Exhibit 1.1
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8,000,000 Shares
GENERAL GROWTH PROPERTIES, INC.
Common Stock
UNDERWRITING AGREEMENT
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December 12, 2001
XXXXXX BROTHERS INC.
As Representative of the several
Underwriters named in Schedule I,
c/x Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
General Growth Properties, Inc., a Delaware corporation (the "Company") and
the general partner of GGP Limited Partnership, a Delaware limited partnership
(the "Operating Partnership"), proposes to issue and sell up to an aggregate of
8,000,000 shares of the Company's common stock par value $.10 per share (the
"Common Stock"). Subject to the terms and conditions stated herein, the Company
hereby agrees to sell to the firms named in Schedule I hereto (the
"Underwriters"), and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company, at the time and place and at the purchase price to
the Underwriters set forth in Schedule II hereto, the number of shares of Common
Stock set forth in Schedule I hereto (the "Firm Shares"). At the election of the
Underwriters, the Underwriters may purchase up to an additional 1,200,000 shares
of the Common Stock on the terms and for the purposes set forth in Section 2
hereof (the "Option Shares"). The Firm Shares and the Option Shares, if
purchased, are herein collectively called "Shares". In the event and to the
extent that the Underwriters shall exercise the election to purchase Option
Shares pursuant to Section 2 and subject to the terms and conditions stated
therein, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agree, severally and not jointly, to purchase from the
Company at the purchase price to the Underwriters set forth in Schedule II
hereto that portion of the number of Option Shares as set forth in Section 2
hereof as to which such election shall have been exercised.
This is to confirm the agreement concerning the purchase of the Shares from
the Company by the Underwriters.
1. The Company and the Operating Partnership, jointly and severally,
represent and warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-37247) in
respect of the Shares has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to you as the
representative (the "Representative") of the Underwriters and, excluding
exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus included therein, have been
declared effective by the Commission in such form; no other document with
respect to such registration statement or document incorporated by
reference therein has heretofore been filed, or transmitted for filing,
with the Commission (other than documents incorporated by reference in such
prospectus and prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933, as amended
(the "Act"), each in the form heretofore delivered to the Representative);
and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission
pursuant to Rule 424(a) under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement, including
all exhibits thereto and the documents incorporated by reference in the
prospectus contained in the registration statement at the time such part of
the registration statement became effective, each as amended at the time
such part of the registration statement became effective, are hereinafter
collectively called the "Registration Statement"; the prospectus relating
to the Shares, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of this
Agreement, is hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in the form in which it is filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 4(a) hereof, including any documents incorporated by reference
therein as of the date of such filing); if the Company has filed an
abbreviated registration statement to register additional securities,
including shares of Common Stock, pursuant to Rule 462(b) under the
Securities Act (the "Rule 462 Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such
Rule 462 Registration Statement, unless the context otherwise requires;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents
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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 any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Representative expressly for use in the Prospectus
as amended or supplemented;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement or a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through the Representative expressly for use in the
Prospectus as amended or supplemented;
(d) Neither the Company nor any of its subsidiaries ("subsidiaries",
as used in this Agreement, shall include the Operating Partnership, GGPLP
L.L.C. and each other partnership which is together wholly-owned by the
Company, the Operating Partnership and GGPLP L.L.C. (each, a "Property
Partnership")), has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus as amended or supplemented, there has not been
any change in the capital stock (other than issuances pursuant to stock
option plans) of the Company or the short-term or long-term debt of the
Company (other than reductions in short-term or long-term debt pursuant to
scheduled reductions in the applicable debt instrument) or the capital
stock or equity capital of any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position,
stockholders' equity (or, with respect to partnership subsidiaries,
partnership capital) or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus;
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(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Delaware with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
or is subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction; and each material
subsidiary of the Company has been duly organized and is validly existing
as a partnership or corporation, as the case may be, in good standing (to
the extent applicable) under the laws of its jurisdiction of organization
and has been duly qualified for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable. Except as disclosed in the Prospectus, no shares of the
Company's Common Stock are reserved for any purpose and there are no
outstanding securities convertible into or exchangeable for any shares of
Common Stock of the Company, and no outstanding options, rights (preemptive
or otherwise) or warrants to purchase or subscribe for shares of Common
Stock or any other securities of the Company (except, in the case of
options, any options granted on or after the date on which the Company
filed its definitive proxy statement on Schedule 14A);
(g) The Shares have been duly and validly authorized and, when issued
and delivered pursuant to this Agreement, will be validly issued, fully
