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Exhibit 4.1
4,800,000 Shares
GLIMCHER REALTY TRUST
9 1/4% Series B Cumulative Redeemable Preferred Shares of
Beneficial Interest
UNDERWRITING AGREEMENT
November 12, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
Prudential Securities Incorporated
BT Alex. Xxxxx Incorporated
PaineWebber Incorporated
As representatives of the
several Underwriters named
in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Glimcher Realty Trust, a Maryland real estate investment trust (the
"TRUST"), proposes to issue and sell 4,800,000 shares of its 9 1/4% Series B
Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $.01
per share (Liquidation Preference $25.00 per share)(the "TRUST SHARES") to the
several underwriters named in Schedule I hereto (the "UNDERWRITERS"), for whom
you are
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acting as Representatives (the "REPRESENTATIVES"). The Trust also proposes to
issue and sell to the several Underwriters not more than an additional 720,000
shares of its 9 1/4% Series B Cumulative Redeemable Preferred Shares of
Beneficial Interest, par value $.01 per share (Liquidation Preference $25.00 per
share) (the "ADDITIONAL SHARES"), if requested by the Underwriters as provided
in Section 2 hereof. The Trust Shares and the Additional Shares are hereinafter
referred to collectively as the "SHARES". The Shares to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "SERIES B PREFERRED SHARES".
SECTION 1. Registration Statement and Prospectus. The Trust has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "ACT"), a registration statement on Form S-3 (Registration
No. 33-91084), including a preliminary prospectus relating to the registration
of the Shares and such other securities which may be offered from time to time
by the Trust, in accordance with Rule 415 under the Act. Such registration
statement (as amended, if applicable) was declared effective by the Commission
on May 18, 1995. Such registration statement (as amended, if applicable) on the
one hand, and the prospectus constituting a part thereof and the prospectus
supplement relating to the offering of the Shares provided to the Underwriters
by the Trust (whether or not such prospectus supplement is required to be filed
with the Commission by the Trust pursuant to the Act) (the "PROSPECTUS
SUPPLEMENT"), on the other hand, including all documents incorporated therein by
reference pursuant to item 12 of Form S-3 under the Act, as from time to time
amended or supplemented pursuant to the Act, the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively called the "EXCHANGE ACT"), are referred to herein as the
"REGISTRATION STATEMENT" and the "PROSPECTUS," respectively; provided,
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however, that a Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of the Shares to which it relates.
Any registration statement (including any amendment or supplement thereto or
information which is deemed part thereof) filed by the Trust under Rule 462(b)
of the Act (a "RULE 462(b) REGISTRATION STATEMENT") shall be deemed to be part
of the "REGISTRATION STATEMENT" as defined herein and any prospectus or any term
sheet as contemplated by Rule 434 of the Act (a "TERM SHEET") (including any
amendment or supplement thereto or information which is deemed part thereof)
included in such registration statement shall be deemed to be part of the
"Prospectus," as defined herein. All references in this Agreement to financial
statements and schedules and other information which is "contained," "included,"
"described" or "stated" in the Registration Statement or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or Prospectus, as
the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include, without limitation, even though not specifically stated, any
document filed under the Exchange Act which is or is deemed to be incorporated
by reference in the Registration Statement or the Prospectus, as the case may
be. Capitalized terms used but not otherwise defined herein shall have the
meanings given to those terms in the Prospectus.
SECTION 2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Trust agrees to issue and sell, and each Underwriter
agrees, severally and not jointly, to purchase from the Trust at a price per
share of $24.125 (the "PURCHASE PRICE") the number of Trust Shares set forth
opposite the name of such
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Underwriter in Schedule I hereto (or such number of Trust Shares increased as
set forth in Section 9 hereof).
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Trust agrees to issue
and sell the Additional Shares and the Underwriters shall have the right to
purchase, severally and not jointly, up to 720,000 Additional Shares from the
Trust at the Purchase Price. Additional Shares may be purchased solely for the
purpose of covering over-allotments made in connection with the offering of the
Trust Shares. The Underwriters may exercise their right to purchase Additional
Shares in whole or in part from time to time by giving written notice thereof to
the Trust within 30 days after the date of this Agreement, provided that if such
thirtieth (30th) day is not a New York Stock Exchange (the "NYSE") trading day,
the thirtieth (30th) day will be the next succeeding NYSE trading day. Such
notice shall specify the aggregate number of Additional Shares to be purchased
pursuant to such exercise and the date for payment and delivery thereof, which
date shall be a business day (i) no earlier than two business days after such
notice has been given (and, in any event, no earlier than the Closing Date (as
hereinafter defined)) and (ii) no later than ten business days after such notice
has been given. If any Additional Shares are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase from the Trust the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
you may determine) which bears the same proportion to the total number of
Additional Shares to be purchased from the Trust as the number of Trust Shares
set forth opposite the name of such Underwriter in Schedule I bears to the total
number of Trust Shares (or such number of Trust Shares increased as set forth in
Section 9 hereof).
SECTION 3. Terms of Public Offering. The Trust is advised by you that
the Underwriters propose (i) to make a public offering (the "OFFERING") of their
respective
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portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable (and, if necessary, any
post-effective amendment to the Registration Statement) and (ii) initially to
offer the Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Trust Shares shall be made at 10:00 A.M., New York City time, on
November 17, 1997 (the "CLOSING DATE") at such place as you shall designate. The
Closing Date and the location of delivery of and form of payment for the Trust
Shares may be varied by agreement between you and the Trust.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at such place as you shall
designate at 10:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (an "OPTION
CLOSING DATE"). Any such Option Closing Date and the location of delivery of and
the form of payment for such Additional Shares may be varied by agreement
between you and the Trust.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or an Option Closing Date, as the
case may be. Such certificates shall be made available to you for inspection not
later than 9:30 A.M., New York City time, on the business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date or the applicable Option Closing Date, as the case may be,
with any transfer taxes thereon duly paid by the Trust, for the respective
accounts of the several Underwriters, against payment to the Trust of the
Purchase Price therefor by wire transfer of Federal or other funds immediately
available in New York City.
