2,021,611 Shares
TAUBMAN CENTERS, INC.
COMMON STOCK ($0.01 PAR VALUE)
UNDERWRITING AGREEMENT
April 23, 1998
April 23, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Taubman Centers, Inc., a Michigan corporation (the "Company"),
proposes to issue and sell to you, Merrill Lynch & Co. (sometimes referred to as
the "Underwriter" below), 2,021,611 shares of its Common Stock, $0.01 par value
(the "Shares"). The outstanding shares of Common Stock, $0.01 par value, of the
Company are hereinafter referred to as the "Common Stock." You have advised the
Company that you intend to deposit the Shares with the trustee of the Equity
Investor Fund Cohen & Steers Realty Majors Portfolio (A Unit Investment Trust)
(the "Trust"), a registered unit investment trust under the Investment Company
Act of 1940, as amended, for which you act as sponsor and depositor, in exchange
for units in the Trust as soon after the execution and delivery hereof as in
your judgment is advisable, and, if necessary, after any post-effective
amendment to the Registration Statement (as defined below).
The Company has filed with the U.S. Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Shares. The registration statement as amended at the time it
became effective, or, if a post-effective amendment has been filed with respect
thereto, as amended by such post-effective amendment at the time of its
effectiveness, under the Securities Act of 1933, as amended (the "1933 Act"), is
referred to as the "Registration Statement," and the prospectus included in the
Registration Statement at the time it became effective under the 1933 Act, as
supplemented by the Prospectus Supplement dated April 23, 1998, in the form
first used to confirm sales of the Shares, is referred to as the "Prospectus."
All references in this Agreement to financial statements and schedules and other
information which is "contained," "included" or "stated" in the Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all financial statements and schedules and other
information that are or are deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement or
the Prospectus shall be deemed to mean and include the filing of any document
under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
Section 1. Representations and Warranties. The Company represents
and warrants to and agrees with the Underwriter that:
(a) (i) The Registration Statement has become effective and, when
it became effective, did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, and when filed
pursuant to Rule 424 under the 1933 Act, will comply, in all material respects,
with the 1933 Act and the applicable rules and regulations of the Commission
thereunder (the "1933 Act Regulations"); and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain, and at
the Closing Time 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, except
that the representations and warranties set forth in this paragraph 1(a) do not
apply to statements in or omissions from the Registration Statement or the
Prospectus under the caption "Underwriting" relating to the Underwriter.
(b) No stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceeding for such purpose is pending before or,
to the knowledge of the Company, threatened by the Commission or by the state
securities authority of any jurisdiction. No order preventing or suspending the
use of the Prospectus has been issued, and no proceeding for that purpose has
been instituted or, to the knowledge of the Company, threatened by the
Commission or by the state securities authority of any jurisdiction.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own or lease its
property, to conduct its business as described in the Prospectus, and to enter
into and perform its obligations under this Agreement, and is duly qualified to
transact business and is in good standing as a foreign corporation authorized to
do business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or to be in good standing would not
have a material adverse effect on the condition, financial or otherwise, or the
earnings, assets, business, or operations of the Company.
(d) Each of The Taubman Realty Group Limited Partnership, a Delaware
limited partnership ("TRG"), and each Subsidiary (as defined below) other than
Taub-Co (as defined below) has been duly formed and is validly existing and in
good standing as a partnership or trust under the laws of its jurisdiction of
organization, with partnership or trust power and authority to conduct its
business and to own or lease its property as
described in the Prospectus. As used in this Agreement, the term "Subsidiary"
means each consolidated subsidiary of TRG (other than corporate subsidiaries of
Taub-Co) and each joint venture included in determining TRG's income from
unconsolidated joint ventures in the consolidated financial statements for TRG
for the most recent fiscal period included in the Prospectus, and "Taub-Co"
means Taub-Co Management, Inc.
(e) Each of TRG and each Subsidiary (other than Taub-Co) is duly
qualified or registered as a foreign partnership or trust in good standing and
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such qualification or
registration, except to the extent that the failure to be so qualified or
registered or to be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, assets, business, or
operations of TRG or such Subsidiary, as the case may be.
(f) Taub-Co has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of organization,
has the corporate power and authority to own or lease its property and to
conduct its business as described in the Prospectus, and is duly qualified to
transact business and is in good standing as a foreign corporation authorized to
do business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or to be in good standing would not
have a material adverse effect on the condition, financial or otherwise, or the
earnings, assets, business, or operations of TRG.
