1,184,211 SHARES
GREAT LAKES REIT, INC.
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
April 21, 1998
X. X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Ladies and Gentlemen:
Great Lakes REIT, Inc., a Maryland corporation (the "COMPANY") which
qualifies for federal income tax purposes as a real estate investment trust
pursuant to Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the "CODE"), and Great Lakes REIT, L.P., a Delaware limited partnership
(the "OPERATING PARTNERSHIP" and, together with the Company, the "TRANSACTION
ENTITIES"), each wish to confirm as follows its agreement with you ("YOU" or the
"UNDERWRITER"), with respect to the sale by the Company and the purchase by the
Underwriter of an aggregate of 1,184,211 shares (the "SHARES") of the Company's
common stock, par value $.01 per share (the "COMMON SHARES").
Capitalized terms used but not otherwise defined herein shall have the
meanings given to those terms in the Prospectus (as herein defined).
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE TRANSACTION
ENTITIES. Each of the Transaction Entities, jointly and severally, represents,
warrants and agrees that, as of the date hereof:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "SECURITIES ACT"); a registration
statement (Registration No. 333-49499) on Form S-3, including a prospectus
relating to the registration of the Shares and such other securities which
may be offered from time to time in accordance with Rule 415 under the
Securities Act, and such amendments to such registration statement as may
have been required to the date of this Agreement, have been prepared by the
Company pursuant to and in conformity with the requirements of the
Securities Act, and the Rules and Regulations (the "RULES AND REGULATIONS")
of the Securities and Exchange Commission (the "COMMISSION") thereunder,
and have been filed with the Commission under the Securities Act and the
Registration Statement was declared effective. Copies of such registration
statement,
including any amendments thereto, each related preliminary
prospectus contained therein and the exhibits have heretofore been
delivered by the Company to you. A prospectus supplement (the "PROSPECTUS
SUPPLEMENT") setting forth the terms of the offering, sale and plan of
distribution of the Shares has been or will be so prepared and will be
filed pursuant to Rule 424(b) of the Rules and Regulations on or before the
second business day after the date hereof (or such earlier time as may be
required by the Rules and Regulations). The term "Registration Statement"
as used herein means the registration statement and the basic prospectus
included therein, as amended at the time it or any amendment thereto became
effective under the Securities Act, or at the time any Annual Report on
Form 10-K is filed by the Company with the Commission (the "EFFECTIVE
DATE"), including financial statements and all exhibits and all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act. Any document filed by the Company under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") after the effective
date of the Registration Statement or the date of the Prospectus Supplement
and incorporated by reference in the Prospectus shall be deemed to be
included in the Registration Statement and the Prospectus as of the date of
such filing. The term "Prospectus" as used herein means (i) the basic
prospectus included in the Registration Statement at the Effective Date, as
supplemented by the Prospectus Supplement as first filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations, except
that, if such basic prospectus is amended or supplemented subsequent to the
Effective Date, the term "Prospectus" shall refer to the basic prospectus
as so amended or supplemented and as further supplemented by the Prospectus
Supplement, or (ii) if no such filing is required, the form of final
prospectus included in the Registration Statement at the Effective Date.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the requirements
of the Securities Act and the Rules and Regulations and do not and will
not, as of the applicable Effective Date (as to the Registration Statement
and any amendment thereto) and as of the applicable filing date and at the
Delivery Date (as defined herein) (as to the Prospectus and any amendment
or supplement thereto) contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that no representation
or warranty is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the
Underwriter specifically for inclusion therein. The Prospectus delivered
to the Underwriter for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System
("XXXXX"), except to the extent permitted by Regulation S-T.
(c) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Securities Act, when they became
effective or at the
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time they were filed with the Commission, as the case
may be, complied in all material respects with the requirements of the
Exchange Act, and the rules and regulations adopted by the Commission
thereunder, and, when filed with the Commission, 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 not
misleading.
(d) No stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of either of the
Transaction Entities, threatened by the Commission or by the state
securities authority of any jurisdiction. No order preventing or
suspending the use of the Prospectus has been issued and no proceeding for
that purpose has been instituted or, to the knowledge of either of the
Transaction Entities, after due inquiry, threatened by the Commission or by
the state securities authority of any jurisdiction.
(e) The Company has been duly incorporated and is validly existing as
a corporation under the laws of the State of Maryland and is in good
standing with the State Department of Assessments and Taxation of Maryland
(the "SDAT"), is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, and
has all corporate power necessary to own or hold its properties, to conduct
the business in which it is engaged and to enter into and perform its
obligations under this Agreement. The Company has no significant
subsidiaries (as such term is defined in Regulation S-X of the Rules and
Regulations) other than the Operating Partnership. The Operating
Partnership has no subsidiaries.
(f) The Company has an authorized capitalization as set forth in the
Prospectus under the caption "Description of Capital Stock," and all of the
issued Common Shares have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Registration Statement and the Prospectus. Upon the
closing of the Offering, except as disclosed in the Registration Statement
and the Prospectus, and except with respect to stock options outstanding on
the date of the Prospectus and units of partnership interest in the
Operating Partnership ("UNITS"), no Common Shares of the Company are
reserved for any purpose and, except for the Units, and such outstanding
stock options, there are no outstanding securities convertible into or
exchangeable for any Common Shares of the Company, and no outstanding
options or warrants to purchase or subscribe for Common Shares or any other
securities of the Company. Upon the closing of the Offering, there will be
no outstanding rights to purchase or subscribe for Common Shares or any
other securities of the Company other than such outstanding stock options
and Units.
(g) The Operating Partnership has been duly formed and is validly
existing as a limited partnership in good standing under the laws of the
State of Delaware, is duly qualified to do business and is in good standing
as a foreign limited partnership in each jurisdiction in which its
ownership or lease of property or the conduct of its
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business requires such qualification, and has all partnership power
necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under
this Agreement and the other Operative Documents to which it is a party.