paid and non-assessable and will not be subject to the preemptive rights or
other similar rights of any stockholder of the Company; all corporate
action required to be taken for the authorization, issue and sale of the
Shares has been validly and sufficiently taken; and the Shares will conform
to the description thereof contained in the Prospectus as amended or
supplemented;
(h) The issue and sale of the Shares by the Company, the compliance
by the Company with all of the provisions of this Agreement and the
consummation of the transactions contemplated herein will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
subsidiary is a party or by which the Company or any subsidiary is bound or
to which any of the property or assets of the Company or any subsidiary is
subject, except for a conflict, breach, violation, or default which would
not have a material adverse effect on (i) the Company's ability to perform
its obligations hereunder or (ii) the Company and its subsidiaries taken as
a whole, nor will such action result in any violation of the provisions of
the certificate of incorporation or bylaws of the Company or the
constituent documents of any subsidiary or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its
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subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject, which might reasonably be expected to
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(j) Neither the Company nor any of its subsidiaries is in violation
of its certificate of incorporation or certificate of limited partnership,
as the case may be, or bylaws or partnership agreement, as the case may be,
or in breach of or default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument or under any applicable law, rule, order, administrative
regulation or administrative or court decree to which it is a party or by
which it or any of its properties may be bound, which breaches or defaults
would, in the aggregate, have a material adverse effect on the general
affairs, management, financial position, stockholders equity or results of
operations of the Company and its subsidiaries taken as a whole;
(k) The statements set forth in the Prospectus (i) under the captions
"Description of Common Stock", insofar as they purport to constitute a
summary of the terms of the securities of the Company and the provisions of
the laws and documents referred to therein, and (ii) under the caption
"Federal Income Tax Considerations", insofar as they purport to describe
the provisions of the laws and documents referred to therein, are accurate
and complete;
(l) Neither the Company, nor any of its subsidiaries, is, or will be,
after giving effect to the issue and sale of the Shares by the Company, an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(m) During the periods covered by the financial statements on which
they reported and on the date of their report, PricewaterhouseCoopers LLP,
who have certified certain financial statements of the Company and its
subsidiaries or affiliates, were independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder;
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(n) Deloitte & Touche LLP, who have been engaged by the Company as its
independent accountants, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder;
(o) The Company and its subsidiaries have good and marketable title in
fee simple to, or good and marketable leasehold estates in, all real
property described in the Prospectus as being owned or leased by them, and
good and marketable title to all personal property owned by them which is
material to the business of the Company and its subsidiaries, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the value
of such property, and do not materially interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries;
and any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid and subsisting leases, in each
case except as set forth or contemplated in the Prospectus;
(p) The partnership agreement, shareholder agreement or operating
agreement of each subsidiary of the Company has been duly authorized,
executed and delivered by each party thereto and is valid, legally binding
and enforceable in accordance with its terms; all of the partnership
interests in each partnership subsidiary of the Company, all of the stock
of each corporate subsidiary of the Company and all of the membership
interests in each limited liability company of the Company have been duly
and validly authorized and issued and are owned, directly or indirectly, by
the Company, the Operating Partnership or GGPLP L.L.C., free and clear of
all liens, encumbrances, equities and claims (except with respect to the
pledge of membership interests in GGP-Grandville L.L.C. and capital stock
of Grandville Mall, Inc. (collectively, the "Pledged Securities");
(q) Application will be made to list the Shares on the New York Stock
Exchange ("NYSE");
(r) This Agreement has been duly and validly authorized, executed and
delivered by each of the Company and the Operating Partnership and is a
valid and legally binding agreement of each of the Company and the
Operating Partnership in accordance with its terms;
(s) The financial statements (including the related notes and
supporting schedules) filed as part of, or incorporated by reference in,
the Registration Statement and the Prospectus present fairly the financial
condition and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved;
(t) Each of the Company and the Operating Partnership and their
subsidiaries, and each property carries, or is covered by, insurance in
such amounts and covering such risks as is adequate for the conduct of its
business and the value of such property and as is customary for companies
engaged in similar businesses in similar industries; and
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(u) At all times commencing with the Company's taxable year ending
December 31, 1993, the Company and the Operating Partnership have been and
upon the sale of the Shares will continue to be, organized and operated in
conformity with the requirements for qualification of the Company as a real
estate investment trust under the Internal Revenue Code of 1986, as amended
(the "Code") and the proposed method of operation of the Company and the
Operating Partnership will enable the Company to continue to meet the
requirements for qualification and taxation as a real estate investment
trust under the Code.
2. On the basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, the Company agrees to
sell the Firm Shares to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Shares set opposite that Underwriter's name in Schedule I hereto.