(g) The Company is the managing general partner of TRG. The
ownership by the Company of its interest in TRG, and the ownership (direct or
indirect) by TRG of capital stock or partnership interests in each Subsidiary,
are as set forth in the Prospectus and are free and clear of any liens or
encumbrances except as described in the Prospectus and (in the case of TRG)
except pursuant to that certain Shareholders Agreement dated as of November 20,
1992 among Taub-Co, TRG, The A. Alfred Taubman Restated Revocable Trust, as
amended, and Taub-Co Holdings Limited Partnership. Neither the Company nor TRG
owns any direct or indirect equity interest in any entity other than, in the
case of the Company, TRG or, in the case of TRG, the Subsidiaries and (through
Taub-Co) the corporate subsidiaries of Taub-Co.
(h) This Agreement has been duly authorized, executed, and delivered
by the Company and (for the limited purposes set forth herein) TRG.
(i) The authorized capital stock of the Company and the authorized
partnership interests in TRG conform to the descriptions thereof contained in
the Prospectus in all material respects.
(j) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid, and
non-assessable.
(k) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of the Shares will not
be subject to any preemptive or similar rights.
(l) Deloitte & Touche LLP, the accountants who have audited and
reported on the consolidated financial statements of the Company and TRG and the
financial statements of the unconsolidated joint ventures of TRG included in the
Registration Statement and the Prospectus, are independent certified accountants
as required by the 1933 Act and the 1933 Act Regulations.
(m) The financial statements of the Company, the consolidated
financial statements of TRG, and the financial statements of the unconsolidated
joint ventures of TRG included in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the financial
position of the Company and TRG and the other entities purported to be shown
thereby at their respective dates and the results of operations, shareholders'
equity and cash flows for the respective periods specified, and have been
prepared in accordance with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout such periods. The supporting schedules
included in the Registration Statement present fairly in accordance with GAAP
the information required to be stated therein. The selected financial data and
summary financial information included in the Prospectus present fairly the
information included therein and have been prepared on a basis consistent with
that of the financial statements included in the Registration Statement and the
Prospectus and the books and records of the respective entities presented
therein. Other than the financial statements (and schedules) included therein,
no other financial statements (or schedules) are required by the 1933 Act or the
1933 Act Regulations to be included in the Registration Statement. Except as
reflected or disclosed in the financial statements included in the Registration
Statement or otherwise set forth in the Prospectus, none of the Company, TRG, or
any Subsidiary is subject to any material indebtedness, obligation, or
liability, contingent or otherwise.
(n) There are (i) no legal or governmental proceedings pending or
threatened to which the Company, TRG, or any of the Subsidiaries is a party
other than proceedings accurately described in the Registration Statement or the
Prospectus and proceedings that would not have a material adverse effect on the
Company, TRG, and the Subsidiaries, considered as a single enterprise, or on the
power or ability of the Company or TRG to perform its obligations under this
Agreement or to consummate the transactions contemplated by the Registration
Statement or the Prospectus; and (ii) no statutes, regulations, contracts, or
other documents that are required to be described in the Prospectus or to be
filed as exhibits to the Registration Statement that are not described or filed
as required, except for this Agreement, which will be filed prior to the Closing
Time under a Form 8-K or post-effective amendment to the Registration Statement
that becomes effective upon filing under Rule 462(d) of the 1933 Act
Regulations.
(o) Each of TRG and each Subsidiary has good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned
by it which is material to the business of TRG and the Subsidiaries, considered
as a single enterprise, in each case free and clear of all liens, claims,
encumbrances, and defects except such as are described in the Prospectus or such
as do not materially interfere with the use made and proposed to be made of such
property by TRG or such Subsidiary and do not materially affect the value of
such property (except for reciprocal easement agreements or agreements relating
to common area maintenance that do not materially interfere with the use made
and proposed to be made of such property by TRG or such Subsidiary); and any
real property and buildings held under lease by TRG and each Subsidiary are held
by them under valid, subsisting, and enforceable leases with such exceptions as
do not materially interfere with the use made and proposed to be made of such
property and buildings by TRG or such Subsidiary, in each case except as
described in or contemplated by the Registration Statement and the Prospectus.
