Exhibit 1.4
PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP
(a Maryland limited partnership)
$100,000,000 7.29% Senior Notes due 2008
PURCHASE AGREEMENT
Dated: March 6, 1998
Table of Contents
Page
SECTION 1.Representations and Warranties. 3
(a) Representations and Warranties by the
Operating Partnership and JP Realty 3
(i) Compliance with Registration
Requirements 3
(ii) Incorporated Documents 4
(iii) Good Standing of the Operating Partnership 4
(iv) Good Standing of JP Realty 5
(v) Good Standing of Subsidiaries 5
(vi) Capitalization 5
(vii) Absence of Proceedings 6
(viii) Absence of Violations and Defaults 6
(ix) Absence of Further Requirements and Conflicts 6
(x) Independent Accountants 7
(xi) Financial Statements 7
(xii) Authorization of the Indenture 8
(xiii) Authorization of the Securities 8
(xiv) Description of the Securities and the
Indenture 8
(xv) Authorization of this Agreement. 9
(xvi) Qualification as a REIT 9
(xvii) No Material Adverse Change in Business 9
(xviii) Title Insurance 9
(xix) Insurance 9
(xx) Title to Property 10
(xxi) Possession of Licenses and Permits 10
(xxii) Maintenance of Internal Accounting Controls 10
(xxiii) Investment Company 11
(xxiv) Environmental Laws 11
(b) Officer's Certificates 11
SECTION 2. Sale and Delivery to Underwriters; Closing. 11
(a) Securities 11
(b) Payment 12
(c) Denominations; ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇
(▇) Filing Prospectus Supplement 13
(b) Compliance with Securities Regulations
and Commission Requests 13
(c) Delivery of Registration Statements 13
(d) Filing of Amendments 14
(e) Delivery of Prospectuses; Continued
Compliance with Securities Laws 14
(f) Rule 158 15
(g) Use of Proceeds 15
(h) Reporting Requirements 15
SECTION 4. Payment of Expenses 15
(a) Expenses 15
(b) Termination of Agreement 16
SECTION 5. Conditions of Underwriters' Obligations 16
(a) Effectiveness of Registration Statement;
Filing of Prospectus Supplement 16
(b) Opinions of Counsel 17
(c) Accountant's Comfort Letter 25
(d) Bring-down Comfort Letter 26
(e) Officers' Certificate 26
(f) Additional Documents 26
(g) Maintenance of Rating 26
SECTION 6. Indemnification 27
(a) Indemnification of Underwriters 27
(b) Indemnification of JP Realty and the
Operating Partnership 29
(c) Actions against Parties; Notification 29
(d) Settlement without Consent if Failure
to Reimburse 30
SECTION 7. Contribution 30
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery 32
SECTION 9. Termination of Agreement 32
(a) Termination; General 32
(b) Liabilities 33
SECTION 10. Default by One or More of the Underwriters 33
SECTION 11. Notices 34
SECTION 12. Parties 34
SECTION 13. GOVERNING LAW AND TIME. 35
SECTION 14. Effect of Headings 35
SCHEDULE IS-1
Schedule IIS-2
Exhibit A-1
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP
(a Maryland limited partnership)
$100,000,000 7.29% Senior Notes due 2008
PURCHASE AGREEMENT
March 6, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
UBS SECURITIES LLC
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇ ▇▇▇▇▇
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Each of Price Development Company, Limited Partnership,
a Maryland
limited partnership (the "Operating Partnership"), and JP Realty,
Inc., a
Maryland corporation and the general partner of the Operating
Partnership ("JP
Realty"), confirms its agreement with the several Underwriters
named in
Schedule I hereto (collectively, the "Underwriters," which term
shall also
include any underwriter substituted as hereinafter provided in
Section 10
hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") is acting as representative (in such
capacity,
the "Representative"), with respect to the issue and sale by the
Operating
Partnership and the purchase by the Underwriters, acting severally
and not
jointly, of the respective principal amounts set forth in Schedule
I of
$100,000,000 aggregate principal amount of the Operating
Partnership's 7.29%
Senior Notes due 2008 (the "Securities"). The Securities are to be
issued
pursuant to an indenture, dated as of March 11, 1998 between the
Operating
Partnership and The Chase Manhattan Bank, as trustee (the
"Trustee"), as
supplemented by the First Supplemental Indenture, dated as of March
11, 1998
(as supplemented, the "Indenture").
Each of the Operating Partnership and JP Realty
understands that the
Underwriters propose to make a public offering to institutional
purchasers of
the Securities as soon as the Representative deems advisable after
this
Agreement has been executed and delivered and the Indenture has
been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act").
JP Realty and the Operating Partnership have filed with
the
Securities and Exchange Commission (the "Commission") a
registration statement
on Form S-3 (Nos. 333-34835 and 333-34835-01), including a
prospectus relating
to the Securities and other securities of JP Realty and the
offering thereof
from time to time in accordance with Rule 415 under the Securities
Act of
1933, as amended (the "1933 Act"). Such registration statement has
been
declared effective by the Commission. The Operating Partnership
proposes to
file with the Commission pursuant to Rule 424 under the 1933 Act a
prospectus
supplement reflecting the terms of the offering of the Securities
and certain
other matters set forth therein. Such prospectus supplement, in
the form
first filed after the date hereof pursuant to Rule 424, is herein
referred to
as the "Prospectus Supplement." Such registration statement, as
amended at the
date hereof, including all documents incorporated or deemed to be
incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act and
the exhibits thereto, is herein referred to as the "Registration
Statement"
and the basic prospectus included therein and relating to all
offerings of
securities under the Registration Statement, as supplemented by the
Prospectus
Supplement, is herein referred to as the "Prospectus," except that
if such
basic prospectus is amended or supplemented on or prior to the date
on which
the Prospectus Supplement is first filed pursuant to Rule 424, the
term
"Prospectus" shall refer to the basic prospectus as so amended or
supplemented
and as supplemented by the Prospectus Supplement, in either case
including the
documents filed by JP Realty and the Operating Partnership with the
Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"),
that are incorporated by reference therein. As used herein, the
term
"Incorporated Documents" means the documents which at the time are
incorporated by reference in the Registration Statement, the
Prospectus
Supplement, the Prospectus, or any amendment or supplement thereto.
All references in this Agreement to financial statements
and
schedules and other information which is "contained," "included,"
"stated,"
"described" or "disclosed" in the Registration Statement or the
Prospectus (or
other references of like import) shall be deemed to mean and
include all such
financial statements and schedules and other information which is
or is deemed
to be incorporated by reference in the Registration Statement or
the
Prospectus, as the case may be, and all references in this
Agreement to
amendments or supplements to the Registration Statement, if any, or
the
Prospectus shall be deemed to mean and include, without limitation,
any
document filed under the 1934 Act which is or is deemed to be
incorporated by
reference in the Registration Statement or the Prospectus, as the
case may be.
The term "Subsidiaries" when used with respect to JP
Realty shall
mean Price Financing Partnership, L.P., a Delaware limited
partnership (the
"Financing Partnership"), the partnerships in which the Operating
Partnership
and JP Realty own legal or beneficial general or limited
partnership interests
(the "Surviving Partnerships"), Price GP Corp., a Delaware
corporation, Price
Capital Corp., a Delaware corporation, BTS Properties, L.C., a Utah
limited
liability company and any partnership in which JP Realty, directly
or
indirectly, owns a limited or general partner interest. The
Surviving
Partnerships, the Operating Partnership and the Financing
Partnership are
collectively referred to as the "Partnerships."
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Operating
Partnership and JP Realty. Each of the Operating Partnership and
JP Realty
represents and warrants to each Underwriter as of the date hereof
and as of
the Closing Time referred to in Section 2(b) hereof, and agrees
with each
Underwriter as follows:
(i) Compliance with Registration Requirements. Each of
the
Operating Partnership, JP Realty and the transactions contemplated
by this
Agreement meet the requirements for using Form S-3 under the 1933
Act. The
Registration Statement in the form in which it became effective and
also in
such form as it may be when any post-effective amendment thereto
shall become
effective and the Prospectus and any supplement or amendment
thereto,
including the Prospectus Supplement, when filed with the Commission
under Rule
2
424(b) under the 1933 Act and at Closing Time, complied and will
comply in all
material respects with the provisions of the 1933 Act and does not
and will
not at any such times contain an untrue statement of a material
fact or omit
to state a material fact required to be stated therein or necessary
to make
the statements therein (in the case of the Prospectus and
Prospectus
Supplement, in the light of the circumstances under which they were
made) not
misleading, except that this representation and warranty does not
apply to
statements in or omissions from the Registration Statement or the
Prospectus
or any supplement or amendment thereto made in reliance upon and in
conformity
with information relating to the Underwriters furnished to the
Operating
Partnership or JP Realty in writing by or on behalf of the
Underwriters
expressly for use therein.
