EXHIBIT 1.1
Glimcher Realty Trust
1,750,000 Shares
Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
September 30, 1997
Prudential Securities Incorporated
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Ladies and Gentlemen:
Glimcher Realty Trust, a Maryland real estate investment trust
(the "Trust") and Glimcher Properties Limited Partnership, a Delaware
limited partnership (the "Operating Partnership"), hereby confirm
their agreement with Prudential Securities Incorporated (the
"Underwriter"), as set forth below.
1. Securities. Subject to the terms and conditions herein
contained, the Trust proposes to issue and sell to the Underwriter an
aggregate of 1,750,000 shares (the "Firm Securities") of the Trust's
common shares of beneficial interest, par value $.01 per share (the
"Trust Shares"). The Trust also proposes to issue and sell to the
Underwriter not more than 262,500 additional shares of its common
shares of beneficial interest if requested by the Underwriter as
provided in Section 3 of this Agreement. Any and all shares of Trust
Shares to be purchased by the Underwriter pursuant to such option are
referred to herein as the "Option Securities," and the Firm Securities
and any Option Securities are collectively referred to herein as the
"Securities."
2. Representations and Warranties of the Trust and the
Operating Partnership. The Trust and the Operating Partnership
jointly and severally represent and warrant to, and agree with, the
Underwriter that:
(a) The Trust meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"). A
registration statement on such Form (File No. 33-91084) with respect
to the Securities, including a basic prospectus, has been filed by the
Trust with the Securities and Exchange Commission (the "Commission")
under the Act, and one or more amendments to such registration
statement may have been so filed. Such registration statement, as so
amended, has been declared by the Commission to be effective under the
Act. Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under
the Act and complies in all other material respects with said Rule.
The Trust will next file with the Commission either (A) if the Trust
relies on Rule 434 under the Act, a Term Sheet (as hereinafter
defined) relating to the Securities that shall identify the
Preliminary Prospectus (as hereinafter defined) that it supplements
and, if required to be filed pursuant to Rules 434(c)(2) and 424(b),
an Integrated Prospectus (as hereinafter defined), in either case,
containing such information as is required or permitted by Rule 434,
430A and 424(b) under the Act or (B) if the Trust does not rely on
Rule 434 under the Act, pursuant to Rule 424(b) under the Act a final
prospectus supplement to the basic prospectus included in such
registration statement, as so amended, describing the Securities and
the offering thereof, in such form as has been provided to, or
discussed with, and approved by the Underwriter as provided in Section
5(a) of this Agreement. As used in this Agreement, the term
"Registration Statement" means such registration statement, as amended
at the time when it was declared effective, including (i) all
financial schedules and exhibits thereto, (ii) all documents
incorporated by reference or deemed to be incorporated by reference
therein and (iii) any information omitted therefrom pursuant to Rule
430A under the Act and included in the Prospectus (as hereinafter
defined) or, if required to be filed pursuant to Rule 434(c)(2) and
424(b) under the Act, in the Integrated Prospectus; the term "Basic
Prospectus" means the prospectus included in the Registration
Statement as amended by any form of prospectus filed thereafter
pursuant to Rule 424; the term "Preliminary Prospectus" means any
preliminary form of the Prospectus (as hereinafter defined)
specifically relating to the Securities, in the form first filed with,
or transmitted for filing to, the Commission pursuant to Rule 424
under the Act; the term "Prospectus Supplement" means any prospectus
supplement specifically relating to the Securities, in the form first
filed with, or transmitted for filing to, the Commission pursuant to
Rule 424 under the Securities Act; the term "Prospectus" means (A) if
the Trust relies on Rule 434 under the Act, the Term Sheet relating to
the Securities that is first filed pursuant to Rule 424(b)(7) under
the Act, together with the Preliminary Prospectus identified therein
that such Term Sheet supplements; (B) if the Trust does not rely on
Rule 434 under the Act, the Preliminary Prospectus; or (C) if the
Trust does not rely on Rule 434 under the Act and if no Preliminary
Prospectus is required to be filed, the Basic Prospectus, including,
in each case, the Prospectus Supplement; "Basic Prospectus,"
"Prospectus," "Preliminary Prospectus" and "Prospectus Supplement"
shall include in each case the documents, if any, filed by the Trust
with the Commission pursuant to the United States Securities Exchange
of 1934, as amended (the "Exchange Act"), and incorporated by
reference therein; the term "Integrated Prospectus" means a prospectus
first filed with the Commission pursuant to Rules 434(c)(2) and 424(b)
under the Act; and the term "Term Sheet" means any abbreviated term
sheet that satisfies the requirements of Rule 434 under the Act. Any
reference in this Agreement to an "amendment" or "supplement" to any
Preliminary Prospectus, the Prospectus, or any Integrated Prospectus
or an "amendment" to any registration statement (including the
Registration Statement) shall be deemed to include any document
incorporated by reference therein that is filed with the Commission
under the Exchange Act after the date of such Preliminary Prospectus,
Prospectus, Integrated Prospectus or registration statement, as the
case may be. For purposes of the preceding sentence, any reference to
the "effective date" of an amendment to a registration statement
shall, if such amendment is effected by means of the filing with the
Commission under the Exchange Act of a document incorporated by
reference in such registration statement, be deemed to refer to the
date on which such document was so filed with the Commission; any
reference herein to the "date" of a Prospectus that includes a Term
Sheet shall mean the date of such Term Sheet.
(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, the Exchange Act and the
respective 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, the Exchange Act
and the respective 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 Term
Sheet that is a part thereof or any Integrated 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 Firm Closing Date and any Option Closing Date
(both as hereinafter defined), each of the Prospectus, and, if
required to be filed pursuant to Rules 434(c)(2) and 424(b) under the
Act, the Integrated Prospectus as amended or supplemented at any such
time, (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, the Exchange Act
and the respective 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 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, the Prospectus or, if
required to be filed pursuant to Rules 434(c)(2) and 424(b) under the
Act, the Integrated Prospectus or any amendment or supplement thereto,
in reliance upon and in conformity with written information furnished
to the Trust by any Underwriter specifically for use therein.
(c) If the Trust has elected to rely on Rule 462(b),
(i) the Trust has filed a Rule 462(b) Registration Statement in
compliance with and that is effective upon filing pursuant to Rule
462(b) and has received confirmation of its receipt and (ii) the Trust
has given irrevocable instructions for transmission of the applicable
filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 promulgated under
the Act or the Commission has received payment of such filing fee.
(d) 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 York Associates Limited Partnership
("York") and Morgantown Mall Associates Limited Partnership ("MMLP",
and together with the Operating Partnership, GCLP, GHLP, York and
GRCLP 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 L.L.C. ("Olathe"), Great Plains
Metro Mall L.L.C. ("Great Plains"), Glimcher New Jersey Metro Mall LLC
("GNJ"), ▇▇▇▇▇▇▇▇▇ Metro Mall LLC ("EMM"), Glimcher California Metro
Mall LLC ("GCMM"), California Metro Mall LLC ("CMM"), Dayton Mall
Venture, LLC ("Dayton LLC") and ▇▇▇▇▇▇▇ City Venture L.L.C. ("▇▇▇▇▇▇▇
City" and together with Olathe, GNJ, EMM, GCMM, CMM, Dayton LLC, and
Great Plains the "LLC Subsidiaries") have been duly organized and are
validly existing and in good standing under the laws of their
respective jurisdictions of formation. Each of Glimcher Properties
Corporation ("GPC"), Glimcher Centers, Inc. ("GCI"), Grand Central,
Inc. ("GRCI"), Glimcher Development Corporation ("GDC"), Glimcher
▇▇▇▇▇▇▇ City, Inc. ("GJC Inc."), Glimcher York Inc. ("York Inc."),
Glimcher Dayton Mall, Inc. ("GD Mall"), NJ Metro Mall Urban Renewal,
Inc. ("NJ MMUR") and Glimcher Holdings, Inc. ("GHI", and together with
GPC, GCI, GJC Inc., York Inc., GD Mall, NJ MMUR and GRCI are referred
to collectively herein as the "Corporate Subsidiaries", and the
Partnership Subsidiaries, the LLC 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 Corporate Subsidiaries, the LLC Subsidiaries and
the Partnership Subsidiaries and those other subsidiaries (which term,
as used in this Agreement, includes corporations, limited and general
partnerships, joint ventures and other entities) to be formed or
currently formed but not identified above in connection with the
Trust's acquisition of the Harrisburg, Pennsylvania Colonial Mall
property, 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 does not
amount to a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of
the Trust and the Subsidiaries, taken as a whole.
