Exhibit 1.1
6,000,000 Shares
GLIMCHER REALTY TRUST
8 1/8% Series G Cumulative Redeemable Preferred Shares of Beneficial Interest
($ .01 Par Value, $25.00 Liquidation Value)
EQUITY UNDERWRITING AGREEMENT
January 22, 2004
Xxxxxx Xxxxxxx & Co. Incorporated
As representative of the Underwriters listed in Schedule I
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Glimcher Realty Trust, a Maryland real estate investment trust (the
"Trust"), proposes to issue and sell to the underwriters listed on Schedule I
(the "Underwriters") for whom Xxxxxx Xxxxxxx & Co. Incorporated is acting as
representative (the "Representative") an aggregate of 6,000,000 shares of the
Trust's Series G Cumulative Redeemable Preferred Shares of Beneficial Interest,
par value $.01 per share (the "Preferred Shares"). The 6,000,000 Preferred
Shares to be purchased from the Trust are hereinafter referred to as the
"Shares". The respective amounts of the Shares to be so purchased by the several
Underwriters are set forth opposite their names in Schedule I hereto. The Trust
and Glimcher Properties Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), hereby confirm their agreements with Xxxxxx Xxxxxxx &
Co. Incorporated, acting as Representative of the Underwriters.
As the Representative, you have advised the Trust and the Operating
Partnership (a) that you are authorized to enter into this Agreement on behalf
of the several Underwriters, and (b) that the several Underwriters are willing,
acting severally and not jointly, to purchase the numbers of Shares set forth
opposite their respective names in Schedule I.
The Trust has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-43317) covering the
registration of the Shares under the Securities Act of 1933, as amended (the
"Act"), including a related prospectus, which has become effective. The
registration statement (including the exhibits thereto and schedules thereto, if
any) as amended at the time it became effective, or, if a post-effective
amendment has been filed with respect thereto, as amended by such post-effective
amendment at the time of its effectiveness (including in each case the
information (if any) deemed to be part of such registration statement at the
time of effectiveness pursuant to Rule 430A under the Act), is hereinafter
referred to as the "Registration Statement." The term "Effective Date" shall
mean each date that the Registration Statement and any post-effective amendment
or amendments thereto became or becomes effective. The term "Base Prospectus"
shall mean the prospectus contained in the Registration Statement at the
Effective Date. "Preliminary Prospectus" means the 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 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 Act, as of the Effective Date of the Registration Statement or the
date of such 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" or "stated" in the Registration Statement, any
Preliminary Prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements and schedules
and other information which is incorporated by reference in the Registration
Statement, any Preliminary Prospectus or the Prospectus, as the case may be.
The title, specific number of shares, rank, stated value, liquidation
preference, dividend rate, dividend payment dates, redemption provisions and
other terms of the Preferred Shares are set forth in the Articles Supplementary
relating to the Preferred Shares (the "Articles Supplementary") to be filed with
the State Department of Assessments and Taxation of Maryland (the "SDAT").
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE OPERATING
PARTNERSHIP.
The Trust and the Operating Partnership jointly and severally represent and
warrant to each of the Underwriters that:
(a) The Trust meets the requirements for use of Form S-3 under the
Act.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus. When any Preliminary Prospectus and
any amendment or supplement thereto was filed with the Commission, it (i)
contained all statements required to be stated therein in accordance with,
and complied in all material respects with the requirements of, the Act and
the rules and regulations of the Commission thereunder, and (ii) did not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. When
the Registration Statement or any amendment thereto was declared effective,
it (i) contained all statements required to be stated therein in accordance
with, and complied in all material respects with the requirements of, the
Act and the rules and regulations of the Commission thereunder and (ii) did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not
misleading. When the Prospectus or any amendment or supplement to the
Prospectus is filed with the Commission pursuant to Rule 424(b) (or, if the
Prospectus or part thereof or such amendment or supplement is not required
to be so filed, when the Registration Statement or the amendment thereto
containing such amendment or supplement to the Prospectus was or is
declared effective), on the date when the Prospectus is otherwise amended
or supplemented and on the Closing Date (as hereinafter defined), the
Prospectus, (i) contained or will contain all statements required to be
stated therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission
-2-
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. The documents incorporated, or to be
incorporated by reference in the Preliminary Prospectus and the Prospectus
complied or will comply in all material respects with the requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the rules and regulations thereunder. The foregoing provisions of this
paragraph (b) do not apply to statements or omissions made in any
Preliminary Prospectus or any amendment or supplement thereto, the
Registration Statement or any amendment thereto, or the Prospectus, in
reliance upon and in conformity with written information furnished to the
Trust by any Underwriter specifically for use therein.
(c) The Trust has been duly organized and is validly existing as a
Maryland real estate investment trust, and is in good standing under the
laws of the state of Maryland. The subsidiaries listed on Schedule II (the
"Subsidiaries") are the only subsidiaries (direct or indirect) of the
Trust. The subsidiaries listed in Schedule III are the only subsidiaries
(direct or indirect) of the Trust as of the date hereof that, as of the
date hereof, hold greater than 5% of the Trust's total assets or represent
in excess of 5% of the Trust's income from continuing operations before
income taxes, extraordinary items and cumulative effect of a change in
accounting principle, in each case as provided in the Trust's Form 10-Q for
the period ended September 30, 2003 (the "Significant Subsidiaries"). Each
of the Significant Subsidiaries have been duly organized and are validly
existing and in good standing under the laws of their respective
jurisdictions of organization. The Subsidiaries, other than the Significant
Subsidiaries, have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of organization,
except where the failure to be in good standing would not have a material
adverse effect on the condition (financial or otherwise), net worth or
results of operations of the Trust and the Subsidiaries, taken as a whole
(a "Material Adverse Effect"). The Trust and the Subsidiaries are duly
qualified to transact business as foreign entities, and are in good
standing under the laws of all other jurisdictions where the ownership or
leasing of their respective properties or the conduct of their respective
businesses requires such qualification, except where the failure to be so
qualified or in good standing would not have a Material Adverse Effect .
(d) The Trust and each of the Subsidiaries have full power (trust,
corporate, partnership and/or limited liability company) 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
Trust and the Operating Partnership has full trust or partnership power to
enter into this Agreement and to carry out all the terms and provisions
hereof to be carried out by it, including the execution, delivery and
filing of the Articles Supplementary.
(e) The outstanding equity interests of each Subsidiary, have been
duly authorized and validly issued, are fully paid and non-assessable and,
except as set forth on Exhibit 1(e) and except for pledges of equity
interests in special purpose entity Subsidiaries granted to lenders in
connection with mortgage financings by such lenders to such special purpose
entities and the Properties (as defined below) they own, are owned by the
Trust or the Operating Partnership or one of their wholly-owned
Subsidiaries free and clear of all liens, encumbrances, equities and
claims; and no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligations into
ownership interests in any Subsidiary are outstanding, except as described
in the Prospectus or as provided for in any organizational documents or
operating agreements of any Subsidiary, or except as set forth in Exhibit
1(e) hereto. Exhibit 1(e) is a true and correct organizational structure
chart identifying all owners of equity interests of each Subsidiary and
sets forth the percentage ownership for such owners. As of the Closing
Date, (i) the Trust is the sole shareholder of GPC and (ii) the Trust,
directly and indirectly, owns approximately 90.8% of the partnership
interest in the Operating Partnership.