At the Delivery Date (as defined herein), the Company will be the sole
general partner of the Operating Partnership. At the Delivery Date, the
Agreement of Limited Partnership of the Operating Partnership (the
"OPERATING PARTNERSHIP AGREEMENT") will be in full force and effect.
(h) The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable. Upon payment
of the purchase price and when the Underwriter takes delivery of the
certificates representing the Shares to be sold by the Company and
assuming the Underwriter is acquiring such Shares in good faith (as
defined in Section 1-201(19) of the New York Uniform Commercial Code
(the "UCC")), without notice of any adverse claim (as defined in Section
8-302 of the UCC), the Underwriter will acquire such Shares free and
clear of any and all security interests, claims, liens, equities and
other encumbrances, and such Shares will not be subject to any adverse
claim. The terms of the Common Shares conform in substance to all
statements and descriptions related thereto contained in the Prospectus.
The form of the certificates to be used to evidence the Common Shares
will, at the Delivery Date, be in due and proper form and will comply
with all applicable legal requirements. The issuance of the Shares is
not subject to any preemptive or other similar rights.
(i) This Agreement has been duly and validly authorized, executed and
delivered by each of the Transaction Entities, and assuming due
authorization, execution and delivery by the Underwriter, is a valid and
binding agreement of each of the Transaction Entities, enforceable against
the Transaction Entities in accordance with its terms.
(j) The execution, delivery and performance of this Agreement by each
of the Transaction Entities and the consummation of the transactions
contemplated hereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which either of the Transaction Entities is a
party or by which either of the Transaction Entities is bound or to which
any of the Properties or other assets of either of the Transaction Entities
is subject, nor will such actions result in any violation of the provisions
of the charter, bylaws or agreement of limited partnership of either of the
Transaction Entities, or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over either of
the Transaction Entities or any of its properties or assets; and except for
the registration of the Shares under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Shares by the
Underwriter, no consent, approval, authorization or order of, or filing or
registration with, any such court or
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governmental agency or body is required for the execution, delivery and
performance of this Agreement by the Transaction Entities and the
consummation of the transactions contemplated hereby.
(k) Except as disclosed in the Registration Statement and as filed as
Exhibit 4.3 thereto, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Securities Act.
(l) Neither of the Transaction Entities nor any of the Properties has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, other than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any material change in
the capital stock or long-term debt of either of the Transaction Entities
or any material adverse change, or any development involving a prospective
material adverse change, in or affecting any of the Properties or the
general affairs, management, financial position, stockholders' equity or
results of operations of either of the Transaction Entities, other than as
set forth or contemplated in the Prospectus.
(m) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved. Pro forma financial information included
in the Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act, the Rules and Regulations and AICPA
guidelines with respect to pro forma financial information and includes all
adjustments necessary to present fairly the pro forma financial position of
the Company at the respective dates indicated and the results of operations
for the respective periods specified.
(n) Ernst & Young LLP, who have certified certain financial
statements of the Company, whose reports appear in the Prospectus and who
have delivered the initial letter referred to in Section 7(f) hereof, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(o) (A) At the Delivery Date, the Company or the Operating
Partnership will have good and marketable title to each of the Properties,
free and clear of all liens, encumbrances, claims, security interests and
defects, other than those referred to in the Prospectus or those which are
not material in amount or those which would not
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have a material adverse effect on the business, operations or use of any
of the Properties and all material consents or approvals with respect to
the transfers reflected in the Prospectus of any of the Properties to
the Company or the Operating Partnership shall have been received; (B)
all liens, charges, encumbrances, claims or restrictions on or affecting
any of the Properties and the assets of either of the Transaction
Entities which are required to be disclosed in the Prospectus are
disclosed therein; (C) except as otherwise described in the Prospectus,
there are no material defaults by either Transaction Entity under (i)
any space leases (as lessor or lessee, as the case may be) relating to
the Properties, or (ii) any of the mortgages or other security documents
or other agreements encumbering or otherwise recorded against the
Properties, and neither of the Transaction Entities knows of any event
which, but for the passage of time or the giving of notice, or both,
would constitute a default under any of such documents or agreements;
(D) except as disclosed in the Prospectus, no tenant under any of the
leases at the Properties has a right of first refusal to purchase the
premises demised under such lease which has not been waived; (E) each of
the Properties complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes, laws and
regulations and laws relating to access to the Properties), except for
such failures to comply that would not have a material adverse effect on
the business operations, use or value of such Property; and (F) neither
of the Transaction Entities has knowledge of any pending or threatened
condemnation proceedings, zoning change or other proceeding or action
that will in any material manner affect the size of, use of,
improvements on, construction on or access to the Properties.
(p) Immediately following the application of the net proceeds of the
sale of the Shares in the manner set forth in the Prospectus, the mortgages
and deeds of trust which will encumber the Properties will not be
convertible into equity securities of the entity owning such Property and
said mortgages and deeds of trust will not be cross-defaulted or
cross-collateralized with any property other than other Properties.
(q) At the Delivery Date, the Company or the Operating Partnership
will have obtained title insurance on the fee interests in each of the
Properties, in an amount at least equal to the greater of (A) the mortgage
indebtedness of each such Property or (B) the purchase price of each such
Property.