(ii) Incorporated Documents. The Incorporated Documents
heretofore
filed, when they were filed (or, if any amendment with respect to
any such
document was filed, when such amendment was filed), conformed in
all material
respects with the requirements of the 1933 Act and the 1934 Act and
the rules
and regulations thereunder; any further Incorporated Documents so
filed will,
when they are filed, conform in all material respects with the
requirements of
the 1933 Act and the 1934 Act and the rules and regulations
thereunder; and no
such document when it was filed (or, if an amendment with respect
to any such
document was filed, when such amendment was filed), contained an
untrue
statement of a material fact or omitted to state a material fact
required to
be stated therein or necessary in order to make the statements
therein, in the
light of the circumstances in which they were made, not misleading.
(iii) Good Standing of the Operating Partnership. The
Operating
Partnership is a limited partnership duly organized, validly
existing and in
good standing under the laws of the State of Maryland, with full
power and
authority to own, lease and operate its properties and to conduct
its business
as described in the Registration Statement and the Prospectus, and
is duly
registered or qualified to conduct its business and is in good
standing in
each jurisdiction or place where the nature of its properties or
the conduct
of its business requires such registration or qualification, except
where the
failure so to register or qualify would not have a material adverse
effect on
the condition (financial or other), business, properties, net worth
or results
of operations of the Operating Partnership, JP Realty and the
Subsidiaries
taken as a whole (a "Material Adverse Effect"); and all of the
partnership
interests in the Operating Partnership are validly issued and fully
paid.
(iv) Good Standing of JP Realty. JP Realty is a
corporation duly
organized and validly existing in good standing under the laws of
the State of
Maryland with full corporate power and authority to own, lease and
operate its
properties and to conduct its business as described in the
Registration
3
Statement and the Prospectus, and is duly registered and qualified
to conduct
its business and is in good standing in each jurisdiction or place
where the
nature of its properties or the conduct of its business requires
such
registration or qualification, except where the failure so to
register or
qualify would not have a Material Adverse Effect.
(v) Good Standing of Subsidiaries. The Partnerships,
Price Capital
Corp., Price GP Corp. and BTS Properties, L.C. constitute all of JP
Realty's
subsidiaries. Each Subsidiary (other than the Operating
Partnership which is
covered in paragraph (iii) above) is a general or limited
partnership or
corporation duly organized, validly existing and in good standing
in the
jurisdiction of its organization, with full power and authority to
own, lease
and operate its properties and to conduct its business as described
in the
Registration Statement and the Prospectus, and is duly registered
or qualified
to conduct its business and is in good standing in each
jurisdiction or place
where the nature of its properties or the conduct of its business
requires
such registration or qualification, except where the failure so to
register or
qualify would not have a Material Adverse Effect; all the
outstanding shares
of capital stock of each of the Subsidiaries that is a corporation
have been
duly authorized and validly issued, are fully paid and
nonassessable, all of
the partnership interests in each Subsidiary that is a partnership
are validly
issued and fully paid; and except as described in the Registration
Statement,
the Prospectus (and any amendment or supplement thereto), including
in any
Incorporated Document, and Exhibit A hereto, all of such shares and
interests
in the Subsidiaries owned by the Operating Partnership and JP
Realty are owned
by the Operating Partnership and JP Realty directly, or indirectly
through one
of the other Subsidiaries, free and clear of any lien, adverse
claim, security
interest, equity or other encumbrance.
(vi) Capitalization. The authorized, issued and
outstanding
capitalization of the Operating Partnership is as set forth in the
Prospectus
under "Capitalization."
(vii) Absence of Proceedings. There are no legal or
governmental
proceedings pending or, to the knowledge of the Operating
Partnership and JP
Realty, threatened, against the Operating Partnership, JP Realty or
any of the
Subsidiaries, or to which the Operating Partnership, JP Realty or
any of the
Subsidiaries, or to which any of their respective properties is
subject, that
are required to be described in the Registration Statement or the
Prospectus
but are not described as required, and there are no agreements,
indentures,
leases or other instruments that are required to be described in
the
Registration Statement or the Prospectus or to be filed as an
exhibit to the
Registration Statement or any Incorporated Document that are not
described or
filed as required by the 1933 Act or the ▇▇▇▇ ▇▇▇.
4
(viii) Absence of Violations and Defaults. None of the
Operating
Partnership, JP Realty or any of the Subsidiaries is (i) in
violation of its
certificate or articles of incorporation, by-laws, partnership
agreements, or
other organizational documents, or (ii) in violation of any
applicable law,
ordinance, administrative or governmental rule or regulation or of
any decree
of any court or governmental agency or body having jurisdiction
over the
Operating Partnership, JP Realty or any of the Subsidiaries, or
(iii) in
default in the performance of any material obligation, agreement or
condition
contained in any bond, debenture, note or any other evidence of
indebtedness
or in any material agreement, indenture, lease or other instrument
to which
the Operating Partnership, JP Realty or any of the Subsidiaries is
a party or
by which any of them or any of their respective properties may be
bound, which
violation or default, in the case of clauses (ii) and (iii) would
have a
Material Adverse Effect.
(ix) Absence of Further Requirements and Conflicts.
Neither the
issuance and sale of the Securities, the execution, delivery or
performance of
this Agreement by the Operating Partnership and JP Realty nor the
consummation
by the Operating Partnership of the transactions contemplated
hereby (i)
requires any consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body,
administrative agency
or other governmental body, agency or official (except such as may
be required
for the registration of the Securities under the 1933 Act and the
1934 Act,
all of which have been or will be effected in accordance with this
Agreement
and except for qualification of the Indenture under the 1939 Act),
(ii)
conflicts or will conflict with or constitutes or will constitute
a breach of,
or a default under, the certificate or articles of incorporation,
by-laws,
partnership agreements, or other organizational documents, of the
Operating
Partnership, JP Realty or any of the Subsidiaries or (iii)
conflicts or will
conflict with or constitutes or will constitute a breach of, or a
default
under, any agreement, indenture, lease or other instrument to which
the
Operating Partnership, JP Realty or any of the Subsidiaries is a
party or by
which any of them or any of their respective properties may be
bound, or will
result in the creation or imposition of any lien, charge or
encumbrance upon
any property or assets of the Operating Partnership, JP Realty or
any of the
Subsidiaries pursuant to the terms of any agreement or instrument
to which any
of them is a party or by which any of them may be bound or to which
any of the
property or assets of any of them is subject.
(x) Independent Accountants. The accountants, Price
Waterhouse
LLP, who have certified the financial statements included or
incorporated by
reference in the Registration Statement and the Prospectus (or any
amendment
or supplement thereto) are independent public accountants as
required by the
1933 Act.
(xi) Financial Statements. The financial statements,
together with
related schedules and notes, included or incorporated by reference
in the
Registration Statement and the Prospectus (and any amendment or
supplement
thereto), present fairly in all material respects the consolidated
financial
position, results of operations and changes in financial position
of the
Operating Partnership and its Subsidiaries on the basis stated in
the
Registration Statement at the respective dates or for the
respective periods
to which they apply; and such statements and related schedules and
notes have
been prepared in accordance with generally accepted accounting
principles
consistently applied throughout the periods involved, except as
disclosed
therein. The pro forma financial statements included and/or
incorporated by
reference in the Registration Statement and the Prospectus, and
other pro
5
forma financial information, if any, included and/or incorporated
therein
comply in all material respects with the applicable accounting
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
that data and the assumptions used in the preparation thereof are
reasonable.
(xii) Authorization of the Indenture. The Indenture has
been duly
authorized by JP Realty on behalf of the Operating Partnership and
duly
qualified under the 1939 Act and, when duly executed and delivered
by the
Operating Partnership and the Trustee, will constitute a valid and
binding
agreement of the Operating Partnership, enforceable against the
Operating
Partnership in accordance with its terms, except as the enforcement
thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all
laws relating to fraudulent transfers), reorganization, moratorium
or similar
laws affecting enforcement of creditors' rights generally and
except as
enforcement thereof is subject to general principles of equity
(regardless of
whether enforcement is considered in a proceeding in equity or at
law).
(xiii) Authorization of the Securities. The Securities
have been
duly authorized by JP Realty on behalf of the Operating Partnership
and, at
the Closing Time, will have been duly executed by the Operating
Partnership.
Such Securities, when authenticated, issued and delivered in the
manner
provided for in the Indenture and delivered against payment of the
purchase
price therefor as provided in this Agreement, will constitute valid
and
binding obligations of the Operating Partnership, enforceable
against the
Operating Partnership in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors'
rights generally and except as enforcement thereof is subject to
general
principles of equity (regardless of whether enforcement is
considered in a
proceeding in equity or at law), and will be in the form
contemplated by, and
entitled to the benefits of, the Indenture.
