Exibit 1.1
EXECUTION COPY
3,000,000 Shares
GLIMCHER REALTY TRUST
Common Shares of Beneficial Interest
($ .01 Par Value)
EQUITY UNDERWRITING AGREEMENT
June 26, 2002
Deutsche Bank Securities Inc.
As Representative of the
Underwriters
c/o Deutsche Bank Securities Inc.
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Glimcher Realty Trust, a Maryland real estate investment trust (the
"Trust"), proposes to issue and sell to you and McDonald Investments Inc. (the
"Underwriters") for whom you are acting as representative (the "Representative")
an aggregate of 3,450,000 shares of the Trust's common shares of beneficial
interest, par value $.01 per share (the "Common Shares"). The 3,000,000 Common
Shares to be purchased from the Trust are hereinafter referred to as the "Firm
Shares". The respective amounts of the Firm Shares to be so purchased by the
several Underwriters are set forth opposite their names in Schedule I hereto.
The Trust also proposes to sell at the Underwriters' option an aggregate of up
to 450,000 additional Common Shares (the "Option Shares") as set forth below.
The Trust and Glimcher Properties Limited Partnership, a Delaware limited
partnership (the "Operating Partnership"), hereby confirm their agreements with
you, acting as Representative of the Underwriters.
As the Representative, you have advised the Trust and the Operating
Partnership (a) that you are authorized to enter into this Agreement on behalf
of the several Underwriters, and (b) that the several Underwriters are willing,
acting severally and not jointly, to purchase the numbers of Firm Shares set
forth opposite their respective names in Schedule I, plus their pro rata portion
of the Option Shares if you elect to exercise the over-allotment option in whole
or in part for the accounts of the several Underwriters. The Firm Shares and the
Option Shares (to the extent the aforementioned option is exercised) are herein
collectively called the "Shares."
The Trust has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-43317) covering the
registration of the Shares under the Securities Act of 1933, as amended (the
"Act"), including a related prospectus, which has become effective. The
registration statement (including the exhibits thereto and schedules thereto, if
any) as amended at the time it became effective, or, if a post-effective
amendment has been filed with respect thereto, as amended by such post-effective
amendment at the time of its effectiveness (including in each case the
information (if any) deemed to be part of such registration statement at the
time of effectiveness pursuant to Rule 430A under the Act), is hereinafter
referred to as the "Registration Statement." The term
"Effective Date" shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become effective. The
term "Base Prospectus" shall mean the prospectus contained in the Registration
Statement at the Effective Date. "Preliminary Prospectus" means the preliminary
prospectus supplement to the Base Prospectus used prior to the filing of the
Prospectus in connection with the public offering contemplated by this
Agreement; the term "Prospectus" means the prospectus supplement to the Base
Prospectus first filed with the Commission pursuant to Rule 424(b) under the Act
in connection with the public offering contemplated by this Agreement, together
with the Base Prospectus.
Any reference in this Agreement to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the Effective Date of the Registration Statement or the
date of such Preliminary Prospectus or the Prospectus, as the case may be (it
being understood that the several specific references in this Agreement to
documents incorporated by reference in the Registration Statement or the
Prospectus are for clarifying purposes only and are not meant to limit the
inclusiveness of any other definition herein). For purposes of this Agreement,
all references to the Registration Statement, any Preliminary Prospectus, or the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX"). All references in this
Agreement to financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement, any
Preliminary Prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements and schedules
and other information which is incorporated by reference in the Registration
Statement, any Preliminary Prospectus or the Prospectus, as the case may be.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Trust and the Operating
Partnership.
The Trust and the Operating Partnership jointly and severally represent and
warrant to each of the Underwriters that:
(a) The Trust meets the requirements for use of Form S-3 under the Act.
(b) The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus. When any Preliminary Prospectus and any
amendment or supplement thereto was filed with the Commission, it (i) contained
all statements required to be stated therein in accordance with, and complied in
all material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder, and (ii) did not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. When the Registration Statement or any
amendment thereto was declared effective, it (i) contained all statements
required to be stated therein in accordance with, and complied in all material
respects with the requirements of, the Act and the rules and regulations of the
Commission thereunder and (ii) did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein not misleading. When the Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission pursuant to Rule
424(b) (or, if the Prospectus or part thereof or such amendment or supplement is
not required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective), on the date when the Prospectus is otherwise amended or
supplemented and on the Closing Date and any Option Closing Date (both as
hereinafter defined), the
-2-
Prospectus, (i) contained or will contain all statements required to be stated
therein in accordance with, and complied or will comply in all material respects
with the requirements of, the Act and the rules and regulations of the
Commission thereunder and (ii) did not or will not include any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. The documents incorporated, or to be incorporated by
reference in the Preliminary Prospectus and the Prospectus complied or will
comply in all material respects with the requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder. The foregoing provisions of this paragraph (b) do not apply to
statements or omissions made in any Preliminary Prospectus or any amendment or
supplement thereto, the Registration Statement or any amendment thereto, or the
Prospectus, in reliance upon and in conformity with written information
furnished to the Trust by any Underwriter specifically for use therein.
(c) The Trust has been duly organized and is validly existing as a Maryland
real estate investment trust, and is in good standing under the laws of the
state of Maryland. Each of the Operating Partnership, Glimcher Holdings Limited
Partnership ("GHLP"), Grand Central Limited Partnership ("GRCLP"), Glimcher
Centers Limited Partnership ("GCLP"), Glimcher University Mall Limited
Partnership ("GUMLP"), Colonial Park Mall Limited Partnership ("CPMLP"), San
Mall Limited Partnership ("SMLP"), Loyal Plaza Venture Limited Partnership
("LPVLP"), Glimcher Loyal Plaza Tenant Limited Partnership ("GLPTLP"), Catalina
Partners Limited Partnership ("CPLP"), Xxxxxxxxxx Mall Associates Limited
Partnership ("MMALP") and Morgantown Mall Associates Limited Partnership
("MMLP", and together with the Operating Partnership, GHLP, GRCLP, GCLP, GUMLP,
CPMLP, SMLP, LPVLP, GLPTLP, CPLP and MMALP referred to collectively herein as
the "Partnership Subsidiaries") have been duly organized and are validly
existing and in good standing under the laws of their respective jurisdictions
of organization. Each of Olathe Mall LLC ("Olathe"), Weberstown Mall LLC
("WML"), Glimcher Northtown Venture, LLC ("GNV"), Dayton Mall Venture, LLC
("Dayton LLC"), Xxxxxxx City Venture LLC ("JCV"), Glimcher SuperMall Venture,
LLC ("GSMV"), San Mall, LLC ("SM"), Polaris Center, LLC ("PC"), Great Plains
MetroMall, LLC ("GPMM"), Jersey Gardens Center, LLC ("JGC"), Mount Xxxxxx
Venture, LLC ("MVV"), Glimcher Jersey Gardens, LLC ("GJG"), JG Mezzanine, LLC
("JGM"), Glimcher Westpark Plaza, LLC ("GWP"), Morningside Plaza, LLC ("MP"),
New Boston Mall, LLC ("NBM"), Shady Springs Plaza, LLC ("SSP"), Xxxxxxxx Xxxxx
Center, LLC ("GLC"), Southside Mall, LLC ("Southside LLC"), Glimcher Linden
Corners, LLC ("Linden Corners"), Glimcher River Valley Mall, LLC ("GRVM"),
Barren River Plaza, LLC ("BRP"), Charlotte, Eastland Mall, LLC ("CEM"), Hocking
Valley Mall, LLC ("HVM"), G&G Xxxxxx, LLC ("G&GB"), East Pointe Venture LLC
("EP"), Great Mall Phase II, LLC ("GMII"), Meadowview Square, LLC ("MS"), Olathe
Mall Phase II, LLC ("Olathe II"), River Valley Venture, LLC ("RV") and Polaris
Mall, LLC ("PM", and together with Olathe, Olathe II, EP, GMII, MS, RV, WML,
GNV, Dayton LLC, JCV, GSMV, SM, PC, GPMM, JGC, MVV, GJG, JGM, GWP, MP, NBM, SSP,
GLC, Southside LLC, Linden Corners, GRVM, BRP, CEM, HVM, G&GB and GS referred to
collectively herein as the "LLC Subsidiaries") have been duly organized and are
validly existing and in good standing under the laws of their respective
jurisdictions of formation. Colonial Park Trust ("CPT") and Glimcher Colonial
Trust ("GCT" and together with CPT referred to collectively herein as the "Trust
Subsidiaries") have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of organization. Each
of Glimcher Properties Corporation ("GPC"), Glimcher Centers, Inc. ("GCI"),
Glimcher Grand Central, Inc. ("GRCI"), Glimcher Development Corporation ("GDC"),
Glimcher Xxxxxxx City, Inc. ("GJC Inc."), Glimcher Dayton Mall, Inc. ("GD
Mall"), Glimcher Holdings, Inc. ("GHI"), Glimcher Colonial Park Mall, Inc.