-3-
(f) Each of the partnership, operating and joint venture agreements to
which the Trust or any of the Subsidiaries is a party, and which relates to
real property described in the Prospectus, (i) has been duly authorized,
executed and delivered by such applicable party and constitutes the valid
agreement thereof, enforceable in accordance with its terms, except as
limited by (a) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights of remedies of creditors or (b) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which any
proceeding therefor may be brought; and (ii) the execution, delivery and
performance of any of such agreements by the Trust or the Subsidiaries, as
applicable, did not, at the time of execution and delivery, and does not,
constitute a breach of, or default under, (a) the charter, declaration of
trust, partnership agreement, operating agreement or bylaws (or other
organizational documents) of such party or (b) any other material contract,
lease or other instrument to which such party is a party or by which its
properties may be bound or any law, administrative regulation or
administrative or court decree, except where such breach or default would
not have a Material Adverse Effect.
(g) The Trust has an authorized, issued and outstanding capitalization
as set forth in the Prospectus under the caption "Capitalization." All of
the issued shares of beneficial interest of the Trust have been duly
authorized and validly issued and are fully paid and nonassessable (except
that under Maryland law shareholders of the Trust may be subject to
personal liability with respect to certain claims for torts, contracts,
taxes and statutory and other liabilities). The Shares have been duly
authorized by all necessary trust action and at the Closing Date, when
issued and delivered as contemplated by the terms of this Agreement and
after payment therefor in accordance herewith, will be validly issued,
fully paid and nonassessable (except that under Maryland law shareholders
of the Trust may be subject to personal liability with respect to certain
claims for torts, contracts, taxes and statutory and other liabilities). No
holders of outstanding shares of beneficial interest of the Trust are
entitled as such to any preemptive or other rights to subscribe for any of
the Shares, and no holder of securities of the Trust has any right which
has not been exercised or waived to require the Trust to register the offer
or sale of any securities owned by such holder under the Act in the public
offering contemplated by this Agreement.
(h) The shares of beneficial interest of the Trust conform in all
material respects to the description thereof contained in the Registration
Statement and the Prospectus.
(i) Except as disclosed in the Prospectus, there are no outstanding
(i) securities, partnership interests or obligations of the Trust or any
Subsidiary convertible into or exchangeable for any capital stock of the
Trust, (ii) warrants, rights or options to subscribe for or purchase from
the Trust or any Subsidiary any such capital stock or any such convertible
or exchangeable securities, partnership interests or obligations, or (iii)
obligations of the Trust to issue any shares of capital stock, any such
convertible or exchangeable securities, partnership interests or
obligations, or any such warrants, rights or options.
(j) The consolidated financial statements and schedules of the Trust
and the consolidated Subsidiaries included in the Registration Statement
and the Prospectus fairly present in all material respects the financial
position of the Trust and the consolidated Subsidiaries and the results of
operations and changes in financial condition as of the dates and periods
therein specified. Such financial statements and schedules have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise
noted therein). The selected financial data set forth under the caption
"Selected Consolidated Financial Data" in the Prospectus fairly present, on
the basis stated in the Prospectus, the information included therein. The
pro forma financial statements, if any, and other pro forma financial
information, if any, included in the Registration Statement and the
Prospectus comply in all material respects with the applicable requirements
of Rule 11-02 of Regulation S-X of the Commission and the pro forma
adjustments have been properly applied to the
-4-
historical amounts in the compilation of such statements and the
assumptions used in the preparation thereof are, in the opinion of the
Trust, reasonable.
(k) PricewaterhouseCoopers L.L.P., who have certified certain
financial statements of the Trust and the Subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and the Prospectus are
independent public accountants as required by the Act, the Exchange Act and
the related published rules and regulations thereunder.
(l) The execution and delivery of this Agreement and the Articles
Supplementary have been duly authorized by the Trust and the Operating
Partnership and this Agreement has been duly executed and delivered by the
Trust and the Operating Partnership.
(m) No legal or governmental proceedings are pending to which the
Trust or any of the Subsidiaries is a party or to which the property of the
Trust or of any of the Subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
described therein, and no such proceedings which may be material with
respect to the Trust and the Subsidiaries taken as a whole have been to the
Trust's knowledge threatened against the Trust or any of the Subsidiaries
or with respect to any of their respective properties; and no contract or
other document is required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement
that is not described therein or filed as required.
(n) The issuance, offering and sale of the Shares to the Underwriters
by the Trust pursuant to this Agreement, the compliance by the Trust and
the Operating Partnership with the other provisions of this Agreement,
including the execution, delivery and filing of the Articles Supplementary,
and the consummation of the transactions herein contemplated do not (i)
require the consent, approval, authorization, registration or qualification
of or with any governmental authority, except such as have been obtained,
such as may be required under state securities or blue sky laws and such as
may be required (and shall be obtained as provided in this Agreement) under
the Act, or (ii) conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other material agreement or instrument to
which the Trust or any of the Subsidiaries is a party or by which the Trust
or any of the Subsidiaries or any of their respective properties are bound,
or the declaration of trust or charter documents (or other formation
documents) or bylaws, partnership agreement, operating agreement (or other
governing documents), as the case may be, of the Trust or any of the
Subsidiaries, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to the Trust or any of the Subsidiaries.
(o) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, neither the Trust
nor any of the Subsidiaries has sustained any material loss or interference
with their respective businesses or properties from fire, flood, hurricane,
accident, act of terrorism or other calamity or from any labor dispute or
any legal or governmental proceeding and there has not been any Material
Adverse Effect, or any development involving a prospective Material Adverse
Effect, except in each case as described in or contemplated by the
Registration Statement and the Prospectus.
(p) The Trust 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 Trust to facilitate the sale or resale of
the Shares.
-5-
(q) The Trust has not distributed and, prior to the later of (i) the
Closing Date and (ii) the completion of the distribution of the Shares,
will not distribute, any offering material in connection with the offering
and sale of the Shares other than the Registration Statement or any
amendment thereto, a Preliminary Prospectus, the Prospectus, or other
materials, if any, permitted by the Act.
(r) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (i) none of the
Trust or any of the Subsidiaries has incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction
not in the ordinary course of business; (ii) the Trust has not purchased
any of its outstanding shares of beneficial interest, nor declared, paid or
otherwise made any dividend or distribution of any kind on its shares of
beneficial interest, except for (x) regularly scheduled dividend payments
on its outstanding shares of beneficial interest and (y) the Trust's
Distribution Reinvestment Plan; and (iii) there has not been any material
change in the shares of beneficial interest, ownership interests,
short-term debt or long-term debt of the Trust and the Subsidiaries, except
in each case as described in or contemplated by the Prospectus.
(s) Except as described in or contemplated by the Prospectus, the
Trust and each Subsidiary have good and indefeasible title in fee simple to
all of the real properties in which they own an interest and which are
described in the Prospectus (the "Properties"), and good and valid title to
all personal property owned by each of them, in each case free and clear of
any security interests, liens, encumbrances, equities, claims and other
defects, except such as do not materially and adversely affect the value of
any individual Significant Property (defined below) or all Properties
(taken as a whole) and do not interfere with the use made or proposed to be
made of any individual Significant Property or all Properties (taken as a
whole) by the Trust or any Subsidiary, and any Properties and buildings
held under lease by the Trust or by any Subsidiary are held under valid,
subsisting and enforceable leases, with such exceptions as are not material
and do not interfere with the use made or proposed to be made of such
Significant Property or all Properties (taken as a whole) by the Trust or
by any Subsidiary. For purposes of this paragraph 1(s), a "Significant
Property" shall mean a Property that has a book value (without regard to
any minority interest held by any person) of at least $15 million.