(xiv) Description of the Securities and the Indenture.
The
Securities and the Indenture will conform in all material respects
to the
respective statements relating thereto contained in the Prospectus
and will be
in substantially the respective forms filed or to be filed with the
Commission.
(xv) Authorization of this Agreement. This Agreement
has been
duly authorized by JP Realty on its own behalf and on behalf of the
Operating Pa
rtnership, and has been duly executed and delivered by each of the
Operating
Partnership and JP Realty.
6
(xvi) Qualification as a REIT. JP Realty is organized
in
conformity with the requirements for qualification as a real estate
investment
trust under the Internal Revenue Code of 1986, as amended (the
"Code"), and
the present and contemplated method of operation of JP Realty and
the
Operating Partnership does and will enable JP Realty to meet the
requirements
for taxation as a real estate investment trust under the Code.
(xvii) No Material Adverse Change in Business. Except
as disclosed
in the Registration Statement and the Prospectus, subsequent to the
respective
dates as of which such information is given in the Registration
Statement and
the Prospectus, none of the Operating Partnership, JP Realty or any
of the
Subsidiaries has incurred any liability or obligation, direct or
contingent,
or entered into any transaction, not in the ordinary course of
business, that
is material to the Operating Partnership, JP Realty and the
Subsidiaries taken
as a whole, and there has not been any material change in the
capitalization,
or material increase in the short-term debt or long-term debt, of
the
Operating Partnership or JP Realty and the Subsidiaries taken as a
whole, or
any material adverse change in the condition (financial or other),
business,
net worth or results of operations of the Operating Partnership, JP
Realty and
the Subsidiaries taken as a whole.
(xviii) Title Insurance. The Operating Partnership and
each of the
other Partnerships has title insurance (ALTA extended coverage of
ALTA Form 9)
on all properties and assets described in the Prospectus as owned
by it in an
amount at least equal to the sum of (a) the cost of acquisition of
such
property or assets and (b) the cost of construction of the
improvements on
such properties at the time of acquisition.
(xix) Insurance. Each of the Operating Partnership and
JP Realty
is insured by insurers of recognized financial responsibility
against such
losses and risks and in such amounts as are prudent and customary
in the
business in which it is engaged or proposes to engage; neither the
Operating
Partnership nor JP Realty has been refused any insurance coverage
sought or
applied for; and neither the Operating Partnership nor JP Realty
has reason to
believe that it will not be able to renew its existing insurance
coverage as
and when such coverage expires or to obtain similar coverage from
similar
insurers as may be necessary to continue its business at a cost
that would not
have a Material Adverse Effect.
(xx) Title to Property. The Operating Partnership, JP
Realty and
the Subsidiaries have good and marketable title to all property
(real and
personal) listed in the Prospectus or in the Incorporated Documents
as being
owned by it, free and clear of all liens, claims, security
interests or other
encumbrances; except, such as are described in the Registration
Statement and
the Prospectus or in the Incorporated Documents or in any document
filed as an
exhibit to the Registration Statement, and such as do not
materially impair
the value of, or will not result in the forfeiture or reversion of
the title
7
to, such property. All the property described in the Prospectus as
being held
under lease by the Operating Partnership, JP Realty or the
Subsidiaries is
held by it under valid, subsisting and enforceable leases.
(xxi) Possession of Licenses and Permits. The Operating
Partnership, JP Realty and the Subsidiaries, directly or
indirectly, possess
such certificates, authorities or permits issued by the appropriate
state,
federal or foreign regulatory agencies or bodies necessary to
conduct the
business now operated by them (except for such certificates,
authorities or
permits that would not have a Material Adverse Effect), as
described in the
Prospectus, and none of the Operating Partnership, JP Realty or any
of the
Subsidiaries has received any notice of proceedings relating to the
revocation
or modification of any such certificate, authority or permit which,
singly or
in the aggregate, if the subject of an unfavorable decision, ruling
or
finding, would have a Material Adverse Effect.
(xxii) Maintenance of Internal Accounting Controls. JP
Realty
maintains a system of internal accounting controls sufficient to
provide
reasonable assurances that (i) transactions are executed in
accordance with
management's general or specific authorization; (ii) transactions
are recorded
as necessary to permit preparation of financial statements in
conformity with
generally accepted accounting principles and to maintain
accountability for
assets; and (iii) access to assets is permitted only in accordance
with
management's general or specific authorization.
(xxiii) Investment Company. The Operating Partnership
is not now,
and, after sale of the Securities as provided hereunder and
application of the
net proceeds from such sale as described in the Prospectus under
the caption
"Use of Proceeds," will not be, an "investment company" within the
meaning of
the Investment Company Act of 1940, as amended.
(xxiv) Environmental Laws. To the best of their
knowledge, except
as described in the Registration Statement and Prospectus, the
Operating
Partnership, JP Realty and the Subsidiaries (i) are in compliance
with any and
all applicable foreign, federal, state and local laws and
regulations relating
to the protection of human health and safety, the environment,
hazardous or
toxic substances or wastes, pollutants or contaminants
("Environmental Laws"),
(ii) have received all permits, licenses or other approvals under
applicable
Environmental Laws required in connection with their businesses,
properties or
assets as conducted or contemplated to be conducted as described in
the
Registration Statement, and (iii) are in compliance with all terms
and
conditions of any such permit, license or approval, except where
such
noncompliance with Environmental Laws, failure to receive required
permits,
licenses or other approvals or failure to comply with the terms and
conditions
of such permits, licenses or approvals would not, singly or in the
aggregate,
have a Material Adverse Effect.
8
(b) Officer's Certificates. Any certificate
signed by any
officer of the Operating Partnership, JP Realty or any of the
Subsidiaries
delivered to the Representative or to counsel for the Underwriters
shall be
deemed a representation and warranty to each Underwriter as to the
matters
covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the
representations and
warranties herein contained and subject to the terms and conditions
herein set
forth, the Operating Partnership agrees to sell to each
Underwriter, severally
and not jointly, and each Underwriter, severally and not jointly,
agrees to
purchase from the Operating Partnership, at the price set forth in
Schedule II
hereto, the aggregate principal amount of Securities set forth in
Schedule I
hereto opposite the name of such Underwriter plus any additional
number of
Securities that such Underwriter may become obligated to purchase
pursuant to
the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for,
and delivery
of certificates for, the Securities shall be made at the offices of
Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇,
or at such other place as shall be agreed upon by the
Representative and the
Operating Partnership, at 9:00 a.m. (New York time) on the third
(fourth, if
the pricing occurs after 4:30 p.m. (New York time) on any given
day) business
day after the date hereof (unless postponed in accordance with the
provisions
of Section 10), or such other time not later than ten business days
after such
date as shall be agreed upon by the Representative and the
Operating
Partnership (such time and date of payment and delivery being
herein called
"Closing Time").
Payment shall be made to the Operating Partnership
by wire
transfer of immediately available funds to a bank account
designated by the
Operating Partnership, against delivery to the Representative for
the
respective accounts of the Underwriters of the Securities to be
purchased by
them. It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt
for, and make
payment of the purchase price for, the Securities which it has
severally
agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representative of
the Underwriters, may (but shall not be obligated to) make payment
of the
purchase price for the Securities to be purchased by any
Underwriter whose
funds have not been received by the Closing Time, but such payment
shall not
relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates
for the
Securities shall be in such denominations ($1,000 or integral
multiples
thereof) and registered in such names as the Representative may
request in
writing at least one full business day before the Closing Time.
The
Securities will be made available for examination and packaging by
the
Representative in the City of New York not later than 10:00 a.m.
(New York
time) on the business day prior to the Closing Time.
SECTION 3. Covenants. Each of the Operating Partnership
and JP
Realty covenants with each Underwriter as follows:
9
(a) Filing Prospectus Supplement. The Operating
Partnership will prepare, and file or transmit for filing with the
Commission
in accordance with Rule 424(b) of the 1933 Act Regulations, a
Prospectus
Supplement relating to the Securities, and will file such
Prospectus
Supplement with the Commission within the time period prescribed by
Rule
424(b).