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SECTION 5. Agreements of the Trust and the Glimcher Properties Limited
Partnership (the "OPERATING PARTNERSHIP"). Each of the Trust and the Operating
Partnership agrees with you:
(a) In respect of the offering of Shares, the Trust will (i) prepare a
Prospectus Supplement setting forth the number of Shares covered thereby and
their terms not otherwise specified in the Prospectus pursuant to which the
Shares are being issued, the names of the Underwriters participating in the
offering and the number of Shares which each severally has agreed to purchase,
the names of the Underwriters acting as co-managers in connection with the
offering, the price at which the Shares are to be purchased by the Underwriters
from the Trust, the public offering price, the selling concession and
reallowance if any, and such other information as the Underwriters and the Trust
deem appropriate in connection with the offering of the Shares, (ii) file the
Prospectus in a form reasonably acceptable to you pursuant to Rule 424 under the
Securities Act no later than the Commission's close of business on the second
business day following the date of determination of the offering price of the
Shares and (iii) furnish copies of the Prospectus to the Underwriters and to
such dealers as you shall specify in New York City as soon as practicable after
the date of this Agreement in such quantities as you may reasonably request.
(b) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, the Trust will
advise you promptly and, if requested by you, confirm such advice in writing, of
(i) the effectiveness of any amendment to the Registration Statement, (ii) the
transmittal to the Commission for filing of any Prospectus or other supplement
or amendment to the Prospectus to be filed pursuant to the Act, (iii) the
receipt of any comments from the Commission relating to the Registration
Statement, any preliminary prospectus relating to the Shares, the Prospectus or
any of the transactions
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contemplated by this Agreement, (iv) any request by the Commission for
post-effective amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (v) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation of any proceeding for
such purposes, and (vi) the happening of any event which makes any statement of
a material fact made in the Registration Statement or the Prospectus untrue or
which requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein not
misleading. The Trust will make every reasonable effort to prevent the issuance
of any stop order and if at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Trust will make
every reasonable effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
(c) The Trust will furnish you five signed copies without charge of the
Registration Statement as first filed with the Commission and of each amendment
to it, including all exhibits and documents incorporated therein by reference,
and to furnish you and each Underwriter designated by you such number of
conformed copies of the Registration Statement as so filed and of each amendment
to it, without exhibits but including documents incorporated therein by
reference, as you may reasonably request. If applicable, the copies of the
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, not to file any
amendment to the
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Registration Statement or any Rule 462(b) Registration Statement or to make any
amendment or supplement to the Prospectus or any Term Sheet, if applicable, of
which you shall not previously have been advised or to which you or counsel for
the Underwriters shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to the
Registration Statement, Rule 462(b) Registration Statement, Term Sheet, or
amendment or supplement to the Prospectus which, in the opinion of counsel for
the Underwriters, may be necessary in connection with the distribution of the
Shares by you, and to use its best efforts to cause the same to become promptly
effective. If applicable, the Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
and any documents incorporated therein by reference as such Underwriter or
dealer may reasonably request.
(f) If during the period specified in Section 5(e), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters or the Trust, it becomes necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters or the Trust,
it is necessary to amend or supplement the Prospectus to comply with applicable
law, the Trust will forthwith prepare and
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file with the Commission an appropriate amendment or supplement to the
Prospectus (in form and substance reasonably satisfactory to counsel of the
Underwriters) so that the statements in 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 applicable
law, and to furnish to each Underwriter and to any dealer as many copies thereof
as such Underwriter or dealer may reasonably request.
(g) The Trust will prior to any public offering of the Shares,
cooperate with you and counsel for the Underwriters in connection with the
registration or qualification of the Shares for offer and sale by the several
Underwriters and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such registration or qualification
in effect so long as required for distribution of the Shares and to file such
consents to service of process or other documents as may be necessary in order
to effect such registration or qualification; provided, however, that the Trust
shall not be required in connection therewith to qualify as a foreign
corporation in any jurisdiction in which it is not now so qualified or to take
any action that would subject it to general consent to service of process or
taxation other than as to matters and transactions relating to the Prospectus,
the Registration Statement, any preliminary prospectus or the offering or sale
of the Shares, in any jurisdiction in which it is not now so subject.
(h) To make generally available to the Trust's shareholders a
consolidated earnings statement which satisfies the provisions of Section 11(a)
of the Act and Rule 158 thereunder, and, if required by Rule 158 of the Act, to
file such statement as an exhibit to the next periodic report required to be
filed by the Trust under the Exchange Act covering the period when such earnings
statement is released.
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(i) During the period when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of the Shares, to
file all documents required to be filed by it with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act within the time periods required by the
Exchange Act.
(j) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Trust's counsel and
the Trust's accountants in connection with the registration and delivery of the
Shares under the Act and all other fees and expenses in connection with the
preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) all costs of printing, producing or
delivery of this Agreement and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Shares, (iv) all expenses
in connection with the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws or real estate syndication laws of
the several states and all costs of printing or producing any Preliminary and
Supplemental Blue Sky Memoranda in connection therewith (including the filing
fees and fees and disbursements of counsel for the Underwriters in connection
with Blue Sky (but no other matters) registration or qualification and memoranda
relating thereto), (v) all costs and expenses incident to the listing of the
Shares on the NYSE, (vi) the cost of the preparation, issuance and delivery of
certificates representing the Shares, (vii) the
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costs and charges of any transfer agent, registrar and/or depositary, (viii) all
other costs and expenses incident to the performance of the obligations of the
Trust hereunder for which provision is not otherwise made in this Section and
(ix) any expenses incurred by the Trust in connection with a "road show"
presentation to potential investors.
(k) The Trust will use its best efforts to list the Shares on the NYSE
and to maintain the listing of the Shares on the NYSE for a period of not less
than three years after the date of this Agreement.
(l) The Trust will use the net proceeds received by it from the sale of
the Shares in the manner specified in the Prospectus Supplement under "Use of
Proceeds."
(m) The Trust will use its best efforts to continue to qualify as a
"real estate investment trust" ("REIT") under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretation thereunder (the "INTERNAL REVENUE CODE"), unless the
trustees of the Trust determine that it is no longer in the best interests of
the Trust to be so qualified.
(n) The Trust will use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the Trust
prior to the Closing Date or any Option Closing Date, as the case may be, and to
satisfy all conditions precedent to the delivery of the Shares.