(r) Except as disclosed in the Prospectus: (A) to the knowledge of
the Transaction Entities, after due inquiry, the operations of the
Properties are in material compliance with all Environmental Laws (as
defined below) and all requirements of applicable permits, licenses,
approvals and other authorizations issued pursuant to Environmental Laws;
(B) to the knowledge of the Transaction Entities, after due inquiry, none
of the Transaction Entities or any Property has caused or suffered to occur
any Release (as defined below) of any Hazardous Substance (as defined
below) into the Environment (as defined below) on, in, under or from any
Property that has not been addressed as required by Environmental Laws, and
no condition exists on, in, under or adjacent to any Property that could
result in the incurrence of liabilities under, or any violations of, any
Environmental Law by the Transaction Entities or
6
give rise to the imposition of any Lien (as defined below), under any
Environmental Law; (C) none of the Transaction Entities has received any
written notice of a claim under or pursuant to any Environmental Law or
under common law pertaining to Hazardous Substances on, in, under or
originating from any Property that has not been addressed as required by
Environmental Laws; (D) neither of the Transaction Entities has actual
knowledge of, or received any written notice from any Governmental
Authority (as defined below) claiming, any violation of any
Environmental Law or a determination to undertake and/or request the
investigation, remediation, clean-up or removal of any Hazardous
Substance released into the Environment on, in, under or from any
Property that has not been addressed as required by Environmental Laws;
and (E) no Property is included or, to the knowledge of either of the
Transaction Entities, after due inquiry. proposed for inclusion on the
National Priorities List issued pursuant to CERCLA (as defined below) by
the United States Environmental Protection Agency (the "EPA") or on the
Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA, and neither of the
Transaction Entities has actual knowledge that any Property has
otherwise been identified in a published writing by the EPA as a
potential CERCLA removal, remedial or response site or, to the knowledge
of either of the Transaction Entities, is included on any similar list
of potentially contaminated sites pursuant to any other Environmental
Law (except for inclusion on a list of leaking underground storage tank
sites, PROVIDED that the leak has been addressed as required by
Environmental Laws).
As used herein, "HAZARDOUS SUBSTANCE" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant or hazardous
material, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCBs, pesticides, explosives, radioactive materials, dioxins,
urea formaldehyde insulation or any constituent of any such substance,
pollutant or waste which is subject to regulation under any Environmental
Law (including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49 C.F.R.
Section 172.101, or in the EPA's List of Hazardous Substances and
Reportable Quantities, 40 C.F.R. Part 302); "ENVIRONMENT" shall mean any
surface water, drinking water, ground water, land surface, subsurface
strata, river sediment, buildings, structures, and ambient, workplace and
indoor and outdoor air; "Environmental Law" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
(42 U.S.C. Section 9601, ET SEQ.) ("CERCLA"), the Resource Conservation
and Recovery Act of 1976, as amended (42 U.S.C. Section 6901, ET SEQ.),
the Clean Air Act, as amended (42 U.S.C. Section 7401, ET SEQ.), the Clean
Water Act, as amended (33 U.S.C. Section 1251, ET SEQ.), the Toxic
Substances Control Act, as amended (15 U.S.C. Section 2601, ET SEQ.), the
Occupational Safety and Health Act of 1970, as amended (29 U.S.C. Section
651, ET SEQ.), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Section 1801, ET SEQ.), and all other federal, state and local
laws, ordinances, regulations, rules and orders relating to the protection
of the environments or of human health from environmental effects;
"GOVERNMENTAL AUTHORITY" shall mean any federal, state or local
governmental office, agency or authority having jurisdiction over the
Properties
7
and having the duty or authority to promulgate, implement or
enforce any Environmental Law; "LIEN" shall mean, with respect to any
Property, any mortgage, deed of trust, pledge, security interest, lien,
encumbrance, penalty, fine, charge, assessment, judgment or other liability
in, on or affecting such Property; and "RELEASE" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment in violation of any Environmental Law,
including, without limitation, the abandonment or discard of barrels,
containers, tanks (including, without limitation, underground storage
tanks) or other receptacles containing or previously containing any
Hazardous Substance.
(s) Each Transaction Entity and Property carries, or is covered by,
insurance in such amounts and covering such risks as is adequate for the
conduct of its business and as is customary for companies engaged in
similar businesses in similar industries.
(t) Each Transaction Entity owns or possesses adequate rights to use
all material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations, copyrights and
licenses necessary for the conduct of its business and has no reason to
believe that the conduct of its business will conflict with, and has not
received any notice of any claim of conflict with, any such rights of
others.
(u) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which any Transaction Entity is a party
or of which any property or assets of any Transaction Entity is the subject
which, if determined adversely to such Transaction Entity, might have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, or business of the Company;
and to the best knowledge of the Transaction Entities, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(v) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement.
(w) No relationship, direct or indirect, exists between or among
either of the Transaction Entities on the one hand, and the directors,
officers or stockholders of either of the Transaction Entities on the other
hand, which is required to be described in the Registration Statement which
is not so described.
(x) No labor disturbance by the employees of either Transaction
Entity exists or, to the knowledge of the Transaction Entities, is imminent
which might be expected to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of such Transaction Entity.
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(y) Each Transaction Entity is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which either Transaction Entity would have any liability;
neither Transaction Entity has incurred or expects to incur liability (i)
under Title IV of ERISA with respect to termination of, or withdrawal from,
any "pension plan" or (ii) for violation of Section 412 or for any tax
under 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "CODE"); and each
"pension plan" for which either Transaction Entity would have any liability
that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification.
(z) Each Transaction Entity has filed all federal, state and local
income and franchise tax returns required to be filed through the date
hereof and has paid all taxes due thereon, and no tax deficiency has been
determined adversely to any Transaction Entity which has had (nor does
either Transaction Entity have any knowledge of any tax deficiency which,
if determined adversely to it might have) a material adverse effect on the
financial position, stockholders' equity, results of operations, business
or prospects of such Transaction Entity.
