36,389,617 Shares CROWN CASTLE INTERNATIONAL CORP. COMMON STOCK, PAR VALUE $0.01 PER SHARE UNDERWRITING AGREEMENT June 28, 2007
Exhibit
10.1
36,389,617
Shares
COMMON
STOCK, PAR VALUE $0.01 PER SHARE
June
28,
2007
June
28,
2007
Xxxxxx
Xxxxxxx & Co. Incorporated
Xxxxx
& Company LLC
Banc
of
America Securities LLC
c/o
Morgan Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
Certain
stockholders (the “Selling Shareholders”) of Crown Castle
International Corp., a Delaware corporation (the “Company”),
named in Schedule I hereto, severally propose to sell to the several
underwriters named in Schedule II hereto (the “Underwriters”),
for whom you are acting as managers (the “Managers”), an
aggregate of 36,389,617 shares of the common stock, par value $0.01 per share,
of the Company (the “Firm Shares”), each Selling Shareholder
selling the amount of Firm Shares set forth opposite such Selling Shareholder’s
name in Schedule I hereto. The Firm Shares are hereinafter
collectively referred to as the “Shares.” The
outstanding shares of common stock, par value $0.01 per share, of the Company
are hereinafter referred to as the “Common Stock.”
The
Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement (the file number of
which is set forth in Schedule III hereto), including a prospectus, on Form
S-3,
relating to the securities (the “Shelf Securities”), including
the Shares, to be sold from time to time by the stockholders identified in
the
prospectus, including the Selling Shareholders. The registration
statement as amended to and including the date of this Agreement, including
the
information, if any, deemed to be part of the registration statement at the
time
of effectiveness pursuant to Rule 430A or Rule 430B under the
Securities Act of 1933, as amended (the “Securities Act”), that
has not been superseded or modified, is hereinafter referred to as the
“Registration Statement,” and the related prospectus covering
the Shelf Securities dated February 5, 2007 in the form first used to confirm
sales of the Shares (or in the form first made available to the Underwriters
by
the Company to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “Basic
Prospectus.” The Basic Prospectus, as supplemented by the
prospectus supplement specifically relating to the Shares in the form first
used
to confirm sales of the Shares (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers
pursuant
to Rule 173 under the Securities Act) is hereinafter referred to as the
“Prospectus,” and the term “preliminary
prospectus” means any preliminary form of the
Prospectus. For purposes of this Agreement, “free writing
prospectus” has the meaning set forth in Rule 405 under the Securities
Act, “Time of Sale Prospectus” means the preliminary prospectus
together with the free writing prospectuses, if any, each identified in Schedule
III hereto, and “broadly available road show” means a “bona
fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act
that has been made available without restriction to any person. As
used herein, the terms “Registration Statement,” “Basic Prospectus,”
“preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall
include the documents, if any, incorporated by reference therein. The
terms “supplement,” “amendment,” and
“amend” as used herein with respect
to the Registration
Statement, the Basic Prospectus, the Time of Sale Prospectus, any preliminary
prospectus or free writing prospectus shall include all documents subsequently
filed by the Company with the Commission pursuant to the Securities Exchange
Act
of 1934, as amended (the “Exchange Act”), that are deemed to be
incorporated by reference therein. “Applicable Time”
means 4:15 p.m., New York City time, on June 28, 2007.
1. Representations
and Warranties of the Company. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings
for
such purpose are pending before or, to the knowledge of the Company, threatened
by the Commission. The Registration Statement is an automatic shelf
registration statement as defined in Rule 405 under the Securities Act and
the
Company is a well-known seasoned issuer (as defined in Rule 405 under the
Securities Act) eligible to use the Registration Statement as an automatic
shelf
registration statement and the Company has not received notice that the
Commission objects to the use of the Registration Statement as an automatic
shelf registration statement.
(b) (i)
Each
document filed or to be filed pursuant to the Exchange Act and incorporated
by
reference in the Registration Statement, the Time of Sale Prospectus or the
Prospectus complied or will comply when so filed in all material respects
with
the Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part
became
effective, did not contain, and each such part, as amended or supplemented,
if
applicable, will not contain, any untrue statement of a material fact or
omit to
state a material fact required to be stated therein or necessary to make
the
statements therein not misleading, (iii) the Registration Statement as of
the
date hereof does not contain any untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary to make
the
statements therein not misleading, (iv) the Registration Statement as of
the
date hereof complies, and the Prospectus as of its date will comply, and
the
Registration Statement and the Prospectus, as amended or supplemented,
if
2
applicable,
as of the Closing Date (as defined in Section 5) will comply, in all material
respects with the Securities Act and the applicable rules and regulations
of the
Commission thereunder, (v) the Time of Sale Prospectus at the Applicable
Time
will not contain, and at the time of each sale of the Shares after the
Applicable Time in connection with the offering when the Prospectus is
not yet
available to prospective purchasers and at the Closing Date (as defined
in
Section 5), the Time of Sale Prospectus, as then amended or supplemented
by the
Company, if applicable, will not contain, any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein,
in the light of the circumstances under which they were made, not misleading,
(vi) each broadly available road show, if any, when considered together
with the
Time of Sale Prospectus, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein,
in the light of the circumstances under which they were made, not misleading
and
(vii) the Prospectus as of its date will not contain, and the Prospectus,
as
amended or supplemented, if applicable, as of the Closing Date will not
contain,
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations
and
warranties set forth in this paragraph do not apply to statements or omissions
in the Registration Statement, the Time of Sale Prospectus or the Prospectus
based upon information relating to any Underwriter furnished to the Company
in
writing by such Underwriter through the Managers expressly for use
therein.
(c) The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed in connection with the offering of
the
Shares, or is required to file in connection with the offering of the Shares,
pursuant to Rule 433(d) under the Securities Act or that was prepared by
or on
behalf of or used or referred to by the Company complies or will comply in
all
material respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. Except for the
free writing prospectuses, if any, identified in Schedule III hereto forming
part of the Time of Sale Prospectus, and electronic road shows, if any, each
furnished to you before first use, the Company has not prepared, used or
referred to, and will not, without your prior consent, prepare, use or refer
to,
any free writing prospectus.