SECTION 6. Representations and Warranties of the Trust and the
Operating Partnership. The Trust and the Operating Partnership jointly and
severally represent and warrant to each Underwriter that:
(a) The Trust meets the requirements for use of Form S-3 and the
Registration Statement on Form S-3 relating to
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the Shares has been prepared by the Trust under the provisions of the Act and
has been filed with and declared effective by the Commission.
(b) The Registration Statement has become effective (other than any
Rule 462(b) Registration Statement to be filed by the Trust after the
effectiveness of this Agreement); any Rule 462(b) Registration Statement filed
after the effectiveness of this Agreement will become effective no later than
10:00 P.M., New York City time, on the date of this Agreement; and no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the Trust's knowledge,
threatened by the Commission.
(c) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act, (ii) the
Registration Statement (other than any Rule 462(b) Registration Statement to be
filed by the Trust after the effectiveness of this Agreement), when it became
effective, did not contain and, as amended, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement (other than any Rule 462(b) Registration
Statement to be filed by the Trust after the effectiveness of this Agreement)
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act, (iv) if the Trust is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, such Rule 462(b) Registration Statement and any amendments thereto,
when they become effective (A) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (B) will comply in
all material respects with the Act and (v) the Prospectus does not
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contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Trust in writing by such Underwriter through you
expressly for use therein. For all purposes of this Agreement, the amounts of
selling concession and reallowance set forth in the Prospectus and the portions
of the "Underwriting" section set forth in the letter of the Representatives to
the Trust constitute the only information relating to any Underwriter furnished
in writing to the Trust by the Representatives specifically for inclusion in the
Prospectus or the Registration Statement. The Trust has not distributed any
offering material in connection with the offering or sale of the Shares other
than the Registration Statement, the preliminary prospectus, the Prospectus or
any other materials, if any, permitted by the Act.
(d) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did 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, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any Underwriter
furnished to the Trust in writing by such Underwriter through you expressly for
use therein.
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(e) The Trust has been duly formed and is validly existing as a
Maryland REIT, and is in good standing under the laws of the state of Maryland.
Each of the Operating Partnership, Glimcher Holdings Limited Partnership (the
"GHLP"), Grand Central Limited Partnership (the "GRCLP"), Glimcher Centers
Limited Partnership (the "GCLP"), Glimcher York Associates Limited Partnership
(the "YORK"), Colonial Park Mall Limited Partnership (the "CPMLP") and
Morgantown Mall Associates Limited Partnership (the "MMLP", and together with
the Operating Partnership, GCLP, GHLP, York and GRCLP referred to collectively
herein as the "PARTNERSHIP SUBSIDIARIES") have been duly formed and are validly
existing and in good standing under the laws of their respective jurisdictions
of organization. Glimcher Colonial Park Mall Trust (the "GCPMT" or, the "TRUST
SUBSIDIARY") has been duly organized and is validly existing and in good
standing in its jurisdiction of formation. Each of Olathe Mall LLC (the
"OLATHE"), Great Plains Metro Mall L.L.C. (the "GREAT PLAINS"), Glimcher New
Jersey Metro Mall LLC (the "GNJ"), Xxxxxxxxx Metro Mall LLC (the "EMM"),
Glimcher California Metro Mall LLC (the "GCMM"), California Metro Mall LLC (the
"CMM"), Dayton Mall Venture, LLC (the "DAYTON LLC") and Xxxxxxx City Venture
L.L.C. (the "XXXXXXX CITY" and together with Olathe, GNJ, EMM, GCMM, CMM, Dayton
LLC, and Great Plains, the "LLC SUBSIDIARIES") have been duly organized and are
validly existing and in good standing under the laws of their respective
jurisdictions of formation. Each of Glimcher Properties Corporation (the "GPC"),
Glimcher Centers, Inc. (the "GCI"), Grand Central, Inc. (the "GRCI"), Glimcher
Development Corporation (the "GDC"), Glimcher Xxxxxxx City, Inc. (the "GJC
INC."), Glimcher York Inc. (the "YORK INC."), Glimcher Dayton Mall, Inc. (the
"GD MALL"), NJ Metro Mall Urban Renewal, Inc. (the "NJ MMUR") and Glimcher
Holdings, Inc. (the "GHI", and together with GPC, GCI, GJC Inc., York Inc., GD
Mall, NJ MMUR and GRCI are referred to collectively herein as the "CORPORATE
SUBSIDIARIES", and the Partnership Subsidiaries, the Trust Subsidiary, the LLC
Subsidiaries and the Corporate Subsidiaries are referred to herein collectively
as the
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"SUBSIDIARIES") have been duly formed and are validly existing and in good
standing under the laws of their respective jurisdictions of organization. The
Corporate Subsidiaries, the LLC Subsidiaries and the Partnership Subsidiaries,
are the only subsidiaries (direct or indirect) of the Trust.
(f) The Trust and each of the Subsidiaries have full trust, corporate,
partnership and/or limited liability company power to own or lease their
respective properties and conduct their respective businesses as described in
the Prospectus; and the Trust and the Operating Partnership have full trust or
partnership, as the case may be, power to enter into this Agreement and to carry
out all the terms and provisions hereof to be carried out by it. 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 would not have a material adverse effect on the business,
prospects, financial condition or results of operations of the Trust and the
Subsidiaries, taken as a whole.
(g) Except as disclosed in the Prospectus, there are not outstanding
(i) securities, partnership interests or obligations of the Trust or any
Subsidiary convertible into or exchangeable for any capital stock of the Trust
or ownership interest in the Subsidiaries, (ii) warrants, rights or options to
subscribe for or purchase from the Trust or any Subsidiary any such capital
stock or ownership interest or any such convertible or exchangeable securities,
partnership interests or obligations, or (iii) obligations of the Trust or any
Subsidiary to issue any shares of capital stock or ownership interest, any such
convertible or exchangeable securities, partnership interests or obligations, or
any such warrants, rights or options.