(b) Compliance with Securities Regulations and
Commission
Requests. The Operating Partnership will advise you promptly and,
if
requested by you, will confirm such advice in writing: (i) of any
request by
the Commission for amendment of or a supplement to the Registration
Statement
or the Prospectus or for additional information; (ii) of the
issuance by the
Commission of any stop order suspending the effectiveness of the
Registration
Statement or of the suspension of qualification of the Securities
for offering
or sale in any jurisdiction or the initiation of any proceeding for
such
purpose; and (iii) within the period of time referred to in
paragraph (e)
below, of any change in either of the Operating Partnership's or JP
Realty's
condition (financial or other), business, properties, net worth or
results of
operations, or of the happening of any event, which makes any
statement of a
material fact made in the Registration Statement or the Prospectus
(as then
amended or supplemented) untrue or which requires the making of any
additions
to or changes in the Registration Statement or the Prospectus (as
then amended
or supplemented) in order to state a material fact required by the
1933 Act to
be stated therein or necessary in order to make the statements
therein not
misleading, or of the necessity to amend or supplement the
Prospectus (as then
amended or supplemented) to comply with the 1933 Act or any other
law. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Operating
Partnership and JP
Realty will use reasonable efforts to obtain the withdrawal of such
order at
the earliest possible time.
(c) Delivery of Registration Statements. The
Operating
Partnership will furnish or make available to you, without charge
(i) one
conformed copy of the Registration Statement as originally filed
with the
Commission and of each amendment thereto, including financial
statements and
all exhibits to the Registration Statement, (ii) such number of
conformed
copies of the Registration Statement as originally filed and of
each amendment
thereto, but without exhibits, as you may request, (iii) such
number of copies
of the Incorporated Documents, without exhibits, as you may
request, and (iv)
one copy of the exhibits to the Incorporated Documents. The copies
of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted
copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent
permitted by Regulation S-T.
10
(d) Filing of Amendments. The Operating
Partnership and JP
Realty will not file any amendment to the Registration Statement or
make any
amendment or supplement to the Prospectus or, prior to the end of
the period
of time referred to in the first sentence in subsection (e) below,
file any
document which, upon filing becomes an Incorporated Document, of
which you
shall not previously have been advised or to which, after you shall
have
received a copy of the document proposed to be filed, you shall
reasonably
object within 24 hours of receipt.
(e) Delivery of Prospectuses; Continued Compliance
with
Securities Laws. As soon as possible after the execution and
delivery of this
Agreement and thereafter from time to time for such period as in
the opinion
of counsel for the Underwriters a prospectus is required by the
1933 Act to be
delivered in connection with sales by the Underwriters or any
dealer, the
Operating Partnership will expeditiously deliver to the
Underwriters and each
dealer, without charge, as many copies of the Prospectus (and of
any amendment
or supplement thereto) as you may request. The Operating
Partnership consents
to the use of the Prospectus (and of any amendment or supplement
thereto) in
accordance with the provisions of the 1933 Act and with the
securities or Blue
Sky laws of the jurisdictions in which the Securities are offered
by the
Underwriters and by all dealers to whom Securities may be sold,
both in
connection with the offering and sale of the Securities and for
such period of
time thereafter as the Prospectus is required by the 1933 Act to be
delivered
in connection with sales by any Underwriter or dealer. If during
such period
of time any event shall occur that in the judgment of the Operating
Partnership or in the opinion of counsel for the Underwriters is
required to
be set forth in the Prospectus (as then amended or supplemented) or
should be
set forth therein in order to make the statements therein, in the
light of the
circumstances under which they were made, not misleading, or if it
is
necessary to supplement or amend the Prospectus (or to file under
the 1934 Act
any document which, upon filing, becomes an Incorporated Document)
in order to
comply with the 1933 Act or any other law, the Operating
Partnership will
forthwith prepare and, subject to the provisions of paragraph (d)
above, file
with the Commission an appropriate supplement or amendment thereto,
and will
expeditiously furnish to the Underwriters and dealers a reasonable
number of
copies thereof. In the event that the Operating Partnership and
you agree
that the Prospectus should be amended or supplemented, the
Operating
Partnership, if requested by you, will promptly issue a press
release
announcing or disclosing the matters to be covered by the proposed
amendment
or supplement. The Prospectus and any amendments or supplements
thereto
furnished to the Underwriters will be identical to the
electronically
transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(f) Rule 158. The Operating Partnership will make
generally
available to its security holders as soon as practicable, but no
later than 90
days after the close of the Operating Partnership's fiscal year, an
earning
statement (in form complying with the provisions of Rule 158 of the
▇▇▇▇ ▇▇▇)
covering a twelve-month period beginning not later than the first
of the
Operating Partnership's fiscal quarters next following the date on
which the
Prospectus Supplement is filed with the Commission pursuant to Rule
424(b)
under the 1933 Act.
11
(g) Use of Proceeds. The Operating Partnership
will apply the
net proceeds from the sale of the Securities to be sold by it
hereunder in
accordance with the description set forth in the Prospectus.
(h) Reporting Requirements. The Operating
Partnership and JP
Realty, during the period when the Prospectus is required to be
delivered in
connection with sales of the Securities under the 1933 Act, will
each file all
documents required to be filed with the Commission pursuant to
Section 13, 14,
or 15 of the 1934 Act within the time periods required by the 1934
Act and the
rules and regulations thereunder.
SECTION 4. Payment of Expenses. (a) Expenses. The
Operating
Partnership will pay all expenses incident to the performance of
its
obligations under this Agreement, including (i) the preparation and
filing of
the Registration Statement (including financial statements and
exhibits) as
originally filed and of each amendment thereto, (ii) the printing
(or
reproduction) and delivery to the Underwriters of this Agreement
relating to
the Securities, any Agreement among Underwriters, the Indenture and
such other
documents as may be required in connection with the offering,
purchase, sale,
issuance or delivery of the Securities, (iii) the preparation,
issuance and
delivery of the certificates for the Securities to the
Underwriters, (iv) the
fees and disbursements of the Operating Partnership's counsel,
accountants and
other advisors, (v) the qualification of the Securities for
offering and sale
under the applicable securities laws and real estate syndication
laws of such
states and other jurisdictions of the United States as the
Representative
shall have designated, including filing fees and the reasonable
fees and
disbursements of counsel for the Underwriters in connection
therewith and in
connection with the preparation, printing and delivery of a Blue
Sky survey,
if any, and any supplement thereto, (vi) the printing (or
reproduction) and
delivery to the Underwriters of copies of the Registration
Statement as
originally filed and of each amendment thereto, of the preliminary
prospectus
and of the Prospectus and any amendments or supplements thereto,
(vii) the
fees and expenses of the Trustee, including the reasonable fees and
disbursements of counsel for the Trustee in connection with the
preparation of
the Indenture and the Securities, (viii) any fees payable in
connection with
the rating of the Securities, and (ix) the filing fees incident
to, and the
reasonable fees and disbursements of counsel to the Underwriters in
connection
with, a review by the National Association of Securities Dealers,
Inc. (the
"NASD") of the terms of the sale of the Securities, if any.
(b) Termination of Agreement. If this Agreement is
terminated
by the Representative in accordance with the provisions of Section
5 or
Section 9(a)(i) hereof, the Operating Partnership shall reimburse
the
Underwriters for all of their out-of-pocket expenses, including the
reasonable
fees and disbursements of counsel for the Underwriters.
12
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the several Underwriters hereunder are subject to
the accuracy,
as of the date hereof and at Closing Time, of the representations
and
warranties of the Operating Partnership and JP Realty herein
contained or in
certificates of any officer or other representative of the
Operating
Partnership, JP Realty or any Subsidiary delivered pursuant to the
provisions
hereof, to the performance by the Operating Partnership and JP
Realty of its
covenants and other obligations hereunder, and to the following
further
conditions:
(a) Effectiveness of Registration Statement;
Filing of
Prospectus Supplement. At Closing Time, no stop order suspending
the
effectiveness of the Registration Statement shall have been issued
under the
1933 Act or proceedings therefor initiated or, to the knowledge of
the
Operating Partnership or JP Realty, threatened by the Commission.
The
Prospectus Supplement shall have been transmitted to the Commission
for filing
pursuant to Rule 424(b) of the 1933 Act within the prescribed time
period, and
prior to Closing Time, the Operating Partnership and JP Realty
shall have
provided evidence reasonably satisfactory to the Representative of
such timely
filing.
(b) Opinions of Counsel.
(1) Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP. At Closing
Time, you shall
have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the
Operating
Partnership and JP Realty, dated as of Closing Time and addressed
to you to
the effect that:
(i) Each of Price GP Corp. and Price Capital Corp.
has been
duly incorporated and is validly existing as a corporation in good
standing
under the laws of the State of Delaware, with corporate power and
authority to
own, lease, and operate its properties and to conduct its business
as
described in the Prospectus; and all the outstanding shares of
capital stock
of each of Price GP Corp. and Price Capital Corp. have been duly
authorized
and validly issued, are fully paid and nonassessable. To the best
of such
counsel's knowledge, all of the issued and outstanding stock of
such
corporations are owned by JP Realty, directly or through
subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim
or equity.