(e) 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
each of the Prospectus and any Integrated Prospectus or, if the
Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus; and the Trust has
full trust power to enter into this Agreement and to carry out all the
terms and provisions hereof to be carried out by it.
(f) The outstanding equity interests of each
Subsidiary, other than EMM and CMM, have been duly authorized and
validly issued, are fully paid and non-assessable except to the extent
shown in Exhibit 2(g) hereto, and are owned by the Trust free and
clear of all liens, encumbrances, equities and claims; and no options,
warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into ownership
interests in each Subsidiary are outstanding, except as described in
the Prospectus or any Integrated Prospectus, or as provided for in any
organizational documents or operating agreements of any subsidiary, or
except as set forth in Exhibit 2(g) hereto. Exhibit 2(g) 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 stockholder of GPC and (ii) the Trust, directly and
indirectly, will own a 90.1794% partnership interest in the Operating
Partnership.
(g) Each of the partnership, operating and joint
venture agreements to which the Trust or any of the Subsidiaries is a
party, and which relates to real property described in the Prospectus,
(i) has, other than EMM and CMM, been duly authorized, executed and
delivered by such applicable party and constitutes the valid agreement
thereof, enforceable in accordance with its terms, except as limited
by (a) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to or affecting the rights of remedies of creditors or (b) the effect
of general principles of equity, whether enforcement is considered in
a proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought; and (ii) the
execution, delivery and performance of any of such agreements by the
Trust or the Subsidiaries, as applicable, did not, at the time of
execution and delivery, and does not, constitute a breach of, or
default under, (a) the charter, declaration of trust, partnership
agreement, operating agreement or by-laws (or other organizational
documents) of such party or (b) any other material contract, lease or
other instrument to which such party is a party or by which its
properties may be bound or any law, administrative regulation or
administrative or court decree, except where such breach or default
would not have a material adverse affect in the condition (financial
or otherwise), business prospects, net worth or results of operations
of the Trust and the Subsidiaries, taken as a whole.
(h) The Trust has an authorized, issued and
outstanding capitalization as set forth in the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus. All of the issued shares of capital stock of
the Trust have been duty authorized and validly issued and are fully
paid and nonassessable (except that shareholders of the Trust may be
subject to personal liability with respect to certain claims for
torts, contracts, taxes and statutory and other liabilities in some
jurisdictions). The Firm Securities and the Option Securities have
been duly authorized by all necessary trust action and at the Firm
Closing Date or the related 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 shareholders
of the Trust may be subject to personal liability with respect to
certain claims for torts, contracts, taxes and statutory and other
liabilities in some jurisdictions) and will have been duly executed
and delivered by the Trust. No holders of outstanding shares of
capital stock of the Trust are entitled as such to any preemptive or
other rights to subscribe for any of the Securities, and no holder of
securities of the Trust has any right which has not been exercised or
waived to require the Trust to register the offer or sale of any
securities owned by such holder under the Act in the public offering
contemplated by this Agreement.
(i) The capital stock of the Trust conforms in all
material respects to the description thereof contained in the
Registration Statement and each of the Prospectus and any Integrated
Prospectus or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus.
(j) Except as disclosed in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus), there are not outstanding (i) securities,
partnership interests or obligations of the Trust or any Subsidiary
convertible into or exchangeable for any capital stock of the Trust or
ownership interest in the Subsidiaries, (ii) warrants, rights or
options to subscribe for or purchase from the Trust or any Subsidiary
any such capital stock or ownership interest or any such convertible
or exchangeable securities, partnership interests or obligations, or
(iii) obligations of the Trust or any Subsidiary to issue any shares
of capital stock or ownership interest, any such convertible or
exchangeable securities, partnership interests or obligations, or any
such warrants, rights or options.
(k) The consolidated financial statements and
schedules of the Trust and the Subsidiaries included in the
Registration Statement, Prospectus and any Integrated Prospectus (or,
if the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus) fairly present in
all material respects the financial position of the Trust and the
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 Registration Statement and each of
the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus) fairly present, on the basis stated in
the Registration Statement and each of the Prospectus and any
Integrated Prospectus (or such Preliminary Prospectus), the
information included therein. The pro forma financial statements and
other pro forma financial information included in the Registration
Statement, Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary 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.
(l) Coopers & ▇▇▇▇▇▇▇ L.L.P., who have certified
certain financial statements of the Trust and the Subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Registration
Statement and each of the Prospectus and any Integrated Prospectus
(or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus), are independent
public accountants as required by the Act, the Exchange Act and the
related published rules and regulations thereunder.
(m) The execution and delivery of this Agreement have
been duly authorized by the Trust and this Agreement has been duly
executed and delivered by the Trust and is the valid and binding
agreement of the Trust, enforceable against the Trust in accordance
with its terms, subject to 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
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
except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws or principles of public
policy.
(n) 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
each of the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus), and are not
described therein, and no such proceedings which may be material with
respect to the Trust and the Subsidiaries taken as a whole have been
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 any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus) or to be filed as
an exhibit to the Registration Statement that is not described therein
or filed as required.
(o) The issuance, offering and sale of the Securities
to the Underwriter 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 (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.
(p) Subsequent to the respective dates as of which
information is given in the Registration Statement and each of the
Prospectus or any Integrated Prospectus or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary 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 or
other calamity or from any labor dispute or any legal or governmental
proceeding and there has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or otherwise), management, business prospects,
net worth, or results of operations of the Trust and the Subsidiaries
considered as a whole, except in each case as described in or
contemplated by the Registration Statement and each of the Prospectus
and any Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus.
(q) The Trust has not, directly or indirectly, (i)
taken any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Trust to facilitate the sale or resale of the Securities or (ii) since
the filing of the Registration Statement (A) sold, bid for, purchased,
or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the Trust.
(r) The Trust has not distributed and, prior to the
later of (i) the Firm Closing Date and (ii) the completion of the
distribution of the Securities, will not distribute any offering
material in connection with the offering and sale of the Securities
other than the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or other materials, if any, permitted by the Act.
(s) Subsequent to the respective dates as of which
information is given in the Registration Statement and each of the
Prospectus or any Integrated Prospectus (or, if the Prospectus or any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus), (i) none of the Trust or any of the
Subsidiaries have 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; and (iii) there has not been any
material change in the shares of beneficial interest, ownership
interest, 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 or any Integrated Prospectus (or, if the Prospectus or
any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(t) The Trust and each Subsidiary have good and
indefeasible title in fee simple to all of the Properties (as defined
in the Prospectus Supplement) and marketable title to all personal
property owned by each of them, in each case free and clear of any
security interests, liens, encumbrances, equities, claims and other
defects, except such as do not materially and adversely affect the
value of any individual Significant Property (defined below) or all
Properties (taken as a whole) and do not interfere with the use made
or proposed to be made of any individual Significant Property or all
Properties (taken as a whole) by the Trust or any subsidiary, and any
Properties and buildings held under lease by the Trust or by any
Subsidiary are held under valid, subsisting and enforceable leases,
with such exceptions as are not material and do not interfere with the
use made or proposed to be made of such Significant Property or all
Properties (taken as a whole) by the Trust or by any Subsidiary, in
each case except as described in or contemplated by the Prospectus or
any Integrated Prospectus (or, if the Prospectus or any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus). For purposes of this Section 2(t), a
"Significant Property" shall mean a Property that has a book value
(without regard to any minority interest held by any person), as of
June 30, 1997, of at least $10 million.
(u) The Trust and each Subsidiary are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts are prudent and customary in the
businesses in which they are engaged; and none of the Trust or any of
the Subsidiaries have any reason to believe that they will not be able
to renew their existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue their business at a cost that would not
materially and adversely affect the condition (financial or
otherwise), business prospects, net worth or results of operations of
the Trust and its Subsidiaries taken as a whole, except as described
in or contemplated by the Prospectus or any Integrated Prospectus (or,
if the Prospectus or any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus).