(p) Each of the Company, TRG, and each Subsidiary is insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the business in which it is
engaged; and the Company has no reason to believe that it, TRG, or any
Subsidiary will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not materially and
adversely affect the condition, financial or otherwise, or the earnings, assets,
business, or operations of the Company, TRG, and the Subsidiaries, considered as
a single enterprise, except as described in or contemplated by the Registration
Statement and the Prospectus.
(q) Each of the Company, TRG, and the Subsidiaries has all consents,
authorizations, approvals, orders, certificates, and permits of and from, and
has made all declarations and filings with, all federal, state, local, and other
governmental authorities, all self-regulatory organizations, and all courts and
other tribunals required for it to own, lease, license, and use its properties
and assets and to conduct its business in the manner described in the
Registration Statement and the Prospectus, except to the extent that the failure
to obtain, declare or file would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets, business, or
operations of the Company, TRG, and the Subsidiaries, considered as a single
enterprise, and none of the Company, TRG, or any Subsidiary has received any
notice of proceedings relating to the revocation or modification of any such
consent, authorization, approval, order, certificate, or permit that, singly or
in the aggregate, if the subject of an unfavorable decision, ruling, or finding,
would materially and adversely affect the condition, financial or otherwise, or
the earnings, assets, business, or operations of the Company, TRG, and the
Subsidiaries, considered as a single enterprise.
(r) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise described
therein, (i) there has been no material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, assets, business affairs, business prospects, or
operations of the Company, TRG, and the Subsidiaries, considered as a single
enterprise, (ii) there have been no
material transactions entered into by the Company, TRG, or, to the knowledge of
the Company, any Subsidiary, other than transactions in the ordinary course of
business, (iii) none of the Company, TRG, or any Subsidiary has incurred any
material obligation or liability, direct, contingent, or otherwise, (iv) there
has been no material change in the short-term debt or long-term debt of the
Company or TRG, and (v) except for regular dividends on common or preferred
equity, in amounts per share or unit that are consistent with past practice or
the applicable charter document or supplement thereto, there have been no
dividends or distributions of any kind declared, paid or made by the Company or
TRG on any class of its equity.
(s) None of the Company, TRG, or any Subsidiary is in violation of
its charter documents, partnership agreement or other organizational documents,
or its bylaws (if any) or in default in the performance of any obligation,
agreement, or condition included in any bond, debenture, note, or other evidence
of indebtedness or in any indenture, instrument, or agreement to which the
Company, TRG or, to the knowledge of the Company, any Subsidiary is a party or
by which any of their respective properties may be bound or affected, except
where any such violation or default would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, assets, business, or
operations of the Company, TRG, and the Subsidiaries, considered as a single
enterprise.
(t) The execution and delivery by the Company and TRG of this
Agreement, and the performance by the Company and TRG of their respective
obligations hereunder, will not violate or conflict with or constitute a breach
of any of the terms or provisions of, or constitute a default under, (i) the
charter documents or bylaws of the Company, the partnership agreement of TRG or,
to the knowledge of the Company, the respective partnership agreements or other
organizational documents of any Subsidiary or (ii) any bond, debenture, note, or
other evidence of indebtedness or any material instrument or agreement to which
the Company, TRG or any Subsidiary is a party or may be bound, or to which any
of their respective properties may be subject, or (iii) any law, regulation,
ruling, order, judgment, or decree to which the Company, TRG or any Subsidiary
or any of their respective properties may be subject.
(u) All authorizations, approvals, orders, consents, qualifications
of, or filings with, any court or governmental or regulatory authority or agency
that are necessary in connection with the offering, issuance, or sale of the
Shares under this Agreement, and the performance by the Company and TRG of their
respective obligations hereunder, have been obtained or made, except such as
will be obtained on or prior to the Closing Time under the 1933 Act and the 1933
Act Regulations, and except as may be required under state securities laws or
regulations with respect to the Shares.
(v) Each preliminary prospectus and preliminary prospectus
supplement filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act and the 1933
Act Regulations.
(w) Neither the Company nor TRG is an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act"), nor will either of
them be such after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus.
