by this
Agreement. The term "Prospectus" means the prospectus supplement to the Base
Prospectus first filed with the Commission pursuant to Rule 424(b) under the
1933 Act in connection with the public offering contemplated by this Agreement,
together with the Base Prospectus.
Any reference in this Agreement to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, as of the Effective Date of the Registration
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Statement or the date of any Preliminary Prospectus or the Prospectus, as the
case may be (it being understood that the several specific references in this
Agreement to documents incorporated by reference in the Registration Statement
or the Prospectus are for clarifying purposes only and are not meant to limit
the inclusiveness of any other definition herein). For purposes of this
Agreement, all references to the Registration Statement, any Preliminary
Prospectus, or the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included," "stated" or "described"
in the Registration Statement, any Preliminary Prospectus or the Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement, any
Preliminary Prospectus or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall be deemed to include the
filing of any document under the Securities Exchange Act of 1934 Act, as amended
(the "1934 Act") which is or is deemed to be incorporated by reference in the
Registration Statement, any Preliminary Prospectus or the Prospectus, as the
case may be.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company and the Operating Partnership jointly and severally
represent and warrant to you, as to matters relating to the Company and the
Operating Partnership, as of the date hereof, as of the Closing Date (as defined
below) and, if applicable, as of the Option Closing Date (as defined below) (in
each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, and each
amendment or supplement thereto at the time the Registration Statement
(including any Rule 462(b) Registration Statement) or any post-effective
amendment became effective and at each time thereafter on which the
Operating Partnership or the Company filed an Annual Report on Form 10-K
with the Commission, complied, and as of each Representation Date will
comply, in all material respects with the requirements of the 1933 Act
and the rules and regulations of the Commission under the 1933 Act ("the
1933 Act Regulations"); the Registration Statement and each
post-effective amendment thereto, at the time the Registration Statement
or any such post-effective amendment became effective and at each time
thereafter on which the Operating Partnership or the Company filed an
Annual Report on Form 10-K with the Commission, did not, and as of each
Representation Date, 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
Prospectus and each amendment or supplement thereto, as of the date
hereof, does not, and as of each Representation Date will not, include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement
or the Prospectus made in reliance upon and in conformity with
information furnished to the Operating Partnership or the Company in
writing by any Underwriter through you expressly for use in the
Registration Statement or the Prospectus or that part of the Registration
Statement which shall constitute the Statements of Eligibility of the
Senior Trustee and the Subordinated Trustee under the 1939 Act on Form
T-1 (the "Statements of Eligibility").
Any Preliminary Prospectus and Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933
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Act, complied when so filed in all material respects with the 1933 Act
Regulations and any preliminary prospectus and the Prospectus delivered
to the Underwriters for use in connection with the offering of the Shares
will, at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(ii) The accountants who certified the financial statements and
supporting schedules thereto included or incorporated by reference in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations; and
there have been no disagreements with any accountants or "reportable
events" (as defined in Item 304 of Regulation S-K promulgated by the
Commission) required to be disclosed in the Prospectus or elsewhere
pursuant to such Item 304 which have not been so disclosed.
(iii) The historical consolidated financial statements of the
Operating Partnership and of the Company included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
their respective financial positions as of the dates indicated and their
respective results of operations for the periods specified; except as
otherwise stated in the Registration Statement and the Prospectus, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis and comply
with the applicable accounting requirements of the 1933 Act (including,
without limitation, Rule 3-14 of Regulation S-X promulgated by the
Commission), and all adjustments necessary for a fair presentation of the
results for such periods have been made; the supporting schedules
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the information required to be stated
therein; and the selected financial data (both historical and pro forma)
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the information shown therein and have been
compiled and derived on a basis consistent with the related financial
statements presented or incorporated by reference therein.
(iv) Any historical summaries of revenue and certain operating
expenses included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the revenue and those
operating expenses included in such summaries of the properties related
thereto for the periods specified in conformity with generally accepted
accounting principles; any pro forma consolidated financial statements
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the pro forma financial position of the
Operating Partnership and its consolidated subsidiaries and the Company
and its consolidated subsidiaries as of the dates indicated and the
results of operations for the periods specified; and such pro forms
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a basis consistent with the
audited financial statements of the Operating Partnership and the Company
included or incorporated by reference in the Registration Statement and
the Prospectus, the assumptions on which such pro forma financial
statements have been prepared are reasonable and all material assumptions
are set forth in the notes thereto, and such pro forma financial
statements have been prepared, and the pro forma adjustments set forth
therein have been applied, in accordance with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations (including,
without limitation, Regulation S-X promulgated by the Commission), and
such pro forma adjustments have been properly applied to the historical
amounts in the compilation of such statements.
(v) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (a) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
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business prospects of the Company, the Operating Partnership, and their
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (b) no material casualty loss or material
condemnation or other material adverse event with respect to any of the
Centers (as defined below) has occurred, (c) there have been no
transactions entered into by the Operating Partnership, the Company or
any of their subsidiaries other than those in the ordinary course of
business, which are material with respect to the Company, the Operating
Partnership and their subsidiaries considered as one enterprise and (d)
except for regular quarterly dividends on the Company's common shares or
dividends or distributions declared, paid or made in accordance with the
terms of any class or series of the Company's preferred shares which are
set forth in the Company's Amended and Restated Articles of
Incorporation, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock
and, except for regular quarterly distributions, there has been no
distribution of any kind made by the Operating Partnership with respect
to its partnership interests.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
North Carolina, with corporate power and authority to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under, or contemplated under, this Agreement; and the Company
is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or to be
in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company, the Operating Partnership, and their
subsidiaries considered as one enterprise.
(vii) The Amended and Restated Agreement of Limited Partnership of
the Operating Partnership, as amended (the "Agreement of Limited
Partnership"), has been duly and validly authorized, executed and
delivered by the Company, the Tanger GP Trust, a Maryland business trust
(the "GP Trust") and by the partners of the Operating Partnership,
including the GP Trust in its capacity as sole general partner of the
Operating Partnership, and is a valid and binding agreement of the GP
Trust and the partners of the Operating Partnership, including the GP
Trust in its capacity as sole general partner of the Operating
Partnership, enforceable in accordance with its terms; the Operating
Partnership has been duly formed and is validly existing and is in good
standing under the laws of the State of North Carolina, has power and
authority to own, lease and operate its factory outlet centers, including
its Myrtle Beach property (the "Centers") and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or to be
in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company, the Operating Partnership, and their
subsidiaries considered as one enterprise; the GP Trust has been duly
formed and is validly existing and is in good standing under the laws of
the State of Maryland, has power and authority to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or to be
in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company, the Operating Partnership and their
subsidiaries considered as one enterprise, the GP Trust is the sole
general partner of the Operating Partnership and is entitled to all
rights, benefits, interests and preferences as a general partner of a
North Carolina limited partnership under the laws of the State of North
Carolina and the Agreement of
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Limited Partnership (including, without limitation, those rights,
benefits, interests and preferences afforded to the Company as a holder
of the general partnership units and the preferred general partnership
units under the Agreement of Limited Partnership); and the Company is the
sole shareholder of the GP Trust.