(v) The Trust and each of the Subsidiaries has
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 change in the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Trust and the Subsidiaries, taken as a whole; 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 change in the condition (financial or
otherwise), business prospects, net worth or results of operations of
the Trust and the Subsidiaries, taken as a whole; 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 change in the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Trust and the Subsidiaries, taken as a whole, except
as described in the Prospectus and any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus).
(w) The Trust will conduct its operations in a manner
that will not subject it to registration as an investment company
under the Investment Company Act of 1940, as amended (the "1940 Act")
and the sale of Securities pursuant to this Agreement and the
application of the net proceeds therefrom as set forth in the
Prospectus or any Integrated Prospectus (or, if the Prospectus or any
required Integrated Prospectus is not in existence, the most recent
Preliminary Prospectus) will not cause the Trust to become an
investment company subject to registration under such act.
(x) The Trust and each Subsidiary have filed all
foreign, federal, state and local tax returns that are required to be
filed or have requested extensions thereof (except in any case in
which the failure so to file would not have a material adverse effect
on the Trust and the Subsidiaries taken as a whole) and have paid all
taxes required to be paid by them and any other assessment, fine or
penalty levied against them, to the extent that any of the foregoing
is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as described in or
contemplated by the Registration Statement and each of the Prospectus
or any Integrated Prospectus (or, if the Prospectus or any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus). Such tax returns are true, correct, and
complete in all material respects.
(y) The Trust and each Subsidiary maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management's general or specific
authorization; (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").
(z) Except as otherwise disclosed in the Prospectus
and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus) or as set forth in a separate writing
delivered to the Underwriter on the date hereof, (i) neither the
Trust, any of the Subsidiaries nor, to the best knowledge of the
Trust, any other owners of the property at any time or any other party
has at any time, handled, stored, treated, transported, manufactured,
spilled, leaked, or discharged, dumped, transferred or otherwise
disposed of or dealt with, Hazardous Materials (as hereinafter
defined) on, to or from the Properties, other than in material
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 will not use 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
or dealing with Hazardous Materials other than in material compliance
with all applicable Environmental Statutes and in connection with the
ordinary use of residential, retail or commercial properties owned by
the Trust; (iii) neither the Trust nor any of the Subsidiaries knows
of any seepage, leakage, discharge, release, emission, spill, or
dumping of Hazardous Materials on any property which might materially
and adversely affect the Properties; (iv) neither the Trust nor any of
the Subsidiaries has received any notice of, or has any knowledge of
any occurrence or circumstance which, with notice or passage of time
or both, would give rise to a material claim under or pursuant to any
Environmental Statute (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 and any
Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus); (v) neither the Properties nor any other land
owned by the Trust or any of the Subsidiaries is included or, to the
best of the Trust's knowledge, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as hereinafter defined) by
the United States Environmental Protection Agency (the "EPA") or, to
the best of the Trust's knowledge, proposed for inclusion on any
similar list of inventory issued pursuant to any other Environmental
Statute or issued by any other Governmental Authority (as hereinafter
defined) or has been the subject of an investigation or inquiry by any
Governmental Authority with respect to Hazardous Materials; and (vi)
the Trust, the Subsidiaries and the Properties are in material
compliance with all Environmental Statutes and to the best of the
Trust's knowledge, the Trust and the Subsidiaries possess all permits,
registrations and authorizations required to operate the Properties.
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 1801 et seq, the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901 et seq., the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq, the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq, the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section 136 et
seq, the Clean Air Act, 42 U.S.C. Section 7401 et seq., the Clean
Water Act (Federal Water Pollution Control Act), 33 U.S.C. Section
1251 et seq., the Safe Drinking Water Act, 42 U.S.C. Section 300f et
seq., and the Occupational Safety and Health Act, 29 U.S.C. Section
651 et seq., as any of the above statutes may be amended from time to
time, and in the regulations promulgated pursuant to each of the
foregoing (individually, an "Environmental Statute") or by any
federal, state or local governmental authority having or claiming
jurisdiction over the properties and assets described in the
Prospectus (a "Governmental Authority")) or any substance which is or
contains petroleum.
(aa) The Trust and each Subsidiary are in compliance in
all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in ERISA) for which the Trust or any
Subsidiary would have any material liability; neither the Trust nor
any Subsidiary has incurred and neither expects to incur any material
liability under (i) Title IV of ERISA with respect to termination of,
or withdrawal from, any "pension plan" or (ii) Sections 4971 of the
Internal Revenue Code 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 Subsidiary 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.
(ab) The Trust has been and is organized and operated
in conformity with the requirements for qualification as a REIT under
Sections 856 through 860 of the Code and the rules and regulations
thereunder and the Trust's present method of operation does and will
enable it to continue to meet the requirements for taxation as a real
estate investment trust under the Code and the Operating Partnership,
the other Partnership Subsidiaries and the LLC Subsidiaries will be
treated for Federal income tax purposes as partnerships and not as
associations taxable as corporations or as publicly-traded
partnerships.
(ac) 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 change in the
condition (financial or otherwise), business prospects, net worth or
results of operations of the Trust and the Subsidiaries, taken as a
whole, except as described in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus).
(ad) Except for the shares of capital stock of each of
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
and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(ae) Neither the Trust nor any of the Subsidiaries is
in violation of any term or provision of its declaration of trust,
certificate of incorporation, by-laws, partnership agreements or other
organizational documents, as the case may be; no default exists, and
no event has occurred which, with notice of lapse of time or both,
would constitute a default, and the consummation of the transactions
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 in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Trust
and the Subsidiaries, taken as a whole.
(af) The Securities have been approved for listing on
the New York Stock Exchange, subject to official notice of issuance.
(ag) (A) Neither the Trust nor any Subsidiary knows of
any violation of any municipal, state or federal law, rule or
regulation (including those pertaining to environmental matters),
concerning the Properties (as defined in the Prospectus) or any part
thereof which would have a material adverse effect in the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Trust and the Subsidiaries, taken as a whole; (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 has received from any
governmental authority any written notice of any condemnation of or
zoning change affecting the Properties or any part thereof, and
neither the Trust nor any Subsidiary knows of any such condemnation or
zoning change which is threatened and, in either case, which if
consummated would have a material adverse effect in the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Trust and the Subsidiaries, taken as a whole; (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 and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most
recent Preliminary 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 in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Trust and the Subsidiaries,
taken as a whole except as disclosed or incorporated by reference in
the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(ah) The Trust has complied and will comply with all
the provisions of Florida H.B. 1771 codified as Section 517.075 of the
Florida Statutes, as contemplated by the regulations promulgated
thereunder relating to issuers doing business with Cuba.
(ai) 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.
(aj) 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 change in the condition (financial
or otherwise), business prospects, net worth or results of operations
of the Trust and the Subsidiaries, taken as a whole, except as
described in the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus).
(ak) The Trust and the Subsidiaries own or possess, or
can acquire on reasonable terms, all material patents, trademarks,
service marks, trade names, licenses, copyrights and proprietary and
other confidential information currently employed by them in
connection with their respective businesses, and neither the Trust nor
any of the Subsidiaries has received any notice of infringement of or
conflict with asserted rights of any third party with respect to the
foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a material
adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Trust and the
Subsidiaries, taken as a whole, except as described in the Prospectus
and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(al) The Trust has issued and sold 34,000 shares of its
Series A Convertible Preferred Shares to Partnership Acquisition Trust
II, a Delaware business trust ("▇▇▇ ▇▇"). The proceeds of such sale
were contributed by the Trust to the Operating Partnership in exchange
for 34,000 preferred units of limited partnership interest (the
"Preferred Interest") of the Operating Partnership. The rights,
preferences, terms and conditions of the Series A Convertible
Preferred Shares issued to ▇▇▇ ▇▇ are equivalent in all material
respects to the terms and conditions of the Preferred Interest issued
to the Trust.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Trust agrees to issue and sell to the
Underwriter, and the Underwriter agrees to purchase from the Trust, at
a purchase price of $21.82 per share, the number of Firm Securities.