(x) Each of the Company, TRG, and each Subsidiary (i) is in
compliance with any and all applicable foreign, federal, state, and local laws
and regulations relating to the protection of human health and safety, the
environment, or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits, licenses,
and other approvals required of it under applicable Environmental Laws to
conduct its business, and (iii) is in compliance with all terms and conditions
of any such permit, license, or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses, or other
approvals, or failure to comply with the terms and conditions of such permits,
licenses, or approvals are otherwise disclosed in the Prospectus or would not,
singly or in the aggregate, have a material adverse effect on the Company, TRG,
and the Subsidiaries, considered as a single enterprise.
(y) In the ordinary course of its business, TRG conducts a periodic
review of the effect of Environmental Laws on the business, operations, and
properties of it and the Subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties,
or compliance with Environmental Laws or any permit, license, or approval, any
related constraints on operating activities, and any potential liabilities to
third parties). On the basis of these reviews, TRG has reasonably concluded that
such associated costs and liabilities would not, singly or in the aggregate,
have a material adverse effect on the Company, TRG, and the Subsidiaries,
considered as a single enterprise.
(z) Neither the Company nor TRG has taken and neither will take,
directly or indirectly, any action prohibited by Regulation M under the 1934 Act
in connection with the offering and sale of the Shares.
(aa) The assets of TRG do not constitute "plan assets" under the
Employee Retirement Income Security Act of 1974, as amended.
(bb) There are no contracts, agreements, or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the 1933 Act with respect to any
securities of the Company or to require the Company to include such securities
with the Shares registered pursuant to the Registration Statement, except for
such contracts or agreements as are described in the Registration Statement
(including the contracts and agreements incorporated by reference in the
Registration Statement) and with which the Company has complied.
(cc) The statements set forth in the Prospectus under the caption
"Description of the Common Stock," insofar as they purport to constitute a
summary of the terms of the Shares, and under the captions "Underwriting," "Plan
of Distribution" and "Federal Income Tax Considerations," insofar as they
purport to describe factual matters or relate to matters of law or regulation or
constitute summaries of documents described therein, are accurate and complete
in all material respects.
(dd) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended, for its taxable years ended December 31, 1992, 1993,
1994, 1995, 1996, and 1997, and the Company's present and contemplated
organization, ownership, method of operation, assets, and income are such that
the Company is in a position under present law to so qualify for the taxable
year ending December 31, 1998, and in the future.
Section 2. Agreements to Sell and Purchase; Deposit in Trust;
Closing.
(a) The Company agrees to sell the Shares to the Underwriter upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, and the Underwriter agrees to purchase the
Shares from the Company, at $13.1875 a share (the "Purchase Price"), provided
that TRG pays the Underwriter at the Closing Time an underwriting discount or
commission of $0.6923 per Share as required under Section 4(a) below.
(b) (Reserved)
(c) (Reserved)
(d) You have advised the Company that you intend to deposit the
Shares with the trustee of the Trust, a registered unit investment trust under
the Investment Company Act of 1940, as amended, for which you act as sponsor and
depositor, in exchange for units in the Trust as soon after the execution and
delivery hereof as in your judgment is advisable, and, if necessary, after any
post-effective amendment to the Registration Statement.
(e) Payment for the Shares shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of the
Shares for the account of the Underwriter at 10:00 a.m., New York City time, on
April 29, 1998, or at such other time on the same or such other date, not later
than May 1, 1998, as shall be designated in writing by you. The time and date of
such payment are hereinafter referred to as the "Closing Time."
(g) Certificates for the Shares shall be in definitive form and
registered in such names and in such denominations as you shall request in
writing not later than one full business day prior to the Closing Time. The
certificates evidencing the Shares shall
be delivered to you at the Closing Time for your account, with any transfer
taxes payable in connection with the transfer of the Shares to you duly paid,
against payment of the Purchase Price therefor.
Section 3. Covenants of the Company and TRG. Each of the Company and
(only as provided in Section 3(i)) TRG covenants with you as follows:
(a) The Company will notify you immediately, and confirm the notice
in writing, of: (i) the effectiveness of any post-effective amendment to the
Registration Statement; (ii) the receipt of any comments from the Commission;
(iii) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information relating thereto; and (iv) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any such stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) The Company will prepare and file with the Commission within the
applicable period specified in Rule 424(b) of the 1933 Act Regulations any
prospectus required to be filed pursuant to such Rule in connection with the
offer and sale of the Shares.
(c) The Company will prepare and timely file or transmit for filing
with the Commission before the Closing Time a Current Report on Form 8-K, or
post-effective amendment to the Registration Statement that becomes effective
upon filing under Rule 462(d) of the 1933 Act Regulations, adding this Agreement
as an exhibit to the Registration Statement.