The Company hereby grants to the Underwriters the right (an
"Overallotment Option") to purchase at their election up to the number of
Optional Shares set forth in Schedule II hereto on the terms referred to herein
for the sole purpose of covering over-allotments in the sale of the Firm Shares.
Any such election to purchase Option Shares may be exercised by written notice
from the Representative to the Company given within a period of 30 calendar days
after the date of this Agreement, setting forth the aggregate number of Option
Shares to be purchased and the date on which such Option Shares are to be
delivered, as determined by the Representative, but in no event earlier than the
First Time of Delivery or, unless the Representative and the Company otherwise
agree in writing, earlier than two or later than ten business days after the
date of such notice.
The number of Option Shares to be added to the number of Firm Shares
to be purchased by each Underwriter as set forth in Schedule I hereto shall be,
in each case, the number of Option Shares which the Company has been advised by
the Representative have been attributed to such Underwriter; provided that, if
the Company has not been so advised, the number of Option Shares to be so added
shall be, in each case, that proportion of Option Shares which the number of
Firm Shares to be purchased by such Underwriter under this Agreement bears to
the aggregate number of Firm Shares (rounded as the Representative may determine
to the nearest 100 shares). The total number of Shares to be purchased by all
the Underwriters pursuant to this Agreement shall be the aggregate number of
Firm Shares set forth in Schedule I to this Agreement plus the aggregate number
of Option Shares which the Underwriters elect to purchase.
3. Upon the authorization by the Representative of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus as amended or supplemented.
4. Certificates representing the Firm Shares and the Option Shares to be
purchased by each Underwriter pursuant to this Agreement, and in such authorized
denominations and registered in such names as the Representative may request
upon at least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representative for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
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purchase price therefor by certified or official bank check or checks or by
transfer to an account designated by the Company, payable to the order of the
Company in funds specified in Schedule II, (i) with respect to the Firm Shares,
all in the manner and at the place and time and date specified in Schedule II or
at such other place and time and date as the Representative and the Company may
agree upon in writing, such time and date being herein called the "First Time of
Delivery" and (ii) with respect to the Option Shares, if any, in the manner and
at the time and date specified by the Representative in the written notice given
by the Representative of the Underwriters' election to purchase such Option
Shares, or at such other time and date as the Representative and the Company may
agree upon in writing, such time and date, if not the First Time of Delivery,
herein called the "Second Time of Delivery". Each such time and date for
delivery is herein called a "Time of Delivery". For the purpose of expediting
the checking and packaging of the certificates for the Shares, the Company shall
make the certificates representing the Shares available for inspection by the
Representative in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to each Time of Delivery.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended and supplemented in a form
approved by the Representative and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business on
the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
424(b); to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of this
Agreement and prior to any Time of Delivery which shall be disapproved by
the Representative promptly after reasonable notice thereof; to advise the
Representative promptly of any such amendment or supplement after any Time
of Delivery for such Shares and furnish the Representative with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Shares, and during such same period to
advise the Representative, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Shares, of the suspension of the
qualification of such Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Shares
or suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representative may reasonably request to qualify such Shares for offering
and sale under the securities laws of such jurisdictions as the
Representative may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
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as may be necessary to complete the distribution of such Shares, provided
that in connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representative may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Shares
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an 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 when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act or the Exchange Act, to notify the
Representative and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representative may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus
in connection with sales of any of the Shares at any time nine months or
more after the date hereof, upon the request of the Representative but at
the expense of such Underwriter, as many copies as the Representative may
from time to time reasonably request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) To use its best efforts to list, subject to notice of issuance,
the Shares on the NYSE;
(f) During the period beginning from the date of the Prospectus
Supplement and continuing to and including the date 30 days after the date
of the Prospectus Supplement, the Company will not offer, sell, contract to
sell or otherwise dispose of any securities of GGP which are substantially
similar to Common Stock or which are convertible or exchangeable into
Common Stock or securities which are substantially similar to common stock,
without the prior written consent of Xxxxxx Brothers, except for (i) the
Shares; (ii) any Common Stock or securities convertible into or exercisable
or exchangeable for Common Stock issued by the Company in connection with
acquisitions; (iii) shares issued under employee stock option or stock
purchase plans existing on the date of the Prospectus Supplement; (iv)
shares issued on or in connection with the conversion, exchange or put of
convertible, exchangeable or other securities outstanding on the date of
the Prospectus Supplement; and (v) securities having substantially the
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same terms as the Company's 7.25% Preferred Income Equity Redeemable Stock,
Series A, par value $100 per share (the "PIERS").