(t) The Trust and each Subsidiary are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; and none of the Trust or any of the Subsidiaries has any
reason to believe that they will not be able to renew their existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue their
business at a cost that would not result in a Material Adverse Effect
except as described in or contemplated by the Prospectus.
(u) The Trust and each of the Subsidiaries have complied with all
laws, regulations and orders applicable to it or its respective business
and properties except where the failure to so comply would not result in a
Material Adverse Effect; the Trust and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, municipal or foreign regulatory authorities necessary to conduct
their respective businesses except where the failure to possess the same
would not result in a Material Adverse Effect; and neither the Trust nor
any of the Subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect,
except as described in the Prospectus.
-6-
(v) The Trust is not subject to registration as an investment company
under the Investment Company Act of 1940, as amended (the "1940 Act") and
the sale of Shares pursuant to this Agreement and the application of the
net proceeds therefrom as set forth in the Prospectus will not cause the
Trust to become an investment company subject to registration under such
act.
(w) The Trust and each Subsidiary have filed all foreign, federal,
state and local tax returns that are required to be filed or have requested
extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect) and have paid all taxes required
to be paid by them and any other assessment, fine or penalty levied against
them, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being contested
in good faith or as described in or contemplated by the Registration
Statement and the Prospectus. Such tax returns are true, correct, and
complete in all material respects.
(x) The Trust and each Subsidiary maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences; and (v) the Trust is
complying with the requirements for qualification as a real estate
investment trust (a "REIT") under Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended (the "Code").
(y) Except as otherwise disclosed in the Prospectus or as would not
otherwise have a Material Adverse Effect, (i) neither the Trust, any of the
Subsidiaries nor, to the best knowledge of the Trust, any other owners of
the property at any time or any other party has at any time, handled,
stored, treated, transported, manufactured, spilled, leaked, or discharged,
dumped, transferred or otherwise disposed of, Hazardous Materials (as
hereinafter defined) on, to or from the Properties, other than in
compliance with all applicable Environmental Statutes and in connection
with the ordinary use of residential, retail or commercial properties owned
by the Trust; (ii) the Trust has not used and shall not have used the
Properties or any subsequently acquired properties for the purpose of
handling, storing, treating, transporting, manufacturing, spilling,
leaking, discharging, dumping, transferring or otherwise disposing of
Hazardous Materials other than in compliance with all applicable
Environmental Statutes and in connection with the ordinary use of
residential, retail or commercial properties owned by the Trust; (iii)
neither the Trust nor any of the Subsidiaries knows of any seepage,
leakage, discharge, release, emission, spill, or dumping of Hazardous
Materials on any property which might materially and adversely affect the
Properties; (iv) neither the Trust nor any of the Subsidiaries has received
any written notice of, or has any knowledge of any occurrence or
circumstance which, with notice or passage of time or both, would give rise
to a claim under or pursuant to any Environmental Statute (as hereinafter
defined) or under common law, pertaining to Hazardous Materials on or
originating from any of the Properties or any assets described in the
Prospectus; (v) neither the Properties nor any other land owned by the
Trust or any of the Subsidiaries is included or, to the best of the Trust's
knowledge, proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (as hereinafter defined) by the United States
Environmental Protection Agency (the "EPA") or, to the best of the Trust's
knowledge, proposed for inclusion on any comparable state list issued
pursuant to any other Environmental Statute or issued by any other
Governmental Authority (as hereinafter defined) or to the best of the
Trust's knowledge has been the subject of an investigation or inquiry by
any Governmental Authority with respect to Hazardous Materials; and (vi)
the Trust, the Subsidiaries and the Properties are in compliance with all
Environmental Statutes and to the best of the Trust's knowledge, the Trust
and the Subsidiaries possess all permits, registrations and authorizations
required to operate the Properties. As used herein, "Hazardous Materials"
shall mean any substance defined or regulated as a hazardous material,
hazardous waste, hazardous substance, toxic substance, pollutant or
contaminant or by any federal, state or local law, ordinance, rule or
regulation for the protection of human health or the environment (including
without limitation the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, 42 U.S.C. 9601 et seq. ("CERCLA"), the Hazardous
Materials Transportation Act, 49 U.S.C. Section 5101 et seq, the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., the
Emergency Planning and
-7-
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq, the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq, the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section 136 et seq,
the Clean Air Act, 42 U.S.C. Section 7401 et seq., the Clean Water Act
(Federal Water Pollution Control Act), 33 U.S.C. Section 1251 et seq., the
Safe Drinking Water Act, 42 U.S.C. Section 300f et seq., and the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq., as any
of the above statutes may have been amended from time to time, and in the
regulations promulgated pursuant to each of the foregoing (individually, an
"Environmental Statute") or by any federal, state or local governmental
authority having or claiming jurisdiction over the properties and assets
described in the Prospectus (a "Governmental Authority")) or any substance
which is or contains petroleum.
(z) The Trust and each Subsidiary that is under "common control" with
the Trust as defined in Section 4001(b)(1) of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA") (each an "ERISA Affiliate")
are in compliance in all material respects with all presently applicable
provisions of ERISA; no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in ERISA) for which
the Trust or any ERISA Affiliate would have any material liability; neither
the Trust nor any ERISA Affiliate has incurred and neither expects to incur
any material liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections
4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and each
"pension plan" in which employees or former employees of the Trust or any
ERISA Affiliate participate 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 through any action or by failure to act, which would
cause the loss of such qualification.
(aa) The Trust and the Subsidiaries have been and are organized and
operated in conformity with the requirements for qualification and taxation
of the Trust as a REIT under Sections 856 through 860 of the Code and the
rules and regulations thereunder and the Trust's and the Subsidiaries'
present method of operation does and will enable the Trust to continue to
meet the requirements for qualification and taxation as a real estate
investment trust under the Code and the Operating Partnership, the other
Partnership Subsidiaries and the LLC Subsidiaries have at all times been
and will continue to be treated for Federal income tax purposes as
partnerships (or as disregarded entities) and not as associations taxable
as corporations or as publicly-traded partnerships.
(bb) Neither the Trust nor any of the Subsidiaries is in violation of
any federal or state law or regulation relating to occupational safety and
health and the Trust and the Subsidiaries have received all permits,
licenses or other approvals required of them under applicable federal and
state occupational safety and health and regulations to conduct their
respective businesses, and the Trust and each of the Subsidiaries is in
compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals which
would not, singly or in the aggregate result in a Material Adverse Effect,
except as described in the Prospectus.
(cc) Except for interests in the Subsidiaries owned by the Trust or
other Subsidiary, neither the Trust nor any of the Subsidiaries owns any
shares of stock or any other equity securities of any corporation or has
any equity interest in any firm, partnership, limited liability company,
association or other entity, except as described in or contemplated by the
Prospectus.
(dd) Neither the Trust nor any of the Subsidiaries is in violation of
any term or provision of its declaration of trust, certificate of
incorporation, bylaws, certificate of limited partnership or other
organizational documents required to be filed with state authorities, as
the case may be; none of
-8-
the Subsidiaries is in violation of its partnership agreement or operating
agreement, as the case may be, except as would not result in a Material
Adverse Effect; no default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default, and the
consummation of the transactions contemplated by this Agreement will not
result in any default in the due performance and observance of any term,
covenant or condition of any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Trust or any Subsidiary is a
party or by which the Trust, the Subsidiaries or any of their respective
properties is bound or may be affected, except such as would not result in
any Material Adverse Effect.