(ii) The Financing Partnership is a limited
partnership duly
organized and validly existing in good standing under the laws of
the State of
Delaware, with full partnership power and authority to own, lease,
and operate
its properties and to conduct its business as described in the
Prospectus. To
the best of such counsel's knowledge, all of the issued and
outstanding
partner interests of the Financing Partnership are held of record
by the
Operating Partnership or Price GP Corp., in each case, free and
clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(iii) This Agreement has been duly authorized by JP
Realty, on
its own behalf and on behalf of the Operating Partnership, and has
been duly
executed and delivered by each of the Operating Partnership and JP
Realty.
13
(iv) The Indenture has been duly authorized by JP
Realty, on
behalf of the Operating Partnership and duly qualified under the
1939 Act and,
when duly executed and delivered by the Operating Partnership and
the Trustee,
will constitute a valid and binding agreement of the Operating
Partnership,
enforceable against the Operating Partnership in accordance with
its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency
(including, without limitation, all laws relating to fraudulent
transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors'
rights generally and except as enforcement thereof is subject to
general
principles of equity (regardless of whether enforcement is
considered in a
proceeding in equity or at law).
(v) The Securities have been duly authorized by JP
Realty on
behalf of the Operating Partnership and, at the Closing Time, will
have been
duly executed by the Operating Partnership and, when authenticated,
issued and
delivered in the manner provided for in the Indenture and delivered
against
payment of the purchase price therefor as provided in this
Agreement, will
constitute valid and binding obligations of the Operating
Partnership,
enforceable against the Operating Partnership in accordance with
their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency
(including, without limitation, all laws relating to fraudulent
transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors'
rights generally and except as enforcement thereof is subject to
general
principles of equity (regardless of whether enforcement is
considered in a
proceeding in equity or at law), and will be in the form
contemplated by, and
entitled to the benefits of, the Indenture.
(vi) The Securities and the Indenture conform as to
legal
matters in all material respects to the descriptions thereof
contained in the
Prospectus.
(vii) Neither the issuance and sale of the
Securities, the
execution, delivery or performance of this Agreement by each of the
Operating
Partnership and JP Realty nor the consummation by the Operating
Partnership
and JP Realty of the transactions contemplated hereby (A) requires
any
consent, approval, authorization or other order of or registration
or filing
with, any court, regulatory body, administrative agency or other
governmental
body, agency or official (except such as may be required for the
registration
of the Securities under the 1933 Act and the 1934 Act, all of which
have been
or will be effected in accordance with this Agreement and except
for
qualification of the Indenture under the ▇▇▇▇ ▇▇▇) or (B) conflicts
or will
conflict with or constitutes or will constitute a breach of, or a
default
under, the certificate or articles of incorporation, by-laws,
partnership
agreements, or other organizational documents, of the Operating
Partnership,
JP Realty, Price Capital Corp., Price GP Corp. or the Financing
Partnership.
(viii) The Registration Statement (except for the
financial
statements and the notes thereto and the schedules and other
financial data
included or incorporated by reference therein, as to which such
counsel need
not express any opinion) at the time of effectiveness thereof
complied as to
form in all material respects with the requirements of the 1933
Act; and to
the best of such counsel's knowledge, each of the Incorporated
Documents
(except for the financial statements and the notes thereto and the
schedules
and other financial data included therein, as to which counsel need
not
express any opinion) at the time of filing thereof with the
Commission or at
the time of effectiveness, as the case may be, complied as to form
in all
material respects with the 1934 Act and the rules and regulations
of the
Commission thereunder.
14
(ix) To the best of such counsel's knowledge (A)
other than as
described, incorporated by reference or contemplated in the
Registration
Statement or the Prospectus, there are no legal or governmental
proceedings
pending or threatened against each of the Operating Partnership and
JP Realty,
or to which each of the Operating Partnership and JP Realty is
subject, which
are required to be described in the Registration Statement or
Prospectus and
(B) there are no agreements, indentures, leases or other
instruments, that are
required to be described in the Registration Statement or
Prospectus or to be
filed as an exhibit to the Registration Statement or any
Incorporated Document
that are not described or filed as required.
(x) The information in the Prospectus under the
heading
"Federal Income Tax Considerations," to the extent that it
constitutes matters
of law, summaries of legal matters, documents or legal conclusions,
has been
reviewed by such counsel and is correct in all material respects.
(xi) JP Realty is organized in conformity with the
requirements for qualification as a real estate investment trust
under the
Code, and its present and proposed method of operation will enable
it to meet
the requirements for qualification and taxation as a real estate
investment
trust under the Code.
(xii) None of the Operating Partnership, JP Realty
or any of
the Subsidiaries is an "investment company" or an entity
"controlled" by an
"investment company" as such terms are defined in the Investment
Company Act
of 1940, as amended.
(xiii) Such counsel shall state that it has
received an order
of effectiveness from the staff of the Commission with respect to
the
Registration Statement, and, to the best of such counsel's
knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been
issued under the 1933 Act or proceedings thereof initiated or
threatened by
the Commission.
In rendering such opinion, such counsel may state
that they
express no opinion as to the laws of any jurisdiction other than
the laws of
the State of New York, the General Corporation Law of the State of
Delaware
and the federal laws of the United States. Such counsel may rely,
as to all
matters governed by the laws of jurisdictions other than the laws
of the State
of New York, the federal laws of the United States and the
corporate laws of
the State of Delaware, upon opinions of other counsel, who shall be
reasonably
satisfactory to counsel for the Underwriters, in which case the
opinion shall
also be addressed to the Underwriters. Such counsel may state that
they have
examined originals or copies, certified or otherwise identified of
such
records of the Operating Partnership, JP Realty and the
Subsidiaries,
certificates of public officials, certificates of officers or other
representatives of the Operating Partnership, JP Realty and the
Subsidiaries
and such other documents, certificates and records as they have
deemed
necessary or appropriate as a basis for their opinions. Such
counsel need
express no opinion as to the enforceability of forum selection
clauses in the
federal courts. For purposes of such opinion, the word
"subsidiaries," shall
not include the Surviving Partnerships.
(2) Opinion of ▇▇▇▇▇ ▇▇▇▇▇, Esq. You shall have
received the
favorable opinion, dated as of Closing Time, of ▇▇▇▇▇ ▇▇▇▇▇, Esq.,
Vice
President and General Counsel of JP Realty, in form and substance
satisfactory
to counsel for the Underwriters, to the effect that:
(i) To the best of such counsel's knowledge,
each of JP
Realty, Price GP Corp. and Price Capital Corp. is duly qualified as
a foreign
corporation to transact business and is in good standing in each
jurisdiction
in which such qualification is required, except where the failure
to so
qualify would not have a Material Adverse Effect.
15
(ii) To the best of such counsel's knowledge, each
of the
Operating Partnership and the Financing Partnership is duly
qualified as a
foreign limited partnership to transact business and is in good
standing in
each jurisdiction in which such qualification is required, except
where the
failure to so qualify would not have a Material Adverse Effect.
(iii) Each Surviving Partnership has been duly
organized and
is validly existing as a partnership in good standing under the
laws of the
state of its formation with power and authority to own, lease and
operate its
properties and to conduct its business as described in the
Prospectus; each
Surviving Partnership, to the best of such counsel's knowledge, is
duly
qualified to transact business and is in good standing in each
jurisdiction in
which such qualification is required, except where the failure to
so qualify
would not have a Material Adverse Effect; each partnership
agreement of the
Surviving Partnerships is in full force and effect; all of the
issued and
outstanding general and limited partner interests of the Surviving
Partnerships, to the best of such counsel's knowledge, are owned by
the
Operating Partnership, directly or through subsidiaries, free and
clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(iv) To the best of such counsel's knowledge, other
than as
described, incorporated by reference or contemplated in the
Registration
Statement or the Prospectus, there are no legal or governmental
proceedings
pending or threatened against the Subsidiaries, or to which the
Subsidiaries
or any of their property, is subject, which are required to be
described in
the Registration Statement or Prospectus.
(v) Neither the issuance and sale of the
Securities, the
execution, delivery or performance of this Agreement by the
Operating
Partnership and JP Realty nor the consummation by the Operating
Partnership
and JP Realty of the transactions contemplated hereby (A) conflicts
or will
conflict with or constitutes or will constitute a breach of, or a
default
under, the partnership agreements, or other organizational
documents, of BTS
Properties, L.C. or any Surviving Partnership or (B) conflicts or
will
conflict with or constitutes or will constitute a breach of, or a
default
under, any agreement, indenture, lease or other instrument known to
such
counsel to which the Operating Partnership, JP Realty or any of the
Subsidiaries is a party or by which any of them or any of their
respective
properties may be bound, or violates or will violate any statute,
law,
regulation or filing or judgement, injunction, order or decree
applicable to
the Operating Partnership, JP Realty or any of the Subsidiaries or
any of
their respective properties, or will result in the creation or
imposition of
any lien, charge or encumbrance upon any property or assets of the
Operating
Partnership, JP Realty or any of the Subsidiaries pursuant to the
terms of any
agreement or instruments known to such counsel to which any of them
is a party
or by which any of them may be bound or to which any of the
property or assets
of any of them is subject.