(viii) Each subsidiary (which term, as used in this Agreement,
includes corporations, limited and general partnerships, joint ventures
and other entities, and includes direct and indirect subsidiaries) of the
Operating Partnership and the Company, if any, has been duly formed and
is validly existing and in good standing under the laws of the
jurisdiction of its origin, has power and authority to own, lease and
operate its Centers and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify or to be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company, the Operating Partnership, and their
subsidiaries considered as one enterprise; and except as otherwise stated
in the Prospectus, all of the issued and outstanding capital stock or
other ownership interests in each such subsidiary have been duly
authorized and validly issued, are fully paid and non-assessable and are
owned by the Operating Partnership or the Company, as the case may be,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity, except
for security interests granted in respect of indebtedness of the
Operating Partnership or the Company or any of their subsidiaries that is
described in the Prospectus.
(ix) The authorized, issued and outstanding capital stock of the
Company is as stated in the Prospectus; such shares of capital stock have
been duly authorized and validly issued, are fully paid and
non-assessable and are not subject to preemptive or other similar rights;
and the Company has duly reserved a sufficient number of common shares
for issuance upon exchange of outstanding partnership units in the
Operating Partnership.
(x) This Agreement has been duly authorized, executed and
delivered by the Operating Partnership and the Company, as applicable.
(xi) The Shares being sold pursuant to this Agreement have been
duly authorized by all necessary Company action and at the Closing Date
or the Option Closing Date (as the case may be), when issued and
delivered as contemplated by this Agreement and after payment therefor in
accordance herewith, will be validly issued, fully paid and
non-assessable and no holders of outstanding Common Shares are entitled
as such to any preemptive or other rights to subscribe for any of the
Shares, and no holder of securities of the Company has any right which
has not been exercised or waived to require the Company to register the
offer or sale of any securities owned by such holder under the 1933 Act
in the public offering contemplated by this Agreement.
(xii) The Shares being sold pursuant to this Agreement will
conform in all material respects to all statements relating thereto
contained in the Prospectus and will be in substantially the form filed
or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(xiii) None of the Operating Partnership, the Company or any of
their subsidiaries is in violation of its agreement of limited
partnership, charter, by-laws, or other organizational documents, as
applicable, or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan
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agreement, note, lease or other instrument to which the Operating
Partnership, the Company or any of their subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Operating Partnership, the Company or any of their
subsidiaries is subject, except for any such violation or default that
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company, the Operating Partnership, and their subsidiaries considered as
one enterprise; and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein
and compliance by the Operating Partnership and the Company, each jointly
and severally, with obligations hereunder have been duly authorized by
all necessary action, and will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Operating
Partnership, the Company, or any of their subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Operating Partnership, the Company, or any of
their subsidiaries is a party or by which any of them may be bound, or to
which any of the property or assets of the Operating Partnership, the
Company, or any of their subsidiaries is subject, nor will such action
result in any violation of the agreement of limited partnership, charter,
by-laws or other organizational documents of the Operating Partnership,
the Company, or any of their subsidiaries or any applicable statute,
rule, regulation, order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Operating Partnership,
the Company or any of their subsidiaries or any of their properties.
(xiv) Commencing with the Company's taxable year ended December
31, 1993, the Company has been organized and has operated in conformity
with the requirements for its qualification and taxation as a real estate
investment trust (a "REIT") under the Internal Revenue Code of 1986, as
amended (the "Code"), and its proposed method of operation will enable it
to meet the requirements for qualification and taxation as a REIT under
the Code.
(xv) Neither the Operating Partnership, nor the Company is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
(xvi) The Shares will be excluded or exempted under, or beyond the
purview of, the Commodity Exchange Act, as amended (the "Commodity
Exchange Act"), and the rules and regulations of the Commodity Futures
Trading Commission thereunder (the "Commodity Exchange Act Regulations").
(xvii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Operating Partnership, the Company or any of
their subsidiaries threatened against or affecting the Operating
Partnership, the Company or any of their subsidiaries which is required
to be disclosed in the Prospectus (other than as disclosed therein), or
which might be reasonably expected to (a) result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company, the Operating
Partnership and their subsidiaries considered as one enterprise, or (b)
materially and adversely affect the property or assets thereof taken as
one enterprise or (c) materially and adversely affect the consummation of
this Agreement or the transactions contemplated herein; all pending legal
or governmental proceedings to which the Operating Partnership, the
Company or any of their subsidiaries is a party or of which any property
or assets of the Operating Partnership, the Company or any of their
subsidiaries is subject which are not described in the Prospectus,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material; and there are no contracts or
documents of the Operating Partnership, the Company or any of their
subsidiaries
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which are required to be filed as exhibits to the Registration Statement
by the 1933 Act or by the 1933 Act Regulations which have not been so
filed.
(xviii) Neither the Company nor the Operating Partnership is
required to own or possess any trademarks, service marks, trade names or
copyrights in order to conduct the business to be operated by it which
are not currently owned or possessed, the failure of which to own or
possess would have a material adverse effect.
(xix) No authorization, approval, permit or consent of any court
or governmental authority or agency is necessary in connection with the
consummation by the Operating Partnership or the Company of the
transactions contemplated by this Agreement, except such as may be
required under the 1933 Act or the 1933 Act Regulations, state securities
laws or real estate syndication laws.
(xx) Each of the Operating Partnership and the Company possesses
such certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to
conduct its business as presently conducted, and neither the Operating
Partnership nor the Company has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially and
adversely affect the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company, the Operating
Partnership and their subsidiaries considered as one enterprise.
(xxi) The Operating Partnership and the Company have full right,
power and authority to own or lease their respective properties and
conduct their respective businesses as described in the Registration
Statement and the Prospectus, and each of the Operating Partnership and
the Company have full right, power and authority to enter into this
Agreement and this Agreement has been duly authorized, executed and
delivered by the Operating Partnership and the Company.
(xxii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement or any post-effective
amendment became effective and as of the applicable Representation Date
or during the period specified in Section 3(f) hereof, did not 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.