(aa) Upon completion of the transactions described in the Prospectus
and the sale of the Shares hereunder, the Company and the Operating
Partnership will continue to be organized and operated in conformity with
the requirements for qualification of the Company as a real estate
investment trust under the Code, and the proposed method of operation of
the Company and the Operating Partnership will enable the Company to
continue to meet the requirements for qualification and taxation as a real
estate investment trust under the Code.
(bb) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, neither Transaction Entity has (i) issued or granted any
securities (other than securities issued pursuant to the exercise of stock
options outstanding as of the date information is given in the Prospectus),
(ii) incurred any material liability or obligation, direct or contingent,
other than liabilities and obligations which were incurred in the ordinary
course of business, (iii) entered into any transaction not in the ordinary
course of business or (iv) declared or paid any dividend on its capital
stock.
(cc) Each Transaction Entity (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is
9
permitted only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing assets
at reasonable intervals.
(dd) No Transaction Entity (i) is in violation of its charter, bylaws,
certificate of limited partnership, agreement of limited partnership, trust
instrument or other similar organizational document, (ii) is in default in
any material respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any
of the Properties or any of its other properties or assets is subject or
(iii) is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or the Properties
or any of its other properties or assets may be subject or has failed to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of the
Properties or any of its other properties or assets or to the conduct of
its business.
(ee) Neither Transaction Entity, nor any director, officer, agent,
employee or other person associated with or acting on behalf of either
Transaction Entity, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(ff) Neither Transaction Entity is an "investment company" within the
meaning of such term under the Investment Company Act of 1940 and the rules
and regulations of the Commission thereunder.
(gg) The Shares have been approved for listing on the New York Stock
Exchange upon notice of issuance.
(hh) Other than this Agreement and as set forth in the Prospectus
Supplement under the heading "Underwriting," there are no contracts,
agreements or understandings between either Transaction Entity and any
person that would give rise to a valid claim against either Transaction
Entity or any Underwriter for a brokerage commission, finder's fee or other
like payment with respect to the consummation of the transactions
contemplated by this Agreement.
2. PURCHASE OF THE SHARES BY THE UNDERWRITER. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 1,184,211 Shares to
the Underwriter and the Underwriter agrees to purchase 1,184,211 Shares, at a
purchase price of $18.0500 per share.
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The Company shall not be obligated to deliver any of the Shares to be
delivered on the Delivery Date (as hereinafter defined), except upon payment
for all the Shares to be purchased on the Delivery Date as provided herein.
3. OFFERING OF SHARES BY THE UNDERWRITER. Upon authorization by the
Underwriter of the release of the Shares, the Underwriter proposes to offer the
Shares for sale upon the terms and conditions set forth in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE SHARES. Delivery of and payment for
the Shares shall be made at the office of Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 or at such other date or place as shall be determined
by agreement between the Representatives and the Company, at 9:00 A.M., Chicago
time, on the third full business day following the date of this Agreement or on
the fourth full business day if the Agreement is executed after the daily
closing time of the New York Stock Exchange (unless postponed in accordance with
the provisions of Section 9 hereof). This date and time are sometimes referred
to as the "DELIVERY DATE." On the Delivery Date, the Company shall deliver or
cause to be delivered certificates representing the Shares to the Underwriter
against payment to or upon the order of the Company of the purchase price by
wire transfer in same day funds. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of the Underwriter hereunder. Upon delivery, the Shares shall
be registered in such names and in such denominations as the Underwriter shall
request in writing not less than two full business days prior to the Delivery
Date. For the purpose of expediting the checking and packaging of the
certificates for the Shares, the Company shall make the certificates
representing the Shares available for inspection by the Underwriter in New York,
New York, not later than 2:00 P.M., New York City time, on the business day
prior to the Delivery Date.
5. FURTHER AGREEMENTS OF THE TRANSACTION ENTITIES. Each of the
Transaction Entities jointly and severally agrees:
(a) The Company 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 name of the Underwriter and the number of Shares which the Underwriter
has agreed to purchase, the price at which the Shares are to be purchased
by the Underwriter from the Company and such other information as the
Underwriter and the Company deem appropriate in connection with the
offering of the Shares, and file the Prospectus in a form approved by you
pursuant to Rule 424(b) under the Act no later than the Commission's close
of business on the second business day following the date of the
determination of the offering price of the Shares; (ii) prior to the
Delivery Date, not file any amendment to the Registration Statement or
supplement to the Prospectus of which you shall not previously have been
advised and furnished with a copy or to which you shall have reasonably
objected in writing or which is not in compliance with the Rules and
Regulations; and (iii) prior to the Delivery Date, promptly notify you
after it shall have received notice thereof of the time when any amendment
to the
11
Registration Statement becomes effective or when any supplement to
the Prospectus has been filed;
(b) To furnish promptly to the Underwriter and to counsel for the
Underwriter five copies of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith, and will also furnish
to the Underwriter and its counsel such number of conformed copies of the
Registration Statement as originally filed and of each amendment thereto,
as the Underwriter may reasonably request;
(c) To deliver promptly to the Underwriter such number of the
following documents as the Underwriter shall reasonably request:
(i) conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement and the computation of per share earnings) and
(ii) the Prospectus and any amended or supplemented Prospectus; and, if the
delivery of a prospectus is required by applicable laws or regulations of
any governmental authority at any time after the Effective Time and prior
to the 270th day after the Effective Date in connection with the offering
or sale of the Shares or any other securities relating thereto and if at
such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Securities Act or the
Exchange Act, to notify the Underwriter and, upon its request, to file such
document and to prepare and furnish without charge to the Underwriter and
to any dealer in securities as many copies as the Underwriter may from time
to time reasonably request of an amended or supplemented Prospectus which
will correct such statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Underwriter, be