16
In rendering his opinion as aforesaid, such counsel may
state that
he expresses no opinion as to the laws of any jurisdiction other
than the laws
of the State where such counsel is admitted and the federal laws of
the United
States. Such counsel may rely, as to all matters governed by the
laws of
other jurisdictions and the federal laws of the United States, upon
opinions
of other counsel, who shall be reasonably satisfactory to counsel
for the
Underwriters, in which case the opinion shall also be addressed to
the
Underwriters. Such counsel may state that they have examined
originals or
copies, certified or otherwise identified of such records of the
Operating
Partnership, JP Realty and the Subsidiaries, certificates of public
officials,
certificates of officers or other representatives of the Operating
Partnership, JP Realty and the Subsidiaries and such other
documents,
certificates and records as they have deemed necessary or
appropriate as a
basis for their opinions.
(3) Opinion of Piper & Marbury L.L.P. You shall have
received the
favorable opinion, dated as of Closing Time, of Piper & Marbury
L.L.P.,
Maryland counsel for the Operating Partnership and JP Realty, in
form and
substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) JP Realty has been duly incorporated and is
validly
existing as a corporation in good standing under the laws of the
State of
Maryland and has the corporate power and authority to own, lease
and operate
its properties and to conduct its business as described in the
Prospectus and
to enter into and perform its obligations under this Agreement.
(ii) The Operating Partnership is a limited
partnership duly
organized and validly existing in good standing under the laws of
the State of
Maryland with partnership power and authority to own, lease and
operate its
properties and to conduct its business as described in the
Prospectus and to
enter into and perform its obligations under this Agreement;
assuming the
partnership agreement of the Operating Partnership has been
executed and
delivered by each of the partners thereto (either directly or by a
duly
authorized attorney-in-fact), the partnership agreement of the
Operating
Partnership is in full force and effect.
(iii) This Agreement has been duly authorized by JP
Realty, on
its own behalf and on behalf of the Operating Partnership and has
been duly
executed and delivered by each of the Operating Partnership and JP
Realty.
(iv) The execution, delivery and performance of
this
Agreement, consummation of the transactions contemplated herein and
compliance
by the Operating Partnership and JP Realty with their respective
obligations
hereunder will not result in any violation of the provisions of the
charter or
by-laws of JP Realty or the partnership agreement or certificate of
limited
partnership of the Operating Partnership, or any applicable law,
administrative regulation or, to such counsel's knowledge,
administrative or
court decree.
In rendering such opinion, such counsel may state
that they
express no opinion as to the laws of any jurisdiction other than
the laws of
the State of Maryland. Such counsel may state that they have
examined
originals or copies, certified or otherwise identified of such
records of the
Operating Partnership, JP Realty and its Subsidiaries, certificates
of public
officials, certificates of officers or other representatives of the
Operating
Partnership, JP Realty and its Subsidiaries and such other
documents,
certificates and records as they have deemed necessary or
appropriate as a
basis for their opinions.
17
(4) Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP.
You shall
have received the favorable opinion, dated as of Closing Time, of
Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, in
form and
substance satisfactory to the Underwriters.
(5) 10b-5 Opinion. In giving their opinions required
by
subsections (b)(1) and (b)(4), respectively, of this Section,
▇▇▇▇▇▇ & ▇▇▇▇▇
LLP and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall each
additionally state
that, based on conferences with officers or representatives of the
Operating
Partnership and JP Realty and the independent public accountants
for the
Operating Partnership and JP Realty at which the contents of the
Registration
Statement and Prospectus and related matters were discussed in
connection with
the preparation of the Prospectus and without independent
verification of the
facts, nothing has come to their attention that would lead them to
believe
that the Registration Statement (except for financial statements
and schedules
and other financial data included or incorporated by reference
therein, as to
which such counsel need make no statement), at the time it became
effective,
contained an untrue statement of a material fact or omitted to
state a
material fact required to be stated therein or necessary to make
the
statements therein not misleading or that the Prospectus (except
for financial
statements and schedules and other financial data included or
incorporated by
reference therein, as to which such counsel need make no
statement), at the
date of the Prospectus Supplement or at Closing Time, included or
includes an
untrue statement of a material fact or omitted or omits to state a
material
fact necessary in order to make the statements therein, in the
light of the
circumstances under which they were made, not misleading. In
providing such
opinion, such counsel may state that they do not assume any
responsibility for
the accuracy, completion or fairness of the statements contained in
the
Registration Statement or the Prospectus or any amendment or
supplement
thereto, except, with respect to ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP only, for
statements made
under the heading "Federal Income Tax Considerations."
(c) Accountant's Comfort Letter. At the time of
execution of
this Agreement, the Representative shall have received from Price
Waterhouse
LLP a letter dated such date, in form and substance satisfactory to
the
Representative, to the effect that (i) they are independent public
accountants
with respect to the Operating Partnership and JP Realty and its
Subsidiaries
within the meaning of the 1933 Act and the 1933 Act Regulations,
(ii) it is
their opinion that the financial statements and supporting
schedules included
or incorporated by reference in the Registration Statement and
covered by
their opinions therein comply as to form in all material respects
with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations, (iii) based upon limited procedures set forth in
detail in such
letter, and except as otherwise set forth in such letter, nothing
has come to
their attention which causes them to believe that (A) at a
specified date not
more than three days prior to the time of execution of this
Agreement, there
has been any change in the capitalization of the Operating
Partnership,
increase in total indebtedness or any decreases in net assets of
the Operating
Partnership and its subsidiaries as compared with the amounts shown
in the
most recent balance sheet included or incorporated by reference in
the
Registration Statement or, during the period from the date of the
most recent
balance sheet included or incorporated by reference in the
Registration
Statement to a specified date not more than three days prior to the
time of
execution of this Agreement, there were any decreases, as compared
with the
corresponding period in the preceding year, in revenues or net
income of the
Operating Partnership and its subsidiaries, except in all instances
for
changes, increases or decreases which the Registration Statement
and the
Prospectus disclose have occurred or may occur or (B) the unaudited
pro forma
financial statements included in the Registration Statement and the
Prospectus
do not comply as to form in all material respects with the
applicable
accounting requirements of Rule 11-02 of Regulation S-X of the
Commission or
that the pro forma adjustments have not been properly applied to
the
historical amounts in the compilation of such statements and (iv)
in addition
to the examination referred to in their opinion and the limited
procedures
referred to in clause (iii) above, they have carried out certain
specified
procedures, not constituting an audit, with respect to certain
amounts,
percentages and financial information included in the Registration
Statement
and Prospectus that are specified by the Representative, and have
found such
amounts, percentages and financial information to be in agreement
with the
relevant accounting, financial and other records of the Operating
Partnership
identified in such letter.
18
(d) Bring-down Comfort Letter. At Closing Time,
the
Representative shall have received from Price Waterhouse LLP a
letter, dated
as of Closing Time, to the effect that they reaffirm the statements
made in
the letter furnished pursuant to subsection (c) of this Section,
except that
the specified date referred to shall be a date not more than three
days prior
to Closing Time.
(e) Officers' Certificate. At Closing Time,
there shall
not have been, since the date hereof or since the respective dates
as of which
information is given in the Prospectus, any material adverse change
in the
condition, financial or otherwise, or in the earnings, business
affairs or
business prospects of the Operating Partnership, JP Realty and the
Subsidiaries taken as a whole, whether or not arising in the
ordinary course
of business, and the Representative shall have received a
certificate of the
President or a Vice President of JP Realty and of the chief
financial or chief
accounting officer of JP Realty, dated as of Closing Time, to the
effect that
(i) there has been no such material adverse change, (ii) the
representations
and warranties in Section 1(a) hereof are true and correct with the
same force
and effect as though expressly made at and as of Closing Time,
(iii) each of
JP Realty and the Operating Partnership has complied with all
agreements and
satisfied all conditions on its part to be performed or satisfied
at or prior
to Closing Time, and (iv) no stop order suspending the
effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose
have been instituted or are pending or are contemplated by the
Commission.
(f) Additional Documents. At Closing Time, counsel
for the
Underwriters shall have been furnished with such documents and
opinions as
they may reasonably require for the purpose of enabling them to
pass upon the
issuance and sale of the Securities as herein contemplated and
related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions,
herein contained; and all proceedings taken by JP Realty or the
Operating
Partnership in connection with the issuance and sale of the
Securities as
herein contemplated shall be reasonably satisfactory in form and
substance to
the Representative and counsel for the Underwriters.