(ee) Neither the Trust nor any of its officers or trustees has taken
nor will any of them take, directly or indirectly, any action resulting in
a violation of Regulation M promulgated under the Exchange Act, or designed
to cause or result in, or which has constituted or which reasonably might
be expected to constitute, the stabilization or manipulation of the price
of the Trust's Preferred Shares. The Trust acknowledges that the
Underwriters may engage in transactions that stabilize, maintain or
otherwise affect the price of the Preferred Shares, including stabilizing
bids, syndicate covering transactions and the imposition of penalty bids.
(ff) To the knowledge of the Trust, after inquiry of its officers and
trustees, there are no affiliations with the NASD among the Trust's
officers or trustees except as set forth in the Registration Statement or
as otherwise disclosed in writing to the Underwriters.
(gg) By the Closing Date, the Shares will have been approved for
listing on the New York Stock Exchange, subject to official notice of
issuance.
(hh) Except as disclosed in the Prospectus, (A) neither the Trust nor
any Subsidiary knows of any violation of any municipal, state or federal
law, rule or regulation (other than those pertaining to environmental
matters which are covered by Paragraph (y) above), concerning the
Properties or any part thereof which would have a Material Adverse Effect;
(B) each of the Properties complies with all applicable zoning laws,
ordinances, regulations and deed restrictions or other covenants in all
material respects and, if and to the extent there is a failure to comply,
such failure does not materially impair the value of any of the Properties
and will not result in a forfeiture or reversion of title; (C) neither the
Trust nor any Subsidiary (i) has received from any governmental authority
any written notice of any condemnation of or zoning change affecting the
Properties or any part thereof, and (ii) knows of any such condemnation or
zoning change which is threatened and, in the case of clauses (i) and (ii)
above, which if consummated would have a Material Adverse Effect; (D) all
liens, charges, encumbrances, claims, or restrictions on or affecting the
properties and assets (including the Properties) of the Trust or any of the
Subsidiaries that are required to be described in the Prospectus are
disclosed therein; and (E) no lessee of any portion of any of the
Properties is in default under any of the leases governing such properties
and there is no event which, but for the passage of time or the giving of
notice or both would constitute a default under any of such leases, except
such defaults or events which, but for the passage of time or giving of
notice or both, will constitute a default that would not have a Material
Adverse Effect.
(ii) Each certificate signed by any officer of the Trust and delivered
to the Underwriter or counsel for the Underwriter shall be deemed to be a
representation and warranty by the Trust to the Underwriter as to the
matters covered thereby.
(jj) No labor dispute with the employees of the Trust or any of the
Subsidiaries exists, or is threatened or imminent that could result in a
Material Adverse Effect, except as described in the Prospectus.
-9-
(kk) The Trust and the Subsidiaries own or possess, or can acquire on
reasonable terms, all material patents, trademarks, service marks, trade
names, domain names, licenses, copyrights and proprietary and other
confidential information currently employed by them in connection with
their respective businesses, and neither the Trust nor any of the
Subsidiaries has received any notice of infringement of or conflict with
asserted rights of any third party with respect to the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect, except as
described in the Prospectus.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the terms and conditions herein set forth,
the Trust agrees to issue and sell to the Underwriters and each Underwriter
agrees, severally and not jointly, to purchase, at a price of $24.2125 per
share, the number of Shares set forth opposite the name of each Underwriter
in Schedule I hereof, subject to adjustments in accordance with Section 9
hereof.
(b) Payment for the Shares to be sold hereunder is to be made in
Federal (same day) funds against delivery of certificates therefor to the
Representative for the several accounts of the Underwriters. 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 February
23, 2004 or at such other time and date not later than five business days
thereafter as you and the Trust 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.)
3. OFFERING BY THE UNDERWRITERS.
It is understood that the several Underwriters are to make a public
offering of the Shares as soon as the Representative deems it advisable to do
so. The Shares are to be initially offered to the public at the initial public
offering price set forth in the Prospectus. The Representative may from time to
time thereafter change the public offering price and other selling terms.
It is further understood that the Representative shall represent the
Underwriters in the offering and sale of the Shares in accordance with a Master
Agreement Among Underwriters entered into by the Representative and the several
other Underwriters.
4. COVENANTS OF THE TRUST AND THE OPERATING PARTNERSHIP.
(a) The Trust and the Operating Partnership jointly and severally
covenant and agree with the several Underwriters that:
(i) The Trust will (A) use its best efforts to prepare and timely
file the Prospectus with the Commission under Rule 424(b) under the
Act containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rule 430A
under the Act, and (B) not file any amendment to the Registration
Statement or supplement to the Prospectus or document incorporated by
reference therein of which the Representative shall not previously
have been advised and furnished with a copy or to which the
Representative shall have reasonably objected in writing or which is
not in compliance with the Act and (C) file on a timely basis all
reports and any definitive proxy or information statements required to
be filed by the Trust with the Commission
-10-
subsequent to the date of the Prospectus and prior to the termination
of the offering of the Shares by the Underwriters.
(ii) The Trust will advise the Representative promptly (A) when
any post-effective amendment to the Registration Statement shall have
become effective, (B) of receipt of any comments from the Commission,
(C) of any request of the Commission for amendment of the Registration
Statement or for supplement to the Prospectus or for any additional
information, and (D) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the use of the Prospectus or of the institution of any proceedings for
that purpose. The Trust will use its best efforts to prevent the
issuance of any such stop order preventing or suspending the use of
the Prospectus and to obtain as soon as possible the lifting thereof,
if issued.
(iii) The Trust will cooperate with the Representative in
endeavoring to qualify the Shares for sale under the securities laws
of such jurisdictions as the Representative may reasonably have
designated in writing and will make such applications, file such
documents, and furnish such information as may be reasonably required
for that purpose, provided the Trust shall not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or
required to file such a consent or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Trust will, from time to time, prepare and
file such statements, reports, and other documents, as are or may be
required to continue such qualifications in effect for so long a
period as the Representative may reasonably request for distribution
of the Shares.
(iv) The Trust will deliver to, or upon the order of, the
Representative, from time to time, as many copies of any Preliminary
Prospectus as the Representative may reasonably request. The Trust
will deliver to, or upon the order of, the Representative during the
period when delivery of a Prospectus is required under the Act, as
many copies of the Prospectus in final form, or as thereafter amended
or supplemented, as the Representative may reasonably request.
(v) The Trust will comply with the Act and the rules and
regulations of the Commission thereunder, and the Exchange Act, and
the rules and regulations of the Commission thereunder, so as to
permit the completion of the distribution of the Shares as
contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of which, in
the judgment of the Trust or in the reasonable opinion of the
Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances existing at the time the Prospectus is delivered to
a purchaser, not misleading, or, if it is necessary at any time to
amend or supplement the Prospectus to comply with any law, the Trust
promptly will (i) prepare and file with the Commission an appropriate
amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an appropriate
filing under the Exchange Act which shall be incorporated by reference
in the Prospectus so that the Prospectus as so amended or supplemented
will not, in the light of the circumstances when it is so delivered,
be misleading, or so that the Prospectus will comply with the law.
(vi) The Trust will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not
later than 15 months after the effective date of
-11-
the Registration Statement, an earnings statement (which need not be
audited) in reasonable detail, covering a period of at least 12
consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 thereunder.