(g) Except as stated in this Agreement and in the Prospectus, neither
the Company nor the Operating Partnership has taken, nor will take,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price
of the Shares or the Common Stock to facilitate the sale or resale of the
Shares.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Blue Sky Memorandum, closing documents
(including compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky survey(s); (iv) any
filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, any required reviews by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Shares;
(v) the cost of preparing certificates for the Shares and Receipts; (vi) the
cost and charges of any transfer agent or registrar; (vii) listing fees of the
NYSE; (viii) fees payable to credit rating agencies; and (ix) all other costs
and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 8 and 11 hereof,
the Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Shares by them,
and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters shall be subject, in the discretion
of the Representative, to the condition that all representations and warranties
and other statements of the Company and the Operating Partnership in this
Agreement are, at and as of each Time of Delivery, true and correct, the
condition that the Company and the Operating Partnership shall have performed
all of their obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 5(a) hereof; any Rule 462 Registration
Statement shall have been filed with the Commission; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on
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the part of the Commission shall have been complied with to the
Representative's reasonable satisfaction;
(b) The Underwriters shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel to the Underwriters, such opinion or opinions, dated such
Time of Delivery, with respect to the issuance and sale of the Shares, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose
of enabling them to pass upon such matters;
(c) Xxxx, Gerber & Xxxxxxxxx, counsel to the Company, shall have
furnished to the Representative its written opinion or opinions, dated each
Time of Delivery, in form and substance satisfactory to the Representative,
to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the General Corporation Law of the State
of Delaware;
(ii) The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, or is subject to no material
liability or disability by reason of its failure to be so qualified in any
such jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company, provided that
such counsel shall state that they believe that both the Underwriters and
they are justified in relying upon such opinions and certificates);
(iii) Each subsidiary of the Company listed on Annex IV has been duly
organized and is validly existing as a partnership, limited liability
company or corporation, as the case may be, in good standing (to the extent
applicable) under the laws of its jurisdiction of incorporation or
organization and, to the best of such counsel's knowledge, each other
subsidiary of the Company has been duly organized or formed and is validly
existing as a partnership, limited liability company, trust or corporation,
as the case may be, in good standing (to the extent applicable) under the
laws of its jurisdiction of incorporation or organization or is subject to
no material liability or disability by reason of its failure to be so duly
organized, formed or validly existing in good standing in any such
jurisdiction; the partnership agreement, shareholder agreement or operating
agreement of each subsidiary of the Company has been duly authorized,
executed and delivered by each party thereto and is valid, legally binding
and enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and the effect of general principles of equity; all of the partnership
interests in each partnership subsidiary of the Company, all of the
membership interests in each limited liability company subsidiary of the
Company and all of the stock of each corporate subsidiary of the Company
have been duly and validly authorized and issued and (except as described
in the Prospectus) are owned directly or indirectly by the Company, the
Operating Partnership or GGPLP L.L.C., free and clear of
-11-
all liens, encumbrances, equities and claims (except with respect to the
pledge of the Pledged Securities); (such counsel being entitled to rely in
respect of the opinion in this clause (iii) upon opinions of local counsel
and in respect of matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state that
they believe both the Underwriters and they are justified in relying upon
such opinions and certificates);
(iv) All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(v) The Shares have been duly authorized and are validly issued and
fully paid and non-assessable;
(vi) The Shares are free of any preemptive or other similar rights
created by the Company's Second Amended and Restated Certificate of
Incorporation, as amended, and, to our knowledge, are free of any
preemptive or other similar rights created pursuant to any agreement
entered into by the Company;
(vii) This Agreement has been duly authorized, executed and delivered
by the Company;
(viii) The initial Registration Statement and the Rule 462
Registration Statement were declared effective under the Securities Act as
of the dates specified in such opinion, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) of the rules and
regulations specified in such opinion on the date specified therein and no
stop order suspending the effectiveness of either the initial Registration
Statement or the Rule 462 Registration Statement has been issued and, to
the knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(ix) The issue and sale of the Shares by the Company to the
Underwriters pursuant to this Agreement do not (i) violate the Company's
certificate of incorporation or by-laws, in each case as in effect on the
date hereof, or (ii) violate any existing Federal law of the United States
or the existing General Corporation Law of the State of Delaware; provided
that such counsel need not express any opinion with respect to state
securities laws;
(x) The issue and sale of the Shares being delivered at such Time of
Delivery, and the compliance by the Company and the Operating Partnership
with all of the provisions of this Agreement and the consummation of the
transactions herein will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or the