(xxiii) (a) Except as otherwise disclosed or referred to in the
Prospectus and except as would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company, the Operating Partnership and their
subsidiaries considered as one enterprise, the Operating Partnership has
good and marketable title to the Centers, in each case free and clear of
all liens, encumbrances, claims, security interests and defects, other
than as described or referred to in the Prospectus (including the
financial statements incorporated by reference therein) or which are not
material in amount; (b) all liens, charges, encumbrances, claims, or
restrictions on or affecting the properties and assets of the Company or
the Operating Partnership which are required to be disclosed in the
Prospectus are disclosed therein; (c) neither the Company or the
Operating Partnership nor, to the best of the knowledge of the Company or
the Operating Partnership, any lessee under a lease relating to any
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of the Centers, is in default under any of the leases relating to the
Centers and neither the Company nor the Operating Partnership knows of
any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases, except such
defaults that would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company or the Operating Partnership taken as one
enterprise; (d) each of the Centers is in compliance with all applicable
codes and zoning laws and regulations, except for such failures to comply
which would not individually or in the aggregate have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company or the Operating
Partnership taken as one enterprise; and (e) neither the Company nor the
Operating Partnership has knowledge of any pending or threatened
condemnation, zoning change, or other proceeding or action that will in
any manner affect the size of, use of, improvements on, construction on,
or access to the Centers, except as disclosed in the Prospectus or such
proceedings or actions that would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Company or the Operating Partnership
taken as one enterprise.
(xxiv) The mortgages and deeds of trust encumbering the properties
and assets described in the Prospectus are not convertible into an equity
ownership interest nor does the Company or the Operating Partnership hold
a participating interest therein and said mortgages and deeds of trust
will not be cross-defaulted or cross-collateralized with any property not
owned or leased by the Company or the Operating Partnership or any of
their subsidiaries.
(xxv) The Company or the Operating Partnership have coverage under
title insurance policies or the indirect benefit of such coverage by
having accepted the Centers pursuant to warranty deeds from a grantor who
has coverage under prior title insurance policies on each of the Centers
in an amount at least equal to the cost of acquisition of such Property.
(xxvi) Neither the Operating Partnership nor the Company has any
knowledge of: (a) the unlawful presence of any hazardous substances,
hazardous materials, toxic substances or waste materials (collectively,
"Hazardous Materials") on any of the Centers or, without independent
investigation, any other property on which the Company has an option or
(b) any spills, releases, discharges or disposal of Hazardous Materials
that have occurred or are presently occurring on or from the Centers as a
result of any construction on or operation and use of the Centers or,
without independent investigation, any other property on which the
Company has an option, which presence or occurrence would have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company, the Operating
Partnership, and their subsidiaries considered as one enterprise; and in
connection with the construction on or operation and use of the Centers,
each of the Operating Partnership and the Company has no knowledge of any
material failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials that
would have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company, the Operating Partnership, and their subsidiaries considered as
one enterprise.
(xxvii) The Company has not, directly or indirectly, taken any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
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(xxviii) By the Closing Date, the Shares will have been approved
for listing on the New York Stock Exchange, subject to official notice of
issuance.
(b) Any certificate signed by any officer of the Company in such capacity
or by the GP Trust as general partner of the Operating Partnership and delivered
to the Underwriters or to counsel for the Underwriters in connection with the
offering of the Shares shall be deemed a representation and warranty by the
Company or the Operating Partnership, as the case may be, to each Underwriter
participating in such offering as to the matters covered thereby on the date of
such certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
Section 2. PURCHASE AND SALE.
(a) On the basis of the representations, warranties and covenants herein
contained, and subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the Underwriters and each Underwriter agrees, to
purchase, at a price of $28.36 per share, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be made in
Federal (same day) funds against delivery of certificates therefor to the
Underwriter for its accounts. Such payment and delivery are to be made through
the facilities of The Depository Trust Company, New York, New York at 10:00
a.m., New York time, on the third business day after the date of this Agreement
or at such other time and date not later than five business days thereafter as
you and the Company shall agree upon, such time and date being herein referred
to as the "Closing Date." (As used herein, "business day" means a day on which
the New York Stock Exchange is open for trading and on which banks in New York
are open for business and are not permitted by law or executive order to be
closed.)
(c) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the several Underwriters to purchase the
Option Shares at the same price per share as is applicable to the Firm Shares.
The option granted hereby may be exercised in whole or in part upon written
notice from you given to the Company from time to time not more than 30 days
subsequent to the date of the Prospectus setting forth the number of Option
Shares as to which the several Underwriters are exercising the option and the
time and date at which such certificates are to be delivered. The time and date
at which certificates for Option Shares are to be delivered shall be determined
by you but shall not be later than five full business days nor earlier than
three full business days (unless otherwise agreed to by you and the Company)
after written notice of exercise is given, nor in any event prior to the Closing
Date (such time and date being herein referred to as the "Option Closing Date").
The option with respect to the Option Shares granted hereunder may be exercised
only to cover over-allotments in the sale of the Firm Shares by the
Underwriters. You, as Representative of the several Underwriters, may cancel
such option at any time prior to its expiration by giving written notice of such
cancellation to the Company. To the extent, if any, that the option is
exercised, payment for the Option Shares shall be made on the Option Closing
Date in Federal (same day) funds drawn to the order of the Company for the
Option Shares to be sold by it against delivery of certificates therefor through
the facilities of The Depository Trust Company, New York, New York.
Section 3. COVENANTS OF THE OPERATING PARTNERSHIP AND THE COMPANY. Each
of the Operating Partnership and the Company, jointly and severally, covenants
with you, and with each Underwriter participating in the offering of the Shares,
as follows:
(a) Immediately following the execution of this Agreement, the Company
will prepare a prospectus supplement setting forth the Shares to be offered
pursuant to this Agreement, the name of each
9
Underwriter participating in the offering and the name of each additional
co-manager, if any, participating in the offering, the price at which the Shares
are to be purchased by the Underwriters from the Company, the initial public
offering price, if any, the selling concession and reallowance, if any, any
over-allotment option (and the number of Option Shares), and such other
information as you and the Company deem appropriate in connection with the
offering of the Shares; the Company will, by the close of business in New York
on the business day immediately succeeding the date of this Agreement, transmit
copies of the Prospectus Supplement to the Commission for filing pursuant to
Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters,
without charge, as many copies of the Prospectus as you shall reasonably
request.
(b) The Company will notify you immediately, and confirm such notice in
writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any prospectus
supplement or other supplement or amendment to the Prospectus or any document to
be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Operating Partnership and the Company will
make every reasonable effort to prevent the issuance of any such stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(c) At any time when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Shares, the Operating
Partnership or the Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing under
Rule 462(b) of the 1933 Act Regulations) or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, and will furnish to you, without charge, copies of
any such documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such documents to which
you or counsel for the Underwriters shall reasonably object.
