Ramco-Gershenson Properties Trust 6,000,000 Common Shares of Beneficial Interest Underwriting Agreement
Exhibit 1.1
Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust
6,000,000 Common Shares of Beneficial Interest
May 13, 2010
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
in Schedule 1 hereto
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Incorporated
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust, a Maryland real estate investment trust (the “Company”),
proposes to issue and sell to the several Underwriters listed in Schedule 1 to this Agreement (the
“Underwriters”), for whom you are acting as representatives (the “Representatives”), an aggregate
of 6,000,000 common shares of beneficial interest, par value $0.01 per share, of the Company (the
“Underwritten Shares”) and, at the option of the Underwriters, up to an additional 900,000 common
shares of beneficial interest of the Company (the “Option Shares”). The Underwritten Shares and
the Option Shares are herein referred to as the “Shares.” The common shares of beneficial interest
of the Company to be outstanding after giving effect to the sale of the Shares are referred to
herein as the “Stock.”
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement (File No. 333- 156689), including a prospectus, relating to the Shares. Such
registration statement, as amended at the time it became effective, including the information, if
any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to
herein as the “Registration Statement;” and as used herein, the term “Preliminary Prospectus” means
each prospectus included in such Registration Statement (and any amendments thereto) before
effectiveness, and any prospectus (including any prospectus supplement) filed with the Commission
pursuant to Rule 424(a) under the Securities Act, and any prospectus (including any prospectus
supplement) included in the Registration Statement at the time of its effectiveness that omits Rule
430 Information, and the term “Prospectus” means the prospectus (including any prospectus
supplement) in the form first used (or made available upon request of purchasers pursuant to Rule
173 under the Securities Act) in connection with confirmation of sales of the Shares. Any
reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case
may be, and any reference to “amend,” “amendment” or “supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) that are
deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following
information (collectively, the “Pricing Disclosure Package”): a Preliminary Prospectus dated
February 9, 2009 (including the preliminary prospectus supplement dated May 12, 2010) and the
information listed on Annex C to this Agreement.
“Applicable Time” means 8:10 A.M., New York City time, on May 13, 2010.
2. Purchase of the Shares by the Underwriters.
(a) The Company agrees to issue and sell the Underwritten Shares to the several Underwriters
as provided in this Agreement, and each Underwriter, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set forth herein, agrees,
severally and not jointly, to purchase from the Company the respective number of Underwritten
Shares set forth opposite such Underwriter’s name in Schedule 1 to this Agreement at a price per
share (the “Purchase Price”) of $11.0113.
In addition, the Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to the conditions set forth
herein, shall have the option to purchase, severally and not jointly, from the Company the
respective number of Option Shares at the Purchase Price less an amount per share equal to any
dividends or distributions declared by the Company and payable on the Underwritten Shares but not
payable on the Option Shares.
If any Option Shares are to be purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the same ratio to the aggregate number
of Option Shares being purchased as the number of Underwritten Shares set forth opposite the name
of such Underwriter in Schedule 1 to this Agreement (or such number increased as set forth in
Section 10 hereof) bears to the aggregate number of Underwritten Shares being purchased from the
Company by the several Underwriters, subject, however, to such adjustments to eliminate any
fractional Shares as the Representatives in their sole discretion shall make.
The Underwriters may exercise the option to purchase Option Shares at any time in whole, or
from time to time in part, on or before the thirtieth day following the date of the Prospectus, by
written notice from the Representatives to the Company. Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and the date and time when the
Option Shares are to be delivered and paid for, which may be the same date and time as the Closing
Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than the
tenth full business day (as hereinafter defined) after the date of such notice (unless such time
and date are postponed in accordance with the provisions of Section 10 hereof). Any such notice
shall be given at least two business days prior to the date and time of delivery specified therein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Shares as soon after the effectiveness of this Agreement as in the judgment of the Representatives
is advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The
Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representatives in the case of the Underwritten Shares,
at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at 10:00 A.M., New York City time, on
May 18, 2010, or at such other time or place on the same or such other date, not later than the
fifth business day thereafter, as the Representatives and the Company may agree upon in writing or,
in the case of the Option Shares, on the date and at the time and place specified by the
Representatives in the written notice of the Underwriters’ election to purchase such Option Shares.
The time and date of such payment for the Underwritten Shares is referred to herein as the
“Closing Date,” and the time and date for such payment for the Option Shares, if other than the
Closing Date, is herein referred to as the “Additional Closing Date. “
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date with any transfer taxes
payable in connection with the sale of such Shares duly paid by the Company. Delivery of the
Shares shall be made through the facilities of The Depository Trust Company (“DTC”).
(d) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
Shares contemplated hereby (including in connection with determining the terms of the offering) and
not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, none of the Representatives nor any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company and the Operating Partnership. The
Company and Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P. (the “Operating Partnership”) each severally
represents and warrants to each Underwriter, on and as of the date hereof and on and as of the
Closing Date and any Additional Closing Date, as the case may be, that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus
included in the Pricing Disclosure Package, at the time of filing thereof, complied in all
material respects with the Securities Act, and no Preliminary Prospectus, at the time of
filing thereof, contained any untrue statement of a material fact or omitted 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; provided that the Company
makes no representation and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives expressly for use in
any Preliminary Prospectus, it being understood and agreed
that the only such information furnished by any Underwriter consists of the information
described as such in Section 7(b) hereof.
(b) Pricing Disclosure Package. The Pricing Disclosure Package as of the Applicable
Time did not, and as of the Closing Date and as of the Additional Closing Date, as the case
may be, will not, contain 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; provided that the Company
makes no representation and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives expressly for use in
such Pricing Disclosure Package, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in
Section 7(b) hereof.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not prepared,
used, authorized, approved or referred to and will not prepare, use, authorize, approve or
refer to any “written communication” (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Shares (each such
communication by the Company or its agents and representatives (other than a communication
referred to in clause (i) below) an “Issuer Free Writing Prospectus”) other than (i) any
document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act
or Rule 134 under the Securities Act or (ii) the documents listed on Annex B to this
Agreement, each electronic road show and any other written communications approved in
writing in advance by the Representatives. Each such Issuer Free Writing Prospectus
complied in all material respects with the Securities Act, has been or will be (within the
time period specified in Rule 433) filed in accordance with the Securities Act (to the
extent required thereby) and, when taken together with the Preliminary Prospectus
accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did
not, and as of the Closing Date and as of the Additional Closing Date, as the case may be,
will not, contain 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; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in each such
Issuer Free Writing Prospectus or Preliminary Prospectus in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in such Issuer Free Writing
Prospectus or Preliminary Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in
Section 7(b) hereof.