(d) Neither
the Company nor any of its subsidiaries has sustained, since the date of
the
latest audited financial statements incorporated by reference into the
Registration Statement, the Time of Sale Prospectus and the Prospectus, any
loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
3
contemplated
in the Time of Sale Prospectus and the Prospectus or as would not reasonably
be
expected, in the aggregate, to result in a Material Adverse Effect (as
defined
below); and, since the respective dates as of which information is given
in the
Time of Sale Prospectus and the Prospectus, there has not been any change
in the
capital stock or long-term debt of the Company or any of its subsidiaries
or any
material adverse change, or any development involving a prospective material
adverse change, except such as are described in the Time of Sale Prospectus
and
the Prospectus or such as would not be reasonably expected, in the aggregate,
to
result in a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and the Material
Subsidiaries (as defined in Section 1(g)), taken as a whole, or prevent
or
materially interfere with the consummation of the transactions contemplated
hereby (a “Material Adverse Effect”).
(e) The
Company and each of its subsidiaries have good and marketable title to all
real
property and good and marketable title to all personal property owned by
them,
in each case free and clear of all liens, encumbrances and defects except
such
as are described in the Time of Sale Prospectus and the Prospectus or would
not
reasonably be expected, in the aggregate, to have a Material Adverse Effect;
and
any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as would not be reasonably expected, in the aggregate,
to
result in a Material Adverse Effect.
(f) The
Company is a corporation duly incorporated and validly existing and in good
standing under the laws of the State of Delaware with all requisite corporate
power and authority to own, lease and operate its properties and to conduct
its
business as described in the Time of Sale Prospectus and the Prospectus,
and is
duly registered and qualified to conduct its business and is in good standing
in
each jurisdiction or place where the nature of its properties or the conduct
of
its business requires such registration or qualification, except where the
failure so to register or qualify or to be in good standing would not have
a
Material Adverse Effect; and each subsidiary of the Company has been duly
incorporated or formed, as the case may be, and is validly existing as a
corporation, limited partnership, limited liability company or other legal
entity in good standing or the equivalent under the laws of its jurisdiction
of
incorporation or formation, as the case may be.
(g) Each
subsidiary of the Company that constitutes a “significant subsidiary,” as such
term is defined in Rule 405 of the rules and regulations under the Securities
Act, is included in the list of subsidiaries of the Company set forth on
Schedule IV hereto (each such subsidiary listed on Schedule IV hereto, a
“Material Subsidiary” and, collectively, the “Material
Subsidiaries”).
(h) The
Company has an authorized capitalization as set forth in the Time of Sale
Prospectus and the Prospectus, and all of the issued shares of Common Stock
(including the Shares) have been duly and validly authorized and
4
issued,
are fully paid and non-assessable and conform to the description of the
Common
Stock contained in the Time of Sale Prospectus and the Prospectus; and
all of
the issued shares of capital stock of each subsidiary of the Company have
been
duly and validly authorized and issued, are fully paid and non-assessable
and
are owned directly or indirectly by the Company, free and clear of all
liens,
encumbrances, equities or claims, except as set forth in the Time of Sale
Prospectus and the Prospectus.
(i) Neither
the Company nor any of its subsidiaries, nor, to the knowledge of the Company,
any of their respective affiliates, has taken any action which is designed
to or
which has constituted or which might have been reasonably expected to cause
or
result in stabilization or manipulation of the price of any security of the
Company in connection with the offering of the Shares.
(j) The
sale
of the Shares hereunder and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
contemplated herein will not conflict with or result in a breach or violation
of
any of the terms or provisions of or, with the giving of notice or the lapse
of
time or both, constitute a default under, (A) any indenture, mortgage, deed
of
trust, loan agreement or other agreement or instrument to which the Company
or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, (B) the provisions of the charter,
by-laws or other constitutive documents of the Company or any of its
subsidiaries or (C) any statute or any order, rule or regulation of any court
or
governmental agency or body having jurisdiction over the Company or any of
its
subsidiaries or any of their properties or assets except in the cases of
clause
(A) or (C), such breaches, violations or defaults that in the aggregate would
not have a Material Adverse Effect; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the sale of the Shares or the consummation
by the
Company of the transactions contemplated by this Agreement, except (1) such
as
may be required under the Securities Act, the Exchange Act and applicable
Blue
Sky or foreign securities laws in connection with the purchase and distribution
of the Shares by the Underwriters or as have already been obtained or made
and
(2) where the failure to obtain or make such consents, approvals,
authorizations, registrations or qualifications would not, individually or
in
the aggregate, have a Material Adverse Effect.
(k) Neither
the Company nor any of its subsidiaries (A) is in violation of its charter,
by-laws or other constitutive documents, (B) is in default and no event has
occurred which, with notice or lapse of time or both, would constitute such
a
default, in the due performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan agreement
or
other agreement or instrument to which it is a party or by which it is bound
or
to which any of its properties or assets is subject or (C) is in violation
of
any law, ordinance, governmental rule, regulation or court decree to which
it or
its
5
property
or assets may be subject or has failed to obtain any material license,
permit,
certificate, franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its business, except
for,
in the cases of clause (B) or (C), such defaults, violations or failures
to
obtain that in the aggregate would not have a Material Adverse
Effect.
(l) The
statements contained in (A) the Time of Sale Prospectus and the Prospectus
under
the captions “Description of Common Stock” and “Material United States Federal
Tax Consequences for Non-U.S. Stockholders",” (B) the Prospectus under the
caption “Underwriters” and (C) the Registration Statement in Item 15,
insofar as they are descriptions of contracts, agreements or other legal
documents, or refer to statements of law or legal conclusions, are accurate
in
all material respects and present fairly the information purported to be
described therein.
(m) Other
than as set forth in the Time of Sale Prospectus and the Prospectus, there
are
no legal or governmental proceedings pending to which the Company or any
of its
subsidiaries is a party or of which any property of the Company or any of
its
subsidiaries is the subject which, if determined adversely to the Company
or any
of its subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to the best of the Company’s knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by
others.
(n) Each
preliminary 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 Securities Act, complied when so filed in all material respects with
the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(o) The
Company is not, and after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the Prospectus
will
not be, required to register as an “investment company” as such term is defined
in the Investment Company Act of 1940, as amended.