(d) The Company has furnished or will furnish to each Underwriter,
without charge, as many signed and conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) as such Underwriter
reasonably requests. The Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) The Company will furnish, without charge, to each Underwriter, from
time to time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the Shares, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(f) If at any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Shares any event
shall occur or condition exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or counsel for the Operating
10
Partnership or the Company, to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend or supplement the Registration Statement
or the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, then the Operating Partnership and the Company will
promptly prepare and file with the Commission, subject to Section 3(c), such
amendment or supplement, whether by filing documents pursuant to the 1933 Act,
the 1934 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement and Prospectus comply with
such requirements, and the Operating Partnership and the Company will furnish to
the Underwriters, without charge, a reasonable number of copies of such
amendment or supplement.
(g) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Shares for offering and sale under the applicable securities laws
and real estate syndication laws of such states and other jurisdictions of the
United States as you may designate; and in each jurisdiction in which the Shares
have been so qualified, the Operating Partnership and the Company will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be required for the
distribution of the Shares; provided, however, that neither the Operating
Partnership nor the Company shall be obligated to qualify as a foreign
partnership or corporation or subject itself to general service of process in
any jurisdiction where it is not so qualified or so subject.
(h) With respect to each sale of Shares, the Company each will make
generally available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve month period beginning not later than the earlier
of the first day of the Operating Partnership's or Company's fiscal quarter,
respectively, next following the "effective date" (as defined in such Rule 158)
of the Registration Statement.
(i) Absent a vote of the Board of Directors or a vote of the
shareholders, the Company will use its best efforts to meet the requirements to
qualify as a REIT under the Code.
(j) The Operating Partnership and the Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Shares, will file all documents required to be
filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act
within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the 1933 Act relating to, any additional shares of
its Common Shares or securities convertible into or exchangeable or exercisable
for any shares of its Common Shares, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior written
consent of the Representative for a period beginning at the time of execution of
this Agreement and ending ninety (90) days after the Closing Date except
issuances of Common Shares pursuant to the conversion or exchange of convertible
or exchangeable securities or the exercise of warrants or options, in each case
outstanding on the date of this Agreement, grants of employee stock options
pursuant to the terms of a plan in effect on the date of this Agreement,
issuances of Common Shares pursuant to the exercise of such options or issuances
of Common Shares pursuant to the dividend reinvestment component of the
Company's dividend reinvestment plan.
(l) The Company will use the net proceeds received by it from each sale
of Shares in the manner set forth in the Prospectus under the caption "Use of
Proceeds."
11
(m) The Company will use its best efforts to list the Shares on the New
York Stock Exchange.
Section 4. PAYMENT OF EXPENSES. The Operating Partnership and the
Company, jointly and severally, agree to pay all expenses incident to the
performance of their obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the reproduction and filing of this Agreement,
(iii) the preparation, issuance and delivery of the Shares to the Underwriters,
(iv) the fees and disbursements of the Operating Partnership's and the Company's
counsel and accountants, (v) the qualification of the Shares under state
securities laws and real estate syndication laws in accordance with the
provisions of Section 3(g), (vi) the printing and delivery to the Underwriters
of copies of the Registration Statement as originally filed and of each
amendment thereto, any Preliminary Prospectus and of the Prospectus and any
amendments or supplements thereto, (vii) the fees and expenses, if any, incurred
with respect to the listing of the Shares on any national securities exchange or
quotation system, (viii) the cost of providing any CUSIP or other identification
numbers for the Shares, (ix) the fees and expenses of any transfer agent or
depository in connection with the Shares and (x) the fees and expenses, if any,
incurred with respect to any filing with the NASD of the terms of the sale of
Shares and any related Shares.
If this Agreement is terminated by you in accordance with the provisions
of Section 5 or Section 9(b)(i) or Section 9(b)(iv), the Operating Partnership
and/or the Company shall reimburse the Underwriters named in this Agreement for
all of their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase Shares pursuant to this Agreement
are subject to the accuracy of the representations and warranties of the
Operating Partnership and the Company herein contained, to the accuracy of the
statements of the Company's officers, on behalf of the Company in its capacity
as general partner of the Operating Partnership and on behalf of the Company,
made in any certificate pursuant to the provisions hereof, to the performance by
each of the Operating Partnership and the Company of all of its covenants and
other obligations hereunder, and to the following further conditions:
(a) On the Closing Date, (i) the Base Registration Statement and the
Registration Statement shall have become effective and any and all filings
required by Rule 424 and Rule 430A of the 1933 Act shall have been made within
the applicable time period prescribed by, and in compliance with, the rules and
regulations under the 1933 Act, and any request of the Commission for additional
information (to be included in the Registration Statement or otherwise) shall
have been disclosed to the Representative and complied with, (ii) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission, (iii) the rating assigned by any nationally recognized statistical
rating organization to the Shares or other securities of the Operating
Partnership or the Company as of the execution of this Agreement shall not have
been lowered or withdrawn since such execution nor shall such rating
organization have publicly announced since such execution that it has under
surveillance or review, with possible negative implications, its rating of the
Shares or other securities of the Operating Partnership or the Company, and (iv)
there shall not have come to your attention any facts that would cause you to
believe that the Prospectus, 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 the light of the circumstances existing at such time, not
misleading.
12
(b) On the Closing Date, you shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Xxxxxx
& Xxxxxxx, counsel for the Operating Partnership and the Company,
in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) Each of the Company and the Operating Partnership is
duly qualified as a foreign corporation or partnership, as
applicable, to transact business and, based on public official
certificates, is in good standing in each jurisdiction in which a
Center is located, except where the failure to so qualify or to be
in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company, the Operating
Partnership and their subsidiaries considered as one enterprise.
(ii) The Shares have been duly authorized for issuance and
sale as contemplated by this Agreement, and when issued and
delivered by the Company against payment of the consideration
specified in this Agreement, will be validly issued, fully paid
and non-assessable.
(iii) Based solely on their knowledge and information there
are no legal or governmental proceedings pending or threatened
against the Operating Partnership, the Company, or any of their
subsidiaries which are required to be disclosed in the
Registration Statement or the Prospectus, other than those
disclosed therein.
(iv) The Registration Statement is effective under the 1933
Act. To the best of their knowledge and information, based solely
on a telephonic confirmation by a member of the staff of the
Commission on September 9, 2002, no stop order suspending the
effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or threatened by
the Commission.