("GCPM"), Glimcher Tampa, Inc. ("GTI"), Glimcher Auburn, Inc. ("GAI"), Glimcher
Weberstown, Inc. ("GWI"), Xxxxxxxx Xxxxxx, Inc. ("GBI"), Glimcher Xxxxxxxxxx,
Inc. ("GMI"), GP Olathe, Inc. ("GPO"), GP MetroMall, Inc. ("GPMM"), San Mall
Corporation ("SMC"), Glimcher PTC, Inc. ("GPTC"), Glimcher East Pointe, Inc.
("GEP"), Glimcher Meadowview Square, Inc. ("GMS"), Glimcher Mt. Xxxxxx, Inc.
("GMV"), Glimcher River Valley, Inc. ("GRV"), Glimcher Loyal
-3-
Plaza, Inc. ("GLPI"), Glimcher Loyal Plaza Tenant, Inc. ("GLPTI"), Xxxxxxxx XX
Urban Renewal, Inc. ("GJGI"), Glimcher Eastland, Inc. ("GEI"), Ohio
Entertainment Corporation ("OEC"), NJ Metromall Urban Renewal, Inc. ("NJMM"),
Glimcher Morgantown Mall, Inc., ("GMMI", and together with GPC, GCI, GRCI, GRD,
GJC Inc., XX Xxxx, XXX, XXX, XXXX, XXX, XXX, XXX, XXX, GMI, GPO, GPMM, SMC,
GPTC, GEP, GMS, GMV, GRV, GLPI, GLPTI, GJGI, GEI, OEC and NJMM are referred to
collectively herein as the "Corporate Subsidiaries", and the Partnership
Subsidiaries, the LLC Subsidiaries, the Trust Subsidiaries and the Corporate
Subsidiaries are referred to herein collectively as the "Subsidiaries") have
been duly organized and are validly existing and in good standing under the laws
of their respective jurisdictions of organization. The Subsidiaries are the only
subsidiaries (direct or indirect) of the Trust. The Trust and the Subsidiaries
are duly qualified to transact business as foreign entities, and are in good
standing under the laws of all other jurisdictions where the ownership or
leasing of their respective properties or the conduct of their respective
businesses requires such qualification, except where the failure to be so
qualified or in good standing would not have a material adverse effect on the
condition (financial or otherwise), net worth or results of operations of the
Trust and the Subsidiaries, taken as a whole (a "Material Adverse Effect").
(d) The Trust and each of the Subsidiaries have full power (trust,
corporate, partnership and/or limited liability company) to own or lease their
respective properties and conduct their respective businesses as described in
the Registration Statement and the Prospectus and each of the Trust and the
Operating Partnership has full trust or partnership power to enter into this
Agreement and to carry out all the terms and provisions hereof to be carried out
by it.
(e) The outstanding equity interests of each Subsidiary, have been duly
authorized and validly issued, are fully paid and non-assessable and, except as
set forth on Exhibit 1(e), are owned by the Trust or the Operating Partnership
or one of their wholly-owned Subsidiaries free and clear of all liens,
encumbrances, equities and claims; and no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to convert
any obligations into ownership interests in any Subsidiary are outstanding,
except as described in the Prospectus or as provided for in any organizational
documents or operating agreements of any Subsidiary, or except as set forth in
Exhibit 1(e) hereto. Exhibit 1(e) is a true and correct organizational structure
chart identifying all owners of equity interests of each Subsidiary and sets
forth the percentage ownership for such owners. As of the Closing Date, (i) the
Trust is the sole shareholder of GPC and (ii) the Trust, directly and
indirectly, will not own less than a 88.02% partnership interest in the
Operating Partnership.
(f) Each of the partnership, operating and joint venture agreements to
which the Trust or any of the Subsidiaries is a party, and which relates to real
property described in the Prospectus, (i) has been duly authorized, executed and
delivered by such applicable party and constitutes the valid agreement thereof,
enforceable in accordance with its terms, except as limited by (a) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights of remedies of creditors
or (b) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought; and (ii) the execution,
delivery and performance of any of such agreements by the Trust or the
Subsidiaries, as applicable, did not, at the time of execution and delivery, and
does not, constitute a breach of, or default under, (a) the charter, declaration
of trust, partnership agreement, operating agreement or 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 Effect.
(g) The Trust has an authorized, issued and outstanding capitalization as
set forth in the Prospectus under the caption "Capitalization." All of the
issued shares of beneficial interest of the
-4-
Trust have been duly authorized and validly issued and are fully paid and
nonassessable (except that under Maryland law shareholders of the Trust may be
subject to personal liability with respect to certain claims for torts,
contracts, taxes and statutory and other liabilities). The Firm Shares and the
Option Shares have been duly authorized by all necessary trust action and at the
Closing Date or the Option Closing Date (as the case may be), when issued and
delivered as contemplated by the terms of this Agreement and after payment
therefor in accordance herewith, will be validly issued, fully paid and
nonassessable (except that under Maryland law shareholders of the Trust may be
subject to personal liability with respect to certain claims for torts,
contracts, taxes and statutory and other liabilities). No holders of outstanding
shares of beneficial interest of the Trust are entitled as such to any
preemptive or other rights to subscribe for any of the Shares, and no holder of
securities of the Trust has any right which has not been exercised or waived to
require the Trust to register the offer or sale of any securities owned by such
holder under the Act in the public offering contemplated by this Agreement.
(h) The capital stock of the Trust conforms in all material respects to the
description thereof contained in the Registration Statement and the Prospectus.
(i) Except as disclosed in the Prospectus, there are no outstanding (i)
securities, partnership interests or obligations of the Trust or any Subsidiary
convertible into or exchangeable for any capital stock of the Trust, (ii)
warrants, rights or options to subscribe for or purchase from the Trust or any
Subsidiary any such capital stock or any such convertible or exchangeable
securities, partnership interests or obligations, or (iii) obligations of the
Trust to issue any shares of capital stock, any such convertible or exchangeable
securities, partnership interests or obligations, or any such warrants, rights
or options.
(j) The consolidated financial statements and schedules of the Trust and
the consolidated Subsidiaries included in the Registration Statement and the
Prospectus fairly present in all material respects the financial position of the
Trust and the consolidated Subsidiaries and the results of operations and
changes in financial condition as of the dates and periods therein specified.
Such financial statements and schedules have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved (except as otherwise noted therein). The selected financial
data set forth under the caption "Selected Consolidated Financial Data" in the
Prospectus fairly present, on the basis stated in the Prospectus, the
information included therein. The pro forma financial statements, if any, and
other pro forma financial information, if any, included in the Registration
Statement and the Prospectus comply in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X of the Commission and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of such statements and the assumptions used in the preparation
thereof are, in the opinion of the Trust, reasonable.
(k) PricewaterhouseCoopers L.L.P., who have certified certain financial
statements of the Trust and the Subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules included
in the Registration Statement and the Prospectus are independent public
accountants as required by the Act, the Exchange Act and the related published
rules and regulations thereunder.
(l) The execution and delivery of this Agreement have been duly authorized
by the Trust and the Operating Partnership and this Agreement has been duly
executed and delivered by the Trust and the Operating Partnership.
(m) No legal or governmental proceedings are pending to which the Trust or
any of the Subsidiaries is a party or to which the property of the Trust or of
any of the Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not described therein,
-5-
and no such proceedings which may be material with respect to the Trust and the
Subsidiaries taken as a whole have been to the Trust's knowledge threatened
against the Trust or any of the Subsidiaries or with respect to any of their
respective properties; and no contract or other document is required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that is not described therein or filed as
required.