(d) Registration Statement and Prospectus. The Registration Statement has been
declared effective by the Commission. No order suspending the effectiveness of the
Registration Statement has been issued by the Commission, and no proceeding for that purpose
or pursuant to Section 8A of the Securities Act against the Company or related to the
offering of the Shares has been initiated or threatened by the Commission; as of the
applicable effective date of the Registration Statement and any post-effective amendment
thereto, the Registration Statement and any such post-effective amendment complied and will
comply in all material respects with the Securities Act, and did not and will not contain
any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not misleading; and as
of the date of the Prospectus and any amendment or supplement thereto and as of the Closing
Date and as of the Additional Closing Date, as the case may be, the
Prospectus will not contain 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; provided that the Company
makes no representation and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement and the Prospectus and any amendment or supplement thereto, it
being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b) hereof.
(e) Incorporated Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus and the Pricing Disclosure Package, when they were
filed with the Commission conformed in all material respects to the requirements of the
Exchange Act, and none of such documents contained any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement, the Prospectus or the
Pricing Disclosure Package, when such documents are filed with the Commission, will conform
in all material respects to the requirements of the Exchange Act and will not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.
(f) Financial Statements. The financial statements (including the related notes
thereto) of the Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus
comply in all material respects with the applicable requirements of the Securities Act and
the Exchange Act, as applicable, and present fairly the financial position of the Company
and its consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting principles in
the United States applied on a consistent basis throughout the periods covered thereby, and
any supporting schedules included or incorporated by reference in the Registration Statement
present fairly the information required to be stated therein; the other financial
information included or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package and the Prospectus has been derived from the accounting records of the
Company and its consolidated subsidiaries and presents fairly the information shown thereby;
and the pro forma financial information and the related notes thereto included or
incorporated by reference in the Registration Statement, the Pricing Disclosure Package and
the Prospectus have been prepared in accordance with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and the assumptions underlying such pro
forma financial information are reasonable and are set forth in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(g) No Material Adverse Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, and except as otherwise disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus (i) there has not
been (A) any material change in the capital stock or other equity interest (other than the
issuance of common shares upon exercise of stock options and warrants, the exchange of units
of the Operating Partnership or the vesting of restricted stock described as outstanding in,
and the grant of options, restricted stock and other awards under existing equity incentive
plans described in, the Registration Statement, the Pricing Disclosure Package and the
Prospectus), or material
change in the short-term debt or long-term debt (other than the repayment of debt at
maturity through existing lines of credit, the repayment of certain hedging obligations, the
repayment of existing lines of credit resulting from asset sales, and borrowings or
repayments under existing lines of credit to fund working capital consistent with past
practices), of the Company or any of its subsidiaries, taken as a whole, or (B) any dividend
or distribution of any kind declared, set aside for payment, paid or made by the Company on
any shares of beneficial interest, or any material adverse change in or affecting the
business, properties, management, financial position, shareholders’ equity, results of
operations or prospects of the Company and its subsidiaries taken as a whole; (ii) neither
the Company nor any of its subsidiaries has entered into any transaction or agreement
(whether or not in the ordinary course of business) that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent,
that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the
Company nor any of its subsidiaries has sustained any loss or interference with its business
that is material to the Company and its subsidiaries taken as a whole and that is either
from fire, explosion, flood or other similar calamity, whether or not covered by insurance,
or from any labor disturbance or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority.
(h) Organization and Good Standing. The Company has been duly organized and is validly
existing as a real estate investment trust in good standing under the laws of the State of
Maryland, with all requisite trust power and authority to own or lease its properties and
conducts its business as described in the Registration Statement. Each of the subsidiaries
of the Company has been duly organized and is validly existing as a corporation, limited
partnership or limited liability company in good standing under the laws of the jurisdiction
of its organization, with all requisite corporate, limited partnership or limited liability
company power and authority, as the case may be, to own or lease its properties and conduct
its business as described in the Registration Statement. The Company and each of its
subsidiaries are duly qualified to do business and are in good standing in each jurisdiction
in which their respective ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or in good standing or have such power or
authority would not, individually or in the aggregate, have a material adverse effect on the
business, properties, management, financial position, shareholders’ equity, results of
operations or prospects of the Company and its subsidiaries taken as a whole or on the
performance by the Company of its obligations under this Agreement (as defined below) (a
“Material Adverse Effect”).
(i) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of beneficial interest of the Company have been
duly authorized and validly issued and are fully paid and non-assessable and are not subject
to any pre-emptive or similar rights; except as set forth on Schedule A to this Agreement or
as described in or expressly contemplated by the Registration Statement, Pricing Disclosure
Package and the Prospectus, there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in the Company or any
of its subsidiaries, or any contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any shares of capital stock or other equity interest of
the Company or any such subsidiary, any such convertible or exchangeable securities or any
such rights, warrants or options; the shares of beneficial interest of the Company conform
in all material respects to the description thereof contained in the Registration Statement,
the Pricing Disclosure Package and the Prospectus; and
all the outstanding shares of capital stock or other equity interests of each
subsidiary owned, directly or indirectly, by the Company have been duly authorized and
validly issued, are fully paid and non-assessable and, except to the extent set forth in
Schedule B to this Agreement or the Registration Statement, the Pricing Disclosure Package
and the Prospectus, are owned directly or indirectly by the Company, free and clear of any
lien, charge, encumbrance, security interest, restriction on voting or transfer or any other
claim of any third party. The Company has duly reserved a sufficient number of Common Shares
for issuance upon exchange of outstanding units of limited partnership of the Operating
Partnership (“OP Units”) in accordance with the Amended and Restated Agreement of Limited
Partnership of the Operating Partnership, as amended to date.