(d) The Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the Prospectus
(including any revised prospectus or prospectus supplement that the Company
proposes for use in connection with the offering of the Shares that differs from
the Prospectus, regardless of whether such revised prospectus or prospectus
supplement is required to be filed pursuant to Rule 424(b) under the 1933 Act
Regulations), will furnish you with copies of each such proposed amendment or
supplement a reasonable amount of time prior to filing or use, as the case may
be, and will not file any such amendment or supplement or use any such
prospectus to which counsel for the Underwriter reasonably objects.
(e) The Company will deliver to you, without charge, a conformed
copy of the Registration Statement (including the exhibits filed therewith or
incorporated by reference therein).
(f) If any event shall occur or condition exist as a result of which
it is necessary, in the reasonable opinion of counsel for the Underwriter, to
amend or supplement the Prospectus in order to make the statements therein not
misleading in
the light of the circumstances existing at the time it is delivered to a
prospective investor or in order to otherwise comply with the 1933 Act or the
1934 Act, the Company will forthwith prepare, file with the Commission and
furnish, at its own expense, to the Underwriter, a reasonable number of copies
of an amendment of or supplement to the Prospectus in form and substance
reasonably satisfactory to counsel for the Underwriter and the Company's
counsel, which will amend or supplement the Prospectus so that the statements
therein as so amended or supplemented will not, in the light of the
circumstances existing at the time it is delivered to a prospective investor, be
misleading, or so that the Prospectus as so amended or supplemented otherwise
complies with the 1933 Act and the 1934 Act.
(g) The Company will endeavor in good faith to qualify the Shares
for offering and sale under the applicable securities laws of such states and
other jurisdictions of the United States as you may designate, provided that, in
connection therewith, neither the Company nor any partner in TRG shall be
required to qualify to do business in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Shares have been so qualified, the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for so long as
required for the distribution of the Shares.
(h) The Company will make generally available to its security
holders and to you as soon as reasonably practicable, but not later than 90 days
after the close of the period covered thereby, an earning statement of the
Company (in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a period of at least 12 months beginning not later than
the first day of the Company's fiscal quarter next following the Closing Time.
The terms "earning statement" and "make generally available" have the meanings
included in Rule 158 of the 1933 Act Regulations.
(i) The Company and TRG will use the proceeds received by them from
the sale of the Shares in the manner specified in the Prospectus under the
caption "Use of Proceeds" in all material respects.
(j) Any certificate signed by any officer of the Company and
delivered to an Underwriter or to counsel for the Underwriter shall be deemed a
representation and warranty by the Company to the Underwriter as to the matters
covered thereby.
Section 4. Payment of Discounts, Commissions and Expenses.
(a) TRG will pay or cause to be paid a discount or commission of
$0.6923 a Share to the Underwriter at the Closing Time.
(b) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, TRG will pay or cause to be
paid all expenses incident to the performance of the Company's and its
obligations under this Agreement, including: (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto; (ii)
the fees and disbursements of counsel for the Company and TRG; (iii) the fees
and disbursements of the Company's and TRG's
accountants; (iv) the qualification of the Shares under state securities laws in
accordance with the provisions of Section 3(g), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriter in connection
therewith and in connection with the preparation of any Blue Sky Memorandum; (v)
the printing and delivery to the Underwriter of copies of the Registration
Statement as originally filed and of each amendment thereto, and of the
Prospectus and any amendments or supplements thereto; (vi) any transfer taxes
imposed on the sale of the Shares to the Underwriter; (vii) the costs and
charges of any transfer agent, registrar, or depositary; and (viii) all other
costs and expenses incident to the performance of the obligations of the Company
and TRG under this Agreement for which provision is not otherwise made in this
Section 4. It is understood, however, that except as expressly provided in this
Section 4 and Sections 6 and 7, the Underwriter will pay all of its costs and
expenses, including fees and disbursements of its counsel, stock transfer taxes
payable on resale of any of the Shares by the Underwriter, and any advertising
expenses connected with any offers the Underwriter may make.
(c) If this Agreement is terminated by the Underwriter, in
accordance with the provisions of Section 5 or Section 9(a)(i), TRG shall
reimburse the Underwriter for all of its out-of-pocket expenses, including the
fees and disbursements of counsel for the Underwriter, not to exceed $20,000,
reasonably incurred by the Underwriter in connection with this Agreement or the
offering contemplated hereunder.