(v) The Base Registration Statement, the Registration
Statement and the Prospectus, excluding the documents incorporated
by reference therein, and each amendment or supplement thereto
(including any Rule 462 (b) Registration Statement), as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements for registration
statements on Form S-3 under the 1933 Act and the 1933 Act
Regulations; it being understood, however, that no opinion need be
rendered with respect to the financial statements, schedules and
other financial and statistical data derived from the financial
statements and schedules included or incorporated by reference in,
or omitted from, the Registration Statement or the Prospectus (in
passing as to form, such counsel may assume that the statements
made therein are correct and complete).
(vi) Each document filed pursuant to the 1934 Act (other
than the financial statements, schedules and other financial and
statistical data derived from the financial statements and
schedules included in or omitted from such documents, as to which
no opinion need be rendered) and incorporated or deemed to be
incorporated by reference in the Prospectus complied when so filed
as to form in all material respects with the 1934 Act and the 1934
Act Regulations (in passing as to form, such counsel may assume
that the statements made therein are correct and complete).
13
(vii) No authorization, approval, permit or consent, in
each case, under any federal statute, rule or regulation
applicable to the Company or the Operating Partnership, is
required that has not been obtained in connection with the
consummation by the Operating Partnership, or the Company, or any
of their subsidiaries of the transactions contemplated by this
Agreement.
(viii) The Operating Partnership and the Company are not
and, immediately after giving effect to the sale of the Shares in
accordance with this Agreement and the application of the proceeds
as described in the Prospectus under the caption "Use of
Proceeds", will not be required to be registered as an "investment
company" within the meaning of the Investment Company Act of 1940,
as amended.
(ix) Commencing with the Company's taxable year ended
December 31, 1993, the Company has been organized and has operated
in conformity with the requirements for qualification and taxation
as a REIT under the Code and its proposed method of operation will
enable it to meet the requirements for qualification and taxation
as a REIT under the Code.
(x) To the best of their knowledge and information, there
are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be filed as exhibits to
the Registration Statement other than those filed as exhibits
thereto.
(xi) To the best of their knowledge and information, the
execution and delivery of this Agreement, and the consummation of
the transactions contemplated herein and compliance by each of the
Operating Partnership, the Company, and their subsidiaries with
its obligations hereunder and thereunder, assuming application of
the proceeds of the Shares in accordance with the Prospectus, will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Operating
Partnership, the Company, or any of their subsidiaries pursuant to
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Operating Partnership, the Company
or their subsidiaries is a party or by which it or either of them
may be bound or to which any of the properties or assets of the
Operating Partnership, the Company, or any of their subsidiaries
is subject and which has been identified by the Operating
Partnership or the Company as a material contract, indenture,
mortgage, loan agreement, note, lease or other instrument or which
has been filed as an exhibit to the Registration Statement or any
document incorporated by reference therein or any applicable law,
statute, administrative regulation or administrative or court
order or decree known to them.
(xii) The Shares conform in all material respects to the
statements relating thereto contained in the Prospectus.
(xiii) The statements set forth in the Prospectus under the
captions "Description of Common Shares," "Material Federal Income
Tax Considerations to Tanger Factory Outlet Centers, Inc." and
"Tax Aspects of the Operating Partnership" or any other caption
purporting to cover such matters, to the extent such statements
constitute matters of law, summaries of legal matters, or legal
conclusions, have been reviewed by them and are accurate
descriptions or summaries in all material respects.
14
(2) The favorable opinion, dated as of the Closing Date, of Vernon,
Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A., counsel for the Company
and the Operating Partnership, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of North
Carolina.
(ii) The Operating Partnership has been duly formed and is validly
existing as a limited partnership in good standing under the laws of the
State of North Carolina; the GP Trust is the sole general partner of the
Operating Partnership.
(iii) All of the partnership interests of the Operating
Partnership have been issued in accordance with the Agreement of Limited
Partnership and the capital contributions of each partner (or its
predecessor in interest) described in the Agreement of Limited
Partnership have been fully paid.
(iv) The partnership interests of the Operating Partnership owned
by the GP Trust have been issued in accordance with the Agreement of
Limited Partnership and the capital contributions of the Company
described in the Agreement of Limited Partnership have been fully paid
and such partnership interests are owned free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(v) Each of the Operating Partnership, the Company, and their
subsidiaries, if any, has the partnership, corporate or limited liability
company power, as applicable, required under North Carolina law (without
reference to, or consideration of, the requirements of jurisdictions
other than North Carolina in which its properties are located or its
business is conducted) to own, lease and operate its properties and to
conduct its business as described in the Prospectus.
(vi) Each of the Company and the Operating Partnership is duly
qualified as a foreign corporation or partnership, as applicable, to
transact business and is in good standing in each jurisdiction in which
it owns or leases real property, except where the failure to so qualify
or to be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company, the Operating Partnership and their
subsidiaries considered as one enterprise.
(vii) The issued and outstanding shares of capital shares of the
Company are as stated in the Prospectus under the headings "Description
of Common Shares," "Description of Preferred Shares" and "Capitalization"
as of the date set forth therein; and such shares have been duly
authorized, validly issued, fully paid and non-assessable and to the best
of their knowledge and information, are not subject to preemptive or
other similar rights.
(viii) This Agreement has been duly authorized, executed and
delivered by the Operating Partnership and the Company.
(ix) The Shares being sold pursuant to this Agreement have been
duly authorized for issuance and sale as contemplated by this Agreement,
and when issued and
15
delivered against payment therefor in accordance with this Agreement,
will be validly issued, fully paid and non-assesable.
(x) The Agreement of Limited Partnership has been duly authorized,
executed and delivered by the parties thereto and is a valid and binding
agreement of each of the parties thereto, enforceable in accordance with
its terms, except as may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xi) The GP Trust is the sole general partner of the Operating
Partnership and is entitled to all rights, benefits, interests and
preferences as a general partner of a North Carolina limited partnership
under the laws of the State of North Carolina and the Agreement of
Limited Partnership (including, without limitation, those rights,
benefits, interests and preferences afforded to the GP Trust as a holder
of the partnership units under the Agreement of Limited Partnership),
except as may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xii) To their actual knowledge and information, all pending legal
or governmental proceedings which are not described in the Prospectus,
including ordinary routine litigation, to which the Company or the
Operating Partnership is a party or to which the Centers are subject and
(i) in which a claim is asserted against the Company or the Operating
Partnership for the recovery of money, for the imposition of an equitable
remedy or for the assessment of a fine or penalty or (ii) in which a
claim is asserted which would result in the creation or imposition of any
lien, charge or encumbrance upon any of the properties of the Company or
the Operating Partnership are considered by them in the aggregate not
material. For these purposes, materiality shall have the same meaning as
that term has for the certified public accounting firm that audits the
financial statements included in any applicable Registration Statement
and Prospectus.