(j) Stock Options. With respect to the stock options (the “Stock Options”) granted
pursuant to the stock-based compensation plans of the Company and its subsidiaries (the
“Company Stock Plans”), (i) each Stock Option intended to qualify as an “incentive stock
option” under Section 422 of the Code so qualifies, (ii) each grant of a Stock Option was
duly authorized no later than the date on which the grant of such Stock Option was by its
terms to be effective (the “Grant Date”) by all necessary corporate action, including, as
applicable, approval by the board of trustees of the Company (or a duly constituted and
authorized committee thereof) and any required shareholder approval by the necessary number
of votes or written consents, and the award agreement governing such grant (if any) was duly
executed and delivered by each party thereto, (iii) each such grant was made in accordance
with the terms of the Company Stock Plans, the Exchange Act and all other applicable laws
and regulatory rules or requirements, including the rules of the New York Stock Exchange and
any other exchange on which Company securities are traded, and (iv) each such grant was
properly accounted for in accordance with United States generally accepted accounting
principles, in the financial statements (including the related notes) of the Company and
disclosed in the Company’s filings with the Commission in accordance with the Exchange Act
and all other applicable laws. The Company has not knowingly granted, and there is no and
has been no policy or practice of the Company of granting, Stock Options prior to, or
otherwise coordinating the grant of Stock Options with, the release or other public
announcement of material information regarding the Company or its subsidiaries or their
results of operations or prospects.
(k) Due Authorization. The Company and the Operating Partnership have the requisite
power and authority to execute and deliver this Agreement and to perform their obligations
hereunder; and all action required to be taken for the due and proper authorization,
execution and delivery by each of this Agreement and the consummation by each of the
transactions contemplated hereby has been duly and validly taken.
(l) Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership.
(m) The Shares. The Shares to be issued and sold by the Company hereunder have been
duly authorized and, when issued and delivered and paid for as provided herein, will be duly
and validly issued, will be fully paid and nonassessable and will conform to the
descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the
Prospectus; and the issuance of the Shares is not subject to any preemptive or similar
rights.
(n) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its declaration of trust, certificate of formation, charter, by-laws,
partnership agreement, limited liability company agreement or other organization document,
as the case may be; (ii) in default, and no event has occurred that, with notice or lapse of
time or both, would constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(o) No Conflicts. The execution, delivery and performance by the Company and the
Operating Partnership of this Agreement, the issuance and sale of the Shares and the
consummation of the transactions contemplated by this Agreement will not (i) conflict with
or result in a breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, (ii) result in any violation of the provisions of the declaration
of trust, certificate of formation, charter, by-laws, partnership agreement, limited
liability company agreement or other organization document of the Company or any of its
subsidiaries or (iii) result in the violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation
or default that would not, individually or in the aggregate, have a Material Adverse Effect.
(p) No Consents Required. No consent, approval, authorization, order, license,
registration or qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and performance by the Company
and the Operating Partnership of this Agreement, the issuance and sale of the Shares and the
consummation of the transactions contemplated by this Agreement, except such as have already
been obtained regarding the registration of the Shares under the Securities Act and such
consents, approvals, authorizations, orders and registrations or qualifications as may be
required by the Financial Industry Regulatory Authority, Inc. (“FINRA”), under applicable
state securities laws in connection with the purchase and distribution of the Shares by the
Underwriters, and the New York Stock Exchange.
(q) Legal Proceedings. Except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending, or, to the knowledge of the Company
or the Operating Partnership, threatened, to which the Company or any of its subsidiaries is
or may be a party or to which any property of the Company or any of its subsidiaries is or
may be the subject that, individually or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, could reasonably be expected to have a Material Adverse
Effect; and (i) there are no current or pending legal, governmental or regulatory actions,
suits or proceedings that are required under the Securities Act to be described in the
Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so
described in the Registration Statement, the Pricing Disclosure Package and the Prospectus
and (ii) there are no statutes, regulations or contracts or other documents that are
required under the Securities Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement, the Pricing Disclosure Package or the Prospectus
that are not so filed as exhibits to the Registration Statement or described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(r) Independent Accountants. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, who have audited certain financial
statements of the Company and its subsidiaries, is an independent registered public
accounting firm with respect to the Company and its subsidiaries within the applicable rules
and regulations adopted by the Commission and the Public Company Accounting Oversight Board
(United States) and as required by the Securities Act.
(s) Title to Real and Personal Property. Except as set forth on Schedule C to this
Agreement, the Company and its subsidiaries have good and marketable title in fee simple to
all the real properties, or any part thereof, owned by them (collectively, and with all
buildings, structures and other improvements located thereon and all easements, rights and
other appurtenances thereto, the “Properties”) and good and marketable title to all the
other properties and assets reflected in the consolidated financial statements included or
incorporated by reference or described in the Registration Statement, Pricing Disclosure
Package and Prospectus subject to no lien, security interest, mortgage, pledge, charge,
claim, restriction or encumbrance of any kind except those reflected in such financial
statements or described in the Registration Statement, Pricing Disclosure Package and
Prospectus or which are not material in amount or which do not materially impair the use of
such Property for retail shopping center purposes; all liens, security interests, mortgages,
pledges, charges, claims, restrictions or encumbrances on or affecting the properties and
assets of the Company or any of its subsidiaries that are required to be disclosed in the
Registration Statement are disclosed therein or in documents incorporated by reference
therein; neither the Company nor the Operating Partnership knows of any violation of any
municipal, state or federal law, rule or regulation (including those pertaining to
environmental matters) concerning the Properties which would have a Material Adverse Effect;
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 result in a Material Adverse Effect and
will not result in a forfeiture or reversion of title; none of the Company 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, which if
consummated would have a Material Adverse Effect, and to the knowledge of the Company and
the Operating Partnership, no such condemnation or zoning change is threatened and which if
consummated could have a Material Adverse Effect; 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 as are described in the Registration
Statement, Pricing Disclosure Package and Prospectus or that would not have a Material
Adverse Effect; and the Company and its subsidiaries occupy their leased properties under
valid and binding leases.
(t) No Undisclosed Relationships. No business relationship, direct or indirect, or
related person transaction exists between or among the Company or any of its subsidiaries,
on the one hand, and any other person required to be described in the Registration
Statement, on the other hand, that has not been described as required by the Securities Act
to be described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(u) Investment Company Act. The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be
required to register as an “investment company” or an entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Investment Company Act”).