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(h) The Trust has an authorized, issued and outstanding capitalization
as set forth in the Prospectus. All of the issued shares of capital stock of the
Trust have been duly authorized and validly issued and are fully paid and
nonassessable (except that shareholders of the Trust may be subject to personal
liability with respect to certain claims for torts, contracts, taxes and
statutory and other liabilities in some jurisdictions). The Shares have been
duly authorized by all necessary trust action and at the Closing Date or the
related Option Closing Date (as the case may be), when issued and delivered to
the Underwriters against payment therefor as provided by this Agreement, will be
validly issued, fully paid and nonassessable (except that shareholders of the
Trust may be subject to personal liability with respect to certain claims for
torts, contracts, taxes and statutory and other liabilities in some
jurisdictions), will have been duly executed and delivered by the Trust and will
not be subject to any preemptive or similar right. The description of the Shares
contained in the Prospectus is, and at the closing date will be, complete and
accurate in all material respects. No holders of outstanding shares of capital
stock of the Trust are entitled as such to any 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.
(i) The outstanding equity interests of each Subsidiary, other than EMM
and CMM, have been duly authorized and validly issued and are fully paid and
non-assessable, except to the extent shown in Exhibit 6(i) hereto, and are owned
by the Trust 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 each Subsidiary are outstanding, except as described in the
Prospectus, or as provided for in any organizational documents or operating
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agreements of any Subsidiary, or except as set forth in Exhibit 6(i) hereto.
Exhibit 6(i) 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, will own a 90.1%
partnership interest in the Operating Partnership.
(j) 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, other than EMM and CMM, 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 by-laws 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 affect on the business, prospects,
financial condition or results of operations of the Trust and the Subsidiaries,
taken as a whole.
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(k) The authorized capital stock of the Trust conforms in all material
respects as to legal matters to the description thereof contained in the
Prospectus.
(l) Neither the Trust nor any of the Subsidiaries is in violation of
any term or provision of its declaration of trust, certificate of incorporation,
by-laws, partnership agreements or other organizational documents, as the case
may be; no default exists, and no event has occurred which, with notice of lapse
of time or both, would constitute a default in the 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 on the business, prospects, financial condition or results of operations
of the Trust and the Subsidiaries, taken as a whole.
(m) The execution, delivery and performance of this Agreement by the
Trust and the Operating Partnership, the compliance by the Trust and the
Operating Partnership with all the provisions hereof and the consummation of the
transactions contemplated hereby will not (i) require any consent, approval,
authorization, the registration or other order of, or qualification with, any
court or governmental body or agency (except such as may be required and shall
be obtained as provided by this Agreement, under the securities or Blue Sky laws
of the various states), (ii) conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the declaration of trust, charter,
by-laws, partnership agreement, operating agreement (or other organizational
documents), as the case may be, of the Trust or any of the Subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Trust and the Subsidiaries, taken as a whole, to which the
Trust or any of the Subsidiaries is a party or by which the Trust or any of the
Subsidiaries or
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their respective property is bound, (iii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any court
or any governmental body or agency having jurisdiction over the Trust, or any of
the Subsidiaries or their respective property or (iv) result in the suspension,
termination or revocation of any Authorization (as defined below) of the Trust
or any of the Subsidiaries or any other impairment of the rights of the holder
of any such Authorization.
(n) There are no legal or governmental proceedings pending or
threatened to which the Trust or any of the Subsidiaries is or, to the Trust's
knowledge, could be a party or to which any of their respective property is or
could be subject that are required to be described in the Prospectus and are not
so described; nor are there any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
so described or filed as required.
(o) Except as otherwise disclosed in the Prospectus or as set forth in
a separate writing delivered to the Underwriters on the date hereof, (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 or dealt with,
Hazardous Materials (as hereinafter defined) on, to or from the Properties (a)
defined in the Prospectus Supplement, other than in material compliance with all
applicable Environmental Statutes (as hereinafter defined) and in connection
with the ordinary use of residential, retail or commercial properties owned by
the Trust; (ii) the Trust will not use the Properties or any subsequently
acquired properties for the purpose of handling, storing, treating,
transporting, manufacturing, spilling, leaking, discharging,
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dumping, transferring or otherwise disposing of or dealing with Hazardous
Materials other than immaterial 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 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 material claim under or pursuant to any Environmental Statute 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 similar list of inventory
issued pursuant to any other Environmental Statute or issued by any other
Governmental Authority (as hereinafter defined) or 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
material 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.
(p) 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
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limitation the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, 42 U.S.C. 9601 et seq. (the "CERCLA"), the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq., the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq., the Emergency Planning and
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 be amended from
time to time, and in the regulations promulgated pursuant to each of the
foregoing (individually, an "ENVIRONMENTAL STATUTE") or by any federal, state or
local governmental authority having or claiming jurisdiction over the properties
and assets described in the Prospectus (a "GOVERNMENTAL AUTHORITY")) or any
substance which is or contains petroleum.
(q) The Trust and each Subsidiary are in compliance in all material
respects with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder (the "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 Subsidiary would have any material liability; neither the
Trust nor any Subsidiary 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; and each "pension plan" in which employees or former employees of
the Trust or any Subsidiary participate that is intended to be qualified under
Section 401(a) of the Internal Revenue Code is so qualified in all material
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respects and nothing has occurred, whether through any action or by failure to
act, which would cause the loss of such qualification.
(r) 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 on the business, prospects, financial condition or
results of operations of the Trust and the Subsidiaries, taken as a whole,
except as described in the Prospectus.
(s) Each of the Trust and the Subsidiaries has such permits, licenses,
consents, exemptions, franchises, authorizations and other approvals (each, an
"AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Trust and the
Subsidiaries, taken as a whole. Each such Authorization is valid and in full
force and effect and each of the Trust and the Subsidiaries is in compliance
with all the terms and
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conditions thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no event has
occurred (including, without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice or lapse of time or
both, would allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both, would result
in any other impairment of the rights of the holder of any such Authorization;
except where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of operations
of the Trust and the Subsidiaries, taken as a whole.
(t) This Agreement has been duly authorized, executed and delivered by
the Trust and the Operating Partnership, and is a valid, binding agreement of
the Trust and the Operating Partnership, and enforceable against the Trust and
the Operating Partnership in accordance with its terms.
(u) Coopers & Xxxxxxx 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 each of the Prospectus are independent public
accountants with respect to the Trust and the Subsidiaries as required by the
Act.