(n) The issuance, offering and sale of the Shares to the Underwriters by
the Trust pursuant to this Agreement, the compliance by the Trust and the
Operating Partnership with the other provisions of this Agreement and the
consummation of the transactions herein contemplated do not (i) require the
consent, approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained, such as may be
required under state securities or blue sky laws and such as may be required
(and shall be obtained as provided in this Agreement) under the Act, or (ii)
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Trust or any of the
Subsidiaries is a party or by which the Trust or any of the Subsidiaries or any
of their respective properties are bound, or the declaration of trust or charter
documents (or other formation documents) or by-laws, partnership agreement,
operating agreement (or other governing documents), as the case may be, of the
Trust or any of the Subsidiaries, or any statute or any judgment, decree, order,
rule or regulation of any court or other governmental authority or any
arbitrator applicable to the Trust or any of the Subsidiaries.
(o) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, neither the Trust nor any of the
Subsidiaries has sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident, act
of terrorism or other calamity or from any labor dispute or any legal or
governmental proceeding and there has not been any Material Adverse Effect, or
any development involving a prospective Material Adverse Effect, except in each
case as described in or contemplated by the Registration Statement and the
Prospectus.
(p) The Trust has not, directly or indirectly, taken any action designed to
cause or to result in, or that has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Trust to facilitate the sale or resale of the Shares.
(q) The Trust has not distributed and, prior to the later of (i) the
Closing Date and (ii) the completion of the distribution of the Shares, will not
distribute, any offering material in connection with the offering and sale of
the Shares other than the Registration Statement or any amendment thereto, a
Preliminary Prospectus, the Prospectus, or other materials, if any, permitted by
the Act.
(r) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus (i) none of the Trust or any of
the Subsidiaries has incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the ordinary course
of business; (ii) the Trust has not purchased any of its outstanding shares of
beneficial interest, nor declared, paid or otherwise made any dividend or
distribution of any kind on its shares of beneficial interest, except for (x)
regularly scheduled dividend payments on its outstanding shares of beneficial
interest and (y) the Trust's Distribution Reinvestment Plan; and (iii) there has
not been any material change in the shares of beneficial interest, ownership
interests, short-term debt or long-term debt of the Trust and the Subsidiaries,
except in each case as described in or contemplated by the Prospectus.
(s) Except as described in or contemplated by the Prospectus, the Trust and
each Subsidiary have good and indefeasible title in fee simple to all of the
real properties in which they own an interest and which are described in the
Prospectus (the "Properties"), and good and valid title to all
-6-
personal property owned by each of them, in each case free and clear of any
security interests, liens, encumbrances, equities, claims and other defects,
except such as do not materially and adversely affect the value of any
individual Significant Property (defined below) or all Properties (taken as a
whole) and do not interfere with the use made or proposed to be made of any
individual Significant Property or all Properties (taken as a whole) by the
Trust or any Subsidiary, and any Properties and buildings held under lease by
the Trust or by any Subsidiary are held under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not interfere with the
use made or proposed to be made of such Significant Property or all Properties
(taken as a whole) by the Trust or by any Subsidiary. For purposes of this
paragraph 1(s), a "Significant Property" shall mean a Property that has a book
value (without regard to any minority interest held by any person), as of March
31, 2002, of at least $15 million.
(t) The Trust and each Subsidiary are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are engaged; and none
of the Trust or any of the Subsidiaries has any reason to believe that they will
not be able to renew their existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to continue their business at a cost that would not result in a Material Adverse
Effect except as described in or contemplated by the Prospectus.
(u) The Trust and each of the Subsidiaries have complied with all laws,
regulations and orders applicable to it or its respective business and
properties except where the failure to so comply would not result in a Material
Adverse Effect; the Trust and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state, municipal
or foreign regulatory authorities necessary to conduct their respective
businesses except where the failure to possess the same would not result in a
Material Adverse Effect; and neither the Trust nor any of the Subsidiaries has
received any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect, except as described in the Prospectus.
(v) The Trust is not subject to registration as an investment company under
the Investment Company Act of 1940, as amended (the "1940 Act") and the sale of
Shares pursuant to this Agreement and the application of the net proceeds
therefrom as set forth in the Prospectus will not cause the Trust to become an
investment company subject to registration under such act.
(w) The Trust and each Subsidiary have filed all foreign, federal, state
and local tax returns that are required to be filed or have requested extensions
thereof (except in any case in which the failure so to file would not have a
Material Adverse Effect) and have paid all taxes required to be paid by them and
any other assessment, fine or penalty levied against them, to the extent that
any of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as described in or
contemplated by the Registration Statement and the Prospectus. Such tax returns
are true, correct, and complete in all material respects.
(x) The Trust and each Subsidiary maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences; and (v) the Trust is complying with the requirements for
qualification as a real estate investment trust (a "REIT") under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the "Code").
-7-
(y) Except as otherwise disclosed in the Prospectus or as would not
otherwise have a Material Adverse Effect, (i) neither the Trust, any of the
Subsidiaries nor, to the best knowledge of the Trust, any other owners of the
property at any time or any other party has at any time, handled, stored,
treated, transported, manufactured, spilled, leaked, or discharged, dumped,
transferred or otherwise disposed of, Hazardous Materials (as hereinafter
defined) on, to or from the Properties, other than in compliance with all
applicable Environmental Statutes and in connection with the ordinary use of
residential, retail or commercial properties owned by the Trust; (ii) the Trust
has not used and shall not have used the Properties or any subsequently acquired
properties for the purpose of handling, storing, treating, transporting,
manufacturing, spilling, leaking, discharging, dumping, transferring or
otherwise disposing of Hazardous Materials other than in compliance with all
applicable Environmental Statutes and in connection with the ordinary use of
residential, retail or commercial properties owned by the Trust; (iii) neither
the Trust nor any of the Subsidiaries knows of any seepage, leakage, discharge,
release, emission, spill, or dumping of Hazardous Materials on any property
which might materially and adversely affect the Properties; (iv) neither the
Trust nor any of the Subsidiaries has received any written notice of, or has any
knowledge of any occurrence or circumstance which, with notice or passage of
time or both, would give rise to a claim under or pursuant to any Environmental
Statute (as hereinafter defined) or under common law, pertaining to Hazardous
Materials on or originating from any of the Properties or any assets described
in the Prospectus; (v) neither the Properties nor any other land owned by the
Trust or any of the Subsidiaries is included or, to the best of the Trust's
knowledge, proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (as hereinafter defined) by the United States Environmental
Protection Agency (the "EPA") or, to the best of the Trust's knowledge, proposed
for inclusion on any comparable state list issued pursuant to any other
Environmental Statute or issued by any other Governmental Authority (as
hereinafter defined) or to the best of the Trust's knowledge has been the
subject of an investigation or inquiry by any Governmental Authority with
respect to Hazardous Materials; and (vi) the Trust, the Subsidiaries and the
Properties are in compliance with all Environmental Statutes and to the best of
the Trust's knowledge, the Trust and the Subsidiaries possess all permits,
registrations and authorizations required to operate the Properties. As used
herein, "Hazardous Materials" shall mean any substance defined or regulated as a
hazardous material, hazardous waste, hazardous substance, toxic substance,
pollutant or contaminant or by any federal, state or local law, ordinance, rule
or regulation for the protection of human health or the environment (including
without limitation the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. 9601 et seq. ("CERCLA"), the Hazardous
Materials Transportation Act, 49 U.S.C. Section 5101 et seq, the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et
seq, the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq, the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section 136 et seq,
the Clean Air Act, 42 U.S.C. Section 7401 et seq., the Clean Water Act (Federal
Water Pollution Control Act), 33 U.S.C. Section 1251 et seq., the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq., and the Occupational Safety and
Health Act, 29 U.S.C. Section 651 et seq., as any of the above statutes may have
been amended from time to time, and in the regulations promulgated pursuant to
each of the foregoing (individually, an "Environmental Statute") or by any
federal, state or local governmental authority having or claiming jurisdiction
over the properties and assets described in the Prospectus (a "Governmental
Authority")) or any substance which is or contains petroleum.
(z) The Trust and each Subsidiary that is under "common control" with the
Trust as defined in Section 4001(b)(1) of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA") (each an "ERISA Affiliate") are in
compliance in all material respects with all presently applicable provisions of
ERISA; no "reportable event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in ERISA) for which the Trust or any ERISA
Affiliate would have any material liability; neither the Trust nor any ERISA
Affiliate has incurred and neither expects to incur any material liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 4971 of
-8-
the Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan" in
which employees or former employees of the Trust or any ERISA Affiliate
participate that is intended to be qualified under Section 401(a) of the Code is
so qualified in all material respects and nothing has occurred, whether through
any action or by failure to act, which would cause the loss of such
qualification.