(v) Taxes. The Company and the subsidiaries have filed all federal, state, local and
foreign income and franchise tax returns and all other material federal, state, local and
foreign tax returns which have been required to be filed and have paid all taxes indicated
by such returns and all assessments, fines and penalties levied against them or any of them
to the extent that any of the foregoing has become due, except for any such assessment, fine
or penalty that is currently being contested in good faith and which, if material, is
described in the Registration Statement. All tax liabilities have been adequately provided
for in the financial statements of the Company, and the Company does not know of any actual
or proposed additional material tax assessments except as described in the Registration
Statement.
(w) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or
the conduct of their respective businesses as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, except where the failure to possess or make
the same would not, individually or in the aggregate, have a Material Adverse Effect; and
except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, neither the Company nor any of its subsidiaries has received notice of any
revocation or modification of any such license, certificate, permit or authorization, and,
to the knowledge of the Company and the Operating Partnership, no such license,
certificate, permit or authorization will not be renewed in the ordinary course, in each
case except as would not, individually or in the aggregate, have a Material Adverse Effect.
(x) No Labor Disputes. Except as would not, individually or in the aggregate, have a
Material Adverse Effect, (i) no labor disturbance by or dispute with employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company or the
Operating Partnership, is contemplated or threatened, and (ii) to the knowledge of the
Company, there is no existing or threatened labor disturbance by, or dispute with, the
employees of any of its or its subsidiaries’ principal suppliers, contractors or customers.
(y) Compliance with and Liability under Environmental Laws. (i) The Company and its
subsidiaries (a) are in compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, requirements, decisions, judgments, decrees, orders and
the common law relating to pollution or the protection of the environment, natural resources
or human health or safety, including those relating to the generation, storage, treatment,
use, handling, transportation, Release or threat of Release of Hazardous Materials
(collectively, “Environmental Laws”), (b) have received and are in compliance with all
permits, licenses, certificates or other authorizations or approvals required of them under
applicable Environmental Laws to conduct their respective businesses, (c) have not received
notice of any actual or potential liability under or relating to, or actual or potential
violation of, any Environmental Laws, including for the investigation or remediation of any
Release or threat of Release of Hazardous Materials, and there is no event or condition that
would reasonably be expected to result in any such notice, (d) are not conducting or paying
for, in whole or in part, any investigation, remediation or other corrective action pursuant
to any Environmental Law at any location, and (e) are not a party to any order, decree or
agreement that imposes any obligation or liability under any Environmental Law, and (ii)
there are no costs or liabilities associated with Environmental Laws of or relating to the
Company or its subsidiaries, except in the case of each of (i) and (ii) above, for any such
matter, as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and (iii) except as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, (a) there are no proceedings that are pending
or threatened against the Company or any of its subsidiaries under any Environmental Laws in
which a governmental entity is also a
party, other than such proceedings regarding which it is reasonably believed no civil
or criminal penalties of $100,000 or more will be imposed, (b) the Company and its
subsidiaries are not aware of any facts or issues regarding compliance with Environmental
Laws, or liabilities or other obligations under Environmental Laws, including the Release or
threat of Release of Hazardous Materials, that could reasonably be expected to have a
Material Adverse Effect, and (c) none of the Company and its subsidiaries anticipates
material capital expenditures relating to any Environmental Laws.
(z) Hazardous Materials. There has been no storage, generation, transportation, use,
handling, treatment, Release or threat of Release of Hazardous Materials by, relating to or
caused by the Company or any of its subsidiaries (or, to the knowledge of the Company and
its subsidiaries, any other entity (including any predecessor) for whose acts or omissions
the Company or any of its subsidiaries is or could reasonably be expected to be liable) at,
on, under or from any property or facility now or previously owned, operated or leased by
the Company or any of its subsidiaries, or at, on, under or from any other property or
facility, in violation of any Environmental Laws or in a manner or amount or to a location
that could reasonably be expected to result in any liability under any Environmental Law,
except for any violation or liability which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. “Hazardous Materials” means any
material, chemical, substance ,waste, pollutant, contaminant, compound, mixture, or
constituent thereof, in any form or amount, including petroleum (including crude oil or any
fraction thereof) and petroleum products, natural gas liquids, asbestos and asbestos
containing materials, naturally occurring radioactive materials, brine, and drilling mud,
regulated or which can give rise to liability under any Environmental Law. “Release” means
any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in,
into or through the environment, or in, into from or through any building or structure.
(aa) Compliance with ERISA. (i) Each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
for which the Company or any member of its “Controlled Group” (defined as any organization
which is a member of a controlled group of corporations within the meaning of Section 414 of
the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each,
a “Plan”) has been maintained in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not limited to ERISA and
the Code, except for noncompliance that could not reasonably be expected to result in
material liability to the Company or its subsidiaries; (ii) no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with
respect to any Plan excluding transactions effected pursuant to a statutory or
administrative exemption that could reasonably be expected to result in a material liability
to the Company or its subsidiaries; (iii) for each Plan that is subject to the funding rules
of Section 412 of the Code or Section 302 of ERISA, the minimum funding standard of Section
412 of the Code or Section 302 of ERISA, as applicable, has been satisfied (without taking
into account any waiver thereof or extension of any amortization period) and is reasonably
expected to be satisfied in the future (without taking into account any waiver thereof or
extension of any amortization period); (iv) the fair market value of the assets of each Plan
equals or exceeds the present value of all benefits accrued under such Plan (determined
based on those assumptions used to fund such Plan); (v) no “reportable event” (within the
meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur that
either has resulted, or could reasonably be expected to result, in material liability to the
Company or its subsidiaries; (vi) neither the Company nor any member of the Controlled Group
has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other
than contributions to the
Plan or premiums to the PBGC, in the ordinary course and without default) in respect of
a Plan (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of
ERISA); and (vii) there is no pending audit or investigation by the Internal Revenue
Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other
governmental agency or any foreign regulatory agency with respect to any Plan that could
reasonably be expected to result in material liability to the Company or its subsidiaries.