(v) The consolidated financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), together
with related schedules and notes, present fairly the consolidated financial
position, results of operations and changes in financial position of the Trust
and the Subsidiaries on the basis stated therein at the respective dates or for
the respective periods to which they apply; such statements and
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related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; the supporting schedules, if any,
included in the Registration Statement present fairly in accordance with
generally accepted accounting principles the information required to be stated
therein; and the other financial and statistical information and data set forth
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Trust. The selected financial data set forth under the caption
"Selected Consolidated Financial and Other Data" in the Registration Statement
and the Prospectus fairly present, on the basis stated in the Registration
Statement and the Prospectus, the information included therein. The pro forma
financial statements and other pro forma financial information 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 historical
amounts in the compilation of such statements and the assumptions used in the
preparation thereof are, in the opinion of the Trust, reasonable.
(w) The Trust is not and, after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as described in the
Prospectus, will not be, an "INVESTMENT COMPANY" as such term is defined in the
Investment Company Act of 1940, as amended.
(x) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse effect or any development involving
a prospective material adverse effect
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on the business, prospects, financial condition or results of operations of the
Trust and the Subsidiaries, taken as a whole, (ii) there has not been any
material adverse effect or any development involving a prospective material
adverse effect in the capital stock or in the long-term debt of the Trust or any
of the Subsidiaries, (iii) neither the Trust nor 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 and (iv)
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 of its shares of beneficial interest.
(y) 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; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences; and
(aa) The Trust has not, directly or indirectly, (i) 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
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Trust.
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(bb) The Trust has not distributed and, prior to the later of (i) the
Closing Date and (ii) the completion of the distribution of the Securities, will
not distribute any offering material in connection with the offering and sale of
the Securities other than the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or other materials, if any, permitted by the Act.
(cc) The Trust and each Subsidiary have good and indefeasible title in
fee simple to all of the Properties and good and marketable 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, in each case except as
described in or contemplated by the Prospectus. For purposes of this Section
6(cc), a "Significant Property" shall mean a Property that has a book value
(without regard to any minority interest held by any person), as of June 30,
1997, of at least $10 million.
(dd) 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 have any reason to
believe that they will not be able to renew their existing insurance coverage as
and when such coverage
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expires or to obtain similar coverage from similar insurers as may be necessary
to continue their business at a cost that would not have a material adverse
effect on the business, prospects, financial condition or results of operations
of the Trust and the Subsidiaries taken as a whole, except as described in or
contemplated by the Prospectus.
(ee) 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 on the business, prospects, financial condition
or results of operations of Trust and the Subsidiaries taken as a whole) 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 the Prospectus. Such tax
returns are true, correct, and complete in all material respects.
(ff) The Trust has been and is organized and operated in conformity
with the requirements for qualification as a REIT under Sections 856 through 860
of the Internal Revenue Code and the rules and regulations thereunder and the
Trust's present method of operation does and will enable it to continue to meet
the requirements for taxation as a REIT under the Internal Revenue Code and the
Operating Partnership, the other Partnership Subsidiaries and the LLC
Subsidiaries will be treated for federal income tax purposes as partnerships and
not as associations taxable as corporations or as publicly-traded partnerships.
(gg) The Shares have been approved for listing on the NYSE, subject to
official notice of issuance.
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(hh) (i) Neither the Trust nor any Subsidiary knows of any violation of
any municipal, state or federal law, rule or regulation (including those
pertaining to environmental matters) concerning the Properties (as defined in
the Prospectus) or any part thereof which would have a material adverse effect
on the business, prospects, financial condition or results of operations of the
Trust and the Subsidiaries, taken as a whole; (ii) 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; (iii) neither the Trust nor any Subsidiary has received from any
governmental authority any written notice of any condemnation of or zoning
change affecting the Properties or any part thereof, and neither the Trust nor
any Subsidiary knows of any such condemnation or zoning change which is
threatened and, in either case, which if consummated would have a material
adverse effect on the, business, prospects, financial condition or results of
operations of the Trust and the Subsidiaries, taken as a whole; (iv) 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
(v) 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 on the business prospects, financial condition or
results of operations of the Trust and the Subsidiaries, taken as a whole except
as disclosed or incorporated by reference in the Prospectus.
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(ii) No labor dispute with the employees of the Trust or any of the
Subsidiaries exists, or, to the Trust's knowledge, is threatened or imminent,
that would result in a material adverse effect on the business, prospects,
financial condition or results of operations of the Trust and the Subsidiaries,
taken as a whole, except as described in the Prospectus.
(jj) The Trust and the Subsidiaries own or possess, or can acquire on
reasonable terms, all material patents, trademarks, service marks, trade 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 on the business, prospects, financial condition or results of operations
of the Trust and the Subsidiaries, taken as a whole, except as described in the
Prospectus.
(kk) The Trust has issued and sold 34,000 shares of its Series A
Convertible Preferred Shares to Partnership Acquisition Trust II, a Delaware
business trust "XXX XX"). The proceeds of such sale were contributed by the
Trust to the Operating Partnership in exchange for 34,000 preferred units of
limited partnership interest (the "PREFERRED INTEREST") of the Operating
Partnership. The rights, preferences, terms and conditions of the Series A
Convertible Preferred Shares issued to XXX XX are equivalent in all material
respects to the terms and conditions of the Preferred Interest issued to the
Trust.
SECTION 7. Indemnification. (a) The Trust and the Operating
Partnership, jointly and severally, agree to indemnify and hold harmless each
Underwriter, its directors, its officers and each person, if any, who controls
any
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Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and judgments (including, without limitation, any legal or other expenses
incurred in connection with investigating or defending any matter, including any
action, that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, 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, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Trust by such Underwriter through
you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Trust and the Operating Partnership, the directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Trust within the meaning of 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 in writing to the Trust by
such Underwriter through you expressly for use in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or supplement thereto)
or any preliminary prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
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against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Underwriters shall not be required to assume
the defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof however, the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel and payment of their fees and expenses
shall have been specifically authorized in writing by the indemnifying party,
(ii) the indemnifying party shall have failed to assume the defense of such
action or employ counsel reasonably satisfactory to the indemnified party or
(iii) the named parties to any such action (including any impleaded parties)
include both the indemnified party and the indemnifying party, and the
indemnified party shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the indemnifying party (in which case the indemnifying party
shall not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by
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Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, in the case of parties
indemnified pursuant to Section 7(a), and by the Trust, in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party shall indemnify and
hold harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent, which consent shall not be unreasonably
withheld, or (ii) effected without its written consent if the settlement is
entered into more than (20) business days after the indemnifying party shall
have received a request from the indemnified party for reimbursement for the
fees and expenses of counsel (in any case where such fees and expenses are at
the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request, except to the extent that the amount of such fees and
expenses is being contested in good faith. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action without imposing any restrictions or obligations on the indemnified party
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
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indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (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 Underwriter on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 7(d)(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
7(d)(i) above but also the relative fault of the Trust and the Operating
Partnership on the one hand and the Underwriters on the other hand in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, 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 Underwriter on the other hand shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Trust, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Shares, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Trust 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 or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Trust, the Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7(d)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other
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method of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or judgments referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such indemnified party in connection with investigating or
defending any matter, including any action, that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7(d) are
several in proportion to the respective number of Shares purchased by each of
the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 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.