required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Underwriter and counsel for the Underwriter and obtain the
consent of the Underwriter to the filing except where obtaining such
consent is impracticable after using reasonable efforts to obtain the
consent;
(f) The Company will make generally available to its security holders
as soon as practicable but no later than 60 days after the close of the
period covered thereby an earnings statement (in form complying with the
provisions of Section 11(a) of the
12
Securities Act and Rule 158 of the Rules and Regulations), which need
not be certified by independent certified public accountants unless
required by the Securities Act or the Rules and Regulations, covering a
twelve-month period commencing after the "effective date" (as defined in
said Rule 158) of the Registration Statement;
(g) The Company will furnish to the Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the
Securities Act or the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), such number of copies of the Prospectus (as amended or
supplemented) as the Underwriter may reasonably request for the purposes
contemplated by the Securities Act or the Exchange Act or the respective
applicable rules and regulations of the Commission thereunder;
(h) For a period of three years following the Effective Date, to
furnish to the Underwriter copies of all materials furnished by the Company
to its stockholders and all public reports and all reports and financial
statements furnished by the Company to the principal national securities
exchange upon which the Common Shares may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(i) Prior to the Effective Date, to apply for the listing of the
Shares on the New York Stock Exchange, Inc. and to use its best efforts to
complete that listing, subject only to official notice of issuance, prior
to the Delivery Date;
(j) To take such reasonable steps to ensure that the net proceeds
from the sale of the Shares are applied in a manner that is consistent in
all material respects with the description set forth in the Prospectus
under the caption "Use of Proceeds";
(k) To take such steps as shall be necessary to ensure that neither
of the Transaction Entities shall become an "investment company" within
the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder;
(l) Except as stated in this Agreement and in the Prospectus, neither
Transaction Entity has taken, nor will take, directly or indirectly, any
action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Common Shares to
facilitate the sale or resale of the Shares;
(m) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under
Sections 856-860 of the Code; and
(n) If this Agreement shall be terminated by the Underwriter because
of any failure or refusal on the part of the Transaction Entities to comply
with the terms or
13
fulfill any of the conditions of this Agreement, the Transaction
Entities jointly and severally agree to reimburse the Underwriter for
all reasonable out-of-pocket expenses (including fees and expenses of
counsel for the Underwriter) incurred by the Underwriter in connection
herewith.
6. EXPENSES. The Transaction Entities jointly and severally agree to pay
(a) the costs incident to the authorization, issuance, sale and delivery of the
Shares and any taxes payable in that connection; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (c) the costs of distributing
the Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits), the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this Agreement; (d) the costs of producing and distributing this Agreement and
any other related documents in connection with the offering, purchase, sale and
delivery of the Shares; (e) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
sale of the Shares; (f) any applicable listing or other fees; (g) the fees and
expenses of qualifying the Shares under the securities laws of the several
jurisdictions as provided in Section 5(i) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriter); and (h) all other costs and expenses incident to
the performance of the obligations of the Transaction Entities under this
Agreement; PROVIDED that, except as provided in this Section 6 and in Section 11
the Underwriter shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Shares which they may sell
and the expenses of advertising any offering of the Shares made by the
Underwriter.
7. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter hereunder are subject to the accuracy, when made and on the Delivery
Date, of the representations and warranties of the Transaction Entities
contained herein, to the performance by each Transaction Entity of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Registration Statement or such post-effective amendment shall
have become effective not later than 5:30 P.M., New York City time, on the
date hereof, or at such later date and time as shall be consented to in
writing by you, and all filings, if any, required by Rules 424 and 430A
under the Rules and Regulations shall have been timely made; no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been instituted or, to
the knowledge of the Transaction Entities or the Underwriter, threatened by
the Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus
or otherwise) shall have been complied with to the satisfaction of the
Underwriter.
14
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting the financial condition, business,
properties, net worth, or results of operations of either Transaction
Entity, not contemplated by the Prospectus, which in the opinion of the
Underwriter, would materially adversely affect the market for the Shares,
or (ii) any event or development relating to or involving either
Transaction Entity, or any partner, officer, director or trustee of either
Transaction Entity or any Property, which makes any statement of a material
fact made in the Prospectus untrue or which, in the opinion of the Company
and its counsel or the Underwriter and its counsel, requires the making of
any addition to or change in the Prospectus in order to state a material
fact required by the Securities Act or any other law to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, if amending or
supplementing the Prospectus to reflect such event or development would, in
your opinion, adversely affect the market for the Shares.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Shares, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all material respects to counsel for the
Underwriter, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) Xxxxx, Day, Xxxxxx & Xxxxx shall have furnished to the
Underwriter its written opinion, as counsel to the Company, addressed to
the Underwriter and dated the Delivery Date, in form and substance
reasonably satisfactory to the Underwriter, to the effect that:
(i) The Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under the
laws of the State of Delaware, with partnership power and authority to
own or hold its property and to conduct the business in which it is
engaged substantially as described in the Registration Statement and
the Prospectus, and to enter into and perform its obligations under
this Agreement. The Operating Partnership is qualified or registered
to do business as a foreign partnership and is in good standing in the
States of Illinois, Michigan, Minnesota, Ohio and Wisconsin. The
Company is the sole general partner of the Operating Partnership. The
Operating Partnership Agreement is in full force and effect.
(ii) The Units issued, including, without limitation, the Units
issued to the Company, have been duly authorized, legally issued and
fully paid, except that no opinion is given with respect to compliance
with Federal or state securities laws.
15
(iii) This Agreement has been duly authorized, executed and
delivered by the Operating Partnership.