None of the following events has occurred or is reasonably likely to occur: (x) a material
increase in the aggregate amount of contributions required to be made to all Plans by the
Company or its subsidiaries in the current fiscal year of the Company and its subsidiaries
compared to the amount of such contributions made in the Company and its subsidiaries’ most
recently completed fiscal year; or (y) a material increase in the Company and its
subsidiaries’ “accumulated post-retirement benefit obligations” (within the meaning of
Statement of Financial Accounting Standards 106) compared to the amount of such obligations
in the Company and its subsidiaries’ most recently completed fiscal year.
(bb) REIT Status. The Company is organized in conformity with the requirements for
qualification as a real estate investment trust (“REIT”) under Sections 856 through 860 of
the Code, and its actual method of operation as described in the Registration Statement has
enabled it since January 1, 1999, and its proposed method of operation will enable it to
continue, to meet the requirements for qualification and taxation as a REIT under the Code.
(cc) Mortgages. Except as set forth in the Registration Statement, Pricing Disclosure
Package and Prospectus, the mortgages and deeds of trust encumbering the properties and
assets described in the Registration Statement, Pricing Disclosure Package and Prospectus
are not convertible and neither the Company, any of its subsidiaries, nor any person
affiliated therewith holds a participating interest therein, and such mortgages and deeds of
trust are not cross-defaulted or cross-collateralized to any property not owned directly or
indirectly by the Company or any of its subsidiaries.
(dd) OP Units. Except as set forth on Schedule D to this Agreement, the Operating
Partnership has not offered, issued or sold any OP Units at any time during the six-month
period preceding the date hereof.
(ee) Disclosure Controls. The Company and its subsidiaries maintain an effective
system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange
Act) that complies with the requirements of the Exchange Act and that has been designed to
ensure that information required to be disclosed by the Company in reports that it files or
submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated and communicated to the
Company’s management as appropriate to allow timely decisions regarding required disclosure.
The Company and its subsidiaries have carried out evaluations of the effectiveness of their
disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(ff) Accounting Controls. The Company and its subsidiaries maintain systems of
“internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange
Act) that comply with the requirements of the Exchange Act and have been designed by, or
under the supervision of, their respective principal executive and principal financial
officers, or persons performing similar functions, to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles, including
those policies and procedures that (i) pertain
to the maintenance of records that in reasonable detail accurately and fairly reflect
the transactions and dispositions of the assets of the issuer; (ii) provide reasonable
assurance that transactions are recorded as necessary to permit preparation of financial
statements in accordance with generally accepted accounting principles, and that receipts
and expenditures of the issuer are being made only in accordance with authorizations of
management and trustees of the issuer; and (iii) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use or disposition of the
issuer’s assets that could have a material effect on the financial statements. Based on the
Company’s most recent evaluation of its internal control over financial reporting pursuant
to Rule 13a-15(c) of the Exchange Act, except as disclosed in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, there are no material weaknesses in the
Company’s internal control over financial reporting. The Company’s auditors and the Audit
Committee of the Board of Trustees of the Company have been advised of: (i) all significant
deficiencies and material weaknesses in the design or operation of internal control over
financial reporting which have adversely affected or are reasonably likely to adversely
affect the Company’s ability to record, process, summarize and report financial information;
and (ii) any fraud, whether or not material, that involves management or other employees who
have a significant role in the Company’s internal control over financial reporting.
(gg) Insurance. The Company and its subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, including business interruption
insurance, which insurance is in amounts and insures against such losses and risks as are
adequate for the conduct of the Company and its subsidiaries and their respective
businesses; and neither the Company nor any of its subsidiaries has received notice from any
insurer or agent of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such insurance, and to the knowledge
of the Company and Operating Partnership, the Company and its subsidiaries will be able to
renew their existing insurance coverage as and when such coverage expires or to obtain
similar coverage at reasonable cost from similar insurers as may be necessary to continue
their business.
(hh) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company or the Operating Partnership, any director, officer, agent,
employee or other person associated with or acting on behalf of the Company or any of its
subsidiaries has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(ii) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively, the
“Money Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of
the Company or the Operating Partnership, threatened.
(jj) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the
knowledge of the Company or the Operating Partnership, any director, officer, agent,
employee
or affiliate of the Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the
Treasury (“OFAC”); and the Company will not, directly or indirectly, use the proceeds of the
offering of the Shares hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose
of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(kk) No Restrictions on Subsidiaries. Except as set forth on Schedule E to this
Agreement, no subsidiary of the Company is currently prohibited, directly or indirectly,
under any agreement or other instrument to which it is a party or is subject, from paying
any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary’s properties or assets to the
Company or any other subsidiary of the Company.
(ll) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to
any contract, agreement or understanding with any person (other than this Agreement) that
would give rise to a valid claim against the Company or any of its subsidiaries or any
Underwriter for a brokerage commission, finder’s fee or like payment in connection with the
offering and sale of the Shares.
(mm) No Registration Rights. Except as set forth on Schedule F to this Agreement and
as described in the Registration Statement, Pricing Disclosure Package and Prospectus, no
person has the right to require the Company or any of its subsidiaries to register any
securities for sale under the Securities Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Shares.
(nn) No Stabilization. Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Shares.
(oo) Margin Rules. The application of the proceeds received by the Company from the
issuance, sale and delivery of the Shares as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus will not violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any other regulation of such Board of
Governors.
(pp) Forward-Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the
Registration Statement, the Pricing Disclosure Package or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(qq) Statistical and Market Data. Nothing has come to the attention of the Company or
the Operating Partnership that has caused the Company or the Operating Partnership to
believe that the statistical and market-related data included in the Registration Statement,
the Pricing Disclosure Package and the Prospectus is not based on or derived from sources
that are reliable and accurate in all material respects.
(rr) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The chief executive officer and the chief financial officer
of the Company have made all certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the
“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and any related rules and regulations promulgated by the Commission.
The Company, its officers and directors and the Operating Partnership are otherwise in
compliance in all material respects with all applicable effective provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(ss) Status under the Securities Act. At the time of filing the Registration Statement
and any post-effective amendment thereto, at the earliest time thereafter that the Company
or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)
under the Securities Act) of the Shares and at the date hereof, the Company was not and is
not an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Company
has paid the registration fee for this offering in accordance with the Securities Act.