(vii) Prior to the Closing Date, the Trust will furnish to the
Underwriters, as soon as they have been prepared by or are available
to the Trust, a copy of any unaudited interim financial statements of
the Trust for any period subsequent to the period covered by the most
recent financial statements appearing in the Registration Statement
and the Prospectus.
(viii) No offering, sale, short sale or other disposition of any
Preferred Shares of the Trust or other securities convertible into or
exchangeable or exercisable for Preferred Shares or derivative of
Preferred Shares (or agreement for such) will be made for a period of
90 days after the date of this Agreement, directly or indirectly, by
the Trust otherwise than hereunder or with the prior written consent
of the Representative.
(ix) The Trust will use its best efforts to list, subject to
notice of issuance, the Shares on the New York Stock Exchange.
(x) The Articles Supplementary for the Preferred Shares will be
in full force and effect prior to the Closing Date and will comply
with all applicable legal requirements.
(xi) The Trust shall apply the net proceeds of its sale of the
Shares as set forth in the Prospectus.
(xii) The Trust shall not invest, or otherwise use the proceeds
received by the Trust from its sale of the Shares in such a manner as
would require the Trust or any of the Subsidiaries to register as an
investment company under the 1940 Act.
(xiii) The Trust will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Trust, a registrar for
the Preferred Shares.
(xiv) The Trust will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Trust.
5. COSTS AND EXPENSES.
The Trust will pay all costs, expenses and fees incident to the performance
of the obligations of the Trust under this Agreement, including, without
limiting the generality of the foregoing, the following: accounting fees of the
Trust; the fees and disbursements of counsel for the Trust; the cost of printing
and delivering to, or as requested by, the Underwriters copies of the
Registration Statement, Preliminary Prospectus, the Prospectus, this Agreement,
the Underwriters' Invitation Letter, the Listing Application, the Blue Sky
Survey and any supplements or amendments thereto; the filing fees of the
Commission; the filing fees and expenses (including legal fees and
disbursements) incident to securing any required review by the NASD of the terms
of the sale of the Shares; the Listing Fee of the New York Stock Exchange; and
the expenses, including the fees and disbursements of counsel for the
Underwriters, incurred in connection with the qualification of the Shares under
State securities or Blue Sky laws. The Trust shall not, however, be required to
pay for any of the Underwriters expenses (other than those related to
qualification under NASD regulation and State securities or Blue Sky laws),
including the fees and
-12-
expenses of its counsel, except that, if this Agreement shall not be consummated
because the conditions in Section 6 hereof are not satisfied, or because this
Agreement is terminated by the Representative pursuant to Section 11 hereof, or
by reason of any failure, refusal or inability on the part of the Trust to
perform any undertaking or satisfy any condition of this Agreement or to comply
with any of the terms hereof on its part to be performed, unless such failure,
refusal or inability is due primarily to the default or omission of any
Underwriter, the Trust shall reimburse the several Underwriters for reasonable
out-of-pocket expenses, including fees and disbursements of counsel, reasonably
incurred in connection with investigating, marketing and proposing to market the
Shares or in contemplation of performing their obligations hereunder; but the
Trust shall not in any event be liable to any of the several Underwriters for
damages on account of loss of anticipated profits from the sale by them of the
Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the Shares on the
Closing Date are subject to the accuracy as of the Closing Date, of the
representations and warranties of the Trust and the Operating Partnership
contained herein, and to the performance by the Trust and the Operating
Partnership of their respective covenants and obligations hereunder and to the
following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by
Rule 424 and Rule 430A of the Act shall have been made within the
applicable time period prescribed by, and in compliance with, the rules and
regulations under the 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. No stop
order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and no proceedings for
that purpose shall have been taken or, to the knowledge of the Trust, shall
be contemplated or threatened by the Commission and no injunction,
restraining order or order of any nature by a Federal or state court of
competent jurisdiction shall have been issued as of the Closing Date which
would prevent the issuance of the Shares.
(b) The Representative shall have received on the Closing Date the
opinions of (i) Xxxxxx Xxxxxxx, Esq., in his capacity as General Counsel of
the Trust, (ii) Xxxxxxx LLP, special Maryland counsel to the Trust, or
(iii) Xxxxx Xxxx LLP, special counsel to the Trust, as the case may be,
dated the Closing Date, addressed to the Underwriters (and stating that it
may be relied upon by counsel to the Underwriters) to the effect that:
(i) the Trust has been duly formed and is validly existing as a
real estate investment trust in good standing under the laws of the
State of Maryland. The Trust is in good standing under the laws of all
other jurisdictions where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except
where the failure to be so qualified would not reasonably be expected
to have a Material Adverse Effect. Each of the Significant
Subsidiaries has been duly organized and is validly existing as a
general or limited partnership or corporation or limited liability
company or trust in good standing under the laws of the jurisdiction
of its organization, and is qualified to transact business and is in
good standing under the laws of all other jurisdictions where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not reasonably be expected to have a Material Adverse
Effect.
(ii) the Trust and each of the Subsidiaries have full trust,
corporate, partnership or limited liability power, 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 Trust and the Operating Partnership has full trust or partnership
power to enter into this Agreement and to carry
-13-
out all the terms and provisions hereof to be carried out by it in all
material respects, including the execution and filing of the Articles
Supplementary with the SDAT;
(iii) the issued shares of capital stock of each of the
Subsidiaries that is a corporation are duly authorized, validly
issued, fully paid and non-assessable, and all of the partnership
interests or membership interests in each Subsidiary that is a
partnership or limited liability company, as the case may be, are
validly issued and fully paid. Except as described in the Registration
Statement or this Agreement and the Prospectus, all of such shares and
interests owned by the Trust or another Subsidiary are owned
beneficially by the Trust or such Subsidiary free and clear of any
security interest, mortgage, pledge, lien, encumbrance, equity or
claim;
(iv) the Trust has an authorized, issued and outstanding
capitalization as set forth in the Prospectus. All of the shares of
beneficial interest of the Trust have been duly authorized and the
shares of beneficial interest of the Trust outstanding are validly
issued, fully paid and non-assessable (except that, under Maryland
law, shareholders of the Trust may be subject to personal liability
with respect to certain claims for tort, contract, taxes and statutory
and other liability);
(v) the Shares have been duly authorized for issuance and sale as
contemplated by this Agreement, and when issued and delivered against
payment therefor in accordance with this Agreement, will be validly
issued, fully paid and non-assessable;
(vi) except as described in or contemplated by the Registration
Statement and the Prospectus, to the best knowledge of such counsel,
there are no outstanding securities of the Trust convertible into or
exchangeable for or evidencing the right to purchase or subscribe for
any shares of beneficial interest of the Trust and there are no
outstanding or authorized options, warrants or rights of any character
obligating the Trust to issue any shares of its beneficial interest or
any securities convertible into or exchangeable for or evidencing the
right to purchase or subscribe for any shares of such beneficial
interest; and except as described in the Registration Statement and
the Prospectus, to the best of knowledge of such counsel, no holder of
any securities of the Trust or any other person has the right,
contractual or otherwise, which has not been satisfied or effectively
waived, to cause the Trust to sell or otherwise issue to them, or to
permit them to underwrite the sale of, any of the Preferred Shares or
the right to have any Preferred Shares or other securities of the
Trust included in the Registration Statement or the right, as a result
of the filing of the Registration Statement, to require registration
under the Act of any Preferred Shares or other securities of the
Trust, and no holders of outstanding common shares of beneficial
interest of the Trust are entitled as such to any preemptive or other
rights to subscribe for any of the Preferred Shares;
(vii) the statements set forth under the headings "Restrictions
on Ownership and Transfer" and "Federal Income Tax Considerations" in
the Base Prospectus, insofar as such statements constitute a summary
of legal matters or legal conclusions, have been reviewed by them and
are correct in all material respects;
(viii) the statements set forth under the headings "Description