(iv) The execution, delivery and performance of this Agreement by
each of the Transaction Entities and the consummation of the
transactions contemplated hereby will not (A) result in the violation
by either Transaction Entity of any statute, rule, order or regulation
of any court or governmental agency or body having jurisdiction over
either of the Transaction Entities or any of their properties or
assets, in each case known to such counsel, (B) result in a default
under or breach by either Transaction Entity of any contract
identified as a material contract in a certificate of the Chief
Executive Officer and Secretary of the Company and to which either of
the Transaction Entities is bound or to which any of the Properties or
other assets of either of the Transaction Entities is subject, or
require the consent or waiver of any party to any such contract other
than consents and waivers that have been obtained, (C) conflict with
or result in a default by the Company under its Charter or Bylaws or
(D) conflict with or result in a default by the Operating Partnership
under its certificate of limited partnership; and except for the
registration of the Shares under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state securities, real
estate syndication or Blue Sky laws governing the purchase and sale of
the Shares by the Underwriter, no consent, approval, authorization or
order of, or filing or registration with, any court or governmental
agency or body is required for the execution, delivery and performance
of this Agreement by the Transaction Entities and the consummation of
the transactions contemplated hereby.
(v) To the knowledge of such counsel, except as disclosed in the
Registration Statement, there are no contracts, agreements or
understandings between the Company and any person granting such person
the right to require the Company to file a registration statement
under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the
Securities Act.
(vi) To the knowledge of such counsel, there is no pending
litigation or governmental proceeding required to be described in the
Registration Statement that is not described as required or that would
affect the subject matter of this Agreement.
(vii) Neither Transaction Entity is an "investment company"
within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission thereunder.
16
(viii) Such counsel has been advised that the Registration
Statement has become effective under the Securities Act and, to such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement under the Securities Act has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened by the Commission. Such counsel has been advised by the
staff of the New York Stock Exchange that the Shares are approved for
listing on the New York Stock Exchange, subject to official notice of
issuance.
(ix) Such counsel has participated in the preparation of the
Registration Statement and the Prospectus (the documents incorporated
into the Prospectus by reference having previously been prepared and
filed by the Company without such counsel's participation). From time
to time, in connection therewith, such counsel has had discussions
with certain officers, directors and employees of the Company,
representatives of Ernst & Young LLP, the independent accounts who
examined certain of the financial statements of the Company and its
consolidated entities incorporated by reference in the Registration
Statement and the Prospectus, and the Underwriter concerning the
Registration Statement and the Prospectus and the proposed responses
to various items in Form S-3. Based thereupon, we are of the view
that the Registration Statement (other than the financial statements,
financial schedules and other financial and statistical data included
or incorporated by reference therein, and except for the information
referred to under the caption "Experts" as having been incorporated by
reference in the Registration Statement on the authority of Ernst &
Young LLP as experts, as to which such counsel is not called upon to
express a view), at the time the Registration Statement became
effective under the Securities Act complied, and the Prospectus (with
the foregoing exceptions), as of its date complied and as of the
Delivery Date complies, as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations, and
that the documents incorporated by reference into the Prospectus that
were filed prior to the date of this letter (other than the financial
statements, financial schedules and other financial and statistical
data included therein, as to which we are not called upon to express a
view) at the time they were filed complied as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder.
(x) The statements contained in the Prospectus under the caption
"Federal Income Tax Considerations," insofar as such statements
purport to summarize the provisions of documents or matters of law
referred to therein or constitute legal conclusions, are fair
summaries of such documents or matters of law.
(xi) The opinion of such counsel filed as Exhibit 8.1 to the
Registration Statement is confirmed as of the Delivery Date and the
Underwriter may rely upon such opinion as if it were addressed to the
Underwriter on the Delivery Date.
17
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the Federal laws of the United States of America;
and (ii) rely (to the extent such counsel deems proper and specifies in their
opinion), as to matters involving the application of the laws of the States of
Maryland and Delaware upon the opinion of other counsel of good standing,
PROVIDED that such other counsel is satisfactory to counsel for the Underwriter
and furnishes a copy of its opinion to the Underwriter. Such counsel shall also
have furnished to the Underwriter the following written statement, addressed to
the Underwriter and dated the Delivery Date, in form and substance satisfactory
to the Underwriter. Such counsel has not independently verified and is not
passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the information contained in the Registration
Statement or the Prospectus, including any document incorporated or deemed to be
incorporated therein by reference, except to the extent of the opinion called
for by Section 7(d)(x). Based solely on the participation and discussions
described above in Section 7(d)(ix), however, no facts have come to such
counsel's attention that cause such counsel to believe that the Registration
Statement (except for the financial statements, financial schedules and other
financial and statistical data included or incorporated by reference therein,
and except for the information referred to under the caption "Experts" as having
been incorporated by reference in the Registration Statement on the authority of
Ernst & Young LLP as experts, as to which such counsel has not been called upon
to express a view), at the time it became effective contained an untrue
statement of material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus, including the documents filed by the Company
with the Commission prior to the date of this letter that are incorporated or
deemed to be incorporated by reference into the Prospectus (with the foregoing
exceptions) as of its date contained, or on the Delivery Date contains, any
untrue statement of a material fact or as of its date, or on the Delivery Date
omits, to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(e) Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP shall have furnished to
the Representatives its written opinion, as Maryland counsel to the
Company, addressed to the Underwriter and dated the Delivery Date, in form
and substance reasonably satisfactory to the Underwriter, to the effect
that:
(i) The Company is a corporation duly incorporated and validly
existing under and by virtue of the laws of the State of Maryland and
is in good standing with the SDAT. The Company has full corporate
power (i) to own or hold its properties and to conduct the business in
which it is engaged as described in the Registration Statement and the
Prospectus and (ii) to enter into and perform its obligations under
this Agreement.