Operating Partnership is a party or by which the Company or the Operating
Partnership is bound or to which any of the property or assets of the
Company, the Operating Partnership or any Property Partnership is subject,
nor will such action result in any violation of the provisions of the
certificate of incorporation or bylaws of the Company or the certificate of
limited partnership or partnership agreement of the Operating Partnership
or any
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statute or any order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the Company or the
Operating Partnership or any of their properties;
(xi) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect on
the current or future consolidated financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a
whole; and to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(xii) Neither the Company nor, to our knowledge, any of its
subsidiaries, is in violation of its certificate of incorporation,
certificate of limited partnership or operating agreement, as the case may
be, or bylaws or partnership agreement, as the case may be, or in default
in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument known to us to which
it is a party or by which it or any of its properties may be bound;
(xiii) The partnership agreement of the Operating Partnership has been
duly authorized, executed and delivered by the Company and is the valid and
legally binding obligation of, and is enforceable against, the Company,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and the effect of general principles of equity;
and the partnership agreement of each Property Partnership has been duly
authorized, executed and delivered by the Company in its corporate capacity
or by the Company or a subsidiary of the Company in its capacity as general
partner of the Operating Partnership or the Property Partnerships;
(xiv) The Company is not an "investment company" as that term is
defined in the Investment Company Act of 1940;
(xv) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the Federal laws of
the United States for the issuance, sale and delivery of the Shares by the
Company to you have been obtained or made;
(xvi) Each partnership in which the Company owns an interest in excess
of 10 percent is properly treated (x) as a partnership for federal income
tax purposes and (y) not as a "publicly traded partnership" as defined in
the Code;
(xvii) The statements set forth in the Prospectus under the caption
"Federal Income Tax Considerations" insofar as they purport to describe the
provisions of the
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laws, legal conclusions with respect thereto and documents referred to
therein, are accurate and complete in all material respects; and
(xviii) In the opinion of such counsel, commencing with the Company's
taxable year ending December 31, 1993, the Company has been organized in
conformity with the requirements for qualification as a real estate
investment trust, and its historic and proposed methods of operation have
enabled and will enable it to meet the requirements for qualification and
taxation as a real estate investment trust under the Code and the right, in
certain circumstances, of holders of interests in the Operating Partnership
to exchange those interests for shares of Common Stock has not caused and
will not cause the Company to fail the diversity test of Section 856(a)(6)
of the Code.
In addition, the Representative shall have received from Xxxx, Gerber
& Xxxxxxxxx a letter stating that, as counsel to the Company, they reviewed
the Registration Statement, the prospectus contained therein (the "Basic
Prospectus") and the prospectus supplement, dated December 12, 2001 (the
"Prospectus Supplement"), participated in discussions with the
Representative and representatives of the Company and its accountants, and
advised the Company as to the requirements of the Act and the applicable
rules and regulations thereunder; on the basis of the information that such
counsel gained in the course of the performance of such services,
considered in the light of their understanding of the applicable law
(including the requirements of Form S-3 and the character of the prospectus
contemplated thereby) and the experience they have gained through their
practice under the Act, they confirm to you that, in their opinion, each
part of the Registration Statement, when such part became effective, and
the Basic Prospectus, as supplemented by the Prospectus Supplement, as of
the date of the Prospectus Supplement, appeared on their face to be
appropriately responsive, in all material respects relevant to the offering
of the Shares, to the requirements of the Act and the applicable rules and
regulations of the Commission thereunder; nothing that came to such
counsel's attention in the course of such review has caused such counsel to
believe, insofar as relevant to the offering of the Shares, any part of the
Registration Statement, when such part became effective, 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, insofar as relevant to the offering of the Shares,
the Basic Prospectus, as supplemented by the Prospectus Supplement, as of
the date of the Prospectus Supplement and as of the date of such letter,
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, in light of the circumstances under which they were
made, not misleading. Such counsel may state that the limitations inherent
in the independent verification of factual matters and the character of
determinations involved in the registration process are such that they do
not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement, the Basic
Prospectus or the Prospectus Supplement except for those made under the
captions "Description of Common Stock" and "Plan of Distribution" in the
Basic Prospectus, as supplemented by the statements made under the captions
-14-
"Description of Common Stock," and "Underwriting" in the Prospectus
Supplement, respectively, insofar as they relate to provisions of the
Company's Second Amended and Restated Certificate of Incorporation, as
amended, the Company's by-laws, the Company's Rights Agreement,
indemnification agreements with officers and directors of the Company and
this Agreement; and that such counsel do not express any opinion or belief
as to the financial statements or other financial data derived from
accounting records contained in the Registration Statement, the Basic
Prospectus or the Prospectus Supplement.