(p) There
has
been no storage, disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes, hazardous wastes or
hazardous substances by the Company or any of its subsidiaries (or, to the
knowledge of the Company, any of their predecessors in interest) at, upon
or
from any of the property now or previously owned or leased by the Company
or any
of its subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which would
not
have, or could not be reasonably likely to have, singularly or in the aggregate,
a Material Adverse Effect; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto
6
such
property or into the environment surrounding such property of any toxic
wastes,
medical wastes, solid wastes, hazardous wastes or hazardous substances
due to or
caused by the Company or any of its subsidiaries or with respect to which
the
Company or any of its subsidiaries has knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release which
would not
have or would not be reasonably likely to have, singularly or in the aggregate,
a Material Adverse Effect; and the terms “hazardous wastes,” “toxic wastes,”
“hazardous substances” and “medical wastes” shall have the meanings specified in
any applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
(q) Except
as
set forth in the Registration Statement, the Time of Sale Prospectus and
the
Prospectus, there are no contracts, agreements or understandings between
the
Company and any person granting such person the right to require the Company
to
file a registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such securities
with the Shares registered pursuant to the Registration Statement.
(r) KPMG
LLP,
who have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the Securities
Act and the rules and regulations of the Commission thereunder.
(s) Ernst
& Young LLP, who have certified certain financial statements of Global
Signal Inc. and its subsidiaries, are independent public accountants as required
by the Securities Act and the rules and regulations of the Commission
thereunder.
(t) This
Agreement has been duly and validly authorized, executed and delivered by
the
Company.
(u) The
Company’s consolidated historical and pro forma financial statements,
together with the related notes thereto, included in the Form 10-K/A and
Form
10-Q which are incorporated into the Registration Statement, the Time of
Sale
Prospectus and the Prospectus, comply as to form in all material respects
with
the applicable requirements of Regulation S-X under the Securities Act. Such
historical financial statements fairly present the financial position of
the
Company at the respective dates indicated and the results of operations and
cash
flows for the respective periods indicated, in each case in accordance with
generally accepted accounting principles consistently applied throughout
such
periods. Such pro forma financial statements have been prepared on a
basis consistent with such historical financial statements, except for the
pro forma adjustments specified therein, and give effect to assumptions
made on a reasonable basis and in good faith and present fairly the pro
forma position, results of operations and the other information purported
to be shown therein at the respective dates or for the respective periods
therein specified. The other financial and statistical information and data
incorporated or included in the
7
Registration
Statement, the Time of Sale Prospectus or the Prospectus are, in all material
respects, fairly presented and prepared on a basis consistent with the
financial
statements and the books and records of the Company.
(v) The
Company and each of the Material Subsidiaries has such permits, licenses,
franchises, certificates of need and other approvals or authorizations of
any
governmental or regulatory authority (“Permits”), including,
without limitation, any permits required by the Federal Communications
Commission (“FCC”) or the Federal Aviation Administration
(“FAA”), as are necessary under applicable law to own their
respective properties and to conduct their respective businesses in the manner
described in the Time of Sale Prospectus and the Prospectus, except to the
extent that the failure to have such Permits would not have a Material Adverse
Effect. The Company and the Material Subsidiaries have fulfilled and
performed, in all material respects, all their respective obligations with
respect to the Permits, and no event has occurred which allows, or after
notice
or lapse of time would allow, revocation or termination thereof or results
in
any other impairment of the rights of, or imposition of a penalty on, the
holder
of any such Permit, subject in each case to such qualification as may be
set
forth in the Time of Sale Prospectus and the Prospectus and except to the
extent
that any such revocation, termination, impairment or penalty would not have
a
Material Adverse Effect. Except as described in the Time of Sale Prospectus
and
the Prospectus, none of the Permits contains any restriction that has not
previously been satisfied and that is materially burdensome to the Company
or
any of the Material Subsidiaries.
(w) For
each
existing tower of the Company not yet registered with the FCC where registration
will be required, the FCC’s grant of an application for registration of such
tower will not have a significant environmental effect as defined under Section
1.1307(a) or (b) of the FCC’s rules.
(x) The
consummation of the transactions contemplated by this Agreement shall not
cause
any third party to have any rights of first refusal with respect to the
acquisition of towers of the Company or any of its subsidiaries under any
agreement filed as an exhibit to any document incorporated by reference in
the
Registration Statement (the “Material Agreements”) that has not
already been described in the Time of Sale Prospectus and the Prospectus
as to
which the Company and any of the Material Subsidiaries or any of their property
or assets may be subject.
(y) The
Company and each of the Material Subsidiaries owns or possesses all patents,
trademarks, trademark registration, service marks, service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets and rights
described in the Time of Sale Prospectus and the Prospectus as being owned
by
any of them or necessary for the conduct of their respective businesses,
and
neither the Company nor any of the Material Subsidiaries is aware of any
claim
to the contrary or any challenge by any other person to the rights of the
Company or any of the Material Subsidiaries with respect to such rights that,
if
8
determined
adversely to the Company or any such Material Subsidiary, would individually
or
in the aggregate have a Material Adverse Effect.
(z) Neither
the Company nor any of its subsidiaries is involved in any strike, job action
or
labor dispute with any group of employees, and, to the knowledge of the Company
and its subsidiaries, no such action or dispute is threatened.
(aa) The
Company and each of its subsidiaries are in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder (“ERISA”); no “reportable event” (as
defined in ERISA) has occurred with respect to any “pension plan” (as defined in
ERISA) for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with
respect to termination of, or withdrawal from, any “pension plan” or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including
the regulations and published interpretations thereunder (the
“Code”); and each “pension plan” for which the Company would
have any liability that is intended to be qualified under Section 401(a)
of the
Code is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(bb) The
Company and each of its subsidiaries have filed all federal, state and local
income and franchise tax returns required to be filed through the date hereof
and have paid all taxes due thereon, and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries nor does the Company
or any
of its subsidiaries have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of its subsidiaries, would have
a
Material Adverse Effect.
(cc) The
Company (i) makes and keeps accurate books and records and (ii) maintains
a
system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with management’s
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets, (C) access to its assets
is permitted only in accordance with management’s general or specific
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(dd) The
Company and each of the Material Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the
conduct
of its businesses and the value of its properties and as is customary for
companies engaged in similar businesses in similar industries.