of Common Shares", "Description of Preferred Shares", "Description of
Rights," "Description of Warrants" and "Description of Series G
Preferred Shares" in the Prospectus insofar as such statements purport
to summarize certain provisions of the shares of beneficial interest
of the Trust, provide a fair summary of such provisions; and the
statements set forth under the headings "Risk Factors", "Additional
Federal Income Tax Considerations," "Federal Income Taxation of the
Company" and "Federal Income Taxation of Shareholders" in the
Prospectus, insofar as such statements constitute a summary of legal
matters or legal conclusions, have been reviewed by them and are
correct in all material respects;
-14-
(ix) the execution and delivery of this Agreement and the
execution and filing of the Articles Supplementary have been duly
authorized by all necessary trust or partnership action of the Trust
and the Operating Partnership, as the case may be, and this Agreement
has been duly executed and delivered by the Trust and the Operating
Partnership and the Articles Supplementary have been accepted for
record by the SDAT;
(x) (A) to the best knowledge of counsel, no legal or
governmental proceedings are pending to which the Trust, any of the
Subsidiaries, or any of their respective trustees, directors or
officers in their capacity as such, is a party or to which the
Properties or any of the Subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus, and, to
the best knowledge of such counsel, no such proceedings have been
threatened in writing against the Trust or any of the Subsidiaries or
with respect to the Properties and (B) to the best knowledge of
counsel no contract or other document is required to be described in
the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that is not described therein or
filed as required and such contracts and documents as are summarized
in the Registration Statement or the Prospectus are fairly summarized
in all material respects;
(xi) the issuance, offering and sale of the Shares to the
Underwriters by the Trust pursuant to this Agreement, the compliance
by the Trust with the other provisions of this Agreement, the
execution, delivery and filing of the Articles Supplementary, and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained and such as may be required under the Act or state
securities or blue sky laws (as to which such counsel need not opine)
or (B) conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
of the Properties or any other properties or assets of the Trust or
any of the Subsidiaries pursuant to any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Trust or
any of its Subsidiaries is a party or by which the Trust or any of its
Subsidiaries or the Properties or any other of their respective
properties are bound, except where such breach, violation or default
would not have a Material Adverse Effect, or the declaration of trust,
articles of incorporation, bylaws or other organizational documents,
as the case may be, of the Trust or any of the Subsidiaries, or any
statute or rule or regulation of any court or other governmental
authority, except where such breach, violation or default would not
have a Material Adverse Effect, or any judgment, decree or order or
(to the best knowledge of such counsel) any arbitrator applicable to
the Trust or any of the Subsidiaries or any of the Properties, except
where such breach, violation or default would not have a Material
Adverse Effect, and the form of certificate used to evidence the
Shares is in due and proper form and complies in all respects with the
applicable statutory requirements applicable to the Trust;
(xii) to the best knowledge of such counsel, the Trust and the
Subsidiaries possess all certificates, authorizations, licenses and
permits issued by the appropriate federal, state, municipal or foreign
regulatory authorities necessary to conduct their respective
businesses except for such certificates, authorizations, licenses and
permits the failure of which to possess would not be expected to
result in a Material Adverse Effect, and neither the Trust nor any of
the Subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization,
license or permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding would result in a Material
Adverse Effect, except as described in the Prospectus;
(xiii) to the best of such counsel's knowledge, neither the Trust
nor any of the Subsidiaries is in violation of any term or provision
of its declaration of trust, certificate of incorporation, bylaws,
certificate of limited partnership, certificate of formation or other
organizational documents
-15-
required to be filed with state authorities, as the case may be; none
of the Subsidiaries is in violation of its partnership agreement or
operating agreement, as the case may be, except as would not result in
a Material Adverse Effect;
(xiv) no default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default, in the
due performance and observance of any term, covenant or condition of
any indenture, mortgage or deed of trust, or any material lease or
other agreement or instrument known to such counsel after due inquiry
to which the Trust or any of the Subsidiaries is a party or by which
the Trust, any of the Subsidiaries, any of the Properties is bound or
may be affected except such as would not result in any Material
Adverse Effect;.
(xv) the Registration Statement is effective under the Act, the
Prospectus has been filed with the Commission in the manner and within
the time period required by Rule 424(b); and to the best of counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and no
order directed at any document incorporated by reference in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto has been issued, and to the best of such counsel's knowledge,
no proceedings for that purpose have been instituted or threatened by
the Commission;
(xvi) the execution, delivery and performance of any of the
partnership or operating agreements to which the Trust or any of the
Subsidiaries is a party, and which relates to Properties described in
the Prospectus, did not, at the time of execution and delivery, and
does not constitute, a breach of, or default under, (a) the
declaration of trust, the charter or bylaws of the Trust or any of the
Subsidiaries, as applicable, or (b) to the knowledge of counsel any
material contract, lease or other instrument to which such party is a
party or by which its properties may be bound, except as would not
result in a Material Adverse Effect or (c) to the knowledge of counsel
any law, administrative regulation or administrative or court decree
except as would not result in a Material Adverse Effect;
(xvii) the Registration Statement and each amendment thereto and
the Prospectus (in each case, including the documents incorporated by
reference therein, but not including the financial statements, notes
thereto and other financial information and schedules contained or
incorporated by reference therein, as to which such counsel need
express no opinion) complied when filed with the Commission as to form
in all material respects with the applicable requirements of the Act,
the Exchange Act and the respective rules and regulations of the
Commission thereunder. In passing upon compliance as to form of such
documents, such counsel may assume the statements made therein are
correct and complete;
(xviii) (A) commencing with its taxable year ended December 31,
1994, the Trust has been organized in conformity with the requirements
for qualification and taxation as a REIT for federal income tax
purposes, and, based on the facts and assumptions set forth in the
Prospectus and the representations by the Trust, set forth in an
Officer's Certificate regarding certain federal income tax matters,
its method of operation has enabled it, and its proposed method of
operation will enable it to continue to meet the requirements under
the Code for qualification and taxation as a REIT and (B) the
Operating Partnership, the other Partnership Subsidiaries and the LLC
Subsidiaries will be treated for Federal income tax purposes as
partnerships (or as disregarded entities) and not as associations
taxable as corporations or as publicly-traded partnerships; and
(xix) neither the Trust nor any Subsidiary is or will become, as
a result of the consummation of the transactions contemplated by this
Agreement, and application of the net proceeds therefrom as described
in the Prospectus, required to register as an investment company under
the 1940 Act.
-16-
Xxxxx Xxxx LLP shall also state that while such counsel is not passing upon
and does not assume responsibility for, and shall not be deemed to have
independently verified the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, no facts have come to
such counsel's attention in the course of participating with officers and
representatives of the Trust in the preparation of the Registration Statement
and the Prospectus (except for financial statements and schedules and other
financial and statistical data contained or incorporated by reference therein,
as to which such counsel need express no opinion), to lead it to believe that
the Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading, or
that the Prospectus as of its date or as of the Closing Date contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Trust and public officials and, as to matters involving the
application of laws of any jurisdiction other than the States of Delaware,
Maryland, New York or the United States, to the extent satisfactory in form and
scope to counsel for the Underwriters, upon the opinion of local counsel and
in-house general counsel. The foregoing opinion shall also state that the
Underwriters are justified in relying upon such opinion of local counsel, and
copies of such opinion shall be delivered to the Underwriters and its counsel.