(d) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement, shall have furnished to the
Representative a letter, dated each Time of Delivery, to the effect set
forth in Annex I hereto and as to such other matters as the Representative
may reasonably request and in form and substance satisfactory to the
Representative;
(e) Deloitte & Touche LLP, who have been engaged by the Company as its
independent accountants, shall have furnished to the Representative a
letter, dated each Time of Delivery, to the effect set forth in Annex II
hereto and as to such other matters as the Representative may reasonably
request and in form and substance satisfactory to the Representative;
(f) Xxxxxxx Xxxxxxxx shall have furnished to the Representative a
letter, dated the date hereof, to the effect set forth in Annex III hereto
and in form and substance satisfactory to the Representative;
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior to
the date of this Agreement relating to the Shares any loss or interference
with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of this
Agreement, and (ii) since the respective dates as of which information is
given in the Prospectus as amended and supplemented prior to the date of
this Agreement there shall not have been any change in the capital stock
(other than issuances pursuant to stock option plans) or long-term or
short-term debt of the Company or any of its subsidiaries (other than
reductions in short-term or long-term debt pursuant to scheduled reductions
in the applicable debt instrument) or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus as amended prior to the date of this
Agreement, the effect of which, in any such case described in clauses (i)
or (ii), is in the judgment of the Representative so material and adverse
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented;
-15-
(h) On or after the date of this Agreement (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities
or preferred stock;
(i) On or after the date of this Agreement there shall not have
occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the NYSE; (ii) a suspension or material
limitation in trading in the Company's securities on the NYSE; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York State authorities; (iv) any material disruption in
securities settlement or clearance services; and (v) the outbreak or
escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event specified in this Clause (v) in the judgment of the Representative
made it impracticable or inadvisable to proceed with the public offering or
the delivery of the Firm Shares or Option Shares or both on the terms and
in the manner contemplated in the Prospectus as first amended or
supplemented;
(j) The Shares at each Time of Delivery shall have been duly listed,
subject to notice of issuance, on the NYSE; and
(k) The Company shall have furnished or caused to be furnished to
the Representative at such Time of Delivery certificates of officers of the
Company satisfactory to the Representative as to the accuracy of the
representations and warranties of the Company herein at and as of such Time
of Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (g) of this Section 7 and as to
such other matters as the Representative may reasonably request.
8. (a) The Company and the Operating Partnership, jointly and severally,
shall indemnify and hold harmless each Underwriter, its officers and employees
and each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage, or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Shares), to which that Underwriter, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any amendment or supplement
thereto (with respect to the Prospectus, in light of the circumstances under
which they were made), (ii) the omission or alleged omission to state in the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, any material fact required to be stated therein or necessary to make
the statements therein not misleading (with respect to the Prospectus, in light
of the circumstances under which they were made), or (iii) any act or failure to
act or any alleged act or failure to act by any Underwriter in connection with,
or relating in any manner to, the Shares or the offering contemplated hereby,
and which is included as part of
-16-
or referred to in any loss, claim, damage, liability or action arising out of or
based upon matters covered by clause (i) or (ii) above (provided that neither
the Company nor the Operating Partnership shall be liable under this clause
(iii) to the extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such acts or failures to act undertaken or omitted to
be taken by such Underwriter through its gross negligence or willful
misconduct), and shall reimburse each Underwriter and each such officer,
employee or controlling person for any legal or other expenses reasonably
incurred by that Underwriter, officer, employee or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that neither the Company nor the Operating Partnership shall
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the Underwriters by
or on behalf of any Underwriter specifically for inclusion therein. The
foregoing indemnity agreement is in addition to any liability which the Company
and the Operating Partnership may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless each of the Company and the Operating Partnership, its officers
and employees, each of its directors, and each person, if any, who controls the
Company or the Operating Partnership within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which each of the Company or the Operating
Partnership or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (ii) the omission or alleged omission to state in the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Underwriters by or on behalf of
that Underwriter specifically for inclusion therein, and shall reimburse the
Company or the Operating Partnership and any such director, officer or
controlling person for any legal or other expenses reasonably incurred by the
Company or the Operating Partnership or any such director, officer or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company, the Operating
Partnership or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided,
-17-
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 8 except to the extent
it has been materially prejudiced by such failure and, provided further, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that the indemnified party shall have the right to employ its own
counsel, with such counsel, in the case of the Underwriters, to represent
jointly the Underwriters and their respective officers, employees and
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Underwriters against the Company
or the Operating Partnership under this Section 8 if, in the reasonable judgment
of the Underwriters, it is advisable for the Underwriters and those officers,
employees and controlling persons to be jointly represented by separate counsel,
and in that event the fees and expenses of such separate counsel shall be paid
by the Company and the Operating Partnership. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Operating Partnership on the one hand and the
Underwriters on the other 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 Company and