Section 5. Conditions of the Underwriter's Obligations. The
obligations of the Underwriter hereunder are subject to the accuracy of the
representations and warranties of the Company herein included, to the
performance by the Company and TRG of their respective obligations hereunder,
and to the following further conditions:
(a) All required post-effective amendments to the Registration
Statement shall have become effective not later than 5:30 p.m., New York City
time, on the date hereof, or, with your consent, at a later time and date, not
later, however, than 5:30 p.m., New York City time, on the second business day
following the date hereof or at such later time and date as may be approved by
you; and at the Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(b) Between the date of this Agreement and the Closing Time, there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the Company's or TRG's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of Rule
436(g)(2) under the 1933 Act.
(c) At the Closing Time, you shall have received:
(1) The favorable opinion, dated as of the date of the closing, of
Miro Weiner & Kramer, counsel for the Company and TRG, which shall be in form
and
substance satisfactory to you and shall include a statement that the opinion is
being rendered at the request of the Company and TRG, to the effect that:
(i) the Company has been duly incorporated and is validly existing
and in good standing under the Michigan Business Corporation Act, which opinion
may rely exclusively on a certificate of good standing issued by the appropriate
official of the State of Michigan;
(ii) TRG has been duly formed and is validly existing and in good
standing under the Delaware Revised Uniform Limited Partnership Act, which
opinion may rely exclusively on a certificate of good standing issued by the
appropriate official of the State of Delaware;
(iii) each of the Company and TRG has the power and authority to own
its property and conduct its business as described in the Prospectus, and is
duly qualified and in good standing and authorized to transact business in any
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified or be in good standing will not have a material adverse effect on it;
(iv) each Subsidiary has been duly formed and is validly existing
and in good standing under the laws of the jurisdiction of its formation, which
opinion may rely exclusively on certificates of good standing or documents of
like import issued by the appropriate state official or agency for each
Subsidiary;
(v) each Subsidiary has the power and authority to own its property
and conduct its business as described in the Prospectus, and is duly qualified
and in good standing and authorized to transact business in any jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified or be
in good standing will not have a material adverse effect on such Subsidiary;
(vi) the shares of Common Stock outstanding prior to the issuance
of the Shares have been duly authorized and are validly issued, fully paid and
non-assessable;
(vii) all of the issued equity interests of TRG and each Subsidiary
have been duly and validly authorized and issued, are fully paid and
non-assessable and with respect to interests in the Subsidiaries, are owned
directly by TRG, free and clear of all liens, encumbrances, equities or claims;
(viii) this Agreement has been duly authorized, executed and
delivered by the Company and TRG;
(ix) the Shares have been duly authorized and, when issued and
delivered to and paid for by the Underwriter in accordance with this Agreement,
will be validly issued, fully paid and non-assessable, and the issuance of the
Shares will not be subject
to any preemptive or similar rights;
(x) the execution and delivery by each of the Company and TRG of,
and the performance by each of their respective obligations under, this
Agreement, and the consummation of the transactions contemplated hereby by the
Company and TRG, will not contravene any provision of applicable law, the
organizational documents of the Company, the partnership agreement of TRG or any
agreement or other instrument that, to the knowledge of such counsel, is binding
upon and is material to the Company or TRG or any Subsidiary, or any judgment,
order, or decree of any governmental body, agency, or court having jurisdiction
over the Company or TRG that, to the knowledge of such counsel, is applicable to
the Company, TRG, or any Subsidiary;
(xi) no consent, approval, authorization, or order of, or
qualification with, any governmental body or agency and no consent, approval, or
authorization of any person other than the Company and TRG is required for the
performance by the Company and TRG of their respective obligations under this
Agreement, except such as may be required by the securities or Blue Sky laws of
various states in connection with the offer and sale of the Shares;
(xii) to the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened to which the Company, TRG, or any
Subsidiary is a party or to which any of their properties is subject, other than
proceedings accurately described in the Registration Statement or the
Prospectus, or proceedings that would not have a material adverse effect on the
Company, TRG, and the Subsidiaries taken as a whole or on the power or ability