9
(ee) The
Company has established and maintains disclosure controls and procedures
(as
such term is defined in Rule 13a-14 and 15d-14 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that material
information relating to the Company, including its consolidated subsidiaries,
is
made known to the Company’s Chief Executive Officer and its Chief Financial
Officer by others within those entities, and such disclosure controls and
procedures are effective to perform the functions for which they were
established; the Company’s auditors and the Audit Committee of the Board of
Directors have been advised of: (A) any significant deficiencies in the design
or operation of internal controls which could adversely affect the Company’s
ability to record, process, summarize, and report financial data; and (B)
any
fraud, whether or not material, that involves management or other employees
who
have a role in the Company’s internal controls; any material weaknesses in
internal controls have been identified for the Company’s auditors; and since the
date of the most recent evaluation of such disclosure controls and procedures,
there have been no significant changes in internal controls or in other factors
that could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material
weaknesses.
(ff) There
is
and has been no failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith.
(gg) Neither
the Company or any of its subsidiaries, nor, to the knowledge of the Company,
any director, officer, agent, employee or other person associated with or
acting
on behalf of the Company or any of its subsidiaries, has (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee
from
corporate funds; (iii) violated or is in violation of any provision of the
U.S.
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
2. Representations
and Warranties of the Selling Shareholders. Each Selling
Shareholder, severally and not jointly, represents and warrants to and agrees
with each of the Underwriters that:
(a) This
Agreement has been duly authorized, executed and delivered by or on behalf
of
such Selling Shareholder.
(b) The
execution and delivery by such Selling Shareholder of, and the performance
by
such Selling Shareholder of its obligations under, this Agreement, the Custody
Agreement signed by such Selling Shareholder and Mellon Investor Services,
LLC,
as Custodian, relating to the deposit of the Shares to be sold by such Selling
Shareholder (the “Custody Agreement”) and the Power of Attorney
appointing certain individuals as such Selling Shareholder’s attorneys-in-fact
to
10
the
extent set forth therein, relating to the transactions contemplated hereby
and
by the Registration Statement (the “Power of Attorney”) will
not contravene (A) any provision of applicable law, or the certificate
of
incorporation, by-laws or any other organizational or constitutive documents
of
such Selling Shareholder (if such Selling Shareholder is not a natural
person),
(B) any agreement or other instrument binding upon such Selling Shareholder
or
(C) any judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Shareholder, except, with respect
to
clauses (B) and (C) above, such contraventions as would not have a material
adverse effect on such Selling Shareholder and would not prevent or materially
interfere with the consummation by such Selling Shareholder of the transactions
contemplated hereby; and no consent, approval, authorization or order of,
or
qualification with, any governmental body or agency is required for the
performance by such Selling Shareholder of its obligations under this Agreement
or the Custody Agreement or Power of Attorney of such Selling Shareholder,
except (i) such as may be required by the securities or Blue Sky laws of
the
various states or the laws of any foreign jurisdiction in connection with
the
offer and sale of the Shares and (ii) where the failure to obtain such
consent
approval, authorization, order or qualification, individually or in the
aggregate, would not have a material adverse effect on such Selling Shareholder
and would not prevent or materially interfere with the consummation of
the
transactions contemplated by this Agreement.
(c) Subject
to the proviso below, such Selling Shareholder has, and on the Closing Date
will
have, valid title to, or a valid “security entitlement” within the meaning of
Section 8-501 of the New York Uniform Commercial Code in respect of, the
Shares
to be sold by such Selling Shareholder free and clear of all security interests,
claims, liens or other encumbrances and the legal right and power, and all
authorization and approval required by law, to enter into this Agreement,
the
Custody Agreement and the Power of Attorney and to sell, transfer and deliver
the Shares to be sold by such Selling Shareholder or a security entitlement
in
respect of such Shares; provided, that solely with respect to an
aggregate of 24,583,234 Shares to be sold by FRIT Holdings LLC, FRIT PINN
LLC
and FIT GSL LLC, which Shares are currently subject to security interests
pursuant to certain margin loan agreements, this representation and warranty
shall speak only as of the Closing Date (and not as of the date of this
Agreement).
(d) As
of the
Closing Date, the Custody Agreement and the Power of Attorney will have been
duly authorized, executed and delivered by such Selling Shareholder and are
valid and binding agreements of such Selling Shareholder and, assuming due
authorization, execution and delivery by the other parties thereto, each
constitute valid and legally binding obligations of such Selling Shareholder
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity
principals.
11
(e) With
respect to any Shares delivered by such Selling Shareholder in certificated
form
endorsed to the Underwriters, delivery of the Shares to be sold by such Selling
Shareholder and payment therefor pursuant to this Agreement will pass valid
title to such Shares, free and clear of any adverse claim within the meaning
of
Section 8-102 of the New York Uniform Commercial Code, to each Underwriter
who
has purchased such Shares without notice of an adverse claim.
(f) Such
Selling Shareholder has no knowledge of any material fact, condition or
information not disclosed in the Time of Sale Prospectus or the Prospectus
that
has had, or is reasonably likely to have, a Material Adverse
Effect.
(g) (i)
The
Registration Statement, as of the date hereof, does not contain and, as amended
or supplemented, if applicable, as of the Closing Date will not contain any
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein not misleading,
(ii) the Time of Sale Prospectus at the Applicable Time will not, and at
the
time of each sale of the Shares after the Applicable Time in connection with
the
offering when the Prospectus is not yet available to prospective purchasers
and
at the Closing Date (as defined in Section 5), the Time of Sale Prospectus,
as then amended or supplemented by the Company, if applicable, will not,
contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (iii) each broadly available
road
show, if any, when considered together with the Time of Sale Prospectus,
does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (iv) the Prospectus as of
its
date will not contain and the Prospectus, as amended or supplemented, if
applicable, as of the Closing Date will not contain any untrue statement
of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the representations and warranties set forth
in this paragraph (i) are limited to statements or omissions made in reliance
upon and in conformity with information relating to such Selling Shareholder
furnished to the Company in writing by such Selling Shareholder expressly
for
use in the Registration Statement, the Time of Sale Prospectus, the Prospectus
or any amendments or supplements thereto.
3. Agreements
to Sell and Purchase. Each Selling Shareholder, severally and
not jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Selling Shareholder at $35.30 a share
(the “Purchase Price”) the number of Firm Shares (subject to
such adjustments to eliminate fractional shares as you may determine) set
forth
in Schedule II hereto opposite the name of such
Underwriter.