the Operating Partnership on the one hand and the Underwriters on the other with
respect to the statements or omission which resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Operating Partnership on
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the one hand and the Underwriters on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Company or the Operating Partnership, on the one hand,
and the total underwriting discounts and commissions received by the
Underwriters with respect to the Shares purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the Shares
under this Agreement. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Operating Partnership or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Operating
Partnership and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section shall be deemed to
include, for purposes of this Section 8(d), 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(d), 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 was offered to the public exceeds the amount
of any damages which such Underwriter has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm and the Company and the
Operating Partnership each acknowledge that the statements with respect to the
public offering of the Shares by the Underwriters set forth on the cover page of
and, pursuant to Item 508 of Regulation S-K of the Act, the second and eleventh
paragraphs appearing in the section captioned "Underwriting" in, the Prospectus
are correct and constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Shares or Option Shares which it has agreed to purchase under this
Agreement, the Representative may in its discretion arrange for themselves or
another party or other parties to purchase such Shares on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the
Representative does not arrange for the purchase of such Firm Shares or Option
Shares, as the case may be, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties reasonably satisfactory to the Representative to purchase such Shares on
such terms. In the event that, within the respective prescribed period, the
Representative notifies the Company that it has so arranged for the purchase of
such Shares, or the Company notifies the Representative that it has so arranged
for the purchase of such Shares, the Representative or the Company shall have
the right to
-19-
postpone a Time of Delivery for such Shares for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus as amended or supplemented, or in
any other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representative may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of
the Firm Shares or Option Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representative and the Company as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased does not exceed one-eleventh of the aggregate number of the Firm
Shares or Option Shares, as the case may be, to be purchased at the respective
Time of Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Firm Shares or Option
Shares, as the case may be, which such Underwriter agreed to purchase under this
Agreement and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Firm Shares or Option
Shares, as the case may be, which such Underwriter agreed to purchase under this
Agreement) of the Firm Shares or Option Shares, as the case may be, of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Firm Shares or Option Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representative and the Company as provided in
subsection (a) above, the aggregate number of Firm Shares or Option Shares, as
the case may be, which remains unpurchased exceeds one-eleventh of the aggregate
number of the Firm Shares or Option Shares, as the case may be, to be purchased
at the respective Time of Delivery, as referred to in subsection (b) above, or
if the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Shares or Option Shares, as
the case may be, of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Operating Partnership and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company or the Operating Partnership, or any officer or
director or controlling person of the Company or the Operating Partnership, and
shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, or
if any Shares are not delivered by the Company as provided herein because the
condition set forth in
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Section 7(j) hereof has not been met, the Company shall not then be under
any liability to any Underwriter except as provided in Sections 6 and 8 hereof;
but, if for any other reason, Shares are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters through
the Representative for all out-of-pocket expenses approved in writing by the
Representative, including fees and disbursements of counsel, reasonably incurred
by the Underwriters in making preparations for the purchase, sale and delivery
of such Shares, but neither the Company nor the Operating Partnership shall then
be under any further liability to any Underwriter with respect to such Shares
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representative of the Underwriters of
Shares shall act on behalf of each of such Underwriters, and the parties hereto
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by such Representative.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representative as set forth in
Schedule II hereto; and if to the Company or the Operating Partnership shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representative upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company, the Operating Partnership and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and the Operating Partnership and each person who controls the Company, the
Operating Partnership or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto and thereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
-21-
If the foregoing is in accordance with your understanding, please sign and
return to us (one for the Company and one for the Representative plus one for
each counsel) counterparts hereof.
-22-
Very truly yours,
GENERAL GROWTH PROPERTIES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President/
Chief Financial Officer
GGP LIMITED PARTNERSHIP
By: /s/ Xxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President/
Chief Financial Officer
Accepted as of the date hereof:
XXXXXX BROTHERS INC.
For itself and as Representative
of the several Underwriters named
in Schedule I hereto
By: XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Authorized Representative
-23-
SCHEDULE I
NUMBER OF
FIRM SHARES
TO BE PURCHASED
---------------
UNDERWRITERS
------------
XXXXXX BROTHERS INC .................................. 8,000,000
TOTAL ........................................... 8,000,000
SCHEDULE II
Number of Shares:
Number of Firm Shares: 8,000,000
Maximum Number of Option Shares: 1,200,000
Initial Offering Price to Public:
Xxxxxx Brothers proposes to offer the Shares from time to time for sale
in one or more transactions in the over-the-counter market, at market
prices prevailing at the time of sale, at prices related to prevailing
market prices, or at negotiated prices, subject to prior sale when, as
and if delivered to and accepted by Xxxxxx Brothers.