(aa) The Trust and the Subsidiaries have been and are organized and
operated in conformity with the requirements for qualification and taxation of
the Trust as a REIT under Sections 856 through 860 of the Code and the rules and
regulations thereunder and the Trust's and the Subsidiaries' present method of
operation does and will enable the Trust to continue to meet the requirements
for qualification and taxation as a real estate investment trust under the Code
and the Operating Partnership, the other Partnership Subsidiaries and the LLC
Subsidiaries have at all times been and will continue to be treated for Federal
income tax purposes as partnerships (or as disregarded entities) and not as
associations taxable as corporations or as publicly-traded partnerships.
(bb) Neither the Trust nor any of the Subsidiaries is in violation of any
federal or state law or regulation relating to occupational safety and health
and the Trust and the Subsidiaries have received all permits, licenses or other
approvals required of them under applicable federal and state occupational
safety and health and regulations to conduct their respective businesses, and
the Trust and each of the Subsidiaries is in compliance with all terms and
conditions of any such permit, license or approval, except any such violation of
law or regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals which would not, singly or in the aggregate result in a
Material Adverse Effect, except as described in the Prospectus.
(cc) Except for interests in the Subsidiaries owned by the Trust or other
Subsidiary, neither the Trust nor any of the Subsidiaries owns any shares of
stock or any other equity securities of any corporation or has any equity
interest in any firm, partnership, limited liability company, association or
other entity, except as described in or contemplated by the Prospectus.
(dd) Neither the Trust nor any of the Subsidiaries is in violation of any
term or provision of its declaration of trust, certificate of incorporation,
by-laws, partnership agreements or other organizational documents, as the case
may be; no default exists, and no event has occurred which, with notice or lapse
of time or both, would constitute a default, and the consummation of the
transactions contemplated by this Agreement will not result in any default in
the due performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or instrument to
which the Trust or any Subsidiary is a party or by which the Trust, the
Subsidiaries or any of their respective properties is bound or may be affected,
except such as would not result in any Material Adverse Effect.
(ee) Neither the Trust nor any of its officers or trustees has taken nor
will any of them take, directly or indirectly, any action resulting in a
violation of Regulation M promulgated under the Exchange Act, or designed to
cause or result in, or which has constituted or which reasonably might be
expected to constitute, the stabilization or manipulation of the price of the
Trust's Common Shares. The Trust acknowledges that the Underwriters may engage
in transactions that stabilize, maintain or otherwise affect the price of the
Common Shares, including stabilizing bids, syndicate covering transactions and
the imposition of penalty bids.
(ff) To the knowledge of the Trust, after inquiry of its officers and
trustees, there are no affiliations with the NASD among the Trust's officers or
trustees except as set forth in the Registration Statement or as otherwise
disclosed in writing to the Underwriters.
-9-
(gg) By the Closing Date, the Shares will have been approved for listing on
the New York Stock Exchange, subject to official notice of issuance.
(hh) (A) Neither the Trust nor any Subsidiary knows of any violation of any
municipal, state or federal law, rule or regulation (other than those pertaining
to environmental matters which are covered by Paragraph (y) above), concerning
the Properties or any part thereof which would have a Material Adverse Effect;
(B) each of the Properties complies with all applicable zoning laws, ordinances,
regulations and deed restrictions or other covenants in all material respects
and, if and to the extent there is a failure to comply, such failure does not
materially impair the value of any of the Properties and will not result in a
forfeiture or reversion of title; (C) neither the Trust nor any Subsidiary (i)
has received from any governmental authority any written notice of any
condemnation of or zoning change affecting the Properties or any part thereof,
and (ii) knows of any such condemnation or zoning change which is threatened
and, in the case of clauses (i) and (ii) above, which if consummated would have
a Material Adverse Effect; (D) all liens, charges, encumbrances, claims, or
restrictions on or affecting the properties and assets (including the
Properties) of the Trust or any of the Subsidiaries that are required to be
described in the Prospectus are disclosed therein; and (E) no lessee of any
portion of any of the Properties is in default under any of the leases governing
such properties and there is no event which, but for the passage of time or the
giving of notice or both would constitute a default under any of such leases,
except such defaults or events which, but for the passage of time or giving of
notice or both, will constitute a default that would not have a Material Adverse
Effect, except as disclosed in the Prospectus.
(ii) Each certificate signed by any officer of the Trust and delivered to
the Underwriter or counsel for the Underwriter shall be deemed to be a
representation and warranty by the Trust to the Underwriter as to the matters
covered thereby.
(jj) No labor dispute with the employees of the Trust or any of the
Subsidiaries exists, or is threatened or imminent that could result in a
Material Adverse Effect, except as described in the Prospectus.
(kk) The Trust and the Subsidiaries own or possess, or can acquire on
reasonable terms, all material patents, trademarks, service marks, trade names,
domain names, licenses, copyrights and proprietary and other confidential
information currently employed by them in connection with their respective
businesses, and neither the Trust nor any of the Subsidiaries has received any
notice of infringement of or conflict with asserted rights of any third party
with respect to the foregoing which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect, except as described in the Prospectus.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties and covenants herein
contained, and subject to the terms and conditions herein set forth, the Trust
agrees to issue and sell to the Underwriters and each Underwriter agrees,
severally and not jointly, to purchase, at a price of $16.929 per share, the
number of Firm Shares set forth opposite the name of each Underwriter in
Schedule I hereof, subject to adjustments in accordance with Section 9 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be made in
Federal (same day) funds against delivery of certificates therefor to the
Representative for the several accounts of the Underwriters. Such payment and
delivery are to be made through the facilities of The Depository Trust Company,
New York, New York at 10:00 a.m., New York time, on the third business day after
the date of this Agreement or at such other time and date not later than five
business days thereafter as you and the
-10-
Trust shall agree upon, such time and date being herein referred to as the
"Closing Date." (As used herein, "business day" means a day on which the New
York Stock Exchange is open for trading and on which banks in New York are open
for business and are not permitted by law or executive order to be closed.)
(c) In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
hereby grants an option to the several Underwriters to purchase the Option
Shares at the price per share as set forth in the first paragraph of this
Section 2. The option granted hereby may be exercised in whole or in part by
giving written notice (i) at any time before the Closing Date and (ii) only once
thereafter within 30 days after the date of this Agreement, by you, as
Representative of the several Underwriters, to the Trust setting forth the
number of Option Shares as to which the several Underwriters are exercising the
option and the time and date at which such certificates are to be delivered. The
time and date at which certificates for Option Shares are to be delivered shall
be determined by the Representative but shall not be earlier than three nor
later than 10 full business days after the exercise of such option, nor in any
event prior to the Closing Date (such time and date being herein referred to as
the "Option Closing Date"). If the date of exercise of the option is three or
more days before the Closing Date, the notice of exercise shall set the Closing
Date as the Option Closing Date. The number of Option Shares to be purchased by
each Underwriter shall be in the same proportion to the total number of Option
Shares being purchased as the number of Firm Shares being purchased by such
Underwriter bears to the total number of Firm Shares, adjusted by you in such
manner as to avoid fractional shares. The option with respect to the Option
Shares granted hereunder may be exercised only to cover over-allotments in the
sale of the Firm Shares by the Underwriters. You, as Representative of the
several Underwriters, may cancel such option at any time prior to its expiration
by giving written notice of such cancellation to the Trust. To the extent, if
any, that the option is exercised, payment for the Option Shares shall be made
on the Option Closing Date in Federal (same day) funds drawn to the order of the
Trust for the Option Shares to be sold by it against delivery of certificates
therefor through the facilities of The Depository Trust Company, New York, New
York.
3. Offering by the Underwriters.
It is understood that the several Underwriters are to make a public
offering of the Firm Shares as soon as the Representative deems it advisable to
do so. The Firm Shares are to be initially offered to the public at the initial
public offering price set forth in the Prospectus. The Representative may from
time to time thereafter change the public offering price and other selling
terms. To the extent, if at all, that any Option Shares are purchased pursuant
to Section 2 hereof, the Underwriters will offer them to the public on the
foregoing terms.
It is further understood that you will act as the Representative for the
Underwriters in the offering and sale of the Shares in accordance with a Master
Agreement Among Underwriters entered into by you and the several other
Underwriters.