(g) Maintenance of Rating. At Closing Time, the
Securities
shall be rated at least Baa2 by Moody's Investor's Service Inc. and
BBB- by
Standard and Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc.,
and the
Operating Partnership shall have delivered to the Representative a
letter
dated the Closing Time, from each such rating agency, or other
evidence
satisfactory to the Representative, confirming that the Securities
have such
ratings; and since the date of this Agreement, there shall have not
occurred a
downgrading in the rating assigned to the Securities or any of the
Operating
Partnership's or JP Realty's other debt securities by any
"nationally
recognized statistical rating agency", as that term is defined by
the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and
no such
organization shall have publicly announced that it has under
surveillance or
review its rating of the Securities or any of the Operating
Partnership's or
JP Realty's other debt securities.
19
All such opinions, certificates, letters and other
documents will be
in compliance with the provisions hereof only if they are
satisfactory in form
and substance to you and your counsel.
If any condition specified in this Section shall not have
been
fulfilled when and as required to be fulfilled, this Agreement may
be
terminated by the Representative by notice to the Operating
Partnership and JP
Realty at any time at or prior to Closing Time, and such
termination shall be
without liability of any party to any other party except as
provided in
Section 4 hereof and except that Sections 1, 6 and 7 shall survive
any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. JP Realty and
the
Operating Partnership each agree to indemnify and hold harmless
each
Underwriter and each person, if any, who controls any Underwriter
within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and
expense whatsoever, as incurred, arising out of any untrue
statement or
alleged untrue statement of a material fact contained in the
Registration
Statement (or any amendment thereto), including all documents
incorporated
therein by reference, or the omission or alleged omission therefrom
of a
material fact required to be stated therein or necessary to make
the
statements therein not misleading or arising out of any untrue
statement or
alleged untrue statement of a material fact contained in any
preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or the
omission or alleged omission therefrom of a material fact necessary
in order
to make the statements therein, in the light of the circumstances
under which
they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in
settlement of any litigation, or any investigation or proceeding by
any
governmental agency or body, commenced or threatened, or of any
claim
whatsoever based upon any such untrue statement or omission, or any
such
alleged untrue statement or omission (subject to Section 6(d)
below) if any
such settlement is effected with the written consent of the
indemnifying
party; and
(iii) against any and all expense whatsoever, as
incurred
(including, subject to Section 6(c) hereof, the reasonable fees and
disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in
investigating, preparing or defending against any litigation, or
any
investigation or proceeding by any governmental agency or body,
commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or
omission, or any such alleged untrue statement or omission, to the
extent that
any such expense is not paid under (i) or (ii) above;
20
provided, however, that this indemnity agreement shall not apply to
any loss,
liability, claim, damage or expense to the extent arising out of
any untrue
statement or omission or alleged untrue statement or omission made
in reliance
upon and in conformity with written information furnished to JP
Realty or the
Operating Partnership by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇
expressly for
use in the Registration Statement (or any amendment thereto) or the
Prospectus
(or any amendment or supplement thereto); and provided, further,
that this
indemnity agreement with respect to any preliminary prospectus
shall not inure
to the benefit of any Underwriter from whom the person asserting
any such
losses, liabilities, claims, damages or expenses purchased
Securities, or any
person controlling such Underwriter, if the Operating Partnership
sustains the
burden of proving that (i) if a copy of the Prospectus (as then
amended or
supplemented if the Operating Partnership and JP Realty shall have
furnished
any amendments or supplements thereto) was not sent or given by or
on behalf
of such Underwriter to such person, if such is required by law, at
or prior to
the written confirmation of the sale of such Securities to such
person, (ii)
the Prospectus (as so amended or supplemented) would have corrected
the defect
giving rise to such loss, liability, claim, damage or expense and
(iii) the
Operating Partnership satisfied its obligations pursuant to Section
3(e)
hereof to deliver a sufficient number of copies of such Prospectus
(as amended
or supplemented) to the Underwriters.
(b) Indemnification of JP Realty and the Operating
Partnership. Each Underwriter severally agrees to indemnify and
hold harmless
JP Realty, the Operating Partnership, its directors or partners, as
the case
may be, each of their officers who signed the Registration
Statement (or any
amendment thereto), and each person, if any, who controls JP Realty
or the
Operating Partnership within the meaning of Section 15 of the 1933
Act or
Section 20 of the 1934 Act against any and all loss, liability,
claim, damage
and expense described in the indemnity contained in subsection (a)
of this
Section, as incurred, but only with respect to untrue statements or
omissions,
or alleged untrue statements or omissions, made in the Registration
Statement
(or any amendment thereto) or the Prospectus (or any amendment or
supplement
thereto) in reliance upon and in conformity with written
information furnished
to JP Realty or the Operating Partnership by such Underwriter
through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use in the Registration Statement (or any
amendment
thereto) or such preliminary prospectus or the Prospectus (or any
amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each
indemnified
party shall give notice as promptly as reasonably practicable to
each
indemnifying party of any action commenced against it in respect of
which
indemnity may be sought hereunder, but failure to so notify an
indemnifying
party shall not relieve such indemnifying party from any liability
hereunder
to the extent such indemnifying party is not materially prejudiced
as a result
thereof and in any event shall not relieve it from any liability
which it may
have otherwise than on account of this indemnity agreement. In the
case of
parties indemnified pursuant to Section 6(a)(1) above, counsel to
the
indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the
case of
parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified
parties shall be selected by JP Realty or the Operating
Partnership. An
indemnifying party may participate at its own expense in the
defense of any
such action; provided, however, that counsel to the indemnifying
party shall
not (except with the consent of the indemnified party) also be
counsel to the
indemnified party. In no event shall the indemnifying parties be
liable for
fees and expenses of more than one counsel (in addition to any
local counsel)
separate from their own counsel for all indemnified parties in
connection with
any one action or separate but similar or related actions in the
same
jurisdiction arising out of the same general allegations or
circumstances. No
indemnifying party shall, without the prior written consent of the
indemnified
parties, settle or compromise or consent to the entry of any
judgment with
respect to any litigation, or any investigation or proceeding by
any
governmental agency or body, commenced or threatened, or any claim
whatsoever
in respect of which indemnification or contribution could be sought
under this
Section 6 or Section 7 hereof (whether or not the indemnified
parties are
actual or potential parties thereto), unless such settlement,
compromise or
consent (i) includes an unconditional release of each indemnified
party from
all liability arising out of such litigation, investigation,
proceeding or
claim and (ii) does not include a statement as to or an admission
of fault,
culpability or a failure to act by or on behalf of any indemnified
party.
21
(d) Settlement without Consent if Failure to
Reimburse. If at
any time an indemnified party shall have requested an indemnifying
party to
reimburse the indemnified party for fees and expenses of counsel,
such
indemnifying party agrees that it shall be liable for any
settlement of the
nature contemplated by Section 6(a) effected without its written
consent if
(i) such settlement is entered into more than 45 days after receipt
by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party
shall have received notice of the terms of such settlement at least
30 days
prior to such settlement being entered into and (iii) such
indemnifying party
shall not have reimbursed such indemnified party in accordance with
such
request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification
provided for in
Section 6 hereof is for any reason unavailable to or insufficient
to hold
harmless an indemnified party in respect of any losses,
liabilities, claims,
damages or expenses referred to therein, then each indemnifying
party shall
contribute to the aggregate amount of such losses, liabilities,
claims,
damages and expenses incurred by such indemnified party, as
incurred, (i) in
such proportion as is appropriate to reflect the relative benefits
received by
the Operating Partnership and JP Realty on the one hand and the
Underwriters
on the other hand from the offering of the Securities pursuant to
this
Agreement or (ii) if the allocation provided by clause (i) is not
permitted by
applicable law, in such proportion as is appropriate to reflect not
only the
relative benefits referred to in clause (i) above but also the
relative fault
of the Operating Partnership or JP Realty on the one hand and of
the
Underwriters on the other hand in connection with the statements or
omissions
which resulted in such losses, liabilities, claims, damages or
expenses, as
well as any other relevant equitable considerations.
The relative benefits received by the Operating
Partnership and JP
Realty on the one hand and the Underwriters on the other hand in
connection
with the offering of the Securities pursuant to this Agreement
shall be deemed
to be in the same respective proportions as the total net proceeds
from the
offering of the Securities pursuant to this Agreement (before
deducting
expenses) received by the Operating Partnership and the total
underwriting
discount received by the Underwriters, in each case as set forth on
the cover
of the Prospectus, bear to the aggregate initial public offering
price of the
Securities as set forth on such cover.