SECTION 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Trust Shares under this
Agreement are subject to the satisfaction of each of the following conditions:
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(a) All the representations and warranties of the Trust and the
Operating Partnership contained in this Agreement shall be true and correct on
the Closing Date with the same force and effect as if made on and as of the
Closing Date.
(b) At the Closing Date no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or, to the Trust's
knowledge, contemplated by the Commission.
(c) The Prospectus and any amendment or supplement thereto shall have
been filed with the Commission in the manner and within the time period required
by Rules 434 and 424(b) under the Act.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Trust and the Subsidiaries, taken as a
whole, (ii) there shall not have been any change or any development involving a
prospective change in the capital stock or in the long-term debt of the Trust or
any of the Subsidiaries and (iii) neither the Trust nor any of the Subsidiaries
shall have incurred any liability or obligation, direct or contingent, the
effect of which, in any such case described in clause 8(d)(i), 8(d)(ii) or
8(d)(iii), in your reasonable judgment, is material and adverse and, in your
reasonable judgment, makes it impracticable to market the Shares on the terms
and in the manner contemplated in the Prospectus.
(e) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by the Chief
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Executive Officer and the Chief Financial Officer of the Trust and GPC on behalf
of the Operating Partnership confirming the matters set forth in Sections 8(a),
8(b), 8(c) and 8(d) that the Trust has complied with all of the agreements and
satisfied all of the conditions herein contained and required to be complied
with or satisfied by the Trust on or prior to the Closing Date.
(f) You shall have received on the Closing Date opinions (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of (i) Xxxxxx
X. Xxxxxxx, Esq., in his capacity as general counsel of the Trust, (ii) Xxxxxxx
Xxxxx Xxxxxxx & Xxxxxxxxx, special Maryland counsel to the Trust, (iii)
Xxxxxxxxxx Hyatt Xxxxxx & Xxxxxxxxxx, special Colorado counsel to the Trust, and
(iv) Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, special counsel to the
Trust, to the effect that:
(i) the Trust has been duly formed and is validly existing as a
Maryland REIT in good standing under the laws of the State of Maryland
and is duly qualified to transact business. 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 does
not amount to a material liability or disability to the Trust and the
Subsidiaries, taken as a whole. Each of the Subsidiaries has been duly
organized and is validly existing as a general or limited partnership
or corporation or limited liability company 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 does not amount to a material liability or
disability to the Trust and the Subsidiaries, taken as a whole;
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37
(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 and the Prospectus and the Trust and the Operating
Partnership have full trust, corporate or limited liability power to
enter into this Agreement and to carry out all the terms and provisions
hereof and thereof to be carried out by it in all material respects;
(iii) the authorized capital stock of the Trust conforms as to
legal matters in all material respects to the description thereof
contained in the Prospectus. All of the shares of beneficial interest
of the Trust has been duly authorized and the shares of beneficial
interest of the Trust outstanding are validly issued, fully paid and
non-assessable (except that shareholders of the Trust may be subject to
personal liability with respect to certain claims for tort, contract,
taxes and statutory and other liability in some jurisdictions);
(iv) the Trust Shares have been duly authorized and, when
executed and delivered to the Underwriters against payment therefor in
accordance with this Agreement, will be validly issued, fully paid and
non-assessable (except that shareholders of the Trust may be subject to
personal liability with respect to certain claims for tort, contract,
taxes and statutory and other liability in some jurisdictions), and the
execution and delivery of the Trust Shares have been duly authorized by
all necessary trust action, and the Trust Shares have been duly
executed and delivered by the Trust, and, assuming due authorization,
execution and delivery of the Trust Shares by parties other than the
Trust, are the legal, valid, binding and enforceable obligations of the
Trust, subject to the effect of bankruptcy, insolvency, moratorium,
fraudulent conveyance, reorganization and similar laws
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relating to creditors' rights generally and to the application of
equitable principles in any proceeding, whether at law or in equity;
(v) 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, other than EMM and CMM, as the case may be,
are validly issued and fully paid. Except as described in the
Registration Statement, this Agreement, or 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;
(vi) except as described in the Prospectus, to the best
knowledge of such counsel, there are no outstanding securities,
partnership interests or obligations of the Trust or any Subsidiary
convertible or exchangeable into or evidencing the right to purchase or
subscribe for any shares of beneficial interest of the Trust or
ownership interest in the Subsidiaries and there are no outstanding or
authorized options, warrants or rights of any character obligating the
Trust or any Subsidiary to issue any shares of its beneficial interest
or any securities convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of such beneficial
interest; and except as described in 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 Shares or the right to have any securities of the Trust
included in the
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Registration Statement or the right, as a result of the filing of the
Registration Statement, to require registration under the Act of any
securities of the Trust, and 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;
(vii) the statements set forth under the headings "Description
of Shares of Beneficial Interest," "Description of Preferred Shares"
and "Description of Warrants" in the Prospectus and the headings
"Description of Series A-1 Preferred Shares" and "Description of Series
B Preferred Shares" in the Prospectus Supplement, insofar as such
statements purport to summarize certain provisions of the securities of
the Trust, provide a fair summary of such provisions; and the
statements set forth under the headings "Restrictions on Ownership of
Offered Securities" and "Certain United States Federal Income Tax
Considerations to the Trust of its REIT Election" in the Prospectus and
"Risk Factors," and "Recent Developments," in the Prospectus
Supplement, insofar as such statements constitute a summary of the
legal matters or legal conclusions, have been reviewed by them and are
correct in all material respects;
(viii) the execution and delivery of this Agreement has been
duly authorized by all necessary trust or partnership action of the
Trust, and the Operating Partnership and this Agreement has been duly
executed and delivered by the Trust and the Operating Partnership, and
are the valid and binding agreements of the Trust and the Operating
Partnership, enforceable against the Trust and the Operating
Partnership in accordance with their respective terms, subject to (a) `
the effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
the rights or remedies
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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;
(ix) the authorized capital stock of the Trust conforms as to
legal matters to the description thereof contained in the Prospectus;
(x) the Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to Rule 424