4. Covenants of the Trust and the Operating Partnership.
(a) The Trust and the Operating Partnership jointly and severally covenant
and agree with the several Underwriters that:
(i) The Trust will (A) use its best efforts to prepare and timely file
the Prospectus with the Commission under Rule 424(b) under the Act
containing information previously omitted at the time of effectiveness of
the Registration Statement in reliance on Rule 430A under the Act, and (B)
not file any amendment to the Registration Statement or supplement to the
Prospectus or document incorporated by reference therein of which the
-11-
Representative shall not previously have been advised and furnished with a
copy or to which the Representative shall have reasonably objected in
writing or which is not in compliance with the Act and (C) file on a timely
basis all reports and any definitive proxy or information statements
required to be filed by the Trust with the Commission subsequent to the
date of the Prospectus and prior to the termination of the offering of the
Shares by the Underwriters.
(ii) The Trust will advise the Representative promptly (A) when any
post-effective amendment to the Registration Statement shall have become
effective, (B) of receipt of any comments from the Commission, (C) of any
request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, and (D)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the Prospectus or
of the institution of any proceedings for that purpose. The Trust will use
its best efforts to prevent the issuance of any such stop order preventing
or suspending the use of the Prospectus and to obtain as soon as possible
the lifting thereof, if issued.
(iii) The Trust will cooperate with the Representative in endeavoring
to qualify the Shares for sale under the securities laws of such
jurisdictions as the Representative may reasonably have designated in
writing and will make such applications, file such documents, and furnish
such information as may be reasonably required for that purpose, provided
the Trust shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction where it
is not now so qualified or required to file such a consent or to subject
itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. The Trust will, from time to time,
prepare and file such statements, reports, and other documents, as are or
may be required to continue such qualifications in effect for so long a
period as the Representative may reasonably request for distribution of the
Shares.
(iv) The Trust will deliver to, or upon the order of, the
Representative, from time to time, as many copies of any Preliminary
Prospectus as the Representative may reasonably request. The Trust will
deliver to, or upon the order of, the Representative during the period when
delivery of a Prospectus is required under the Act, as many copies of the
Prospectus in final form, or as thereafter amended or supplemented, as the
Representative may reasonably request.
(v) The Trust will comply with the Act and the rules and regulations
of the Commission thereunder, and the Exchange Act, and the rules and
regulations of the Commission thereunder, so as to permit the completion of
the distribution of the Shares as contemplated in this Agreement and the
Prospectus. If during the period in which a prospectus is required by law
to be delivered by an Underwriter or dealer, any event shall occur as a
result of which, in the judgment of the Trust or in the reasonable opinion
of the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the lightof the
circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Trust promptly will
(i) prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus or (ii) prepare and
file with the Commission an appropriate filing under the Exchange Act which
shall be incorporated by reference in the Prospectus so that the Prospectus
as so amended or supplemented will not, in the light
-13-
of the circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with the law.
(vi) The Trust will make generally available to its security holders,
as soon as it is practicable to do so, but in any event not later than 15
months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a
period of at least 12 consecutive months beginning after the effective date
of the Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 thereunder.
(vii) Prior to the Closing Date, the Trust will furnish to the
Underwriters, as soon as they have been prepared by or are available to the
Trust, a copy of any unaudited interim financial statements of the Trust
for any period subsequent to the period covered by the most recent
financial statements appearing in the Registration Statement and the
Prospectus.
(viii) No offering, sale, short sale or other disposition of any
Common Shares of the Trust or other securities convertible into or
exchangeable or exercisable for Common Shares or derivative of Common
Shares (or agreement for such) will be made for a period of 90 days after
the date of this Agreement, directly or indirectly, by the Trust otherwise
than hereunder or with the prior written consent of Deutsche Bank
Securities Inc. ("DBSI"). The foregoing restrictions shall not apply to
issuances by the Trust of Common Shares (i) pursuant to the Trust's
Distribution Reinvestment and Share Purchase Plan (excluding the provisions
relating to optional investments greater than $3,000), (ii) upon the
exercise of options or warrants, in each case outstanding on the date
hereof, (iii) upon the Trust's redemption of limited partnership units ("OP
Units") of the Operating Partnership and (iv) in connection with the
acquisition of real estate assets or in exchange for all or substantially
all of the equity or assets of a company in connection with a merger or
acquisition, nor shall they apply to the granting of options pursuant to
the Trust's share option and incentive plans in effect on the date hereof.
(ix) The Trust will use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange.
(x) The Trust has caused each executive officer and trustee of the
Trust to furnish to you, on or prior to the date of this agreement, a
letter or letters, in form and substance satisfactory to the Underwriters,
pursuant to which each such person shall agree not to offer, sell, sell
short or otherwise dispose of any Common Shares or other capital stock of
the Trust, or any other securities convertible, exchangeable or exercisable
for, Common Shares or derivative of Common Shares owned by such person or
request the registration for the offer or sale of any of the foregoing (or
as to which such person has the right to direct the disposition of) for a
period of 90 days after the date of this Agreement, directly or indirectly,
except with the prior written consent of DBSI ("Lockup Agreements"). The
foregoing restrictions shall not apply to: (i) transfers or dispositions of
Common Shares or other Trust securities if the transfer is by gift, will or
intestacy or otherwise for estate planning purposes where the transferee
executes an agreement agreeing to be bound by the provisions of the
transferors lock-up agreement; and (ii) the exercise of options or warrants
by such person, although the restrictions shall apply to Common Shares
issued upon such exercise.
-13-
(xi) The Trust shall apply the net proceeds of its sale of the Shares
as set forth in the Prospectus.
(xii) The Trust shall not invest, or otherwise use the proceeds
received by the Trust from its sale of the Shares in such a manner as would
require the Trust or any of the Subsidiaries to register as an investment
company under the 1940 Act.
(xiii) The Trust will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Trust, a registrar for the
Common Stock.
(xiv) The Trust will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or might reasonably
be expected to constitute, the stabilization or manipulation of the price
of any securities of the Trust.
5. Costs and Expenses.
The Trust will pay all costs, expenses and fees incident to the performance
of the obligations of the Trust under this Agreement, including, without
limiting the generality of the foregoing, the following: accounting fees of the
Trust; the fees and disbursements of counsel for the Trust; the cost of printing
and delivering to, or as requested by, the Underwriters copies of the
Registration Statement, Preliminary Prospectus, the Prospectus, this Agreement,
the Underwriters' Invitation Letter, the Listing Application, the Blue Sky
Survey and any supplements or amendments thereto; the filing fees of the
Commission; the filing fees and expenses (including legal fees and
disbursements) incident to securing any required review by the NASD of the terms
of the sale of the Shares; the Listing Fee of the New York Stock Exchange; and
the expenses, including the fees and disbursements of counsel for the
Underwriters, incurred in connection with the qualification of the Shares under
State securities or Blue Sky laws. The Trust shall not, however, be required to
pay for any of the Underwriters expenses (other than those related to
qualification under NASD regulation and State securities or Blue Sky laws),
including the fees and expenses of its counsel, except that, if this Agreement
shall not be consummated because the conditions in Section 6 hereof are not
satisfied, or because this Agreement is terminated by the Representative
pursuant to Section 11 hereof, or by reason of any failure, refusal or inability
on the part of the Trust to perform any undertaking or satisfy any condition of
this Agreement or to comply with any of the terms hereof on its part to be
performed, unless such failure, refusal or inability is due primarily to the
default or omission of any Underwriter, the Trust shall reimburse the several
Underwriters for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of performing
their obligations hereunder; but the Trust shall not in any event be liable to
any of the several Underwriters for damages on account of loss of anticipated
profits from the sale by them of the Shares.
6. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the Firm Shares on
the Closing Date and the Option Shares, if any, on the Option Closing Date are
subject to the accuracy, as of the Closing Date or the Option Closing Date, as
the case may be, of the representations and warranties of the Trust and the
Operating Partnership contained herein, and to the performance by the Trust and
the Operating Partnership of their respective covenants and obligations
hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments thereto
shall have become effective and any and all filings required by Rule 424 and
Rule 430A of the Act shall have been made within the applicable time period
prescribed by, and in compliance with, the rules and regulations
-14-
under the Act, and any request of the Commission for additional information (to
be included in the Registration Statement or otherwise) shall have been
disclosed to the Representative and complied with. No stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall have been taken or,
to the knowledge of the Trust, shall be contemplated or threatened by the
Commission and no injunction, restraining order or order of any nature by a
Federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance of the Shares.