One or more certificates in definitive form for the Firm Securities
that the Underwriter has agreed to purchase hereunder, and in such
denomination or denominations and registered in such name or names as
the Underwriter requests upon notice to the Trust at least 48 hours
prior to the Firm Closing Date, shall be delivered by or on behalf of
the Trust to the account of the Underwriter, against payment by or on
behalf of the Underwriter of the purchase price therefor by wire
transfer in same-day funds (the "Wired Funds") to the account of the
Trust. Such delivery of and payment for the Firm Securities shall be
made at the offices of Battle ▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 9:30 A.M., New York time, on October 6,
1997, or at such other place, time or date as the Underwriter and the
Trust may agree upon, such time and date of delivery against payment
being herein referred to as the "Firm Closing Date." The Trust will
make such certificate or certificates for the Firm Securities
available for checking and packaging by the Underwriter at the offices
in New York, New York of the Trust's transfer agent or registrar or of
the Underwriter at least 24 hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in
connection with the distribution and sale of the Firm Securities as
contemplated by the Prospectus, the Trust hereby grants to the
Underwriter an option to purchase the Option Securities. The purchase
price to be paid for any Option Securities shall be the same price per
share as the price per share for the Firm Securities set forth above
in paragraph (a) of this Section 3. The option granted hereby may be
exercised as to all or any part of the Option Securities from time to
time within thirty days after the date of the Prospectus (or, if such
30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for
trading). The Underwriter shall not be under any obligation to
purchase any of the Option Securities prior to the exercise of such
option. The Underwriter may from time to time exercise the option
granted hereby by giving notice in writing or by telephone (confirmed
in writing) to the Trust setting forth the aggregate principal amount
of Option Securities as to which the Underwriter is then exercising
the option and the date and time for delivery of and payment for such
Option Securities. Any such date of delivery shall be determined by
the Underwriter but shall not be earlier than two business days or
later than five business days after such exercise of the option and,
in any event, shall not be earlier than the Firm Closing Date. The
time and date set forth in such notice, or such other time or such
other date as the Underwriter and the Trust may agree upon, is herein
called the "Option Closing Date" with respect to such Option
Securities. Upon exercise of the option as provided herein, the Trust
shall become obligated to sell to the Underwriter, and, subject to the
terms and conditions herein set forth, the Underwriter shall become
obligated to purchase from the Trust, the same percentage of the total
number of the Option Securities as to which the Underwriter is then
exercising the option. If the option is exercised as to all or any
portion of the Option Securities, one or more certificates in
definitive form for such Option Securities, and payment therefor,
shall be delivered on the related Option Closing Date in the manner,
and upon the terms and conditions, set forth in paragraph (a) of this
Section 3, except that reference therein to the Firm Securities and
the Firm Closing Date shall be deemed, for purposes of this paragraph
(b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) The Trust hereby acknowledges that the wire
transfer by or on behalf of the Underwriter of the purchase price for
any Securities does not constitute closing of a purchase and sale of
the Securities. Only execution and delivery of a receipt for
Securities by the Underwriter indicates completion of the closing of a
purchase of the Securities from the Trust. Furthermore, in the event
that the Underwriter wires funds to the Trust prior to the completion
of the closing of a purchase of Securities, the Trust hereby
acknowledges that until the Underwriter executes and delivers a
receipt for the Securities, by facsimile or otherwise, the Trust will
not be entitled to the wired funds and shall return the wired funds to
the Underwriter as soon as practicable (by wire transfer of same-day
funds) upon demand. In the event that the closing of a purchase of
Securities is not completed and the wire funds are not returned by the
Trust to the Underwriter on the same day the wired funds were received
by the Trust, the Trust agrees to pay to the Underwriter in respect of
each day the wire funds are not returned by it, in same-day funds,
interest on the amount of such wire funds in an amount representing
the Underwriter's cost of financing as reasonably determined by the
Underwriter.
4. Offering by the Underwriter. Upon your authorization
of the release of the Firm Securities, the Underwriter proposes to
offer the Firm Securities for sale to the public upon the terms set
forth in the Prospectus.
5. Covenants of the Trust and the Operating Partnership.
The Trust and the Operating Partnership jointly and severally covenant
and agree with the Underwriter that:
(a) The Trust will file the Prospectus or any Term
Sheet that constitutes a part thereof, any Integrated Prospectus,
Prospectus Supplement, as the case may be, and any amendment or
supplement thereto with the Commission in the manner and within the
time period required by Rules 434 and 424(b) under the Act. During
any time when a prospectus relating to the Securities is required to
be delivered under the Act, the Trust (i) will comply with all
requirements imposed upon it by the Act and the Exchange Act and the
respective rules and regulations of the Commission thereunder to the
extent necessary to permit the continuance of sales of or dealings in
the Securities in accordance with the provisions hereof and of the
Prospectus and any Integrated Prospectus, as then amended or
supplemented, and (ii) except as required by law, will not file with
the Commission the Prospectus, Term Sheet, any Integrated Prospectus
or any amendment or supplement thereto or any amendment to the
Registration Statement or any Rule 462(b) Registration Statement of
which the Underwriter shall not previously have been advised and
furnished with a copy for a reasonable period of time prior to the
proposed filing and as to which filing the Underwriter shall not have
given their consent, which consent shall not be unreasonably withheld
or delayed. The Trust will prepare and file with the Commission, in
accordance with the rules and regulations of the Commission, promptly
upon request by the Underwriter or counsel for the Underwriter, any
amendments to the Registration Statement or amendments or supplements
to the Prospectus and any Integrated Prospectus that may be necessary
or advisable in connection with the distribution of the Securities by
the Underwriter, and will use its best efforts to cause any such
amendment to the Registration Statement to be declared effective by
the Commission as promptly as possible. The Trust will advise the
Underwriter, promptly after receiving notice thereof, of the time when
any amendment to the Registration Statement has been filed or declared
effective or the Prospectus, any Integrated Prospectus or any
amendment or supplement thereto has been filed and will provide
evidence satisfactory to the Underwriter of each such filing or
effectiveness.
(b) The Trust will advise the Underwriter, promptly
after receiving notice or obtaining knowledge thereof, of (i) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement or any post-effective amendment thereto or any
order directed at any document incorporated by reference in the
Registration Statement, the Prospectus or any Integrated Prospectus or
any order preventing or suspending the use of any Preliminary
Prospectus, the Prospectus and any Integrated Prospectus or any
amendment or supplement thereto, (ii) the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, (iii) the institution, threatening or contemplation of
any proceeding for any such purpose or (iv) any request made by the
Commission for amending the Registration Statement or any Rule 462(b)
Registration Statement, for amending or supplementing any Preliminary
Prospectus or the Prospectus and any Integrated Prospectus or for
additional information. The Trust will use its best efforts to
prevent the issuance of any such stop order and, if any such stop
order is issued, to obtain the withdrawal thereof as promptly as
possible.
(c) The Trust will arrange for the qualification of
the Securities for offering and sale under the securities or blue sky
laws of such jurisdictions as the Underwriter may designate and will
continue such qualifications in effect for as long as may be necessary
to complete the distribution of the Securities, provided, however,
that in connection therewith the Trust shall not be required to
qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction.
(d) If, at any time prior to the later of (i) the
final date when a prospectus relating to the Securities is required to
be delivered under the Act or (ii) the Option Closing Date, any event
occurs as a result of which the Prospectus or any Integrated
Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit 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, or if for
any other reason it is necessary at any time to amend or supplement
the Prospectus or any Integrated Prospectus to comply with the Act,
the Exchange Act or the respective rules or regulations of the
Commission thereunder, the Trust will promptly notify the Underwriter
thereof and, subject to Section 5(a) hereof, will prepare and file
with the Commission, at the Trust's expense, an amendment to the
Registration Statement or an amendment or supplement to the Prospectus
or any Integrated Prospectus (or, if the Prospectus or any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus) that corrects such statement or omission or
effects such compliance.
(e) The Trust will, without charge, provide (i) to the
Underwriter and to counsel for the Underwriter one conformed copy of
the registration statement originally filed with respect to the
Securities or any Rule 462(b) Registration Statement and each
amendment thereto (in each case including exhibits thereto), and (ii)
so long as a prospectus relating to the Securities is required to be
delivered under the Act, as many copies of each Preliminary
Prospectus, the Prospectus or any Integrated Prospectus or any
amendment or supplement thereto as the Underwriter may reasonably
request; without limiting the application of clause (ii) of this
sentence, the Trust, not later than (A) 6:00 PM, New York City time,
on the date of determination of the public offering price, if such
determination occurred at or prior to 10:00 AM, New York City time on
such date or (B) 12:00 PM, New York City time, on the business day
following the date of determination of the public offering price, if
such determination occurred after 10:00 AM, New York City time, on
such date, will deliver to the Underwriter, without charge, as many
copies of the Prospectus and any amendment or supplement thereto as
the Underwriter may reasonably request for purposes of confirming
orders that are expected to settle on the Firm Closing Date.