within the applicable time period prescribed by Rule 424, no stop order
suspending its effectiveness has been issued and no proceedings for
that purpose are, to the best of such counsel's knowledge after due
inquiry, pending before or contemplated by the Commission;
(xi) neither the Trust nor any of the Subsidiaries is in
violation of its respective declaration of trust, certificate of
incorporation, by-laws, Partnership Agreement or other organizational
documents, as the case may be, and, to the best of such counsel's
knowledge after due inquiry, neither the Trust nor any of the
Subsidiaries is in default in the performance of any obligation,
agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Trust and the Subsidiaries, taken as a whole, to which
the Trust or any of the Subsidiaries is a party or by which the Trust
or any of the Subsidiaries or their respective property is bound;
(xii) the execution, delivery and performance of this
Agreement by the Trust and the Operating Partnership, the compliance by
the Trust and the Operating Partnership, with all the provisions hereof
and the consummation of the transactions contemplated
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hereby will not (A) require any consent, approval, authorization,
registration or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), (B) conflict with
or constitute a breach of any of the terms or provisions of, or a
default under, the declaration of trust, charter or by-laws,
partnership agreement, operating agreement (or the governing documents
or other organizational documents, as the case may be, of the Trust or
any of the Subsidiaries or any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Trust
and the Subsidiaries, taken as a whole, to which the Trust or any of
the Subsidiaries is a party or by which the Trust or any of the
Subsidiaries or their respective property is bound, (C) violate or
conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Trust, any of the Subsidiaries or their
respective property or (D) result in the suspension, termination or
revocation of any Authorization of the Trust or any of the Subsidiaries
or any other impairment of the rights of the holder of any such
Authorization;
(xiii) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which the
Trust or any of the Subsidiaries, or any of their respective trustees,
directors or officers in their capacity as such, is or could be a party
or to which any of their respective property is or could be subject
that are required to be described in the Prospectus and are not so
described, or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required;
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(xiv) each of the Trust and the Subsidiaries has such
Authorizations of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws, as are necessary
to own, lease, license and operate its respective properties and to
conduct its business, except where the failure to have any such
Authorization or to make any such filing or notice would not, singly or
in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Trust
and the Subsidiaries, taken as a whole; each such Authorization is
valid and in full force and effect and each of the Trust and the
Subsidiaries is in compliance with all the terms and conditions thereof
and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has
occurred (including, without limitation, the receipt of any notice from
any authority or governing body) which allows or, after notice or lapse
of time or both, would allow, revocation, suspension or termination of
any such Authorization, or results or, after notice or lapse of time or
both, would result in any other impairment of the rights of the holder
of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Trust or any of the
Subsidiaries; except where such failure to be valid and in full force
and effect or to be in compliance, the occurrence of any such event or
the presence of any such restriction would not, singly or in the
aggregate, have a material adverse effect on the business, prospects,
financial condition or results of operations of the Trust and the
Subsidiaries, taken as a whole;
(xv) the Trust is not, and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Xxxxxxxxxx,
00
00
will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(xvi) (A) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus (except
for financial statements and other financial data included therein as
to which no opinion need be expressed) complied when so filed as to
form with the Exchange Act, (B) the Registration Statement and the
Prospectus and any supplement or amendment thereto (except for the
financial statements and other financial data included therein as to
which no opinion need be expressed) comply as to form with the Act, (C)
such counsel has no reason to believe that, at the time the
Registration Statement became effective or on the date of this
Agreement, the Registration Statement and the prospectus included
therein (except for the financial statements and other financial data
as to which such counsel need not express any belief) contained any
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, (D) such counsel has no reason to believe that
the Prospectus, as amended or supplemented, if applicable (except for
the financial statements and other financial data, as aforesaid)
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
and (E) to the best of counsel's knowledge after due inquiry, 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 counsel's knowledge after due inquiry, no
proceedings for that purpose have
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been instituted or, to the best knowledge of such counsel, threatened
by the Commission;
(xvii) (A) the Trust was organized in conformity with the
requirements for qualification as a REIT for federal income tax
purposes, and, based on the facts and assumptions set forth in the
Basic Prospectus, the Preliminary Prospectus and the Prospectus
Supplement and certain representations by the Trust, including but not
limited to those set forth in the 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 meet the
requirements under the Internal Revenue 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 and not as associations
taxable as corporations or as publicly traded partnerships;
(xviii) the Trust satisfies all conditions and requirements
for filing the Registration Statement on Form S-3 under the Act; and
(xix) the Shares have been approved for listing on the NYSE,
subject to official notice of issuance.
The foregoing opinions shall be rendered to you at the request of the
Trust and shall so state therein.
In giving such opinions with respect to the matters covered by Section
8(f)(xvi), counsel for the Trust may state that their opinion and belief are
based upon their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the contents
thereof, but is
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without independent check or verification except as specified.
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Weil, Gotshal & Xxxxxx LLP, counsel for the Underwriters, with
respect to the Prospectus and such other related matters as the Underwriters may
reasonably require, and the Trust shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(h) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from Coopers & Xxxxxxx L.L.P.,
independent public accountants, containing the information and statements of the
type ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus.
(i) The Shares shall have been duly listed, subject to notice of
issuance, on the NYSE.
(j) The Trust shall not have failed on or prior to the Closing Date to
perform or comply with any of the agreements herein contained and required to be
performed or complied with by the Trust on or prior to the Closing Date.
(k) On or before the Closing Date, the Underwriters and counsel for the
Underwriters shall have received such further certificates, documents or other
information as they may have reasonably requested from the Trust.