(xiii) To the best of their actual knowledge and information, no
material default exists in the Company's or Operating Partnership's due
performance or observance of any material obligation, agreement, covenant
or condition imposed upon the Company or the Operating Partnership in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument described or referred to in the Registration Statement or
filed as an exhibit thereto which would have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company, the Operating Partnership and their
subsidiaries considered as one enterprise.
(xiv) They have no actual knowledge or information that would lead
them to believe that the execution and delivery of this Agreement, and,
assuming facts in existence as of the date of the opinion, the
consummation of the transactions contemplated herein and compliance by
the Company and the Operating Partnership with their obligations
hereunder violate its agreement of limited partnership, charter, by-laws,
or other organizational documents, as applicable, conflict with or
constitute a breach by the Company or the Operating Partnership of, or
default by the Company or the Operating Partnership under, or result in
the creation or imposition of any lien, charge or
16
encumbrance upon any property or assets of the Company or the Operating
Partnership pursuant to any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument of which they have actual
knowledge and to which the Company or the Operating Partnership is a
party or by which either of them may be bound or to which any of the
property or assets of the Company or the Operating Partnership is
subject.
(3) The favorable opinion, dated as of the Closing Date, of Xxxxxxxx
Chance Xxxxxx & Xxxxx LLP, counsel for the Underwriters, with respect to
certain matters reasonably requested by the Underwriters.
(4) In giving their opinions required by subsections (b)(1), (b)(2) and
(b)(3), respectively, of this Section, Xxxxxx & Xxxxxxx, Xxxxxx, Xxxxxx,
Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A. and Xxxxxxxx Chance Xxxxxx & Xxxxx
LLP shall each additionally state that nothing has come to their
attention that would lead them to believe that the Registration Statement
or any amendment thereto (except for financial statements and schedules
and other financial data, as to which counsel need make no statement), at
the time it became effective (or, if an amendment to the Registration
Statement or an Annual Report on Form 10-K has been filed by the
Operating Partnership or the Company with the Commission subsequent to
the effectiveness of the Registration Statement, then at the time such
amendment becomes effective or at the time of the most recent filing of
any such Annual Report, as the case may be) or at the date of this
Agreement, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and
schedules and other financial data, as to which counsel need make no
statement), at the date of this Agreement or at the Closing Date,
included or includes an untrue statement of a material fact or omitted or
omits 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. In giving their opinions required by subsections (b)(1),
(b)(2) and (b)(3), respectively, of this Section, Xxxxxx & Xxxxxxx,
Xxxxxx, Xxxxxx, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A. and Xxxxxxxx
Chance Xxxxxx & Xxxxx LLP may rely, as to all matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Operating Partnership and the Company, and with
respect to certain other matters, upon certificates of appropriate
government officials in such jurisdiction, and Xxxxxx & Xxxxxxx and
Xxxxxxxx Chance Xxxxxx & Xxxxx LLP may additionally rely, as to matters
involving the laws of the State of North Carolina, upon the opinion of
Vernon, Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A. (or other counsel
reasonably satisfactory to counsel for the Underwriters) in form and
substance satisfactory to counsel for the Underwriters.
(c) On the Closing Date, there shall not have been, since the date of
this Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company, the Operating Partnership and their subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; no
proceedings shall be pending or, to the knowledge of the Operating Partnership
or the Company threatened against the Operating Partnership, the Company, any of
their subsidiaries or any of the Centers before or by any Federal, state or
other commission, board or administrative agency wherein an unfavorable
decision, ruling or finding would be reasonably expected and which would
materially and adversely affect the business, property, financial condition or
income of the Company, the Operating Partnership and their subsidiaries,
considered as one enterprise; and you shall have received a certificate of the
President or Chief Executive Officer or a Vice President of the Company
17
and of the chief financial or chief accounting officer of the Company in such
capacity, and of the general partner of the Operating Partnership, dated as of
the Closing Date, to the effect that (i) there has been no such material adverse
change or proceedings and (ii) the representations and warranties in Section 1
are true and correct as of the Closing Date.
(d) At the time of execution of this Agreement, you shall have received a
letter dated such date from PricewaterhouseCoopers LLP, in form and substance
satisfactory to you, to the effect that (i) they are independent public
accountants with respect to the Operating Partnership and the Company, and their
subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations
thereunder; (ii) it is their opinion that the consolidated financial statements
and financial statement schedules of the Operating Partnership and its
subsidiaries and of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus and audited by them
and covered by their opinions therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations; (iii) they have performed limited procedures, not constituting an
audit, including a reading of the latest available unaudited interim
consolidated financial statements of the Operating Partnership and the Company,
a reading of the minute books of the Company, inquiries of certain officials of
the Operating Partnership or the Company who have responsibility for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such limited review and procedures
(which shall include, without limitation, the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial Information,
with respect to the unaudited condensed consolidated financial statements of the
Operating Partnership and its subsidiaries and the Company and its subsidiaries
included or incorporated by reference in the Registration Statement and the
Prospectus), nothing has come to their attention which causes them to believe
(A) that any material modifications should be made to the unaudited condensed
financial statements of the Operating Partnership and its subsidiaries or the
Company and its subsidiaries included in the Registration Statement and the
Prospectus for them to be in conformity with generally accepted accounting
principles or that such unaudited financial statements do not comply as to form
in all material respects with the applicable accounting requirements of the 1934
Act and the 1934 Act Regulations, (B) the unaudited financial data of the
Operating Partnership and the Company in the Registration Statement and the
Prospectus under the caption "Selected Financial Data," if any, was not
determined on a basis substantially consistent with that used in determining the
corresponding amounts in the applicable audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus, or
(C) at a specified date not more than three days prior to the date of this
Agreement, there has been any change in the partners' capital of the Operating
Partnership or the capital stock of the Company or any increase in the debt of
the Operating Partnership and its subsidiaries or the Company and its
subsidiaries or any decrease in consolidated net current assets or net assets of
the Operating Partnership or the Company, as compared with the amounts shown in
the most recent consolidated balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus or, during the period from the
date of the most recent consolidated statement of operations included or
incorporated by reference in the Registration Statement and the Prospectus to a
specified date not more than three days prior to the date of this Agreement,
there were any decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues, operating income, funds from
operations, net income or net income per share (in the case of the Company) of
the Operating Partnership and its subsidiaries or the Company and its
subsidiaries, except in all instances for changes, increases or decreases which
the Registration Statement and the Prospectus disclose have occurred or may
occur; (iv) they have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302 and 503(d), respectively, of Regulation S-K; and
(v) in addition to the examination referred to in their
18
opinion and the limited procedures referred to in clause (iii) above, they have
carried out certain specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial information which are
included or incorporated by reference in the Registration Statement and the
Prospectus and which are specified by you, and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Operating Partnership and its
subsidiaries or the Company and its subsidiaries, as the case may be, identified
in such letter.