of the Company or TRG to perform their respective obligations under this
Agreement or to consummate the transactions contemplated by the Registration
Statement and Prospectus or any statutes, regulations, contracts, or other
documents that are required to be described in the Prospectus or to be filed (by
incorporation by reference or otherwise) as exhibits to the Registration
Statement that are not described or filed as required;
(xiii) except as described in the Registration Statement or the
Prospectus, there is no matter known to such counsel relating to the protection
of human health and safety or the environment (a) that pertains to the Company,
TRG, or any Subsidiary, (b) that individually (or in the aggregate with other
similar matters) is material to the business and operations of the Company, TRG,
and the Subsidiaries taken as a whole, other than as described in the
Registration Statement or the Prospectus, and (c) that is not so described;
(xiv) to the knowledge of such counsel, each of the Company and TRG
and each Subsidiary has the consents, authorizations, approvals, orders,
certificates, and permits of or from, and has made all declarations and filings
with, all federal, state, local, and other governmental authorities, all
self-regulatory organizations, and all courts and other tribunals necessary to
own, lease, license, and use its properties and assets and to conduct its
business in the manner described in the Registration Statement and the
Prospectus, except to the extent that the failure to obtain or file would not
have a
material adverse effect on the Company, TRG, and the Subsidiaries taken as a
whole;
(xv) neither the Company nor TRG is and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the 1940
Act;
(xvi) the statements (A) set forth in the Prospectus under the
caption "Description of the Common Stock," insofar as they constitute a summary
of the terms of the Shares, (B) set forth in the Prospectus and under the
captions "Underwriting," "Certain Provisions of the Articles of Incorporation
and Bylaws," "Restrictions on Transfer," "Plan of Distribution," and "Federal
Income Tax Considerations," and (C) in the Registration Statement under Item 15
("Indemnification of Directors and Officers"), insofar as the statements
referred to in (B) and (C) purport to describe factual matters or relate to
matters of law or regulation or constitute summaries of documents described
therein, are accurate and complete in all material respects;
(xvii) the Registration Statement has been declared effective under
the 1933 Act, and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the Commission; and
(xviii) such counsel (1) is of the opinion that the Registration
Statement and Prospectus (except for financial statements and schedules included
therein, as to which such counsel need not express any opinion) comply as to
form in all material respects with the 1933 Act and the 1933 Act Regulations,
(2) each document heretofore filed pursuant to the 1934 Act and incorporated or
deemed incorporated by reference in the Prospectus (except for financial
statements and schedules included therein, as to which such counsel need not
express any opinion) complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations promulgated
thereunder in effect at the date of their respective filings, (3) believes that
(except for financial statements and schedules as to which such counsel need not
express any belief) the Registration Statement and the prospectus included
therein at the time the Registration Statement became effective did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (4) believes that (except for financial statements and schedules
as to which such counsel need not express any belief) the Prospectus as of the
Closing Time does 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.
With respect to clause (xviii) above, such counsel may state that
their opinions and beliefs are based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments and supplements
thereto and review and discussion of the contents thereof, but are without
independent check
or verification except as specified.
(2) Miro Weiner & Kramer's confirmation, in its capacity as tax
counsel for the Company and TRG, that the Underwriter and its counsel may rely
on such tax counsel's opinion filed as Exhibit 8 to the Registration Statement
as if such opinion were addressed to them and dated as of the date of the
closing.
(3) The favorable opinion, dated as of the Closing Time, of Hogan &
Hartson L.L.P., counsel for the Underwriter, with respect to the matters set
forth above in Sections (5)(c)(1)(viii), (ix), (xvi) (insofar as it relates to
the statements under the captions "Description of the Common Stock,"
"Description of Common Stock," and "Underwriting"), and (xviii)(1) and (2), and
a statement (in such counsel's customary form) to the effect of the statements
set forth in (xviii)(3) and (4). In giving its opinion, Hogan & Hartson L.L.P.
may rely, (A) as to all matters of fact, upon certificates and written
statements of officers and employees of and accountants for each of the Company,
TRG, and the Subsidiaries and (B) as to certain matters of law, upon the opinion
of Miro Weiner & Kramer given pursuant to Section 5(c)(1) above.