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the
Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule
433 under the Securities Act; will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the Prospectus Delivery Period
(as defined below) and will furnish copies of the Prospectus and each Issuer Free Writing
Prospectus (to the extent not previously delivered) to the Underwriters in New York City
prior to 10:00 A.M., New York City time, not later than the second business day next
succeeding the date of this Agreement in such quantities as the Representatives may
reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the
Representatives, three signed copies of the Registration Statement as originally filed and
each amendment thereto, in each case including all exhibits and consents filed therewith;
and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as
originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus
Delivery Period (as defined below), as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference therein and each
Issuer Free Writing Prospectus) as the Representatives may reasonably request. As used
herein, the term “Prospectus Delivery Period” means such period of time after the first date
of the public offering of the Shares as in the opinion of counsel for the Underwriters a
prospectus relating to the Shares is required by law to be delivered (or required to be
delivered but for Rule 172 under the Securities Act) in connection with sales of the Shares
by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and
before filing any amendment or supplement to the Registration Statement or the Prospectus,
whether before or after the time that the Registration Statement becomes effective, the
Company will furnish to the Representatives and counsel for the Underwriters a copy of the
proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not
use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file
any such proposed amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. During the Prospectus Delivery Period, the Company
will advise the Representatives promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective (excluding the
filing of any documents that are deemed incorporated by reference therein); (ii) when any
supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the
Prospectus has been filed (excluding the filing of any documents that are deemed
incorporated by reference therein); (iii) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration Statement or any
other request by the Commission for any additional information; (iv) of the issuance by the
Commission of any order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus, any of the Pricing
Disclosure Package or the Prospectus or the initiation or threatening of any proceeding for
that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any
event as a result of which the Prospectus, the Pricing Disclosure Package or any Issuer Free
Writing 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 existing when the Prospectus, the Pricing
Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser,
not misleading; and (vi) of the receipt by the Company of any notice with respect to any
suspension of the qualification of the Shares for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and the Company will use its
reasonable best efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of any
Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or
suspending any such qualification of the Shares and, if any such order is issued, will
obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event
shall occur or condition shall exist as a result of which the Prospectus as then amended or
supplemented would 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 existing when the Prospectus is delivered to a purchaser, not misleading or
(ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company
will immediately notify the Underwriters thereof and forthwith prepare and, subject to
paragraph (c) above, file with the Commission and furnish to the Underwriters and to such
dealers as the Representatives may designate such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply with law and
(2) if at any time prior to the Closing Date (i) any event shall occur or condition shall
exist as a result of which the Pricing Disclosure Package as then amended or supplemented
would 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
existing when the Pricing Disclosure Package is delivered to a purchaser, not misleading or
(ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with
law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent required) and
furnish to the Underwriters and to such dealers as the Representatives may designate such
amendments or supplements to the Pricing Disclosure Package as may be necessary so that the
statements in the Pricing Disclosure Package as so amended or supplemented will not, in the
light of the circumstances existing when the Pricing Disclosure Package is delivered to a
purchaser, be misleading or so that the Pricing Disclosure Package will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and will continue such qualifications in effect so long as required for
distribution of the Shares; provided that the Company shall not be required to (i)
qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of process in
any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is
not otherwise so subject.
(g) Earning Statement. The Company will make generally available to its security
holders and the Representatives as soon as practicable an earning statement that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months beginning with the first
fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158)
of the Registration Statement.
(h) Clear Market. For a period of 90 days after the date of the Prospectus, the
Company will not (i) offer, pledge, announce the intention to sell, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, or file with the Securities and Exchange Commission a registration statement
under the Securities Act relating to, any shares of Stock or any securities convertible into
or exercisable or exchangeable for Stock, or publicly disclose the intention to make any
offer, sale, pledge, disposition or filing, or (ii) enter into any swap or other agreement
that transfers, in whole or in part, any of the economic consequences of ownership of the
Stock or any such other securities, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Stock or such other securities, in cash or
otherwise, without the prior written consent of the Representatives, other than the Shares
to be sold hereunder and any shares of Stock of the Company issued upon the exercise of
options granted under Company Stock Plans. Notwithstanding the foregoing, if (1) during the
last 17 days of the 90-day restricted period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (2) prior to the
expiration of the 90-day restricted period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the 90-day period,
the restrictions imposed by this Agreement shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event; provided, however, the Company may offer,
issue, sell, contract to sell or otherwise dispose of or grant options for any common shares
of the Company or any securities convertible into or exercisable or exchangeable for common
shares of the Company, (1) the sale of the Shares pursuant to this Agreement, (2) pursuant
to any Company Stock Plan or dividend reinvestment plan in effect as of the date hereof; and
(3) pursuant to the exercise or conversion of any warrants, stock options, or other
convertible or exchangeable securities of the Company, vesting of restricted shares or the
exchange of units of the Operating Partnership, in each case outstanding as of the date
hereof and in accordance with their terms as in effect on the date hereof.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the
Shares as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus under the heading “Use of proceeds.”
(j) No Stabilization. The Company will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Stock.
(k) Exchange Listing. The Company will use its best efforts to list, subject to notice
of issuance, the Shares on the New York Stock Exchange (the “Exchange”).
(l) Reports. For the prospectus delivery period, the Company will furnish to the
Representatives, as soon as they are available, copies of all reports or other
communications (financial or other) furnished to holders of the Shares, and copies of any
reports and financial statements furnished to or filed with the Commission or any national
securities exchange or automatic quotation system; provided the Company will be
deemed to have furnished such reports and financial statements to the Representatives to the
extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval
system.
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in
good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Securities Act.
(n) REIT Status. The Company will use its best efforts to continue to meet the
requirements to qualify as a REIT under the Code, subject to the fiduciary duties of the
Board of Trustees of the Company to manage the business of the Company.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not used, authorized use of, referred to or participated in the planning for
use of, and will not use, authorize use of, refer to or participate in the planning for use
of, any “free writing prospectus,” as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and
not incorporated by reference into the Registration Statement and any press release issued
by the Company) other than (i) a free writing prospectus that contains no “issuer
information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included
(including through incorporation by reference) in the Preliminary Prospectus or a previously
filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on
Annex B to this Agreement or prepared pursuant to Section 3(c) or Section 4(c) above
(including any electronic road show), or (iii) any free writing prospectus prepared by such
underwriter and approved by the Company in advance in writing (each such free writing
prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Company, use any
free writing prospectus that contains the final terms of the Shares unless such terms have
previously been included in a free writing prospectus filed with the Commission; provided
that any Underwriter using such term sheet shall notify the Company, and provide a copy of
such term sheet to the Company, prior to, or substantially concurrently with, the first use
of such term sheet.