Purchase Price by Underwriters:
$37.50 per Share
Listing:
New York Stock Exchange
Specified Funds for Payment of Purchase Price:
Wire transfer of immediately available funds
Time of Delivery:
10:00 a.m. (New York City time), December 18, 2001
Closing Location:
Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Names and Addresses of Representative:
Xxxxxx Brothers Inc.
c/x Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Address for Notices, etc.:
000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000,
Attention: Syndicate Department (Fax: 000-000-0000)
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They were independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder during the periods
covered by the financial statements on which they reported and on the date
of their report;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, selected financial data, pro
forma financial information, financial forecasts and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon;
(iii) For the periods prior to December 31, 2000, they have made a
review in accordance with standards established by the American Institute
of Certified Public Accountants of the unaudited consolidated statements of
income, consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus and/or included in the Company's quarterly
reports on Form 10-Q incorporated by reference into the Prospectus; and on
the basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited consolidated financial statements referred
to in paragraph (iv)(A)(i) below comply as to form in all material respects
with the applicable accounting requirements of the Act and the Exchange Act
and the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited consolidated
financial statements do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(i) for the periods prior to December 31, 2000, the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or included in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus, for them to be in conformity with generally accepted
accounting principles, and
for the periods prior to December 31, 2000, any unaudited pro forma
consolidated condensed financial statements included or incorporated
by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(v) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representative which are derived from the general accounting records of the
Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representative or
in documents incorporated by reference in the Prospectus specified by the
Representative, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex I to the Prospectus shall be deemed to
refer to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) for purposes of each letter delivered.
-2-
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder adopted by the
Commission;
(ii) For the periods commencing January 1, 2001, they have made a
review in accordance with standards established by the American Institute
of Certified Public Accountants of the unaudited consolidated statements of
income, consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus and/or included in the Company's quarterly
reports on Form 10-Q incorporated by reference into the Prospectus; and on
the basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited consolidated financial statements referred
to in paragraph (iii)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing came
to their attention that caused them to believe that the unaudited
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations adopted by the
Commission;
(iii) On the basis of limited procedures, not constituting an audit in
accordance with auditing standards generally accepted in the United States
of America, consisting of a reading of the 2001 unaudited financial
statements and other information referred to below, a reading of the latest
available 2001 interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) for the periods commencing January 1, 2001, (i) the unaudited
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and regulations, or
(ii) any material modifications should be made to the unaudited
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or
included in the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus, for them to be in conformity with generally
accepted accounting principles;
(B) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the mortgage notes and
other debt payable of the Company and its subsidiaries, or any decreases in
total consolidated assets or stockholders' equity or other items specified
by the Representative, or other items specified by the Representative, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(C) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (B) there were any decreases in consolidated
total revenues or in the total or per share amounts of income before
extraordinary items or of net income or other items specified by the
Representative, or any increases in any items specified by the
Representative, in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length specified
by the Representative, except in each case for increases or decreases which
the Prospectus discloses have occurred or may occur or which are described
in such letter; and
(iv) In addition to the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (ii) and
(iii) above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representative which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representative or in documents incorporated by
reference in the Prospectus specified by the Representative, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) for purposes of each letter delivered.
-2-
ANNEX III
Pursuant to Section 7(f) of the Underwriting Agreement, Xxxxxxx Xxxxxxxx
shall furnish a letter to the Underwriters to the effect that he will not,
directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose
of (or enter into any transaction or device that is designed to, or could be
expected to, result in the disposition by any person at any time in the future
of) any shares of Common Stock (including, without limitation, shares of Common
Stock that may be deemed to be beneficially owned by him in accordance with the
rules and regulations of the Securities and Exchange Commission and shares of
Common Stock that may be issued upon exercise of any option or warrant) or
securities convertible into or exchangeable for Common Stock (other than the
Shares) owned by him on the date of execution of the lock-up letter agreement or
on the date of the completion of the offering, or (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or other securities, in cash or
otherwise, for a period of 30 days after the date of the final Prospectus
relating to the offering; provided however that he may transfer his Shares by
sales in connection with the exercise of the Company's options held by him which
would otherwise expire during the above-referenced 30-day period, provided such
sales are made only to pay the exercise price for such options and the federal
and any state income taxes payable as a result of such exercise.
ANNEX IV
GGP Limited Partnership
General Growth Finance SPE, Inc.
GGP Holding, Inc.
GGP Ivanhoe, Inc.
GGP Ivanhoe II, Inc.
GGP Ivanhoe III, Inc.
GGP/Homart, Inc.
GGP/Homart II LLC
General Growth Management, Inc.
GGPLP L.L.C.