(b) The Representative shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinions of (i) Xxxxxx Xxxxxxx,
Esq., in his capacity as General Counsel of the Trust, (ii) Xxxxxxx Xxxxx
Xxxxxxx & Ingersoll, special Maryland counsel to the Trust, (iii) Xxxxxxxxxx
Xxxxx & Xxxxxx, P.C., special Colorado counsel to the Trust and (iv) Xxxxxxxx
Xxxxxxxxx Xxxxxx Arohnson & Xxxxxx LLP, special counsel to the Trust, dated the
Closing Date or the Option Closing Date, as the case may be, addressed to the
Underwriters (and stating that it may be relied upon by counsel to the
Underwriters) to the effect that:
(i) the Trust has been duly formed and is validly existing as a real
estate investment trust in good standing under the laws of the State of
Maryland 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 would not
reasonably be expected to have a Material Adverse Effect. Each of the
Subsidiaries has been duly organized and is validly existing as a general
or limited partnership or corporation or limited liability company or trust
in good standing under the laws of the jurisdiction of its organization,
and is qualified to transact business and is in good standing under the
laws of all other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification,
except where the failure to be so qualified would not reasonably be
expected to have a Material Adverse Effect.
(ii) the Trust and each of the Subsidiaries have full trust,
corporate, partnership or limited liability power, to own or lease their
respective properties and conduct their respective businesses as described
in the Registration Statement and the Prospectus and each of the Trust and
the Operating Partnership has full trust or partnership power to enter into
this Agreement and to carry out all the terms and provisions hereof to be
carried out by it in all material respects;
(iii) the issued shares of capital stock of each of the Subsidiaries
that is a corporation are duly authorized, validly issued, fully paid and
non-assessable, and all of the partnership interests or membership
interests in each Subsidiary that is a partnership or limited liability
company, as the case may be, are validly issued and fully paid. Except as
described in the Registration Statement or this Agreement and the
Prospectus, all of such shares and interests owned by the Trust or another
Subsidiary are owned beneficially by the Trust or such Subsidiary free and
clear of any security interest, mortgage, pledge, lien, encumbrance, equity
or claim;
(iv) the Trust has an authorized, issued and outstanding
capitalization as set forth in the Prospectus. All of the shares of
beneficial interest of the Trust have been duly authorized and the shares
of beneficial interest of the Trust outstanding are validly issued, fully
paid and non-assessable (except that, under Maryland law, shareholders of
the Trust may be subject to personal liability with respect to certain
claims for tort, contract, taxes and statutory and other liability);
(v) the Shares have been duly authorized for issuance and sale as
contemplated by this Agreement, and when issued and delivered against
payment therefor in accordance with this Agreement, will be validly issued,
fully paid and non-assessable;
-15-
(vi) except as described in or contemplated by the Registration
Statement and the Prospectus, to the best knowledge of such counsel, there
are no outstanding securities of the Trust convertible into or exchangeable
for or evidencing the right to purchase or subscribe for any shares of
beneficial interest of the Trust and there are no outstanding or authorized
options, warrants or rights of any character obligating the Trust to issue
any shares of its beneficial interest or any securities convertible into or
exchangeable for or evidencing the right to purchase or subscribe for any
shares of such beneficial interest; and except as described in the
Registration Statement and the Prospectus, to the best of knowledge of such
counsel, no holder of any securities of the Trust or any other person has
the right, contractual or otherwise, which has not been satisfied or
effectively waived, to cause the Trust to sell or otherwise issue to them,
or to permit them to underwrite the sale of, any of the Shares or the right
to have any Common Shares or other securities of the Trust included in the
Registration Statement or the right, as a result of the filing of the
Registration Statement, to require registration under the Act of any Common
Shares or other securities of the Trust, and no holders of outstanding
common shares of beneficial interest of the Trust are entitled as such to
any preemptive or other rights to subscribe for any of the Shares;
(vii) the statements set forth under the heading "Description of
Common Shares", "Description of Preferred Shares", "Description of Rights"
and "Description of Warrants" in the Prospectus insofar as such statements
purport to summarize certain provisions of the capital stock of the Trust,
provide a fair summary of such provisions; and the statements set forth
under the headings "Restrictions on Ownership and Transfer" and "Federal
Income Tax Considerations" in the Prospectus and "Risk Factors", "Certain
Federal Income Tax Considerations to Holders of Common Shares" and "Recent
Developments", in the Prospectus, 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 have been duly
authorized by all necessary trust or partnership action of the Trust and
the Operating Partnership, as the case may be, and this Agreement has been
duly executed and delivered by the Trust and the Operating Partnership;
(ix) (A) to the best knowledge of counsel, no legal or governmental
proceedings are pending to which the Trust, any of the Subsidiaries, or any
of their respective trustees, directors or officers in their capacity as
such, is a party or to which the Properties or any of the Subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus, and, to the best knowledge of such counsel, no such
proceedings have been threatened in writing against the Trust or any of the
Subsidiaries or with respect to the Properties and (B) to the best
knowledge of counsel no contract or other document is required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement that is not described therein or
filed as required and such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized in all
material respects;
(x) the issuance, offering and sale of the Shares to the Underwriters
by the Trust pursuant to this Agreement, the compliance by the Trust with
the other provisions of this Agreement, and the consummation of the other
transactions herein contemplated do not (A) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained and such as may be required
under the Act or state securities or blue sky laws (as to which such
counsel need not opine) or (B) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the Properties or any other properties or assets of
the Trust or any of the Subsidiaries pursuant to any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the Trust or
any of its Subsidiaries is a party or by which the Trust or any of its
Subsidiaries or the Properties or any other of their respective properties
are bound, except where such breach, violation or default would not have a
Material Adverse Effect, or the declaration of trust,
-16-
articles of incorporation, by-laws or other organizational documents, as
the case may be, of the Trust or any of the Subsidiaries, or any statute or
rule or regulation of any court or other governmental authority, except
where such breach, violation or default would not have a Material Adverse
Effect, or any judgment, decree or order or (to the best knowledge of such
counsel) any arbitrator applicable to the Trust or any of the Subsidiaries
or any of the Properties, except where such breach, violation or default
would not have a Material Adverse Effect, and the form of certificate used
to evidence the Shares is in due and proper form and complies in all
respects with the applicable statutory requirements applicable to the
Trust;
(xi) to the best knowledge of such counsel, the Trust and the
Subsidiaries possess all certificates, authorizations, licenses and permits
issued by the appropriate federal, state, municipal or foreign regulatory
authorities necessary to conduct their respective businesses except for
such certificates, authorizations, licenses and permits the failure of
which to possess would not be expected to result in a Material Adverse
Effect, and neither the Trust nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization, license or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding
would result in a Material Adverse Effect, except as described in the
Prospectus;
(xii) to the best of such counsel's knowledge, neither the Trust nor
any of the Subsidiaries is in violation of any term or provision of its
declaration of trust, articles of incorporation, bylaws, partnership
agreements, operating agreements, or other organizational documents, as the
case may be;
(xiii) no default exists, and no event has occurred which, with notice
or lapse of time or both, would constitute a default, in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage or deed of trust, or any material lease or other
agreement or instrument known to such counsel after due inquiry to which
the Trust or any of the Subsidiaries is a party or by which the Trust, any
of the Subsidiaries, any of the Properties is bound or may be affected
except such as would not result in any Material Adverse Effect;.