12
Each
of
the Company and the Selling Shareholders hereby agrees that, without the
prior
written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the
Underwriters, it will not, during the period ending 60 days after the date
of the Prospectus, except as provided in the succeeding paragraph, (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any
shares of Common Stock or any securities convertible into or exercisable
or
exchangeable for Common Stock, (2) enter into any swap or other arrangement
that
transfers to another, in whole or in part, any of the economic consequences
of
ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (3) file, or cause to be filed,
any registration statement with the Commission relating to the offering of
any
shares of Common Stock or any securities convertible into or exercisable
or
exchangeable for Common Stock.
The
restrictions contained in the preceding paragraph shall not apply to
(a) the Shares to be sold hereunder, (b) the issuance by the Company
of shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing, (c) transactions by a Selling
Shareholder relating to shares of Common Stock or other securities acquired
in
open market transactions after the completion of the offering of the Shares,
provided that no filing under Section 16(a) of the Exchange Act
shall be required or shall be voluntarily made in connection with subsequent
sales of Common Stock or other securities acquired in such open market
transactions during the period ending 60 days after the date of the Prospectus,
(d) transfers by a Selling Shareholder of shares of Common Stock or any security
convertible into Common Stock as a bona fide gift, (e) distributions by a
Selling Shareholder of shares of Common Stock or any security convertible
into
Common Stock to limited partners or stockholders of the Selling Shareholder;
provided that in the case of any transfer or distribution pursuant to
clause (d) or (e), (i) each donee or distributee shall enter into a written
agreement accepting the restrictions set forth in the preceding paragraph
and
this paragraph as if it were a Selling Shareholder and (ii) no filing under
Section 16(a) of the Exchange Act, reporting a reduction in beneficial
ownership of shares of Common Stock, shall be required or shall be voluntarily
made in respect of the transfer or distribution during the 60-day restricted
period, (f) grants by the Company of employee stock options or restricted
stock
pursuant to the terms of a plan in effect on the date hereof or (g) the filing
by the Company of any registration statement with the Commission on Form
S-8
relating to the offering of securities pursuant to the terms of a plan in
effect
on the date hereof. In addition, each Selling Shareholder agrees
that, without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated
on behalf of the Underwriters, it will not, during the period ending 60 days
after the date of the Prospectus, make any demand for, or exercise any right
with respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common
Stock. Each Selling Shareholder consents to the entry of stop
13
transfer
instructions with the Company’s transfer agent and registrar against the
transfer of any Shares held by such Selling Shareholder except in compliance
with the foregoing restrictions.
4. Terms
of Public Offering. The Selling Shareholders are advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after this Agreement have become effective
as in
your judgment is advisable. The Selling Shareholders are further
advised by you that the Shares are to be offered to the public as set forth
in
the Prospectus.
5. Payment
and Delivery. Payment for the Firm Shares to be sold by each
Selling Shareholder shall be made to such Selling Shareholder in Federal
or
other funds immediately available in New York City against delivery of such
Firm
Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on July 5, 2007, or at such other time on
the same or such other date, not later than July 10, 2007, as shall be
designated in writing by you. The time and date of such payment are
hereinafter referred to as the “Closing Date.”
The
Firm
Shares shall be registered in such names and in such denominations as you
shall
request in writing not later than one full business day prior to the Closing
Date. The Firm Shares shall be delivered to you on the Closing Date
for the respective accounts of the several Underwriters, with any transfer
taxes
payable in connection with the transfer of the Shares to the Underwriters
duly
paid, against payment of the Purchase Price therefor.
6. Conditions. The
several obligations of the Selling Shareholders to sell
their respective Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Prospectus, as amended
or
supplemented, in relation to the Shares, shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period described
for such filing by the rules and regulations under the Securities Act; as
of the
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall be in effect or shall be pending or, to the knowledge of
the
Selling Shareholders or the Company, threatened by the Commission.
The
several obligations of the Underwriters are subject to the following further
conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date:
(i) there
shall not have occurred any downgrading, nor shall any notice have been given
of
any intended or potential downgrading or of any review for a possible
change
that does not
indicate the direction of the possible change, in the rating accorded any
of the
securities of the
14
Company
or any of its
subsidiaries by any “nationally recognized statistical rating organization,” as
such term is defined for purposes of Rule 436(g)(2) under the
Securities
Act; and
(ii) there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings,
business
or
operations of the Company and its subsidiaries, taken as a whole, from that
set
forth in the Time of Sale Prospectus as of the date of this Agreement
that,
in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in
the Time of Sale
Prospectus.
(b) The
Underwriters shall have received on the Closing Date a certificate, dated
the
Closing Date and signed by an executive officer of the Company, to the effect
set forth in Section 6(a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement
are
true and correct as of the Closing Date and that the Company has complied
with
all of the agreements and satisfied all of the conditions on its part to
be
performed or satisfied hereunder on or before the Closing Date.
The
officer signing and delivering such certificate may rely upon the best of
his or
her knowledge as to proceedings threatened.
(c) The
Underwriters shall have received on the Closing Date a certificate, dated
the
Closing Date and signed by an authorized officer of each Selling Shareholder,
to
the effect that the representations and warranties of the such Selling
Shareholder contained in this Agreement are true and correct as of the Closing
Date and that such Selling Shareholder has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
(d) The
Underwriters shall have received on the Closing Date an opinion of Cravath,
Swaine & Xxxxx LLP, outside counsel for the Company, dated the Closing Date,
in form and substance reasonably acceptable to the Underwriters.
(e) The
Underwriters shall have received on the Closing Date an opinion of E. Xxxxx
Xxxx, general counsel to the Company, dated the Closing Date, in form and
substance reasonably acceptable to the Underwriters.
(f) The
Underwriters shall have received on the Closing Date an opinion dated the
Closing Date, in form and substance reasonably acceptable to the Underwriters
of
each of (i) Xxxxx X. Xxxxxx, counsel for Fortress Registered Investment Trust,
FRIT Holdings LLC, FRIT PINN LLC, FIT GSL LLC and Fortress Pinnacle Investment
Fund LLC, (ii) Xxxxxx Xxxxx, counsel for GCP SPV 1, LLC, GCP SPV 2, LLC and
Xxxxxxxxx Capital Partners, LLC and (iii) Xxxx Xxxx,
15
counsel
for Xxxxxx Capital Partners I, L.P., Xxxxxx Capital Partners II, L.P. and
Whitecrest Partners, L.P.