(e) On the Closing Date, you shall have received a letter, dated as of
the Closing Date, from PricewaterhouseCoopers LLP, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (d)
of this Section, except that the "specified date" referred to shall be a date
not more than three days prior to the Closing Date.
(f) If applicable, at the time of the execution of this Agreement, you
shall have received a letter dated such date from such independent accountants
that have prepared any historical financial statements included in or
incorporated by reference into the Registration Statement and Prospectus which
financial statements relate to properties or assets acquired or to be acquired
by the Operating Partnership or the Company, or any of their subsidiaries, in
form and substance satisfactory to the Underwriters, to the effect that (i) they
are independent accountants with respect to the Operating Partnership or the
Company, as the case may be, and such properties or assets acquired by the
Operating Partnership or the Company, as the case may be, within the meaning of
the 1933 Act and the 1933 Act Regulations; and (ii) it is their opinion that the
historical financial statements for such properties or assets that have been
audited by them and covered by their opinions included or incorporated by
reference into the Registration Statement and the Prospectus comply in form in
all material respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations.
(g) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Shares as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Operating
Partnership and the Company in connection with the issuance and sale of the
Shares, as herein contemplated shall be satisfactory in form and substance to
you and counsel for the Underwriters.
(h) On or prior to the date of this Agreement, the Representative shall
have received lockup letters, in the form provided in Exhibit A-1, from each of
the executive officers and directors of the Company, other than Xxxxxxx X.
Xxxxxx and Xxxxxx X. Xxxxxx, each of whom shall provide lock-up letters in the
form provided in Exhibit A-2.
(i) In the event that the Underwriters exercise their option, if any,
provided in this Agreement as set forth in Section 2(b) hereof to purchase all
or any portion of the Option Shares, the representations and warranties of the
Operating Partnership and the Company contained herein and the statements in any
certificates furnished by the Operating Partnership and the Company hereunder
shall be true and correct as of the Option Closing Date and, at the Option
Closing Date, you shall have received:
(1) A certificate, dated the Option Closing Date, of the President and
Chief Executive Officer or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company on behalf of
the Company and on behalf of the Company in its capacity as general
partner of the Operating Partnership confirming that the certificate
delivered at the Closing Date pursuant to Section 5(c) hereof remains
true and correct as of the Option Closing Date.
19
(2) The favorable opinion of Xxxxxx & Xxxxxxx, counsel for the Operating
Partnership and the Company, in form and substance satisfactory to
counsel for the Underwriters, dated the Option Closing Date, relating to
the Option Shares to be purchased on the Option Closing Date and
otherwise to the same effect as the opinion required by Sections 5(b)(1)
and 5(b)(4) hereof.
(3) The favorable opinion of Vernon, Vernon, Wooten, Brown, Xxxxxxx &
Xxxxxxx, P.A., counsel for the Company and the Operating Partnership in
form and substance reasonably satisfactory to counsel for the
Underwriters, dated the Option Closing Date, relating to the Option
Shares and otherwise to the same effect as the opinion required by
Sections 5(b)(2) and 5(b)(4) hereof.
(4) The favorable opinion of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel
for the Underwriters, dated the Option Closing Date, relating to the
Option Shares to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Sections 5(b)(3) and 5(b)(4)
hereof.
(5) A letter from PricewaterhouseCoopers LLP, in form and substance
satisfactory to you and dated the Option Closing Date, substantially the
same in form and substance as the letter furnished to you pursuant to
Section 5(d) hereof, except that the "specified date" in the letter
furnished pursuant to this Section 5(i)(5) shall be a date not more than
three days prior to the Option Closing Date.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by you by
notice to the Operating Partnership or the Company at any time at or prior to
the Closing Date or the Option Closing Date, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
Section 6. INDEMNIFICATION. (a) The Operating Partnership and the
Company, jointly and severally,hereby agrees to indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act and
Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 434 information,
if any, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in the Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the indemnifying party; and
20
(3) against any and all expense (including, the fees and disbursements of
counsel chosen by you) whatsoever, as incurred, which has been reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceedings by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (1) or
(2) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership or the Company by any Underwriter through you expressly for use in
the Registration Statement (or any amendment thereto) and the Prospectus (or any
amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Operating Partnership and the Company, the directors, each of the officers who
signed the Registration Statement and each person, if any, who controls the
Operating Partnership or the Company within the meaning of Section 15 of the
1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through you expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto); PROVIDED
FURTHER, that with respect to any preliminary prospectus, such indemnity shall
not inure to the benefit of any Underwriter (or the benefit of any person
controlling such Underwriter) if the person asserting any such losses,
liabilities, claims, damages or expenses purchased the Shares which are the
subject thereof from such Underwriter and if such person was not sent or given a
copy of the Prospectus (excluding any documents incorporated therein by
reference) at or prior to confirmation of the sale of such Shares to such person
in any case where such sending or giving is required by the 1933 Act and the
untrue statement or omission of a material fact contained in any preliminary
prospectus was corrected in the Prospectus and the Prospectus was delivered to
such Underwriter a reasonable amount of time prior to the date of delivery of
such confirmation.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. In the
case of parties indemnified pursuant to the first paragraph of Section 6(a)
above, counsel to the indemnified parties shall be selected by the
Representative, and in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company and
the Operating Partnership. An indemnifying party may participate at its own
expense in the defense of such action. If it so elects within a reasonable time
after receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to them
which are different from or in addition to those available to such indemnifying
party. If an indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in
21
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
If at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(2) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
Notwithstanding anything to the contrary contained herein, if indemnity
is sought pursuant to the second paragraph of Section 6(a), then, in addition to
the fees and expenses of counsel for the Indemnified Persons, the Indemnifying
Person shall be liable for the fees and expenses of not more than one firm (in
addition to any local counsel) separate from its own counsel.
Section 7. CONTRIBUTION. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company or the
Operating Partnership, on the one hand, and the Underwriters and the Independent
Underwriter, if any, on the other hand, from the offering of the Shares pursuant
to this Agreement or (ii) if the allocation provided by clause (i) 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 or the Operating Partnership, on the one hand, and of the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company or the Operating
Partnership, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Shares pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the Shares (before deducting expenses) received by the Company
or the Operating Partnership and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus.