(xiv) the Registration Statement is effective under the Act, the
Prospectus has been filed with the Commission in the manner and within the
time period required by Rule 424(b); and to the best of counsel's
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto and no order directed at
any document incorporated by reference in the Registration Statement, the
Prospectus, or any amendment or supplement thereto has been issued, and to
the best of such counsel's knowledge, no proceedings for that purpose have
been instituted or threatened by the Commission;
(xv) the execution, delivery and performance of any of the partnership
or operating agreements to which the Trust or any of the Subsidiaries is a
party, and which relates to Properties described in the Prospectus, did
not, at the time of execution and delivery, and does not constitute, a
breach of, or default under, the declaration of trust, the charter or
by-laws of the Trust or any of the Subsidiaries, as applicable, or any
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;
(xvi) the Registration Statement and each amendment thereto and the
Prospectus (in each case, including the documents incorporated by reference
therein, but not including the financial statements, notes thereto and
other financial information and schedules contained or incorporated by
reference therein, as to which such counsel need express no opinion)
complied when filed
-17-
with the Commission as to form in all material respects with the applicable
requirements of the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder. In passing upon compliance as to
form of such documents, such counsel may assume the statements made therein
are correct and complete;
(xvii) (A) commencing with its taxable year ended December 31, 1994,
the Trust has been organized in conformity with the requirements for
qualification and taxation as a REIT for federal income tax purposes, and,
based on the facts and assumptions set forth in the Prospectus and the
representations by the Trust, set forth in an Officer's Certificate
regarding certain federal income tax matters, its method of operation has
enabled it, and its proposed method of operation will enable it to continue
to meet the requirements under the Code for qualification and taxation as a
REIT and (B) the Operating Partnership, the other Partnership Subsidiaries
and the LLC Subsidiaries will be treated for Federal income tax purposes as
partnerships (or as disregarded entities) and not as associations taxable
as corporations or as publicly-traded partnerships; and
(xviii) neither the Trust nor any Subsidiary is or will become, as a
result of the consummation of the transactions contemplated by this
Agreement, and application of the net proceeds therefrom as described in
the Prospectus, required to register as an investment company under the
1940 Act.
Xxxxxxxx Xxxxxxxxx Xxxxxx Arohnson & Xxxxxx LLP shall also state that while
such counsel is not passing upon and does not assume responsibility for, and
shall not be deemed to have independently verified the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, no facts have come to such counsel's attention in the course of
participating with officers and representatives of the Trust in the preparation
of the Registration Statement and the Prospectus (except for financial
statements and schedules and other financial and statistical data contained or
incorporated by reference therein, as to which such counsel need express no
opinion), to lead it to believe that the Registration Statement, as of its
effective date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as of its date or as
of the Closing Date or the Option Closing Date, as the case may be, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Trust and public officials and, as to matters involving the
application of laws of any jurisdiction other than the States of Delaware,
Maryland, New York or the United States, to the extent satisfactory in form and
scope to counsel for the Underwriters, upon the opinion of local counsel and
in-house general counsel. The foregoing opinion shall also state that the
Underwriters are justified in relying upon such opinion of local counsel, and
copies of such opinion shall be delivered to the Underwriters and its counsel.
Such opinion may also include customary and reasonable assumptions and
qualifications that are acceptable to the Underwriters and its counsel.
References to the Registration Statement and the Prospectus in this paragraph
(b) shall include any amendment or supplement thereto at the date of such
opinion.
(c) The Representative shall have received from Xxxxxxxx Chance Xxxxxx &
Xxxxx LLP, counsel for the Underwriters, an opinion dated the Closing Date in
customary form and substance reasonably satisfactory to the Representative. In
rendering such opinion Xxxxxxxx Chance Xxxxxx & Xxxxx LLP may rely as to all
matters governed other than by the laws of the State of New York or the Delaware
General Corporation Law or Federal laws on the opinion of counsel referred to in
Paragraph (b) of this
-18-
Section 6. In addition to the matters set forth above, such opinion shall also
include a statement to the effect that nothing has come to the attention of such
counsel which leads them to believe that (i) the Registration Statement, or any
amendment thereto, as of the time it became effective under the Act, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (ii) the Prospectus, or any supplement thereto, as of its date
and as of the Closing Date or the Option Closing Date, as the case may be,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact, necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(except that such counsel need express no view as to financial statements,
schedules and statistical information included or incorporated by reference
therein). With respect to such statement, Xxxxxxxx Chance Xxxxxx & Xxxxx LLP may
state that their belief is based upon the procedures set forth therein, but is
without independent check and verification.
(d) You shall have received, on each of the date hereof, the Closing Date
and, if applicable, the Option Closing Date, a letter dated the date hereof, the
Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to you, of PricewaterhouseCoopers LLP confirming that
they are independent public accountants within the meaning of the Act and the
applicable rules and regulations thereunder and stating that in their opinion
the financial statements and schedules examined by them and included in the
Registration Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related rules and
regulations; and containing such other statements and information as are
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement and Prospectus.
(e) The Representative shall have received on the Closing Date and, if
applicable, the Option Closing Date, as the case may be, a certificate or
certificates of the Chief Executive Officer and the Chief Financial Officer or
the Chief Operating Officer of the Trust to the effect that, as of the Closing
Date or the Option Closing Date, as the case may be, each of them severally
represents as follows:
(i) The Registration Statement has become effective under the Act and
no stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for such purpose have been taken or
are, to his knowledge, contemplated or threatened by the Commission;
(ii) The representations and warranties of the Trust and the Operating
Partnership contained in Section 1 hereof are true and correct as of the
Closing Date or the Option Closing Date, as the case may be;
(iii) All filings required to have been made pursuant to Rules 424 or
430A under the Act have been made as and when required by such rules;
(iv) He or she has carefully examined the Registration Statement and
the Prospectus and, in his or her opinion, as of the effective date of the
Registration Statement, the statements contained in the Registration
Statement were true and correct, and such Registration Statement and the
Prospectus, as of its date, did not omit to state a material fact required
to be stated therein or necessary in order to make the statements therein
not misleading, and since the effective date of the Registration Statement,
no event has occurred which should have been set forth in a supplement to
or an amendment of the Prospectus which has not been so set forth in such
supplement or amendment; and
-19-
(v) Since the date as of which information is given in the Prospectus,
there has not been any material adverse change or any development involving
a prospective material adverse change in or affecting the business,
management, properties, assets, rights, operations or condition (financial
or otherwise) or prospects of the Trust and the Subsidiaries taken as a
whole, whether or not arising in the ordinary course of business.
(f) The Trust shall have furnished to the Representative such further
certificates and documents confirming the representations and warranties,
covenants and conditions contained herein and related matters as the
Representative may reasonably have requested.
(g) The Firm Shares and Option Shares, if any, have been duly listed,
subject to official notice of issuance, on the New York Stock Exchange.
(h) The Lockup Agreements are in full force and effect.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are reasonably
satisfactory in all material respects to the Representative and to Xxxxxxxx
Chance Xxxxxx & Xxxxx LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the Representative may waive in writing the compliance by the Trust of any one
or more of the foregoing conditions, extend the time for their performance, or
terminate the obligations of the Underwriters hereunder by notifying the Trust
of such termination in writing or by telegram at or prior to the Closing Date or
the Option Closing Date, as the case may be.
In the event of a termination, the Trust and the Operating Partnership, on
the one hand, and the Underwriters, on the other hand, shall not be under any
obligation to each other (except to the extent provided in Sections 5 and 8
hereof).
7. Conditions of the Obligations of the Trust.
The obligations of the Trust to sell and deliver the portion of the Shares
required to be delivered as and when specified in this Agreement are subject to
the condition that at the Closing Date or the Option Closing Date, as the case
may be, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and in effect or proceedings therefor initiated or
threatened.
8. Indemnification.
(a) The Trust and the Operating Partnership agree jointly and severally:
(1) to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of either Section
15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which such Underwriter or any such
controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) arise out of or are based upon (i) any untrue statement
or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made or (iii) any act or failure
-20-
to act, or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Shares or the offering
contemplated hereby, and which is included as part of 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 Trust and
the Operating Partnership 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 such Underwriter through its gross negligence or
willful misconduct); provided, however, that the Trust and the Operating
Partnership will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or alleged omission made
in the Registration Statement, any Preliminary Prospectus, the Prospectus,
or any amendment or supplement thereto, in reliance upon and in conformity
with written information furnished to the Trust by or through the
Representative specifically for use in the preparation thereof; and
(2) to reimburse each Underwriter and each such controlling person
upon demand for any legal or other out-of-pocket expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage or liability,
action or proceeding or in responding to a subpoena or governmental inquiry
related to the offering of the Shares, whether or not such Underwriter or
controlling person is a party to any action or proceeding. In the event
that it is finally judicially determined that the Underwriters were not
entitled to receive payments for legal and other expenses pursuant to this
subparagraph, the Underwriters will promptly return all sums that had been
advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and hold
harmless the Trust, the Operating Partnership, each of their trustees and
directors, each of their officers who have signed the Registration Statement,
and each person, if any, who controls the Trust and the Operating Partnership
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Trust, the Operating Partnership or any such trustee,
director, officer, or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or (ii) the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances under
which they were made; and will reimburse any legal or other expenses reasonably
incurred by the Trust, the Operating Partnership or any such trustee, director,
officer, or controlling person in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding; provided, however,
that each Underwriter will be liable in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Trust by the
Underwriters or through the Representative specifically for use in the
preparation thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to this Section 8, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
party") in writing. No indemnification provided for in Section 8(a) or (b) shall
be available to any party who shall fail to give notice as provided in this
Section 8(c) if the party to
-21-
whom notice was not given was unaware of the proceeding to which such notice
would have related and was materially prejudiced by the failure to give such
notice, but the failure to give such notice shall not relieve the indemnifying
party or parties from any liability which it or they may have to the indemnified
party for contribution or otherwise than on account of the provisions of Section
8(a) or (b). In case any such proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party and shall pay as incurred the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own counsel
at its own expense. Notwithstanding the foregoing, the indemnifying party shall
pay as incurred (or within 30 days of presentation) the fees and expenses of the
counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them or (iii) the
indemnifying party shall have failed to assume the defense and employ counsel
reasonably acceptable to the indemnified party within a reasonable period of
time after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified
pursuant to Section 8(a) and by the Trust in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding.