(g) The
Underwriters shall have received on the Closing Date an opinion of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, dated the
Closing Date, in form and substance reasonably acceptable to the
Underwriters.
(h) The
Underwriters shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may
be, in
form and substance satisfactory to the Underwriters, from KPMG LLP and Ernst
& Young LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement, the Time of Sale Prospectus
and the Prospectus; provided that the letter delivered on the Closing
Date shall use a “cut-off date” not earlier than the date hereof.
(i) The
“lock-up” agreements, each substantially in the form of Exhibit A hereto,
between you and each of Xxxx Xxxxx, Xxx Xxxxxxxx and E. Xxxxx Xxxx relating
to sales and certain other dispositions of shares of Common Stock or certain
other securities, delivered to you on or before the date hereof, shall be
in
full force and effect on the Closing Date.
7. Covenants
of the Company. The Company covenants with each Underwriter as
follows:
(a) To
furnish to you, without charge, a signed copy of the Registration Statement
(including exhibits thereto and documents incorporated by reference therein)
and
to deliver to each of the Underwriters during the period mentioned in
Section 7(e) or 7(f) below, as many copies of the Time of Sale Prospectus,
the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as you
may
reasonably request.
(b) Prior
to
the completion of this offering, before amending or supplementing the
Registration Statement, the Time of Sale Prospectus or the Prospectus, to
furnish to you a copy of each such proposed amendment or supplement and not
to
file any such proposed amendment or supplement to which you reasonably object
promptly after receipt thereof, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) To
furnish to you a copy of each proposed free writing prospectus to be prepared
by
or on behalf of, used by, or referred to by the Company and not to use or
refer
to any proposed free writing prospectus to which you reasonably
object.
16
(d) Not
to
take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been required to
file
thereunder.
(e) If
the
Time of Sale Prospectus is being used to solicit offers to buy the Shares
at a
time when the Prospectus is not yet available to prospective purchasers and
any
event shall occur or condition exist as a result of which it is necessary
to
amend or supplement the Time of Sale Prospectus in order to make the statements
therein, in the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of Sale Prospectus
conflicts with the information contained in the Registration Statement then
on
file, or if, in the opinion of counsel for the Company, it is necessary to
amend
or supplement the Time of Sale Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on behalf
of
the Underwriters, either amendments or supplements to the Time of Sale
Prospectus so that the statements in the Time of Sale Prospectus as so amended
or supplemented will not, in the light of the circumstances when delivered
to a
prospective purchaser, be misleading or so that the Time of Sale Prospectus,
as
amended or supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or supplemented,
will comply with applicable law.
(f) If,
during such period after the first date of the public offering of the Shares
as
in the reasonable opinion of counsel for the Underwriters or the Company,
the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the
Securities Act) is required by law to be delivered in connection with sales
by
an Underwriter or dealer, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Prospectus in order to
make
the statements therein, in the light of the circumstances when the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) of the Securities
Act)
is delivered to a purchaser, not misleading, or if, in the reasonable opinion
of
counsel for the Underwriters or the Company, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to prepare,
file with the Commission and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses you will furnish to the Company)
to which Shares may have been sold by you on behalf of the Underwriters,
either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred
to in
Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading
or
so that the Prospectus, as amended or supplemented, will comply with applicable
law.
17
(g) To
endeavor to qualify the Shares for offer and sale under the securities or
Blue
Sky laws of such jurisdictions as you shall reasonably request;
provided that the Company shall not be required to (i) qualify as a
foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii)
file
any general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any such jurisdiction if it is not otherwise
so
subject.
(h) To
make
generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the
date
of this Agreement which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission
thereunder.
(i) To
prepare a final term sheet relating to the offering of the Shares, containing
only information that describes the final terms of the offering in a form
consented to by the Managers, and to file such final term sheet within the
period required by Rule 433(d)(5)(ii) under the Securities Act following
the
date the final terms have been established for the offering of the
Shares.
8. Expenses. Whether
or not the transactions contemplated in this Agreement are consummated or
this
Agreement is terminated, the Company agrees to pay or cause to be paid all
reasonable expenses incident to the performance of its obligations under
this
Agreement, including: (i) the fees, disbursements and expenses of the Company’s
counsel and the Company’s accountants in connection with the registration and
delivery of the Shares under the Securities Act and all other fees or expenses
in connection with the preparation and filing of the Registration Statement,
any
preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any
free
writing prospectus prepared by or on behalf of, used by, or referred to by
the
Company and amendments and supplements to any of the foregoing, including
all
printing costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery
of
the Shares to the Underwriters, (iii) all filing fees and the reasonable
fees
and disbursements of counsel to the Underwriters incurred in connection with
the
review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (iv) the cost of, if any, printing
certificates representing the Shares, (v) the costs and charges of any transfer
agent, registrar or depositary, (vi) the costs and expenses of the Company
relating to investor presentations on any “road show” undertaken in connection
with the marketing of the offering of the Shares, including, without limitation,
expenses associated with the preparation or dissemination of any electronic
roadshow, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with
the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any
such
18
consultants,
and the cost of any aircraft chartered in connection with the road show,
(vii)
all expenses in connection with any offer and sale of the Shares outside
of the
United States, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection with offers and sales outside
of
the United States, and (viii) all other costs and expenses incident to
the
performance of the obligations of the Company hereunder for which provision
is
not otherwise made in this Section; provided, however, that
each Selling Shareholder will pay (x) its portion of all underwriting discounts,
commission and transfer and other taxes, if any, relating to the sale of
such
Selling Shareholder’s Shares and (y) all fees and expenses of its outside
counsel incurred in connection with this offering (except as otherwise
provided
in Section 10). It is understood, however, that except as
provided in this Section, Section 10 entitled “Indemnity and Contribution”
and the last paragraph of Section 12 below, the Underwriters will pay all
of their costs and expenses, including fees and disbursements of their
counsel,
stock transfer taxes payable on resale of any of the Shares by them and
any
advertising expenses connected with any offers they may make.