(f) The Trust, as soon as practicable, will make
generally available to its security holders and to the Underwriter a
consolidated earnings statement of the Trust and its subsidiaries that
satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(g) The Trust will apply the net proceeds from the
sale of the Securities as set forth under "Use of Proceeds" in the
Prospectus or any Integrated Prospectus (or, if the Prospectus or any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(h) The Trust will not, directly or indirectly,
without the prior written consent of the Underwriter, offer, sell,
offer to sell, contract to sell, pledge, grant any option to purchase
or otherwise sell or dispose (or announce any offer, sale, offer of
sale, contract of sale, pledge, grant of any option to purchase or
other sale or disposition) of any Trust Shares or any securities
convertible into, or exchangeable or exercisable for, Trust Shares for
a period of 90 days after the date hereof, except pursuant to this
Agreement and except (i) grants of options, and for issuances pursuant
to the exercise of stock options granted, pursuant to the 1993 Trustee
Share Option Plan, 1993 Employee Share Option Plan, and the proposed
Glimcher Realty Trust 1997 Incentive Plan (the "1997 Plan") provided
that with respect to the 1997 Plan, the incentive plan actually
adopted is substantially similar to the copy of the draft 1997 Plan
provided to the Underwriter, or issuances pursuant to the Trust's
dividend reinvestment plan or issuances pursuant to the exchange of
limited partnership units in the Operating Partnership outstanding at
the date of this Agreement, (ii) or shares of beneficial interest
issued in consideration of future purchases of real estate, provided
however, that the recipient of such shares of beneficiary interest
enters into and delivers a lock-up agreement in the form of such
agreement described in Section 7(f).
(i) The Trust will not, directly or indirectly, (i)
take any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Trust to facilitate the sale or resale of the Securities or (ii) (A)
sell, bid for, purchase, or pay anyone any compensation for soliciting
purchases of, the Securities or (B) pay or agree to pay to any person
any compensation for soliciting another to purchase any other
securities of the Trust.
(j) The Trust will obtain the agreements described in
Section 7(f) hereof prior to the Firm Closing Date.
(k) The Trust will cause the Securities to be duly
authorized for listing by the New York Stock Exchange prior to the
Firm Closing Date.
(l) If at any time during the 25-day period after the
date of this Agreement or the period prior to the Option Closing Date,
any rumor, publication or event relating to or affecting the Trust
shall occur as a result of which in your reasonable opinion the market
price of the Trust Shares has been or is reasonably likely to be
materially affected (regardless of whether such rumor, publication or
event necessitates a supplement to or amendment of the Prospectus),
the Trust will, after notice from you advising the Trust to the effect
set forth above, forthwith prepare, consult with you concerning the
substance of, and disseminate a press release or other public
statement, reasonably satisfactory to you, responding to or commenting
on such rumor, publication or event.
(m) The Trust will continue to use its best efforts to
meet the requirements to qualify as a REIT under the Code.
(n) If the Trust elects to rely on Rule 462(b), the
Trust shall both file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the applicable fees
in accordance with Rule 111 promulgated under the Act by the earlier
of (i) 10:00 PM Eastern time on the date of this Agreement and (ii)
the time confirmations are sent or given, as specified by Rule
462(b)(2).
6. Expenses. The Trust will pay all costs and expenses
incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated herein are consummated or
this Agreement is terminated pursuant to Section 10 hereof, including
all costs and expenses incident to (i) the printing or other
production of documents with respect to the transactions, including
any costs of printing the registration statement originally filed with
respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus, the Prospectus and
any Integrated Prospectus and any amendment or supplement thereto,
this Agreement and any blue sky memoranda, (ii) all arrangements
relating to the delivery to the Underwriter of copies of the foregoing
documents, (iii) the fees and disbursements of the counsel,
accountants and any other experts or advisors retained by the Trust,
(iv) preparation, issuance and delivery to the Underwriter of any
certificates evidencing the Securities, including transfer agent's and
registrar's fees, (v) the qualification of the Securities under state
securities and blue sky laws, including filing fees and reasonable
fees and disbursements of counsel for the Underwriter relating
thereto, (vi) the filing fees of the Commission (and the National
Association of Securities Dealers, Inc.) relating to the Securities,
(vii) the listing of the Securities on the New York Stock Exchange,
(viii) meetings with prospective investors in the Securities (other
than shall have been specifically approved in writing by the
Underwriter to be paid for by the Underwriter) and (ix) advertising
relating to the offering of the Securities (other than shall have been
specifically approved in writing by the Underwriter to be paid for by
the Underwriter). If the sale of the Securities provided for herein
is not consummated because any condition to the obligations of the
Underwriter set forth in Section 7 hereof is not satisfied, because
this Agreement is terminated pursuant to Section 10 hereof or because
of any failure, refusal or inability on the part of the Trust to
perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder other than by reason of a default by
the Underwriter, the Trust will reimburse the Underwriter upon demand
for all reasonable out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by it in
connection with the proposed purchase and sale of the Securities. The
Trust shall not in any event be liable to any of the Underwriter for
the loss of anticipated profits from the transactions covered by this
Agreement.
7. Conditions of the Underwriter's Obligations. The
obligations of the Underwriter to purchase and pay for the Firm
Securities shall be subject, in the Underwriter's sole discretion, to
the accuracy of the representations and warranties contained herein as
of the date hereof and as of the Firm Closing Date, as if made on and
as of the Firm Closing Date, to the accuracy of the statements of the
Trust's officers made pursuant to the provisions hereof, to the
performance by the Trust of its covenants and agreements hereunder and
to the following additional conditions:
(a) The Prospectus, any Term Sheet that constitutes a
part thereof, any Integrated Prospectus or the Prospectus Supplement,
as the case may be, and any amendment or supplement thereto shall have
been filed with the Commission in the manner and within the time
period required by Rules 434 and 424(b) under the Act; 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 Integrated Prospectus or any amendment or supplement
thereto shall have been issued and no proceedings for that purpose
shall have been instituted or threatened or, to the knowledge of the
Trust or the Underwriter, shall be contemplated by the Commission; and
the Trust shall have complied with any request of the Commission for
additional information (to be included in the Registration Statement,
the Prospectus or any Integrated Prospectus or otherwise).