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing
Date, as the case may be, as provided herein is subject to the performance by the Company of its
covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant
to Section 8A under the Securities Act shall be pending before or threatened by the
Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of an Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance
with Section 4(a) hereof;
and all requests by the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing
Date or the Additional Closing Date, as the case may be; and the statements of the Company
and its officers made in any certificates delivered pursuant to this Agreement shall be true
and correct on and as of the Closing Date or the Additional Closing Date, as the case may
be.
(c) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the
execution and delivery of this Agreement, if there are any debt securities or preferred
stock of, or guaranteed by, the Company or any of its subsidiaries that are rated by a
“nationally recognized statistical rating organization,” as such term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act, (i) no downgrading shall
have occurred in the rating accorded any such debt securities or preferred stock and (ii) no
such organization shall have publicly announced that it has under surveillance or review, or
has changed its outlook with respect to, its rating of any such debt securities or preferred
stock (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, and except as otherwise disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) No (A)
material change in the capital stock or other equity interest (other than the issuance of
common shares upon exercise of stock options and warrants, the exchange of units of the
Operating Partnership or the vesting of restricted stock described as outstanding in, and
the grant of options, restricted stock and other awards under existing equity incentive
plans described in, the Registration Statement, the Pricing Disclosure Package and the
Prospectus), or material change in the short-term debt or long-term debt (other than the
repayment of debt at maturity through existing lines of credit, the repayment of certain
hedging obligations, the repayment of existing lines of credit resulting from asset sales,
and borrowings or repayments under existing lines of credit to fund working capital
consistent with past practices), of the Company or any of its subsidiaries, taken as a
whole, or (B) dividend or distribution of any kind declared, set aside for payment, paid or
made by the Company on any shares of beneficial interest, nor any material adverse change,
or any development involving a prospective material adverse change, in or affecting the
business, properties, management, financial position, shareholders’ equity, results of
operations or prospects of the Company and its subsidiaries taken as a whole, shall have
occurred or continue to exist; (ii) neither the Company nor any of its subsidiaries shall
have entered into any transaction or agreement (whether or not in the ordinary course of
business) that is material to the Company and its subsidiaries taken as a whole or incurred
any liability or obligation, direct or contingent, that is material to the Company and its
subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries
shall have sustained any loss or interference with its business that is material to the
Company and its subsidiaries taken as a whole and that is either from fire, explosion, flood
or other similar calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator or
governmental or regulatory authority, which for purposes of the above clauses (i), (ii) and
(iii) the effect of which in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Shares on the Closing Date
or the Additional Closing Date, as the case may be, on the terms and in the manner
contemplated by this Agreement, the Registration Statement, the Pricing Disclosure Package
and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, a certificate of the chief
financial officer or chief accounting officer of the Company and one additional senior
executive officer of the Company who is satisfactory to the Representatives (i) confirming
that such officers have carefully reviewed the Registration Statement, the Pricing
Disclosure Package and the Prospectus and, to the knowledge of such officers, the
representations set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii)
confirming that the other representations and warranties of the Company in this Agreement
are true and correct and that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the Closing
Date or the Additional Closing Date, as the case may be, and (iii) to the effect set forth
in paragraphs (a), (c) and (d) above.
(f) Chief Financial Officer’s Certificate. The Representatives shall have received on
the date of this Agreement and as of the Closing Date or the Additional Closing Date, as the
case may be, a certificate of the chief financial officer of the Company in the form
attached as Exhibit B hereto.
(g) Comfort Letters. On the date of this Agreement and on the Closing Date or the
Additional Closing Date, as the case may be, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP shall have furnished to the
Representatives, at the request of the Company, letters, dated the respective dates of
delivery thereof and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, containing statements and information of the type
customarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus;
provided, that the letter delivered on the Closing Date or the Additional Closing Date, as
the case may be, shall use a “cut-off” date no more than three business days prior to such
Closing Date or such Additional Closing Date, as the case may be.
(h) Opinion and 10b-5 Statement of Counsel for the Company. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and ▇▇▇▇ LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the
Representatives, at the request of the Company, their written opinion and 10b-5 statement,
dated the Closing Date or the Additional Closing Date, as the case may be, and addressed to
the Underwriters, in form and substance reasonably satisfactory to the Representatives, to
the effect set forth in Annex A-1 and A-2 to this Agreement, respectively.
(i) Opinion and Negative Assurance Letter of Counsel for the Underwriters. The
Representatives shall have received on and as of the Closing Date or the Additional Closing
Date, as the case may be, an opinion and Negative Assurance Letter statement of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, counsel for the Underwriters, with respect to such matters
as the Representatives may reasonably request, and such counsel shall have received such
documents and information as they may reasonably request to enable them to pass upon such
matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any federal, state
or foreign governmental or regulatory authority that would, as of the Closing Date or the
Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares; and
no injunction or order of any federal, state or foreign court shall have been issued that
would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent
the issuance or sale of the Shares.
(k) Good Standing. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, satisfactory evidence of the good
standing of the Company and its subsidiaries in their respective jurisdictions of
organization and their good standing as foreign entities in such other jurisdictions as the
Representatives may reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such jurisdictions,
provided, that this clause (j) will be deemed satisfied to the extent the failure to
be in good standing would not, individually or in the aggregate, have a Material Adverse
Effect.
(l) Exchange Listing. The Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance.
(m) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of
Exhibit A hereto, between you and certain officers and directors of the Company relating to
sales and certain other dispositions of shares of Stock or certain other securities,
delivered to you on or before the date hereof, shall be full force and effect on the Closing
Date or Additional Closing Date, as the case may be.