The relative fault of the Operating Partnership or JP
Realty on the
one hand and the Underwriters on the other hand shall be determined
by
reference to, among other things, whether any such untrue or
alleged untrue
statement of a material fact or omission or alleged omission to
state a
material fact relates to information supplied by the Operating
Partnership or
JP Realty or by the Underwriters and the parties' relative intent,
knowledge,
access to information and opportunity to correct or prevent such
statement or
omission.
The Operating Partnership, JP Realty and the Underwriters
agree that
it would not be just and equitable if contribution pursuant to this
Section 7
were determined by pro rata allocation (even if the Underwriters
were treated
as one entity for such purpose) or by any other method of
allocation which
does not take account of the equitable considerations referred to
above in
this Section 7. The aggregate amount of losses, liabilities,
claims, damages
and expenses incurred by an indemnified party and referred to above
in this
Section 7 shall be deemed to include any legal or other expenses
reasonably
incurred by such indemnified party in investigating, preparing or
defending
against any litigation, or any investigation or proceeding by any
governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon
any such untrue or alleged untrue statement or omission or alleged
omission.
22
Notwithstanding the provisions of this Section 7, no
Underwriter
shall be required to contribute any amount in excess of the amount
by which
the total price at which the Securities underwritten by it and
distributed to
the public were offered to the public exceeds the amount of any
damages which
such Underwriter has otherwise been required to pay by reason of
any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within
the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an
Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of
the 1934 Act shall have the same rights to contribution as such
Underwriter,
and each director of JP Realty, each partner of the Operating
Partnership,
each officer or other representative of JP Realty or the Operating
Partnership
who signed the Registration Statement, and each person, if any, who
controls
JP Realty or the Operating Partnership within the meaning of
Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights
to
contribution as JP Realty or the Operating Partnership. The
Underwriters'
respective obligations to contribute pursuant to this Section 7 are
several in
proportion to the principal amount of Securities set forth opposite
their
respective names in Schedule I to this Agreement.
SECTION 8. Representations, Warranties and Agreements to
Survive
Delivery. All representations, warranties and agreements contained
in this
Agreement or contained in certificates of officers or other
representatives of
each of the Operating Partnership or JP Realty or any of its
Subsidiaries
submitted pursuant hereto, shall remain operative and in full force
and
effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the
Operating
Partnership or JP Realty, and shall survive delivery of the
Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may
terminate
this Agreement by notice to the Operating Partnership and JP Realty
at any time
at or prior to Closing Time (i) if there has been, since the time
of execution
of this Agreement or since the respective dates as of which
information is
given in the Prospectus, any material adverse change in the
condition,
financial or otherwise, or in the earnings, business affairs or
business
prospects of the Operating Partnership and JP Realty, whether or
not arising
in the ordinary course of business, or (ii) if there has occurred
any material
adverse change in the financial markets in the United States or
elsewhere or
any outbreak of hostilities or escalation thereof or other calamity
or crisis
or any change or development involving a prospective change in
national or
international political, financial or economic conditions, in each
case the
effect of which is such as to make it, in the judgment of the
Representative,
impracticable to market the Securities or to enforce contracts for
the sale of
the Securities, or (iii) if trading in any securities of JP Realty
has been
suspended or materially limited by the Commission or the New York
Stock
Exchange, the American Stock Exchange or the Nasdaq National
Market, or if
trading generally on the New York Stock Exchange, the American
Stock Exchange
or the Nasdaq National Market has been suspended or materially
limited, or
minimum or maximum prices for trading have been fixed, or maximum
ranges for
prices for securities have been required, by said exchange or
market or by
order of the Commission, the NASD or any other governmental
authority, or if a
banking moratorium has been declared by federal or New York
authorities. As
used in this Section 9(a), the term "Prospectus" means the
Prospectus in the
form first used to confirm sales of the Securities.
23
(b) Liabilities. If this Agreement is terminated
pursuant to
this Section, such termination shall be without liability of any
party to any
other party except as provided in Section 4 hereof and provided
further that
Sections 1, 6 and 7 shall survive termination and remain in full
force and
effect.
SECTION 10. Default by One or More of the Underwriters.
If one or
more of the Underwriters shall fail at Closing Time to purchase the
Securities
which it or they are obligated to purchase under this Agreement
(the
"Defaulted Securities"), the Representative shall have the right,
within 24
hours thereafter, to make arrangements for one or more of the
non-defaulting
Underwriters, or any other underwriters, to purchase all, but not
less than
all, of the Defaulted Securities in such amounts as may be agreed
upon and
upon the terms herein set forth; if, however, the Representative
shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10%
of the aggregate principal amount of the Securities to be
purchased, each of
the non-defaulting Underwriters shall be obligated, severally and
not jointly,
to purchase the full amount thereof in the proportions that their
respective
underwriting obligations hereunder bear to the underwriting
obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds
10% of the
aggregate principal amount of the Securities to be purchased, this
Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve
any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in
a
termination of this Agreement, either the Representative or the
Operating
Partnership shall have the right to postpone Closing Time for a
period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements.
As used herein, the term "Underwriter" includes any person
substituted for an
Underwriter under this Section 10.
SECTION 11. Notices. All notices and other
communications
hereunder shall be in writing and shall be deemed to have been duly
given if
mailed or transmitted by any standard form of telecommunication
(excluding
electronic mail). Notices to the Underwriters shall be directed to
the
Representative at North Tower, World Financial Center, New York,
New York
10281-1201, attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; notices to the
Operating
Partnership and JP Realty shall be directed to ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇,
▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇ ▇▇▇▇▇ with a copy thereof to
▇▇▇▇▇▇ &
▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇
▇. ▇▇▇▇▇▇,
Esq. and ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
24
SECTION 12. Parties. This Agreement shall each inure to
the
benefit of and be binding upon the Underwriters, the Operating
Partnership, JP
Realty and their respective successors. Nothing expressed or
mentioned in
this Agreement is intended or shall be construed to give any
person, firm or
corporation, other than the Underwriters, the Operating Partnership
and JP
Realty and their respective successors and the controlling persons
and
officers, directors and partners referred to in Sections 6 and 7
and their
heirs and legal representatives, any legal or equitable right,
remedy or claim
under or in respect of this Agreement or any provision contained
herein or
therein. This Agreement and all conditions and provisions hereof
and thereof
are intended to be for the sole and exclusive benefit of the
Underwriters, the
Operating Partnership and JP Realty and their respective
successors, and said
controlling persons and officers, directors and partners and their
heirs and
legal representatives, and for the benefit of no other person, firm
or
corporation. No purchaser of Securities from any Underwriter shall
be deemed
to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT
SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW
YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK TIME.
SECTION 14. Effect of Headings. The Article and Section
headings
herein and the Table of Contents are for convenience only and shall
not affect
the construction hereof.
25
If the foregoing is in accordance with your understanding
of our
agreement, please sign and return a counterpart hereof, whereupon
this
instrument, along with all counterparts, will become a binding
agreement
between the Underwriters, the Operating Partnership and JP Realty
in
accordance with its terms.
Very truly yours,
PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP
By: JP Realty, Inc., its
------------------------------
General Partner
By:/s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
JP REALTY, INC.
By:/s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial
Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
UBS SECURITIES LLC
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in
Schedule I
hereto.
SCHEDULE I
to
Purchase Agreement
Principal
Amount of
Name of Underwriter Securities
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $70,500,000
▇▇▇▇▇▇▇, Sachs & Co. $7,500,000
▇▇▇▇▇▇ Brothers Inc. $7,500,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $7,500,000
UBS Securities LLC $7,500,000
Total $100,000,000
Schedule II
to
Purchase Agreement
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP
$100,000,000 7.29% Senior Notes due 2008
1. The initial public offering price of the Securities
shall be
99.3625% of the principal amount thereof.
2. The purchase price to be paid by the Underwriters for
the
Securities shall be 0.6375% of the principal amount thereof.
3. The interest rate on the Securities shall be 7.29% per
annum.
4. The Securities are redeemable at any time, from time to
time, at
the option of the Operating Partnership, in whole or in part, at a
redemption
price equal to the sum of (i) the principal amount of the
Securities being
redeemed plus accrued interest to the redemption date and (ii) the
Make-Whole
Amount (as defined in the Prospectus), if any.
5. Installments of principal of $250 will be paid on each
$1,000
principal amount of the Securities on each March 11 (a "Principal
Payment
Date"), commencing on March 11, 2005. The aggregate principal
payment on each
Principal Payment Date shall be equal to $25.0 million.
Exhibit A to Purchase Agreement
Partially Owned Partnerships
Price Boise Company, Ltd.
Price Idaho Falls Company, Ltd.
▇▇▇▇▇ ▇▇▇▇▇ Company
Price ▇▇▇▇▇▇ Company
Provo Mall Development Company, Ltd.
Spokane Mall Development Company Limited Partnership