Such opinion may also include customary and reasonable assumptions and
qualifications that are acceptable to the Underwriters and its counsel.
References to the Registration Statement and the Prospectus in this paragraph
(b) shall include any amendment or supplement thereto at the date of such
opinion.
(c) The Representative shall have received from Xxxxxxxx Chance US LLP,
counsel for the Underwriters, an opinion dated the Closing Date in customary
form and substance reasonably satisfactory to the Representative. In rendering
such opinion Xxxxxxxx Chance US LLP may rely as to all matters governed other
than by the laws of the State of New York or the Delaware General Corporation
Law or Federal laws on the opinion of counsel referred to in Paragraph (b) of
this Section 6. In addition to the matters set forth above, such opinion shall
also include a statement to the effect that nothing has come to the attention of
such counsel which leads them to believe that (i) the Registration Statement, or
any amendment thereto, as of the time it became effective under the Act,
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, and (ii) the Prospectus, or any supplement thereto, as of its
date and as of the Closing Date contained or contains 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 (except that such counsel need express no view as
to financial statements, schedules and statistical information included or
incorporated by reference therein). With respect to such statement, Xxxxxxxx
Chance US LLP may state that their belief is based upon the procedures set forth
therein, but is without independent checking and verification.
(d) The Representative shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof and the Closing Date, in form
and substance satisfactory to you, of PricewaterhouseCoopers LLP confirming that
they are independent public accountants within the meaning of the Act and the
applicable rules and regulations thereunder and stating that in their opinion
the financial statements and schedules examined by them and included in the
Registration Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related rules and
regulations; and containing such other statements and information as are
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement and Prospectus.
-18-
(e) The Representative shall have received on the Closing Date a
certificate or certificates of the Chief Executive Officer and the Chief
Financial Officer or the Chief Operating Officer of the Trust to the effect
that, as of the Closing Date, each of them severally represents as follows:
(i) The Registration Statement has become effective under the Act and
no stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for such purpose have been taken or
are, to his or her knowledge, contemplated or threatened by the Commission;
(ii) The representations and warranties of the Trust and the Operating
Partnership contained in Section 1 hereof are true and correct as of the
Closing Date;
(iii) All filings required to have been made pursuant to Rules 424 or
430A under the Act have been made as and when required by such rules;
(iv) He or she has carefully examined the Registration Statement and
the Prospectus and, in his or her opinion, as of the effective date of the
Registration Statement, the statements contained in the Registration
Statement were true and correct, and such Registration Statement and the
Prospectus, as of its date, did not omit to state a material fact required
to be stated therein or necessary in order to make the statements therein
not misleading, and since the effective date of the Registration Statement,
no event has occurred which should have been set forth in a supplement to
or an amendment of the Prospectus which has not been so set forth in such
supplement or amendment; and
(v) Since the date as of which information is given in the Prospectus,
there has not been any material adverse change or any development involving
a prospective material adverse change in or affecting the business,
management, properties, assets, rights, operations or condition (financial
or otherwise) or prospects of the Trust and the Subsidiaries taken as a
whole, whether or not arising in the ordinary course of business.
(f) The Trust shall have furnished to the Representative such further
certificates and documents confirming the representations and warranties,
covenants and conditions contained herein and related matters as the
Representative may reasonably have requested.
(g) The Shares have been duly listed, subject to official notice of
issuance, on the New York Stock Exchange.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are reasonably
satisfactory in all material respects to the Representative and to Xxxxxxxx
Chance US LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the Representative may waive in writing the compliance by the Trust of any one
or more of the foregoing conditions, extend the time for their performance, or
terminate the obligations of the Underwriters hereunder by notifying the Trust
of such termination in writing or by telegram at or prior to the Closing Date.
In the event of a termination, the Trust and the Operating Partnership, on
the one hand, and the Underwriters, on the other hand, shall not be under any
obligation to each other (except to the extent provided in Sections 5 and 8
hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE TRUST.
-18-
The obligations of the Trust to sell and deliver the portion of the Shares
required to be delivered as and when specified in this Agreement are subject to
the condition that at the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and in effect
or proceedings therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Trust and the Operating Partnership agree jointly and severally to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the 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 by any Underwriter or any such controlling person
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 or the Prospectus (as amended or supplemented if the Trust 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, 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 Trust in writing by
such Underwriter through the Representative expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Trust, the Operating Partnership, each of their directors,
each of their officers who sign the Registration Statement and each person, if
any, who controls the Trust and the Operating Partnership within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Trust and the Operating Partnership
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Trust in writing by such Underwriter through the
Representative expressly for use in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either paragraph (a) or (b) of this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing 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 the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Representative, in the case of parties indemnified
pursuant to paragraph (a) above and by the Trust, in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such
-19-
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. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested in
writing an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. 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 such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 8 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 Trust and the Operating Partnership on the one hand and
the Underwriters on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Trust and the
Operating Partnership on the one hand and of the Underwriters 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 Trust and the Operating
Partnership 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 (before
deducting expenses) received by the Trust and the Operating Partnership and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the Trust
and the Operating Partnership 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 the Trust
and 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. The Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective principal amounts of Shares they have purchased hereunder, and not
joint.
(e) The Trust, the Operating Partnership and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Section 8 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 paragraph (d) of this
Section 8. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph 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 8, 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. No person guilty of
-20-
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 8 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.
(f) The indemnity and contribution provisions contained in this Section 8
and the representations, warranties and other statements of the Trust and the
Operating Partnership 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 or any person
controlling any Underwriter or by or on behalf of the Trust and the Operating
Partnership, their officers or directors or any person controlling the Trust and
the Operating Partnership and (iii) acceptance of and payment for any of the
Shares.
9. DEFAULT BY UNDERWRITERS.
If on the Closing Date any Underwriter shall fail to purchase and pay for
the portion of the Shares which such Underwriter has agreed to purchase and pay
for on such date (otherwise than by reason of any default on the part of the
Trust or the Operating Partnership), Xxxxxx Xxxxxxx & Co. Incorporated, as
Representative of the Underwriters, shall use its reasonable efforts to procure
within 36 hours thereafter one or more of the other Underwriters, or any others,
to purchase from the Trust such amounts as may be agreed upon and upon the terms
set forth herein, the Shares which the defaulting Underwriter or Underwriters
failed to purchase. If during such 36 hours you, as such Representative, shall
not have procured such other Underwriters, or any others, to purchase the Shares
agreed to be purchased by the defaulting Underwriter or Underwriters, then (a)
if the aggregate number of shares with respect to which such default shall occur
does not exceed 10% of the Shares to be purchased on the Closing Date, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Shares which they are obligated to purchase hereunder, to purchase
the Shares which such defaulting Underwriter or Underwriters failed to purchase,
or (b) if the aggregate number of shares with respect to which such default
shall occur exceeds 10% of the Shares to be purchased on the Closing Date, the
Trust or you as the Representative of the Underwriters will have the right, by
written notice given within the next 36-hour period to the parties to this
Agreement, to terminate this Agreement without liability on the part of the
non-defaulting Underwriters or of the Trust or the Operating Partnership except
to the extent provided in Sections 5 and 8 hereof. In the event of a default by
any Underwriter or Underwriters, as set forth in this Section 9, the Closing
Date, may be postponed for such period, not exceeding seven days, as you, as
Representative, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section 9
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except as otherwise
provided herein, will be mailed, delivered, telecopied or telegraphed and
confirmed as follows: if to the Underwriters, to Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Syndicate
Manager; if to the Trust or the Operating Partnership, to 000 Xxxx Xxx Xxxxxx,
Xxxxxxxx, Xxxx 00000, Attn: General Counsel, with a copy to Xxxxx Xxxx LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxx,
Esq.