(n) Additional Documents. On or prior to the Closing Date or the Additional Closing
Date, as the case may be, the Company shall have furnished to the Representatives such
further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company and the Operating Partnership jointly
and severally agree to indemnify and hold harmless each Underwriter, its affiliates, directors and
officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, reasonably incurred legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or caused by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein, not misleading, (ii) or
any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto), any Issuer Free Writing Prospectus, any “issuer information”
filed or required to be filed pursuant to Rule 433(d) under the Securities Act, any road show or
any Pricing Disclosure Package, or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in
subsection (b) below.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its trustees, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Pricing Disclosure Package, it being understood and agreed upon that the
only such information furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the second, third and fourth paragraphs under the caption “Underwriting”, the
information contained in the eighth and ninth paragraphs under the caption “Underwriting.”
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under paragraph (a) or (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b)
above. If any such proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the
Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in
such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interest between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid
or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by the Representatives and any such separate firm for the Company, its directors, its officers who
signed the Registration Statement and any control persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement, compromise or consent to the entry of any judgment of any pending or
threatened proceeding, litigation, investigation or claim in respect of which any Indemnified
Person is or could have been a party and indemnification or contribution could have been sought
hereunder by such Indemnified Person, unless such settlement, compromise or consent to the entry of
any judgment (x) includes an unconditional release of such Indemnified Person, in form and
substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (y) does not include any statement as to or any admission
of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters on the other, from the offering of the Shares 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) but also the relative fault of the
Company, on the one hand, and the Underwriters on the other, in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one hand,
and the Underwriters on the other, shall be deemed to be in the same respective proportions as the
net proceeds (before deducting expenses) received by the Company from the sale of the Shares and
the total underwriting discounts and commissions received by the Underwriters in connection
therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the
aggregate offering price of the Shares. The relative fault of the Company, on the one hand, and
the Underwriters on the other, 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 Company or by the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Limitation on Liability. The Company 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 that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the offering of the Shares exceeds the
amount of any damages that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to
their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date or, in the case of the Option Shares, prior to the Additional Closing
Date (i) trading generally shall have been suspended or materially limited on or by any of the New
York Stock Exchange, or the Nasdaq Stock Market; (ii) trading of any securities issued or
guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis, either within or
outside the United States, that, in each case, in the judgment of the Representatives, is material
and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Shares on the Closing Date or the Additional Closing Date, as the case may be, on
the terms and in the manner contemplated by this Agreement, the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
10. Defaulting Underwriter.
(a) If, on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Shares that it has agreed to purchase
hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the
purchase of such Shares by other persons satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Shares, then the Company shall be entitled to
a further period of 36 hours within which to procure other persons satisfactory to the
non-defaulting Underwriters to purchase such Shares on such terms. If other persons become
obligated or agree to purchase the Shares of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date or the Additional Closing Date, as the
case may be, for up to five full business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be necessary in the Registration
Statement and the Prospectus or in any other document or arrangement, and the Company agrees to
promptly prepare any amendment or supplement to the Registration Statement and the Prospectus that
effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all
purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule
1 to this Agreement that, pursuant to this Section 10, purchases Shares that a defaulting
Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, does not exceed one-eleventh of the aggregate
number of Shares to be purchased on such date, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares that such Underwriter agreed to
purchase hereunder on such date plus such Underwriter’s pro rata share (based on the number of
Shares that such Underwriter agreed to purchase on such date) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, exceeds one-eleventh of the aggregate amount of
Shares to be purchased on such date, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement or, with respect to any Additional Closing Date, the
obligation of the Underwriters to purchase Shares on the Additional Closing Date shall terminate
without liability on the part of the non-defaulting Underwriters. Any termination of this
Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except
that the Company will continue to be liable for the payment of expenses as set forth in Section 11
hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in
effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident
to the performance of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the Shares and any taxes
payable in that connection; (ii) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the fees and expenses of
the Company’s counsel and independent accountants; (iv) the fees and expenses incurred in
connection with the registration or qualification of the Shares under the state or foreign
securities or blue sky laws of such jurisdictions as the Representatives may designate and the
preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and
expenses of counsel for the Underwriters); (v) the cost of preparing stock certificates; (vi) the
costs and charges of any transfer agent and any registrar; (vii) all expenses and application fees
incurred in connection with any filing with, and clearance of the offering by, FINRA; (viii) all
expenses incurred by the Company in connection with any “road show” presentation to potential
investors; and (ix) all expenses and application fees related to the listing of the Shares on the
New York Stock Exchange.
(b) If (i) this Agreement is terminated pursuant to Sections 6 or 9(ii), or (ii) the Company
fails to tender the Shares for delivery to the Underwriters upon payment for the Shares by the
Underwriters in accordance with this Agreement, the Company agrees to reimburse the Underwriters
for all out-of-pocket costs and expenses (including the fees and expenses of their counsel)
reasonably incurred by the Underwriters in connection with this Agreement and the offering
contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 7 hereof. Nothing 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 provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
13. Survival. Sections 3 (Representations and Warranties of the Company and the
Operating Partnership), 7 (Indemnification and Contribution), 11 (Payment of Expenses), 13
(Survival) and 15(c) (Miscellaneous — Governing Law) shall remain in full force and effect,
regardless of any termination of this Agreement or any investigation made by or on behalf of the
Company or the Underwriters pursuant
to this Agreement and any certificate delivered pursuant hereto shall survive the delivery of
and payment for the Shares and shall remain in full force and effect, regardless of any termination
of this Agreement or any investigation made by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
15. Miscellaneous.
(a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken
by the Representatives on behalf of the Underwriters, and any such action taken by the
Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o Merrill
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇, Attention: Syndicate Department with a copy to: Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attention:
ECM Legal. Notices to the Company shall be given to it at Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (fax: (▇▇▇) ▇▇▇-▇▇▇▇);
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chief Executive Officer, with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇▇ LLP, 2290 First National Building, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (fax: (▇▇▇)
▇▇▇-▇▇▇▇); Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed in such state.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust |
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | President and CEO | |||
| Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P. |
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| By: | Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust, its general partner |
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | President and CEO | |||
| The foregoing Underwriting Agreement is
hereby confirmed and accepted by the Representatives
as of the date first above written. |
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| ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. For themselves and on behalf of the several Underwriters listed in Schedule 1 hereto. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED |
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| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Authorized Signatory | ||||
| ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. |
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| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Authorized Signatory | ||||
[Signature Page to Underwriting Agreement]