(b) The Underwriter shall have received opinions,
dated the Firm Closing Date, of (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., in his
capacity as General Counsel of the Trust, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Ingersoll, special Maryland counsel to the Trust (iii) ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, special Colorado counsel to the Trust and
(iv) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel
to the Trust, 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 does
not amount to a material liability or disability to the Trust and
the Subsidiaries, taken as a whole. Each of the Subsidiaries has
been duly organized and is validly existing as a general or
limited partnership or corporation or limited liability company
in good standing under the laws of the jurisdiction of its
organization, and is qualified to transact business and is in
good standing under the laws of all other jurisdictions where the
ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to
be so qualified does not amount to a material liability or
disability to the Trust and the Subsidiaries, taken as a whole;
(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,
the Prospectus and any Integrated Prospectus and each of the
Trust and the Subsidiaries have full trust, corporate or limited
liability power to enter into this Agreement and to carry out all
the terms and provisions hereof and thereof to be carried out by
it in all material respects;
(iii) the issued shares of capital stock of each of
the Subsidiaries that is a corporation are duly authorized,
validly issued, fully paid and non-assessable, and all of the
partnership interests or membership interests in each Subsidiary
that is a partnership or limited liability company, other than
EMM and CMM, as the case may be, are validly issued and fully
paid. Except as described in the Registration Statement or this
Agreement, the Prospectus and any Integrated 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 and any
Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus). All of the shares of beneficial
interest of the Trust has been duly authorized and the shares of
beneficial interest of the Trust outstanding are validly issued,
fully paid and non-assessable (except that shareholders of the
Trust may be subject to personal liability with respect to
certain claims for tort, contract, taxes and statutory and other
liability in some jurisdictions);
(v) the Firm Securities have been duly
authorized, and when executed and delivered against payment
therefor in accordance with this Agreement, will be validly
issued, fully paid and non-assessable, and the execution and
delivery of the Firm Securities have been duly authorized by all
necessary trust action, and the Firm Securities have been duly
executed and delivered by the Trust, and assuming due
authorization, execution and delivery of the Firm Securities by
parties other than the Trust, are the legal, valid, binding and
enforceable obligations of the Trust, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating to creditors' rights
generally and to the application of equitable principles in any
proceeding, whether at law or in equity;
(vi) except as described in or contemplated by the
Registration Statement, the Prospectus and any Integrated
Prospectus, to the best knowledge of such counsel, there are no
outstanding securities of the Trust convertible or exchangeable
into 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 or exchangeable
into or evidencing the right to purchase or subscribe for any
shares of such beneficial interest; and except as described in
the Registration Statement, the Prospectus and any Integrated
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
Securities or the right to have any Trust 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 shares of
Trust Shares or other securities of the Trust, and no holders of
outstanding shares of beneficial interest of the Trust are
entitled as such to any preemptive or other rights to subscribe
for any of the Firm Securities;
(vii) the statements set forth under the heading
"Description of Shares of Beneficial Interest", "Description of
Preferred Stock" and "Description of Warrants" in the Prospectus
and any Integrated Prospectus insofar as such statements purport
to summarize certain provisions of the Securities of the Trust,
provide a fair summary of such provisions; and the statements set
forth under the headings "Restrictions on Ownership of Offered
Securities" and "Certain United States Federal Income Tax
Considerations to the Trust of its REIT Election" in the
Prospectus and "Risk Factors", "Certain United States Federal
Income Tax Considerations to Holders of Common Stock" and "Recent
Developments", in the Prospectus Supplement, insofar as such
statements constitute a summary of the legal matters or legal
conclusions, have been reviewed by them and are correct in all
material respects;
(viii) the execution and delivery of this Agreement
has been duly authorized by all necessary trust or partnership
action of the Trust and the Operating Partnership and this
Agreement has been duly executed and delivered by the Trust and
the Operating Partnership, and are the valid and binding
agreements of the Trust and the Operating Partnership,
enforceable against the Trust and the Operating Partnership in
accordance with their respective terms, subject to (a) the effect
of bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting
the rights or remedies of creditors or (b) the effect of general
principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought;
(ix) (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 other property of the Trust or any of
the Subsidiaries is subject that are required to be described
therein, and, to the best knowledge of such counsel, no such
proceedings have been threatened against the Trust or any of the
Subsidiaries or with respect to the Properties or any of their
respective other properties and (B) to the best knowledge of
counsel no contract or other document is required to be described
in the Registration Statement, the Prospectus or any Integrated
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 and any Integrated
Prospectus are fairly summarized in all material respects;
(x) the issuance, offering and sale of the Firm
Securities to the Underwriter 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 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
liability or disability on the Trust and the Subsidiaries taken
as a whole, or the Declaration of Trust, 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 liability or disability on the Trust and the
Subsidiaries taken as a whole, or any judgement, 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 and the form of certificate used to evidence the Firm
Securities 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 change in the condition (financial or otherwise),
business, prospects, net worth or results of operations of the
Trust and the Subsidiaries, taken as a whole, 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 change in
the condition (financial or otherwise), business, prospects, net
worth or results of operations of the Trust and the Subsidiaries,
taken as a whole, except as described in the Prospectus and any
Integrated 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, and the issuance, offering and sale of the Firm
Securities to the Underwriter 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 will not result in any 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 or any of their respective other properties is bound
or may be affected except such as would not result in any
material adverse effect in the condition (financial or
otherwise), business prospects, net worth or results of
operations of the Trust and the subsidiaries, taken as a whole;
(xiv) the Firm Securities have been approved for
listing on the New York Stock Exchange, subject to official
notice of issuance;
(xv) the Registration Statement is effective under
the Act, the Prospectus or any Term Sheet that constitutes a part
thereof and any Integrated Prospectus or the Prospectus
Supplement, as the case may be, has been filed with the
Commission in the manner and within the time period required by
Rules 434 and 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, any Integrated Prospectus
or any amendment or supplement thereto has been issued, and to
the best of counsel's knowledge, no proceedings for that purpose
have been instituted or, to the best knowledge of such counsel,
threatened by the Commission;
(xvi) Each document filed pursuant to the Exchange
Act (other than the financial statements, schedules and other
financial and statistical data included therein, as to which no
opinion need be rendered) and incorporated or deemed to be
incorporated by reference in the Prospectus or any Integrated
Prospectus complied when so filed as to form in all material
respects with the Exchange Act and the regulations thereunder.
In passing upon compliance as to form of such documents, such
counsel may assume the statements made therein are correct and
complete;
(xvii) To the best of its knowledge and information,
there are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the Registration Statement or the Prospectus or to
be filed as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto, the
descriptions thereof or references thereto are correct in all
material respects, and, to the best of his knowledge and
information, no default exists in the due performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described, referred
to or filed which would have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Trust and its subsidiaries
considered as one enterprise;
(xviii) 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, 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;
(xix) the Registration Statement originally filed
with respect to the Securities and each amendment thereto and any
Rule 462(b) Registration Statement, the Prospectus and any
Integrated 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 therein, as to which such counsel need
express no opinion) comply 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;
(xx) if the Trust elects to rely on Rule 434, the
Prospectus is not "materially different," as such term is used in
Rule 434, from the prospectus included in the Registration
Statement at the time of its effectiveness or any effective post-
effective amendment thereto (including such information that is
permitted to be omitted pursuant to Rule 430A);
(xxi) (A) the Trust was organized in conformity
with the requirements for qualification as a REIT for federal
income tax purposes, and, based on the facts and assumptions set
forth in the Basic Prospectus, the Preliminary Prospectus and the
Prospectus Supplement and certain representations by the Trust,
including but not limited to those set forth in the Officer's
Certificate regarding certain federal income tax matters, its
method of operation has enabled it, and its proposed method of
operation will enable it, to meet the requirements under the Code
for qualification and taxation as a REIT and (B) the Operating
Partnership, the other Partnership Subsidiaries and the LLC
Subsidiaries will be treated for Federal income tax purposes as
partnerships and not as associations taxable as corporations or
as publicly-traded partnerships;
(xxii) 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 and any
Integrated Prospectus, required to register as an investment
company under the 1940 Act; and
(xxiii) the Trust has issued and sold 34,000 shares
of its Series A Convertible Preferred Shares to ▇▇▇ ▇▇. The
rights, preferences, terms and conditions of the Series A
Convertible Preferred Shares issued to ▇▇▇ ▇▇ by the Trust are
equivalent in all material respects to the rights, terms and
conditions of the Preferred Interest issued to the Trust by the
Operating Partnership.
Such counsel 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 any Registration Statement or the
Prospectus Supplement, no facts have come to such counsel's attention
in the course of participating with officers and representatives of
the Company in the preparation of a Registration Statement or the
Prospectus Supplement (except for financial statements and schedules
and other financial and statistical data contained therein, as to
which such counsel need express no opinion, and excluding the
documents incorporated by reference into a Registration Statement, as
to which such counsel need express no opinion) to lead it to believe
that the Registration Statement, as of its effective date, or the
Prospectus or any Integrated Prospectus contained any untrue statement
of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
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 New York or the United States,
to the extent satisfactory in form and scope to counsel for the
Underwriter, upon the opinion of local counsel and in-house general
counsel. The foregoing opinion shall also state that the Underwriter
is justified in relying upon such opinion of local counsel, and copies
of such opinion shall be delivered to the Underwriter and its counsel.
Such opinion may also include customary and reasonable assumptions and
qualifications that are acceptable to the Underwriter and its counsel.
References to the Registration Statement and the
Prospectus and any Integrated Prospectus in this paragraph (b) shall
include any amendment or supplement thereto at the date of such
opinion.