The relative fault of the Company or the Operating Partnership on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Operating Partnership or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
22
The Company, the Operating Partnership, the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages, which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement on behalf of the Company as general partner of the
Operating Partnership or on behalf of the Company itself, and each person, if
any, who controls the Operating Partnership or the Company within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Operating Partnership and the Company. The Underwriter's respective obligations
to contribute pursuant to this Section 7 are several in proportion to the
aggregate principal amount of the Shares set forth opposite their respective
names in Schedule I hereto and not joint. For purposes of this Section 7, the
Operating Partnership, the Company, and their subsidiaries shall be deemed one
party jointly and severally liable for any obligations hereunder.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Operating Partnership
and the Company submitted pursuant hereto or thereto, shall remain operative and
in full force and effect, regardless of any termination of this Agreement, or
investigation made by or on behalf of any Underwriter or any controlling person,
or by or on behalf of the Operating Partnership or the Company, and shall
survive delivery of and payment for the Shares.
Section 9. TERMINATION OF AGREEMENT. (a) This Agreement may be terminated
for any reason at any time by the Operating Partnership, the Company or by you
upon the giving of 30 days' written notice of such termination to the other
parties hereto.
(b) You may also terminate this Agreement, by notice to the Operating
Partnership or the Company, at any time at or prior to the Closing Date or the
Option Closing Date, if (i) if there has been, since the date of this Agreement
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company, the Operating Partnership, and their subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (ii)
except as disclosed in the Prospectus, if any proceeding shall be pending or, to
the knowledge of the Operating
23
Partnership or the Company threatened against the Operating Partnership, the
Company, any of their subsidiaries or any of the Centers before or by any
Federal, state or other commission board or administrative agency wherein an
unfavorable decision, ruling or finding would reasonably be expected to
materially and adversely affect the business, property, financial condition or
income of the Company, the Operating Partnership and their subsidiaries,
considered as one enterprise, (iii) if there has occurred any material adverse
change in the financial markets in the United States or if there has occurred
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in your judgment, impracticable to market
the Shares or to enforce contracts for the sale of the Shares, or (iv) if
trading in any of the securities of the Operating Partnership or the Company has
been suspended or limited by the Commission or the New York Stock Exchange, or
if trading generally on either the New York Stock Exchange, the American Stock
Exchange or the NASDAQ National Market has been suspended or limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal or New York authorities or if there shall have
occurred a material disruption in commercial banking or securities settlement or
clearance services in the United States.
(c) In the event of any such termination, (x) the covenants set forth in
Section 3 with respect to any offering of Shares shall remain in effect so long
as any Underwriter owns any such Shares purchased from the Company pursuant to
the this Agreement and (y) the covenant set forth in Section 3(h) hereof, the
provisions of Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 6 and 7 hereof, and the provisions of Sections 8 and 13 hereof
shall remain in effect.
Section 10. [Intentionally Left Blank]
Section 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Credit Suisse First Boston Corporation, Eleven
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of Xxxxxxx Xxxxx,
Director; and notices to the Operating Partnership and the Company shall be
directed to either of them at 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000, attention of Xxxxxxx X. Xxxxxx.
Section 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon you and the Operating Partnership, the Company and any Underwriter
who becomes a party to this Agreement, and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than those referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties hereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Shares from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
Section 13. GOVERNING LAW AND TIME. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State.
24
Section 14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and if executed in more than one counterpart the executed
counterparts shall constitute a single instrument.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Operating Partnership a
counterpart hereof, whereupon this instrument, along with all counterparts will
become a binding agreement between you, the Operating Partnership and the
Company in accordance with its terms.
Very truly yours,
TANGER FACTORY OUTLET CENTERS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman, CEO and Founder
TANGER PROPERTIES LIMITED PARTNERSHIP
By: Tanger GP Trust
(its general partner)
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman, CEO and Founder
CONFIRMED AND ACCEPTED, as of the date first above written:
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Authorized Signatory
26
SCHEDULE I
----------------------------------------- -------------------------------------
UNDERWRITER SHARES
----------------------------------------- -------------------------------------
Credit Suisse First Boston Corporation 1,000,000
----------------------------------------- -------------------------------------
27
EXHIBIT A-1
September __, 2002
Tanger Factory Outlet Centers, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering will be made that is intended to result
in an orderly market for an issuance of common stock (the "SECURITIES") of
Tanger Factory Outlet Centers, Inc., and any successor (by merger or otherwise)
thereto, (the "COMPANY"), the undersigned hereby agrees that from the date
hereof and until 60 days after the public offering date set forth on the final
prospectus used to sell the Securities (the "PUBLIC OFFERING DATE") pursuant to
the Underwriting Agreement, to which you are or expect to become parties, the
undersigned will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any shares of Securities or securities convertible
into or exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such other
securities, in cash or otherwise, or publicly disclose the intention to make any
such offer, sale, pledge or disposition, or to enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior written
consent of Credit Suisse First Boston Corporation. In addition, the undersigned
agrees that, without the prior written consent of Credit Suisse First Boston
Corporation, it will not, during the period commencing on the date hereof and
ending 90 days after the Public Offering Date, make any demand for or exercise
any right with respect to, the registration of any Securities or any security
convertible into or exercisable or exchangeable for the Securities.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities acquired by
the undersigned in the open market will not be subject to this Agreement. A
transfer of Securities to a family member or trust may be made, provided the
transferee agrees to be bound in writing by the terms of this Agreement.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void if the Public Offering Date shall not have
occurred on or before September 30, 2002.
Very truly yours,
------------------------------------
Name:
Title:
28
EXHIBIT A-2
September __, 2002
Tanger Factory Outlet Centers, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering will be made that is intended to result
in an orderly market for an issuance of common stock (the "SECURITIES") of
Tanger Factory Outlet Centers, Inc., and any successor (by merger or otherwise)
thereto, (the "COMPANY"), the undersigned hereby agrees that from the date
hereof and until 90 days after the public offering date set forth on the final
prospectus used to sell the Securities (the "PUBLIC OFFERING DATE") pursuant to
the Underwriting Agreement, to which you are or expect to become parties, the
undersigned will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any shares of Securities or securities convertible
into or exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such other
securities, in cash or otherwise, or publicly disclose the intention to make any
such offer, sale, pledge or disposition, or to enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior written
consent of Credit Suisse First Boston Corporation. In addition, the undersigned
agrees that, without the prior written consent of Credit Suisse First Boston
Corporation, it will not, during the period commencing on the date hereof and
ending 90 days after the Public Offering Date, make any demand for or exercise
any right with respect to, the registration of any Securities or any security
convertible into or exercisable or exchangeable for the Securities.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities acquired by
the undersigned in the open market will not be subject to this Agreement. A
transfer of Securities to a family member or trust may be made, provided the
transferee agrees to be bound in writing by the terms of this Agreement.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void if the Public Offering Date shall not have
occurred on or before September 30, 2002.
Very truly yours,
------------------------------------
Name:
Title:
29