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the shares of Common Stock of the Company
outstanding as of the date of Closing (not including the Shares) (the
"OUTSTANDING SHARES")
18
have been duly and validly authorized and, assuming receipt of
consideration therefor as provided in the resolutions of the Board
of Directors of the Company authorizing their issuance, are duly
and validly issued and are fully paid and nonassessable. The
Shares have been duly and validly authorized and, when issued and
delivered against payment therefor as provided in (i) the
resolutions of the Board of Directors of the Company authorizing
their issuance and (ii) this Agreement, will be duly and validly
issued, fully paid and nonassessable. The terms of the Shares and
the Outstanding Shares conform in all material respects to all
statements and descriptions thereof contained in the Prospectus.
(iii) The form of certificates to be used to represent the
Shares are in due and proper form and comply with all applicable
requirements of the Maryland General Corporation Law as amended
("MGCL"). The issuance of the Shares is not subject to any preemptive
or other similar rights arising under the Company's charter or bylaws
or the MGCL.
(iv) The statements contained in the Prospectus under the caption
"Description of Capital Stock" insofar as those statements describe
Maryland statutes, rules and regulations, constitute a fair summary
thereof.
(v) This Agreement has been duly and validly authorized,
executed and delivered by the Company, and the Operating Partnership
Agreement has been duly and validly authorized, executed and delivered
by the Company.
(vi) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
hereby by the Company will not result in any violation of (i) the
provisions of the Company's Charter or bylaws, or (ii) any Maryland
statute or any order, rule or regulation of any Maryland court or
governmental agency or body of the State of Maryland having
jurisdiction over the Company or any of its properties or assets. So
far as is known to such counsel, and except for (a) the registration
of the Shares under the 1933 Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act or applicable state and foreign securities laws
in connection with the purchase and distribution of the Shares by the
Underwriter, and (b) such consents, approvals, authorizations, orders,
filings or registrations, the absence of which, individually or in the
aggregate, would not have a material adverse effect on the
consummation of the transactions contemplated by this Agreement, no
consent, approval, authorization or order of, or filing or
registration with, any such Maryland court or governmental agency or
body of the State of Maryland is required for the execution, delivery
and performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby.
(f) Xxxxxxx X. Xxxxxx, Esq., General Counsel for the Company, shall
have furnished to the Underwriter his written opinion, addressed to the
Underwriter and
19
dated the Delivery Date, in form and substance reasonably
satisfactory to the Underwriter to the effect that no Transaction Entity
(i) is in violation of its charter, bylaws, certificate of limited
partnership, agreement of limited partnership, deed of trust or other
similar organizational document or (ii) is in default in any respect, and
no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument of
which such counsel is aware to which it is a party or by which it is bound
or to which any of the Properties or any of its other properties or assets
is subject.
(g) The Underwriter shall have received from Xxxxxxx and Xxxxxx,
counsel for the Underwriter, such opinion dated the Delivery Date, with
respect to the issuance and sale of the Shares, the Registration Statement,
the Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(h) At the time of execution of this Agreement, the Underwriter shall
have received from Ernst & Young LLP a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriter and dated
the date hereof (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the
date hereof (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior to the
date hereof), the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants'
"comfort letters" to Underwriter in connection with registered public
offerings.
(i) With respect to the letter of Ernst & Young LLP referred to in
the preceding paragraph and delivered to the Representatives concurrently
with the execution of this Agreement (the "INITIAL LETTER"), the Company
shall have furnished to the Underwriter a letter (the "BRING-DOWN LETTER")
of such accountants, addressed to the Underwriter and dated the Delivery
Date (i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
20
(j) The Company shall have furnished to the Underwriter a
certificate, dated the Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
(i) The representations, warranties and agreements of the
Transaction Entities in Section 1 are true and correct as of the
Delivery Date; the Company has complied with all its agreements
contained herein; and the conditions set forth in Sections 7(a) and
7(k) have been fulfilled; and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their view (A) as of the Effective Date, the
Registration Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (B) since the Effective Date no event has
occurred which should have been set forth in a supplement or amendment
to the Registration Statement or the Prospectus.
(k) (i) No Transaction Entity or Property shall have sustained since
the date of the latest audited financial statements included in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus or (ii) since such date
there shall not have been any change in the capital stock or long-term debt
of either Transaction Entity or any change, or any development involving a
prospective change, in or affecting any Property or the general affairs,
management, financial position, stockholders' equity or results of
operations of any Transaction Entity, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the
reasonable judgment of a
21
majority in interest of the several Underwriter, impracticable or
inadvisable to proceed with the public offering or delivery of the
Shares being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(m) The New York Stock Exchange, Inc. shall have approved the Shares
for listing, subject only to official notice of issuance.
(n) The Transaction Entities shall not have failed at or prior to the
Delivery Date to have performed or complied with any of their agreements
herein contained and required to be performed or complied with by them
hereunder at or prior to the Delivery Date.
(o) On the Delivery Date, counsel for the Underwriter shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Shares
as herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Transaction Entities in connection with the issuance and sale of the Shares
as herein contemplated shall be satisfactory in form and substance to the
Underwriter and its counsel.
(p) The Company shall have furnished or caused to be furnished to you
such further certificates and documents as the Underwriter shall have
reasonably requested.
8. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective:
(i) upon the execution hereof by the parties hereto; or (ii) if, at the time
this Agreement is executed and delivered, it is necessary for the Registration
Statement or a post-effective amendment thereto to be declared effective before
the offering of the Shares may commence, when notification of the effectiveness
of the Registration Statement or such post-effective amendment has been released
by the Commission.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Transaction Entities jointly
and severally, shall indemnify and hold harmless the Underwriter, its officers
and employees and each person, if any, who controls the Underwriter within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Shares), to which the Underwriter, officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, (ii) the omission or alleged omission to state
in the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading or (iii) any act or failure to act
or any alleged act or failure to act by the Underwriter in connection with, or
relating in any manner to, the Shares or the offering contemplated hereby, and
which is included as part of
22
or referred to in any loss, claim, damage, liability or action arising out of
or based upon matters covered by clause (i) or (ii) above (PROVIDED that the
Transaction Entities shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be
taken by the Underwriter through its gross negligence or willful misconduct),
and shall reimburse the Underwriter and each such officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Underwriter, officer, employee or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses
are incurred; PROVIDED, HOWEVER, that the Transaction Entities shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning the Underwriter furnished to the Company by or on behalf of the
Underwriter specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Transaction Entities may
otherwise have to the Underwriter or to any officer, employee or controlling
person of the Underwriter.
(b) The Underwriter shall indemnify and hold harmless each Transaction
Entity, its officers and employees, each of its directors, and each person, if
any, who controls each Transaction Entity within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which each Transaction Entity or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information concerning the Underwriter furnished to the Company by or on behalf
of the Underwriter specifically for inclusion therein, and shall reimburse each
Transaction Entity and any such director, officer or controlling person for any
legal or other expenses reasonably incurred by each Transaction Entity or any
such director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability which the Underwriter may otherwise have to each
Transaction Entity or any such director, officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the
23
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have under this Section
9 except to the extent it has been materially prejudiced by such failure, and
PROVIDED FURTHER that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 9. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall (i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit
or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if
there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 9 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 9(a) or 9(c) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the
Transaction Entities on the one hand and the Underwriter on the other from the
offering of the Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Transaction Entities on the one hand and the Underwriter
on the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Transaction Entities on the one hand and the Underwriter on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Transaction Entities, on
the one hand, and the total underwriting discounts and commissions received by
the Underwriter with respect to the Shares purchased under this Agreement, on
the other hand,
24
bear to the total gross proceeds from the offering of the Shares under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
the Transaction Entities or the Underwriter, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Transaction Entities and the
Underwriter agree that it would not be just and equitable if contributions
pursuant to this Section were to be determined by pro rata allocation or by
any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section shall be deemed
to include, for purposes of this Section 9(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9(d), the Underwriter shall not 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 was offered exceeds the
amount of any damages which the Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The Underwriter confirms and each Transaction Entity acknowledges that
the statements with respect to the public offering of the Shares by the
Underwriter set forth on the cover page of, the legend required by Regulation M
promulgated under the Exchange Act that appears on the inside front cover page
of, the name of the Underwriter and the number of Shares which it is purchasing
and the "Underwriting" section of the Prospectus Supplement are correct and
constitute the only information concerning the Underwriter furnished in writing
to the Company by or on behalf of the Underwriter specifically for inclusion in
the Registration Statement and the Prospectus.
10. TERMINATION. The obligations of the Underwriter hereunder may be
terminated by the Underwriter by written notice given to and received by the
Company prior to delivery of and payment for the Shares if, prior to that time,
any of the events described in Section 7(i), 7(j) or 7(l), shall have occurred
or if the Underwriter shall decline to purchase the Shares for any reason
permitted under this Agreement.
11. REIMBURSEMENT OF UNDERWRITER'S EXPENSES. If (a) the Company shall
fail to tender the Shares for delivery to the Underwriter by reason of any
failure, refusal or inability on the part of the Transaction Entities to perform
any agreement on their part to be performed, or because any other condition of
the Underwriter's obligations hereunder required to be fulfilled by the
Transaction Entities is not fulfilled, the Transaction Entities will reimburse
the Underwriter for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriter in connection with this
Agreement and the proposed purchase of the Shares, and upon demand the
Transaction Entities shall pay the full amount thereof to the Underwriter.
25
12. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail, telex
or facsimile transmission to X.X. Xxxxxxx & Sons, Inc., Xxx Xxxxx Xxxxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Syndicate (Fax:
(000) 000-0000).
(b) if to the Transaction Entities, shall be delivered or sent by
mail, telex or facsimile transmission to the Company, 000 Xxxxxxxx Xxxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx (Fax:
(000) 000-0000); with a copy to Xxxxx, Day, Xxxxxx & Xxxxx, 00 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx (Fax:
(000) 000-0000).
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the Underwriter, the Transaction Entities
and their respective personal representatives and successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that (A) the representations, warranties, indemnities and
agreements of the Transaction Entities contained in this Agreement shall also be
deemed to be for the benefit of the person or persons, if any, who control the
Underwriter within the meaning of Section 15 of the Securities Act and (B) the
indemnity agreement of the Underwriter contained in Section 9(b) of this
Agreement shall be deemed to be for the benefit of directors of the Transaction
Entities, officers of the Company who have signed the Registration Statement and
any person controlling the Transaction Entities within the meaning of Section 15
of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this
Section 15, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
14. SURVIVAL. The respective indemnities, representations, warranties and
agreements of the Transaction Entities and the Underwriter contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Shares and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
15. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY." For purposes
of this Agreement, (a) "BUSINESS DAY" means any day on which the New York Shares
Exchange, Inc. is open for trading and (b) "SUBSIDIARY" has the meaning set
forth in Rule 405 of the Rules and Regulations.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of New York.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be
26
deemed to be an original but all such counterparts shall together constitute
one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
27
If the foregoing correctly sets forth the agreement between the Company
and the Underwriter, please indicate your acceptance in the space provided
for that purpose below.
Very truly yours,
GREAT LAKES REIT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Title: Secretary
GREAT LAKES REIT, L.P.
By: GREAT LAKES REIT, INC., its
general partner
By: /s/ Xxxxxxx X. Xxxxxx
Title: Secretary
ACCEPTED:
X. X. XXXXXXX & SONS, INC.
By /s/ Xxxxxxx X. XxXxxxxxx
Authorized Representative