The
provisions of this Section shall not supersede or otherwise affect any agreement
of the Company and the Selling Shareholders may otherwise have for the
allocation of such expenses among themselves.
9. Covenants
of the Underwriters. Each Underwriter severally covenants with
the Company not to take any action that would result in the Company being
required to file with the Commission under Rule 433(d) a free writing prospectus
prepared by or on behalf of such Underwriter that otherwise would not be
required to be filed by the Company thereunder, but for the action of the
Underwriter.
10. Indemnity
and Contribution.(a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal
or
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus, the Time of Sale Prospectus,
any
issuer free writing prospectus as defined in Rule 433(h) under the Securities
Act, any Company information that the Company has filed, or is required to
file,
pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any
amendment or supplement thereto, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through you expressly
19
for
use
therein, it being understood and agreed that only such information furnished
by
the Underwriters consists of the information described in clause (c)
below.
(b) Each
Selling Shareholder agrees, severally and not jointly, to indemnify and hold
harmless each Underwriter, each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section
20 of
the Exchange Act of 1934, and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending
or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, Time of Sale
Prospectus, any free writing prospectus prepared by or on behalf of, used
by, or
referred to by the Company or the Prospectus or any amendment or supplement
thereto, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement
or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information relating to the Selling
Shareholder and furnished by or on behalf of the Selling Shareholder
specifically for use therein; provided, however, that in no case shall
such Selling Shareholder be liable or responsible for any amount in excess
of
the aggregate price at which the Shares sold by such Selling Shareholder
were
offered to the public under this Agreement (net of underwriting discounts
and
commissions but excluding any deductions for other expenses).
(c) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, the Selling Shareholders, the directors of the Company, the
officers of the Company who sign the Registration Statement and each person,
if
any, who controls the Company or any Selling Shareholder within the meaning
of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus, the Time of Sale Prospectus, any issuer free writing prospectus
as
defined in Rule 433(h) under the Securities Act, any Company information
that
the Company has filed, or is required to file, pursuant to Rule 433(d) of
the
Securities Act, or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused by
any
omission or alleged omission to state therein a material fact required to
be
stated therein or necessary to make the statements therein not misleading,
but
only with reference to information relating to such Underwriter furnished
to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
any issuer
20
free
writing prospectus or the Prospectus or any amendment or supplement thereto,
it
being understood and agreed that the only such information furnished by
any
Underwriter consists of the information in the third, ninth, tenth and
twelfth
paragraphs of the Underwriting section in the preliminary prospectus and
the
Prospectus.
(d) In
case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant
to
Section 10(a), 10(b) or 10(c), such person (the “indemnified
party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and
shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention
of
such counsel or (ii) the named parties to any such proceeding (including
any
impleaded parties) include both the indemnifying party and the indemnified
party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses
of
more than one separate firm (in addition to one local counsel in each
jurisdiction) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act or who are affiliates of any Underwriter
within the meaning of Rule 405 under the Securities Act, (ii) the fees and
expenses of more than one separate firm (in addition to one local counsel
in
each jurisdiction) for the Company, its directors, its officers who sign
the
Registration Statement and each person, if any, who controls the Company
within
the meaning of either such Section and (iii) the fees and expenses of more
than
one separate firm (in addition to one local counsel in each jurisdiction)
for
all Selling Shareholders and all persons, if any, who control any Selling
Shareholder within the meaning of either such Section, and that all such
fees
and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons and
affiliates of any Underwriters, such firm shall be designated in writing
by
Xxxxxx Xxxxxxx & Co. Incorporated. In the case of any such
separate firm for the Company, and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the
Company. In the case of any such separate firm for the Selling
Shareholders and such control persons of any Selling Shareholders, such firm
shall be designated in writing by the persons named as attorneys-in-fact
for the
Selling Shareholders under the Powers of Attorney. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled
21
with
such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss
or
liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect
any settlement of any pending or threatened proceeding in respect of which
any
indemnified party is or could have been a party and indemnity could have
been
sought hereunder by such indemnified party, unless (i) such settlement
includes
an unconditional release of such indemnified party from all liability on
claims
that are the subject matter of such proceeding 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 an indemnified party.
(e) To
the
extent the indemnification provided for in Section 10(a), 10(b) or 10(c)
is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party
as a
result of such losses, claims, damages or liabilities (i) in such proportion
as
is appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party or parties on
the
other hand from the offering of the Shares or (ii) if the allocation provided
by
clause 10(e)(i) above is not permitted by applicable law, in such proportion
as
is appropriate to reflect not only the relative benefits referred to in clause
10(e)(i) above but also the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other hand
in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(after deducting the underwriting discount but before deducting expenses)
received by each Selling Shareholder and the total underwriting discounts
and
commissions received by the Underwriters, bear to the aggregate price at
which
the Shares are offered to the public, in each case as set forth in the table
on
the cover of the Prospectus. The relative fault of the Company and
the Selling Shareholders on the one hand and the Underwriters on the other
hand
shall be determined by reference to, among other things, whether the untrue
or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by either the Company
or the Selling Shareholders or by the Underwriters and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters’ respective obligations to
contribute pursuant to this Section 10 are several in proportion to the
respective number of Shares they have purchased hereunder, and not
joint. The Selling Shareholders’ respective obligations to contribute
pursuant to this Section 10 are several in proportion to the respective number
of Shares they have sold hereunder, and not joint. The liability of
each Selling Shareholder under the
22
indemnity
agreement contained in this paragraph shall be limited to an amount equal
to the
aggregate price at which the Shares sold by such Selling Shareholder were
offered to the public under this Agreement (net of underwriting discounts
and
commissions but excluding any deductions for other expenses).
(f) The
Company, the Selling Shareholders and the Underwriters agree that it would
not
be just or equitable if contribution pursuant to this Section 10 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 that does not take account
of
the equitable considerations referred to in Section 10(e). The amount paid
or
payable by an indemnified party as a result of the losses, claims, damages
and
liabilities referred to in Section 10(e) shall be deemed to include, subject
to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such
action or claim. Notwithstanding the provisions of this Section 10, (i) 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
that
such Underwriter has otherwise been required to pay by reason of such untrue
or
alleged untrue statement or omission or alleged omission and (ii) no Selling
Shareholder shall be required to contribute any amount that, when added to
any
liability of such Selling Shareholder under subsection (b) above, exceeds
the
aggregate price at which the Shares sold by such Selling Shareholder were
offered to the public under this Agreement (net of underwriting discounts
and
commissions but excluding any deductions for other expenses). No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 10 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law
or in
equity.