(c) The Underwriter shall have received an opinion,
dated the Firm Closing Date, of Battle ▇▇▇▇▇▇ LLP, counsel for the
Underwriter, with respect to the Registration Statement, the
Prospectus or any Integrated Prospectus, and such other related
matters as the Underwriter may reasonably require, and the Trust shall
have furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(d) The Underwriter shall have received from Coopers &
▇▇▇▇▇▇▇ L.L.P. a letter or letters dated, respectively, the date
hereof and the Firm Closing Date, in form and substance satisfactory
to the Underwriter, to the effect that:
(i) they are independent accountants with respect
to the Trust and the Subsidiaries within the meaning of the
Act, the Exchange Act and the applicable rules and
regulations thereunder;
(ii) in their opinion, the audited consolidated
financial statements and schedules examined by them and included
and incorporated by reference in the Registration Statement, the
Prospectus and any Integrated Prospectus comply in form in all
material respects with the applicable accounting requirements of
the Act, the Exchange Act and the related published rules and
regulations thereunder;
(iii) on the basis of a reading of the latest
available interim unaudited consolidated and combined financial
statements of the Trust and the Subsidiaries, carrying out
certain specified procedures (which do not constitute an
examination made in accordance with generally accepted auditing
standards) that would not necessarily reveal matters of
significance with respect to the comments set forth in this
paragraph (iii), a reading of the minute books of the
shareholders, the trustees or directors (as the case may be) and
any committees thereof of the Trust and each of the Subsidiaries,
and inquiries of certain officials of the Trust and the
Subsidiaries who have responsibility for financial and accounting
matters, nothing came to their attention that caused them to
believe that:
(A) the unaudited consolidated financial
statements of the Trust and the Subsidiaries included in the
Registration Statement, the Prospects and any Integrated
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act, the
Exchange Act and the related published rules and regulations
thereunder, or are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited consolidated financial
statements included in the Registration Statement, the
Prospectus and any Integrated Prospectus;
(B) at a specific date not more than five
business days prior to the date of such letter, there were
any changes in the capital stock or long-term debt of the
Trust and the Subsidiaries or any decreases in net current
assets or shareholders' equity of the Trust and the
Subsidiaries, in each case compared with amounts shown on
the most recent consolidated balance sheet included in the
Registration Statement, the Prospectus and any Integrated
Prospectus there were any decreases, as compared with the
corresponding period in the preceding year, in sales, net
revenues, net income before income taxes or total or per
share amounts of net income of the Trust and the
Subsidiaries, except in all instances for changes, decreases
or increases set forth in the Registration Statement,
related Prospectus Supplement or in such letter; and
(iv) they have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information that are derived
from the general accounting records of the Trust and the
Subsidiaries and are included in the Registration Statement, the
Prospectus and any Integrated Prospectus, including the
information included or incorporated in the Trust's most recent
Annual Report on Form 10-K under the captions "Business" (Item
1), "Selected Financial Data" (Item 6) and "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" (Item 7), the information included or incorporated in
the Trust's Quarterly Reports on Form 10-Q under the caption
"Management's Discussion and Analysis of Financial Condition and
Results of Operations." With respect to the items identified in
the beginning of this paragraph having proved the mathematical
accuracy, they make no representations regarding the sufficiency
of the aforementioned procedures for your purposes and have
compared such amounts, percentages and financial information with
such records and with information derived from such records and
have found them to be in agreement, excluding any questions of
legal interpretations; and
(v) on the basis of a reading of the unaudited
pro forma consolidated condensed financial statements included in
the Registration Statement, the Prospectus and any Integrated
Prospectus, inquiries of certain officials of the Trust and the
Subsidiaries who have responsibility for financial and accounting
matters and proving the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the
unaudited pro forma consolidated condensed financial statements,
nothing came to their attention that caused them to believe that
the unaudited pro forma consolidated condensed financial
statements do not comply in form in all material respects with
the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
such statements.
In the event that the letters referred to above set
forth any such changes, decreases or increases, it shall be a further
condition to the obligations of the Underwriter that (A) such letters
shall be accompanied by a written explanation of the Trust as to the
significance thereof, unless the Underwriter deem such explanation
unnecessary, and (B) such changes, decreases or increases do not, in
the sole judgment of the Underwriter, make it impractical or
inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended
as of the date hereof.
References to the Registration Statement and the
Prospectus and any Integrated Prospectus in this paragraph (d) with
respect to either letter referred to above shall include any amendment
or supplement thereto at the date of such letter.
(e) The Underwriter shall have received a certificate,
dated the Firm Closing Date, of the Chief Executive Officer or Chief
Operating Officer and the Chief Financial Officer of the Trust and GPC
on behalf of the Operating Partnership to the effect that:
(i) the representations and warranties of the
Trust and the Operating Partnership in this Agreement are true
and correct as if made on and as of the Firm Closing Date; the
Registration Statement, as amended as of the Firm Closing Date,
does not include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements
therein not misleading, the Prospectus and any Integrated
Prospectus, as amended or supplemented as of the Firm Closing
Date, does 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; and the Trust and the Operating
Partnership have performed all covenants and agreements and
satisfied all conditions on its part to be performed or satisfied
at or prior to the Firm Closing Date;
(ii) the Registration Statement has become
effective under the Act and 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 or the
Prospectus or any amendment or supplement thereto has been
issued, and no proceedings for that purpose have been instituted
or threatened or, to the best of the Trust's and Operating
Partnership's knowledge, are contemplated by the Commission;
(iii) subsequent to the respective dates as of
which information is given in the Registration Statement, the
Prospectus and any Integrated Prospectus, none of the Trust or
any of the Subsidiaries has sustained any material loss or
interference with their respective businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance or from any labor dispute or any legal
or governmental proceeding, and there has not been any material
adverse change, or any development involving a prospective
material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth or results
of operations of the Trust or any of the Subsidiaries, except in
each case as described in or contemplated by the Prospectus and
any Integrated Prospectus; and
(iv) all filings required to have been made
pursuant to Rule 424 or 430A under the Act have been made.
(f) The Underwriter shall have received from each
person who is a director or officer of the Trust an agreement to the
effect that such person will not, directly or indirectly, without the
prior written consent of the Underwriter, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise
sell or dispose (or announce any offer, sale, offer of sale, contract
of sale, pledge, grant of an option to purchase or other sale or
disposition) of any Trust Shares or any securities convertible into,
or exchangeable or exercisable for, Trust Shares for a period of 90
days after the date of this Agreement.
(g) On or before the Firm Closing Date, the
Underwriter and counsel for the Underwriter shall have received such
further certificates, documents or other information as they may have
reasonably requested from the Trust.
(h) Prior to the commencement of the offering of the
Firm Securities, the Firm Securities shall have been approved for
listing on the New York Stock Exchange, subject to official notice of
issuance.
All opinions, certificates, letters and documents
delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material
respects to the Underwriter and counsel for the Underwriter. The
Trust shall furnish to the Underwriter such conformed copies of such
opinions, certificates, letters and documents in such quantities as
the Underwriter and counsel for the Underwriter shall reasonably
request.
The respective obligations of the Underwriter to
purchase and pay for any Option Securities shall be subject, in its
discretion, to each of the foregoing conditions to purchase the Firm
Securities, except that all references to the Firm Securities and the
Firm Closing Date shall be deemed to refer to such Option Securities
and the related Option Closing Date, respectively.
8. Indemnification and Contribution.
(a) The Trust and the Operating Partnership, jointly
and severally, agree to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities, joint or several,
to which the Underwriter or such controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon:
(i) any untrue statement or alleged untrue
statement made by the Trust in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue
statement of any material fact contained in (A) the Registration
Statement or any amendment thereto, any Preliminary Prospectus,
the Prospectus and any Integrated Prospectus or any amendment or
supplement thereto or (B) any application or other document, or
any amendment or supplement thereto, executed by the Trust or any
Subsidiary or based upon written information furnished by or on
behalf of the Trust filed in any jurisdiction in order to qualify
the Securities under the securities or blue sky laws thereof or
filed with the Commission or any securities association or
securities exchange (each an "Application"),
(iii) the omission or alleged omission to state in
the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus and any Integrated
Prospectus or any amendment or supplement thereto, or any
Application a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
(iv) any untrue statement or alleged untrue
statement of any material fact that was provided by the Trust and
was contained in any audio or visual materials used in connection
with the marketing of the Securities, including without
limitation, slides, videos, films and tape recordings
and will reimburse, as incurred, the Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by the Underwriter or such controlling person in connection with
investigating, defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action;
provided, however, that the Trust 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 any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration
statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus and any Integrated Prospectus or any amendment or
supplement thereto, or any Application in reliance upon and in
conformity with written information furnished to the Trust by the
Underwriter specifically for use therein. This indemnity agreement
will be in addition to any liability which the Trust may otherwise
have. The Trust will not, without the prior written consent of the
Underwriter, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder
(whether or not the Underwriter or any person who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of the Underwriter and such controlling persons
from all liability arising out of such claim, action, suit or
proceeding.