(d) To the extent the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Trust and the
Operating Partnership on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Trust and the Operating Partnership on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Trust and the
Operating Partnership on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Trust bear to the total underwriting
discounts and commissions received by the Underwriters, 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, 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
-22-
relates to information supplied by the Trust and the Operating Partnership on
the one hand or the Underwriters on the other 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 contributions pursuant to this Section 8(d)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
Section 8(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 8(d) shall be deemed to include 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 subsection (d), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter and (ii) 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 in
this Section 8(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon it by any other contributing party and consents to the service of such
process and agrees that any other contributing party may join it as an
additional defendant in any such proceeding in which such other contributing
party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Trust and the Operating Partnership set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Trust and the Operating Partnership,
their trustees, directors or officers or any persons controlling the Trust or
the Operating Partnership, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter, or any person controlling any Underwriter, or to the Trust or the
Operating Partnership, or their trustees, directors or officers, or any person
controlling the Trust or the Operating Partnership, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 8. No purchaser of any of the Shares from any Underwriter shall
be deemed a successor or assign merely because of such purchase.
9. Default by Underwriters.
If on the Closing Date or the Option Closing Date, as the case may be, any
Underwriter shall fail to purchase and pay for the portion of the Shares which
such Underwriter has agreed to purchase and pay for on such date (otherwise than
by reason of any default on the part of the Trust or the Operating Partnership),
you, as Representative of the Underwriters, shall use your reasonable efforts to
procure within 36 hours thereafter one or more of the other Underwriters, or any
others, to purchase from the Trust such amounts as may be agreed upon and upon
the terms set forth herein, the Shares which the defaulting Underwriter or
Underwriters failed to purchase. If during such 36 hours you, as such
-23-
Representative, shall not have procured such other Underwriters, or any others,
to purchase the Shares agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to which
such default shall occur does not exceed 10% of the Shares to be purchased on
the Closing Date or the Option Closing date, as the case may be, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Shares which they are obligated to purchase hereunder, to purchase
the Shares which such defaulting Underwriter or Underwriters failed to purchase,
or (b) if the aggregate number of shares with respect to which such default
shall occur exceeds 10% of the Shares to be purchased on the Closing Date or the
Option Closing Date, as the case may be, the Trust or you as the Representative
of the Underwriters will have the right, by written notice given within the next
36-hour period to the parties to this Agreement, to terminate this Agreement
without liability on the part of the non-defaulting Underwriters or of the Trust
or the Operating Partnership except to the extent provided in Sections 5 and 8
hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section 9, the Closing Date or Option Closing Date, as the case
may be, may be postponed for such period, not exceeding seven days, as you, as
Representative, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section 9
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. Notices.
All communications hereunder shall be in writing and, except as otherwise
provided herein, will be mailed, delivered, telecopied or telegraphed and
confirmed as follows: if to the Underwriters, to Deutsche Bank Securities Inc.,
Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000; Attention: Syndicate Manager, with
a copy to Deutsche Bank Securities Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: General Counsel; if to the Trust or the Operating Partnership,
to 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, Attn: General Counsel, with a
copy to Xxxxxxxx Xxxxxxxxx Xxxxxx Aronshon & Xxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxx.
11. Termination.
This Agreement may be terminated by you by notice to the Trust
(a) at any time prior to the Closing Date or any Option Closing Date (if
different from the Closing Date and then only as to Option Shares) if any of the
following has occurred: (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any material adverse
change or any development involving a prospective material adverse change in or
affecting the earnings, business, management, properties, assets, rights,
operations or condition (financial or otherwise) or prospects of the Trust and
its Subsidiaries taken as a whole, whether or not arising in the ordinary course
of business, (ii) any outbreak or escalation of hostilities or declaration of
war or national emergency or other national or international calamity or crisis
or change in economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the financial
markets of the United States would, in your reasonable judgment, make it
impracticable or inadvisable to market the Shares or to enforce contracts for
the sale of the Shares, (iii) suspension of trading in securities generally on
the New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market or limitation on prices (other than limitations on hours or numbers of
days of trading) for securities on any such Exchange, (iv) the enactment,
publication, decree or other promulgation of any statute, regulation, rule or
order of any court or other governmental authority which in your opinion
materially and adversely affects or may materially and adversely affect the
business or operations of the Trust, (v) the declaration of a banking moratorium
by United States or New York State
-24-
authorities, (vi) any downgrading, or placement on any watch list for possible
downgrading, in the rating of any of the Trust's or the Operating Partnership's
debt securities by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Exchange Act), (vii) the
suspension of trading of the Trust's Common Shares by the New York Stock
Exchange, the Commission, or any other governmental authority or, (viii) the
taking of any action by any governmental body or agency in respect of its
monetary or fiscal affairs which in your reasonable opinion has a material
adverse effect on the securities markets in the United States; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. Successors.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Trust and the Operating Partnership and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
13. Information Provided by Underwriters.
The Trust, the Operating Partnership and the Underwriters acknowledge and
agree that the only information furnished or to be furnished by any Underwriter
to the Trust for inclusion in any Prospectus or the Registration Statement
consists of the information set forth in the third, ninth, and tenth through
fifteenth paragraphs under the caption "Underwriting" in the Prospectus.
14. Trust Exculpation.
This Agreement and all documents, agreements, understandings and
arrangements relating hereto have been entered into or executed on behalf of the
Trust by the undersigned in his capacity as a trustee or officer of the Trust,
which has been formed as a Maryland real estate investment trust pursuant to a
declaration of trust of the Trust dated as of September 15, 1993, as amended and
restated, and not individually. No shareholder of the Trust shall be bound or
have any personal liability hereunder or thereunder by virtue of their capacity
as a shareholder.
15. Miscellaneous.
The reimbursement, indemnification and contribution agreements contained in
this Agreement and the representations, warranties and covenants in this
Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Trust or
the Operating Partnership or their trustees, directors or officers and (c)
delivery of and payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Maryland.
-25-
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Trust and the several
Underwriters in accordance with its terms.
Very truly yours,
GLIMCHER REALTY TRUST
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By Glimcher Properties Corporation,
its general partner
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
MCDONALD INVESTMENTS INC.
As Representative of the
Underwriters
By: Deutsche Bank Securities Inc.
By /s/ Xx Xxxxx
---------------------
Name: Xx Xxxxx
Title: Managing Director
By /s/ Xxx Xxxxxxx
----------------------
Name: Xxx Xxxxxxx
Title: Managing Director
-26-
SCHEDULE I
Schedule of Underwriters
Number of Firm Shares
Underwriter to be Purchased
----------------------------------- ----------------------------------------
Deutsche Bank Securities Inc. 2,250,000
McDonald Investments Inc. 750,000
---------
Total 3,000,000
Schedule I-1
SCHEDULE II
Schedule of Option Shares
Maximum Number of Option Percentage of Total
Underwriter Shares to be Sold Number of Option Shares
--------------------------- ------------------------ -----------------------
Deutsche Bank Securities Inc. 337,500 75%
McDonald Investments Inc. 112,500 25%
------- ----
Total 450,000 100%
Schedule II-1
Exhibit 1(e)
Ownership of Subsidiaries
(A) G&G Xxxxxx, LLC 50% owned by Glimcher Development Corporation and
50% owned by Greyhawke Net Lease Investors III LLC (third
party)
(B) Attached is an organizational structure chart identifying each Subsidiary
of the Trust and all owners of equity interests of each Subsidiary,
including the percentage ownership of each such owner.
Ex-1