11. TERMINATION.
-21-
This Agreement may be terminated by the Representative by notice to the
Trust
(a) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or any
development involving a prospective material adverse change in or affecting the
earnings, business, management, properties, assets, rights, operations or
condition (financial or otherwise) or prospects of the Trust and its
Subsidiaries taken as a whole, whether or not arising in the ordinary course of
business, (ii) any outbreak or escalation of hostilities or declaration of war
or national emergency or any change in financial markets, currency exchange
rates or controls 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 (ii), 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 Prospectus, (iii) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market
or other relevant exchanges, (iv) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects or
may materially and adversely affect the business or operations of the Trust, (v)
the declaration of a banking moratorium by United States or New York State
authorities, (vi) any downgrading, or placement on any watch list for possible
downgrading, in the rating of any of the Trust's or the Operating Partnership's
debt securities by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Exchange Act), (vii) trading
of any securities of the Trust shall have been suspended on the New York Stock
Exchange or by the Commission, or any other governmental authority, (viii) a
material disruption in securities settlement, payment or clearance services in
the United States or other relevant jurisdiction shall have occurred or, (ix)
the taking of any action by any governmental body or agency in respect of its
monetary or fiscal affairs which in your reasonable opinion has a material
adverse effect on the securities markets in the United States; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Trust and the Operating Partnership and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS.
The Trust, the Operating Partnership and the Underwriters acknowledge and
agree that the only information furnished or to be furnished by any Underwriter
to the Trust for inclusion in any Prospectus or the Registration Statement
consists of the information set forth in the third and seventh paragraphs under
the caption "Underwriting" in the Prospectus.
14. TRUST EXCULPATION.
This Agreement and all documents, agreements, understandings and
arrangements relating hereto have been entered into or executed on behalf of the
Trust by the undersigned in his capacity as a trustee or officer of the Trust,
which has been formed as a Maryland real estate investment trust pursuant to a
declaration of trust of the Trust dated as of September 15, 1993, as amended and
-22-
restated, and not individually. No shareholder of the Trust shall be bound or
have any personal liability hereunder or thereunder by virtue of their capacity
as a shareholder.
15. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements contained in
this Agreement and the representations, warranties and covenants in this
Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Trust or
the Operating Partnership or their trustees, directors or officers and (c)
delivery of and payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Maryland.
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Trust and the several
Underwriters in accordance with its terms.
Very truly yours,
GLIMCHER REALTY TRUST
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By Glimcher Properties Corporation,
its general partner
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
As Representative of the
Underwriters
By: Xxxxxx Xxxxxxx & Co. Incorporated
By /s/ Xxxxxx X. Xxxxxxxxxx III
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Executive Director
SCHEDULE I
SCHEDULE OF UNDERWRITERS
Number of Shares
Underwriter to be Purchased
----------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated 5,275,000
XxXxxxxx Investments Inc. 500,000
BB&T Capital Markets, Inc. 25,000
X.X. Xxxxxxxx & Co. 25,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC 25,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 25,000
Xxxxxx Xxxxxx & Company, Inc. 25,000
Xxxxxxxxxxx & Co. Inc. 25,000
RBC Xxxx Xxxxxxxx Inc. 25,000
Xxxxxx, Xxxxxxxx & Company Incorporated 25,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. 25,000
Total 6,000,000
SCHEDULE II
LIST OF SUBSIDIARIES
Catalina Partners, L.P.
Xxxxxxxxx Xxxxxxxx Mall, LLC
Colonial Park Mall Limited Partnership
Colonial Park Trust
Dayton Mall Venture, LLC
EM Columbus, LLC
Fairfield Village, LLC
GB Northtown, LLC
Glimcher Ashland Venture, LLC
Glimcher Auburn, Inc.
Xxxxxxxx Xxxxxx, Inc.
Glimcher Colonial Park Mall, Inc.
Glimcher Colonial Trust
Glimcher Columbia, LLC
Glimcher Dayton Mall, Inc.
Glimcher Development Corporation
Glimcher Eastland, Inc.
Glimcher Grand Central, Inc.
Glimcher Jersey Gardens, LLC
Xxxxxxxx XX Urban Renewal, Inc.
Glimcher Xxxxxxx City, Inc.
Glimcher Loyal Plaza, Inc.
Glimcher Loyal Plaza Tenant, Inc.
Glimcher Loyal Plaza Tenant, X.X.
Xxxxxxxx Xxxxxxxxxx, Inc.
Glimcher Morgantown Mall, Inc.
Glimcher Mount Xxxxxx, Inc.
Glimcher Northtown Venture, LLC
Glimcher Properties Corporation
Glimcher Properties Limited Partnership
Glimcher PTC, Inc.
Glimcher River Valley Mall, LLC
Glimcher Supermall Venture, LLC
Glimcher Tampa, Inc.
Glimcher University Mall Limited Partnership
Glimcher Weberstown, Inc.
Glimcher Westpark Plaza, LLC
Glimcher WestShore, LLC
GP Metromall, Inc.
GP Olathe, Inc.
Grand Central Limited Partnership
Great Plains Metromall LLC
Hocking Valley Mall, LLC
Jersey Gardens Center, LLC
JG Mezzanine, LLC
Xxxxxxx City Venture, LLC
LC Portland, LLC
Loyal Plaza Venture, L.P.
MFC Beavercreek, LLC
Xxxxxxxxxx Mall Associates Limited Partnership
Morgantown Mall Associates Limited Partnership
Mount Xxxxxx Venture, LLC
New Boston Mall, LLC
N.J. Metromall Urban Renewal, Inc.
Ohio Entertainment Corporation
Olathe Mall LLC
PFP Columbus, LLC
Polaris Center, LLC
Polaris Mall, LLC
SAN Mall Corp.
SAN Mall, L.P.
Shady Springs Plaza, LLC
Southside Mall, LLC
Trans State Development, Inc.
Trans State Development, LLC
Weberstown Mall, LLC
SCHEDULE III
SIGNIFICANT SUBSIDIARIES
NAME: JURISDICTION OF ORGANIZATION:
---- ----------------------------
Glimcher Properties Limited Partnership Delaware
Xxxxxxxx XX Urban Renewal, Inc. New Jersey
Jersey Gardens Center LLC Delaware
Glimcher Supermall Venture, LLC Delaware
Glimcher University Mall Limited Partnership Delaware
Glimcher WestShore, LLC Delaware
Great Plains Metromall, LLC Delaware
Olathe Mall, LLC Colorado
LC Portland, LLC Delaware
Polaris Mall, LLC Delaware
PFP Columbus, LLC Delaware
Exhibit 1(e)
As security for the repayment of a $36.5 million loan from Bank One, NA,
Glimcher Properties Limited Partnership has pledged to Bank One, NA 100% of its
limited liability company interest in Polaris Mall, LLC.
Attached is an organizational structure chart identifying each Subsidiary
of the Trust and all owners of equity interests of each Subsidiary, including
the percentage ownership of each such owner.