(l) Contemporaneously with the closing hereunder, all of the issued and
outstanding shares of Series A Convertible Preferred Shares of Beneficial
Interest, par value $.01 per
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share, of the Trust (the "SERIES A PREFERRED SHARES") will be exchanged for
Series A-1 Convertible Preferred Shares of Beneficial Interest, par value $.01
per share, of the Trust in accordance with Amendment No. 1 ("AMENDMENT NO. 1"),
dated as of November 6, 1997, to the Securities Purchase Agreement (the
"SECURITIES PURCHASE AGREEMENT"), dated as of November 6, 1996, among XXX XX,
the Trust and the Operating Partnership. In addition, contemporaneously with the
closing hereunder, all authorized shares of Series A Preferred Shares shall be
cancelled. Neither Amendment No. 1 or the Securities Purchase Agreement shall
have been amended without the prior written consent of the Representatives,
which consent shall not be unreasonably withheld.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Trust, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
SECTION 9. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution of this Agreement by the parties
hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Trust 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, there has been any adverse effect or
development involving a prospective material adverse effect in the condition,
financial or otherwise, of the Trust or any of the Subsidiaries or the
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earnings, affairs or business prospects of the Trust or any of the Subsidiaries,
whether or not arising in the ordinary course of business, which would, in your
judgment, make it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and, in your judgment,
makes it impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus, (iii) the suspension or material limitation of
trading in securities or other instruments on the New York Stock Exchange, the
American Stock Exchange, the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange, the Chicago Board of Trade or the Nasdaq National Market or
limitation on prices for securities or other instruments on any such exchange or
the Nasdaq National Market, (iv) the suspension of trading of any securities of
the Trust on any exchange or in the over-the-counter market, (v) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects, or will materially and adversely
affect, the business, prospects, financial condition or results of operations of
the Trust and the Subsidiaries, taken as a whole, (vi) the declaration of a
banking moratorium by either federal or New York State authorities or (vii) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Trust Shares or Additional
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Shares, as the case may be, which it has or they have agreed to purchase
hereunder on such date and the aggregate number of Trust Shares or Additional
Shares, as the case may be, which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the total
number of Trust Shares or Additional Shares, as the case may be, to be purchased
on such date by all Underwriters, each non-defaulting Underwriter shall be
obligated severally, in the proportion which the number of Trust Shares set
forth opposite its name in Schedule I bears to the total number of Trust Shares
which all the non-defaulting Underwriters have agreed to purchase, or in such
other proportion as you may specify, to purchase the Trust Shares or Additional
Shares, as the case may be, which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the number of Trust Shares or Additional Shares, as the case may be, which
any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Trust Shares or Additional Shares, as the case may be, without the written
consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Trust Shares and the aggregate
number of Trust Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Trust Shares to be purchased by all
Underwriters and arrangements satisfactory to you and the Trust for purchase of
such Trust Shares are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter and the Trust. In any such case which does not result in termination
of this Agreement, either you or the Trust shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in the event that
required changes in the Registration Statement and the Prospectus or any other
documents or arrangements need to be effected. If, on an Option Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Additional
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Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased on such date, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
such Additional Shares or (ii) purchase not less than the number of Additional
Shares that such non-defaulting Underwriters would have been obligated to
purchase on such date in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
SECTION 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Trust, to Glimcher
Realty Trust, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, Attention: Xxxxx X.
Xxxxxxxx, and (ii) if to any Underwriter or to you, to you c/x Xxxxxxxxx, Lufkin
& Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Trust and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Trust, the officers or
directors of the Trust or any person controlling the Trust, (ii) acceptance of
the Shares and
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payment for them hereunder and (iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of the
Trust as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 9) in breach of this Agreement, the Trust agrees
to reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Trust shall be liable for all expenses which
it has agreed to pay pursuant to Section 5(k) hereof. The Trust also agrees to
reimburse the several Underwriters, their directors and officers and any persons
controlling any of the Underwriters for any and all fees and expenses
(including, without limitation, the fees and disbursements of counsel) incurred
by them in connection with enforcing their rights hereunder (including, without
limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Trust, the Operating
Partnership, the Underwriters, the Underwriters' directors and officers, any
controlling persons referred to herein, the Trust's directors and the Trust's
officers who sign the Registration Statement and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include a purchaser of any of the Shares
from any of the several Underwriter merely because of such purchase.
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This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
between the Trust, the Operating Partnership and the several Underwriters.
Very truly yours,
GLIMCHER REALTY TRUST
/s/ Xxxxx Xxxxxxxx
By:_________________________________________
Title: President
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation
/s/ Xxxxx Xxxxxxxx
By:_________________________________________
Title: President
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
Prudential Securities Corporation
BT Alex. Xxxxx Incorporated
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PaineWebber Incorporated
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
/s/ Xxxx X. Xxxxxxxx
By:_____________________________
Managing Director
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SCHEDULE I
Underwriter Number of Trust
----------- Shares
to be Purchased
---------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation 1,038,000
Prudential Securities Incorporation 1,038,000
BT Alex. Xxxxx Incorporated 1,037,000
PaineWebber Incorporated 1,037,000
CIBC Xxxxxxxxxxx Corp. 50,000
X.X. Xxxxxxx & Sons, Inc. 50,000
J.J.B. Xxxxxxxx, X.X. Xxxxx Inc. 50,000
SBC Warburg Dillon Read Inc. 50,000
Xxxxx & Company 25,000
Xxxx Xxxxxxxx Incorporated 25,000
EVEREN Securities, Inc. 25,000
Xxxxxxxxxx & Co. Inc. 25,000
First Albany Corporation 25,000
Gruntal & Co., L.L.C. 25,000
Xxxxxx Xxxxxxxxxx Xxxxx Inc. 25,000
XxXxxxxx & Company Securities, Inc. 25,000
XxXxxx, Xxxxx & Co., Inc. 25,000
Xxxxxx Xxxxxx & Company, Inc. 25,000
The Ohio Company 25,000
Xxxxx Xxxxxxx Inc. 25,000
Xxxxxxxx Xxxxxx Refsnes, Inc. 25,000
Xxxxxxx Xxxxx & Associates, Inc. 25,000
The Xxxxxxxx-Xxxxxxxx Company, Inc. 25,000
Xxxxxxxx Inc. 25,000
Sutro & Co. Incorporated 25,000
Xxxxxx Xxxxxxx Incorporated 25,000
---------
Total 4,800,000
=========