(b) The Underwriter will indemnify and hold harmless
the Trust, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Trust
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities, joint
and several, to which the Trust or any such director, officer or
controlling person may become subject under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions 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 or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any Integrated Prospectus or
any amendment or supplement thereto, or any Application or (ii) the
omission or the alleged omission to state therein a material fact
required to be stated in the Registration Statement or any amendment
thereto, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, or any Application or necessary to make the
statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Trust by
the Underwriter specifically for use therein; and, subject to the
limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably
incurred by the Trust or any such director, officer or controlling
person in connection with investigating or defending any such loss,
claim, damage, liability or any action in respect thereof. This
indemnity agreement will be in addition to any liability which the
Underwriter may otherwise have. The Underwriter will not, without the
prior written consent of the Trust, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought
hereunder unless such settlement, compromise or consent includes an
unconditional release of the Trust from all liability including,
without limitation, the payment of money or the imposition of
obligations or restrictions on the Trust, arising out of the claim,
action, suit or proceeding.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be one or more legal
defenses available to it and/or other indemnified parties which on the
advice of counsel for the indemnified party may conflict with those
available to the indemnifying party, the indemnifying party shall not
have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties
shall have the right to select separate counsel to defend such action
on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of
counsel appointed to defend such action, which approval shall not be
unreasonably withheld, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other
expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to local counsel) in any one action
or separate but substantially similar actions in the same jurisdiction
arising out of the same general allegations or circumstances,
designated by the Underwriter in the case of paragraph (a) of this
Section 8, representing the indemnified parties under such paragraph
(a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel reasonably
satisfactory to the indemnified party or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party. After such notice from the
indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of
such action effected by such indemnified party without the consent of
the indemnifying party.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 8 is
unavailable or insufficient, for any reason, to hold harmless an
indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party,
in order to provide for just and equitable contribution, shall
contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i)
the relative benefits received by the indemnifying party or parties on
the one hand and the indemnified party on the other from the offering
of the Securities or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative
benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in
connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Trust
on the one hand and the Underwriter on the other shall be deemed to be
in the same proportion as the total proceeds from the offering (before
deducting expenses) received by the Trust bear to the total
underwriting discounts and commissions received by the Underwriter.
The relative fault of the parties shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Trust or the
Underwriter, the parties' relative intents, knowledge, access to
information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Trust and the Underwriter agree that it would not
be equitable if the amount of such contribution were determined by pro
rata or per capita allocation or by any other method of allocation
that does not take into account the equitable considerations referred
to above in this paragraph (d). Notwithstanding any other provision
of this paragraph (d), the Underwriter shall be obligated to make
contributions hereunder that in the aggregate exceed the total public
offering price of the Securities purchased by the Underwriter under
this Agreement, less the aggregate amount of any damages that the
Underwriter has otherwise been required to pay in respect of the same
or any substantially similar claim, and 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. For purposes of this paragraph
(d), each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Underwriter, and
each director of the Trust, each officer of the Trust who signed the
Registration Statement and each person, if any, who controls the Trust
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Trust.
9. Survival. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Trust,
its officers and the Underwriter set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement
shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Trust or any Subsidiary, any
of its officers or directors, the Underwriter or any controlling
person referred to in Section 8 hereof and (ii) delivery of and
payment for the Securities. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6 and 8 hereof
shall remain in full force and effect, regardless of any termination
or cancellation of this Agreement.
10. Termination.
(a) This Agreement may be terminated with respect to
the Firm Securities or any Option Securities in the sole discretion of
the Underwriter by notice to the Trust given prior to the Firm Closing
Date or the related Option Closing Date, respectively, in the event
that the Trust shall have failed, refused or been unable to perform
all obligations and satisfy all conditions on its part to be performed
or satisfied hereunder at or prior thereto or, if at or prior to the
Firm Closing Date or such Option Closing Date, respectively,
(i) the Trust and the Subsidiaries as a whole
shall have, in the sole judgment of the Underwriter, sustained
any material loss or interference with its businesses or
properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance or from any labor
dispute or any legal or governmental proceeding or there shall
have been any material adverse change, or any development
involving a prospective material adverse change (including
without limitation a material change in the executive management
or control of the Trust), in the condition (financial or
otherwise), business prospects, net worth or results of
operations of the Trust and its subsidiaries, except in each case
as described in or contemplated by the Prospectus (exclusive of
any amendment or supplement thereto);
(ii) trading in the Trust Shares shall have been
suspended by the Commission or the New York Stock Exchange;
(iii) trading in securities generally on the New
York Stock Exchange shall have been suspended or minimum or
maximum prices shall have been established on such exchange;
(iv) a banking moratorium shall have been declared
by New York or United States authorities; or
(v) there shall have been (A) an outbreak or
escalation of hostilities between the United States and any
foreign power, (B) an outbreak or escalation of any other
insurrection or armed conflict involving the United States or
(C) any other calamity or crisis or material adverse change in
general economic, political or financial conditions having an
effect on the U.S. financial markets that, in the sole judgment
of the Underwriter, makes it impractical or inadvisable to
proceed with the public offering or the delivery of the
Securities as contemplated by the Registration Statement, as
amended as of the date hereof.
(b) Termination of this Agreement pursuant to this
Section 10 shall be without liability of any party to any other party
except as provided in Section 9 hereof.
11. Information Supplied by Underwriter. The statements
set forth in the last paragraph on the front cover page and under the
heading "Underwriting" in any Preliminary Prospectus, the Prospectus
or any Integrated Prospectus (to the extent such statements relate to
the Underwriter) constitute the only information furnished by the
Underwriter to the Trust for the purposes of Sections 2(b) and 8(b)
hereof. The Underwriter confirms that such statements (to such
extent) are correct.
12. Notices. All communications hereunder shall be in
writing and, if sent to any of the Underwriter, shall be delivered or
sent by mail, telex or facsimile transmission and confirmed in writing
to Prudential Securities Incorporated, ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Equity Transactions Group; and if sent to
the Trust, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to the Trust at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
13. Successors. This Agreement shall inure to the benefit
of and shall be binding upon the Underwriter, the Trust and their
respective successors and legal representatives, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof
being intended to be and being for the sole and exclusive benefit of
such persons and for the benefit of no other person except that (i)
the indemnities of the Trust contained in Section 8 of this Agreement
shall also be for the benefit of any person or persons who control the
Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act and (ii) the indemnities of the Underwriter
contained in Section 8 of this Agreement shall also be for the benefit
of the trustees of the Trust, the officers of the Trust who have
signed the Registration Statement and any person or persons who
control the Trust within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act. No purchaser of Securities from the
Underwriter shall be deemed a successor because of such purchase.
14. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE
STATE OF NEW YORK, EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY
LAW) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. THE TRUST, ON
BEHALF OF ITSELF AND THE SUBSIDIARIES, HEREBY IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT
OF ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF
THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF
LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT. THE TRUST, ON BEHALF OF ITSELF AND THE
SUBSIDIARIES, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
15. Counterparts. 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.
16. 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, and neither the trustees,
officers nor shareholders of the Trust shall be bound or have any
personal liability hereunder or thereunder. The Underwriter shall
look solely to the assets of the Trust for satisfaction of any
liability of the Trust with respect to this Agreement and all
documents, agreements, understandings and arrangements relating hereto
and will not seek recourse or commence any action against any of the
trustees, officers or shareholders of the Trust or any of their
personal assets for the performance or payment of any obligation
hereunder or thereunder.
If the foregoing correctly sets forth our
understanding, please indicate your acceptance thereof in the space provided
below for that purpose, whereupon this letter shall constitute an agreement
binding the Trust and the Underwriter.
Very truly yours,
GLIMCHER REALTY TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
GLIMCHER PROPERTIES LIMITED
PARTNERSHIP,
By: Glimcher Properties Corporation,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ ▇▇▇▇-▇▇▇▇▇▇ Canfin
--------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇ Canfin
Title: Managing Director
EXHIBIT 2(g)
[Encumbered Equity Interests]