(g) The
indemnity and contribution provisions contained in this Section 10 and the
representations, warranties and other statements of the Company and the Selling
Shareholders contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any
investigation made by or on behalf of any Underwriter, any person controlling
any Underwriter or any affiliate of any Underwriter, any Selling Shareholder
or
any person controlling any Selling Shareholder, or the Company, its officers
or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
11. Termination. The
Underwriters may terminate this Agreement by notice given by you to the Company
and the Selling Shareholders, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have
been
suspended or materially limited on, or by, as the case may be, either of
the New
York Stock Exchange or the NASDAQ Global Market, (ii) trading of any securities
of the Company shall have been suspended on any
23
exchange
or in any over-the-counter market, (iii) a material disruption in securities
settlement, payment or clearance services in the United States shall have
occurred, (iv) any moratorium on commercial banking activities shall have
been
declared by Federal or New York State authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in
this
clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Shares on
the
terms and in the manner contemplated in the Time of Sale Prospectus or
the
Prospectus.
12. Effectiveness;
Defaulting Underwriters. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto.
If,
on the Closing Date,
any one or more of the Underwriters shall fail or refuse to purchase Shares
that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed
but
failed or refused to purchase is not more than one tenth of the aggregate
number
of the Shares to be purchased on such date, the other Underwriters shall
be
obligated severally in the proportions that the number of Firm Shares set
forth
opposite their respective names in Schedule II bears to the aggregate number
of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase
the
Shares which such defaulting Underwriter or Underwriters agreed but failed
or
refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to
this
Agreement be increased pursuant to this Section 12 by an amount in excess
of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares
with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased on such date, and arrangements
satisfactory to you, the Company and the Selling Shareholders for the purchase
of such Firm Shares are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter, the Company or the Selling Shareholders. In any such case either
you or the relevant Selling Shareholders shall have the right to postpone
the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement, in the Time of Sale
Prospectus, in the Prospectus or in any other documents or arrangements may
be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter
under
this Agreement.
If
this
Agreement shall be terminated by the Underwriters, or any of them, because
of
any failure or refusal on the part of any Selling Shareholder to comply with
the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Selling Shareholder shall be unable to perform its obligations
under
24
this
Agreement, each of the defaulting Selling Shareholders on a pro rata basis
(based on the number of Shares to be sold by such defaulting Selling
Shareholders hereunder) will reimburse the Underwriters or such Underwriters
as
have so terminated this Agreement with respect to themselves, severally,
for all
out-of-pocket expenses approved in writing by you (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters
in
connection with this Agreement or the offering contemplated
hereunder.
13. Entire
Agreement. (a) This Agreement, together with any contemporaneous
written agreements and any prior written agreements (to the extent not
superseded by this Agreement) that relate to the offering of the Shares,
represents the entire agreement between the Company and the Selling
Shareholders, on the one hand, and the Underwriters, on the other, with respect
to the preparation of any preliminary prospectus, the Time of Sale Prospectus,
the Prospectus, the conduct of the offering, and the purchase and sale of
the
Shares.
(b) The
Company acknowledges that in connection with the offering of the
Shares: (i) the Underwriters have acted at arms length, are not
agents of, and owe no fiduciary duties to, the Company or any other person,
(ii)
the Underwriters owe the Company only those duties and obligations set forth
in
this Agreement and prior written agreements (to the extent not superseded
by
this Agreement), if any, and (iii) the Underwriters may have interests that
differ from those of the Company. The Company waives to the full
extent permitted by applicable law any claims it may have against the
Underwriters arising from an alleged breach of fiduciary duty in connection
with
the offering of the Shares.
14. Counterparts. This
Agreement may be signed in two or more counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
15. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
16. Headings. The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed a part of this Agreement.
25
17. Notices. All
communications hereunder shall be in writing and effective only upon receipt
and
if to the Underwriters shall be delivered, mailed or sent to you in care
of
Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Equity Syndicate Desk, with a copy to the Legal
Department; if to the Company shall be delivered, mailed or sent to Crown
Castle
International Corp., 000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000, Attention:
General Counsel and if to a Selling Shareholder shall be delivered,
mailed or sent to the address for such Selling Shareholder set forth on
Schedule III hereto.
[Signature
page follows]
|
Very truly
yours,
CROWN CASTLE INTERNATIONAL CORP. |
|||
|
|
By:
|
/s/ Xxx X. Xxxxx | |
| Name: Xxx X. Xxxxx | |||
| Title: Vice President | |||
| FORTRESS REGISTERED INVESTMENT TRUST | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |||
| Title: Chief Operating Officer | |||
| FRIT HOLDINGS LLC | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |||
| Title: Chief Operating Officer | |||
| FRIT PINN LLC | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |||
| Title: Vice President | |||
| FIT GSL LLC | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |||
| Title: Chief Operating Officer | |||
| FORTRESS PINNACLE INVESTMENT FUND LLC | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |||
| Title: Chief Operating Officer | |||
| GCP SPV 1, LLC | |||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: General Counsel and Secretary | |||
| GCP SPV 2, LLC | |||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: General Counsel and Secretary | |||
| GREENHILL CAPITAL PARTNERS, LLC | |||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: General Counsel and Secretary | |||
| XXXXXX CAPITAL PARTNERS, L.P. | |||
|
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | |||
| Title: Managing Member | |||
| XXXXXX CAPITAL PARTNERS II, L.P. | |||
|
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | |||
| Title: Managing Member | |||
| WHITECREST PARTNERS, L.P. | |||
|
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | |||
| Title: Managing Member | |||
|
Accepted
as of the date hereof:
Xxxxxx
Xxxxxxx & Co. Incorporated
Xxxxx
& Company LLC
Banc
of America Securities LLC
|
||
|
Acting
severally on behalf of themselves
and
the
several Underwriters named
in
Schedule II hereto.
|
||
|
By:
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
|
|
By:
|
/s/
Xxxx X. Xxxxxx
|
|
|
Name:
|
Xxxx
X. Xxxxxx
|
|
|
Title:
|
Executive
Director
|
|