(d) At the Closing Time (i) the Registration Statement and the
Prospectus shall include all statements which are required to be stated therein
in accordance with the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations, and neither the Registration Statement nor the Prospectus shall
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and no action, suit or proceeding at law or in equity shall be
pending or, to the knowledge of the Company or TRG, threatened against the
Company, TRG, or any Subsidiary which would be required to be set forth in the
Prospectus other than as set forth therein, (ii) there shall not have occurred,
since the date of execution and delivery of this Agreement, any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or the earnings, assets, business, or operations of the Company, TRG,
and the Subsidiaries, considered as a single enterprise, from that set forth in
the Prospectus (exclusive of any amendments or supplements thereto after the
date of this Agreement) that, in your judgment, is material and adverse and that
makes it, in your judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus, (iii) no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or TRG, threatened by the Commission or by the
securities authority of any jurisdiction, and (iv) the Underwriter shall have
received a certificate of an executive officer of the Company dated as of the
date of the closing, evidencing compliance with the provisions of this Section
5(d) and stating (Y) that the representations and warranties set forth in
Section 1(a) hereof are accurate as though expressly made at and as of the
Closing Time; and (Z) that the conditions precedent set forth in this Section 5
have been satisfied or waived.
(e) At the time of execution of this Agreement, the Underwriter
shall have
received from Deloitte & Touche LLP, independent public accountants for the
Company and TRG, a letter dated the date of this Agreement, in form and
substance satisfactory to the Underwriter, to the effect that: (i) they are
independent public accountants with respect to the Company, TRG, and the
Subsidiaries as required by the 1933 Act and the 1933 Act Regulations; (ii) it
is their opinion that the financial statements and supporting schedules included
in the Registration Statement and covered by their opinions therein (and any
other financial statements audited by them from which information included in
the Registration Statement has been derived) comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations; (iii) based upon limited procedures set forth in detail in
such letter (which shall include, without limitation, the procedures specified
by the American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, Interim Financial
Information, with respect to unaudited interim financial information), nothing
has come to their attention which causes them to believe that (A) the unaudited
financial statements and supporting schedules of the Company, TRG, and the
Subsidiaries included in the Registration Statement do not comply as to form in
all material respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations or are not presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in the
Registration Statement, (B) any unaudited financial statements from which
information in the Prospectus is derived are not presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in the
Registration Statement, or (C) at a specified date not more than five days prior
to the date of this Agreement, there have been any changes in the capital stock,
equity interests, or debt of the Company, TRG, or the Subsidiaries as compared
with amounts disclosed in the December 31, 1997 financial statements included in
the Registration Statement or, during the period from December 31, 1997 to a
specified date not more than five days prior to the date of this Agreement,
there were any decreases, as compared with the corresponding period in the
preceding year, in the sum of the contributions to EBITDA (as defined in the
Registration Statement) of TRG's Consolidated Businesses (as such term is
defined in the Registration Statement) and Joint Ventures (as such term is
defined in TRG's consolidated financial statements) or any increases in interest
expense of TRG or the Joint Ventures, except in all instances for changes,
increases, or decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur, and for normal debt payments or
amortization; and (iv) in addition to the examination referred to in their
opinions and the limited procedures referred to in clause (iii) above, they have
carried out certain specified procedures, not constituting an audit, with
respect to certain amounts, percentages, and financial information which are
included in the Registration Statement and the Prospectus and which are
specified by you in a letter, and have found such amounts, percentages, and
financial information to be in agreement with the audited financial statements,
unaudited financial statements, or other relevant accounting, financial, and
other records of the Company, TRG, and the Subsidiaries as requested by you and
identified in such letter.
(f) At the Closing Time, the Underwriter shall have received from
Deloitte
& Touche LLP a letter, dated as of the date of the closing, to the effect that
they reaffirm the statements made in the letter furnished pursuant to Section
5(e) except that the specified date referred to shall be a date not more than
five days prior to such date but no earlier than the date of this Agreement.
(g) Prior to the Closing Time, counsel for the Underwriter shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Shares as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein included; and all proceedings taken
by the Company or TRG in connection with the issuance and sale of the Shares
shall be reasonably satisfactory in form and substance to you and counsel for
the Underwriter.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by you by notice to the Company at any time at or prior to the Closing Time, and
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from
and against any and all losses, claims, damages, or liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any action or claim) caused by any
untrue statement or alleged untrue statement of a material fact contained in
either the Registration Statement or any amendment thereto, any preliminary
prospectus supplement or the Prospectus (as amended or supplemented if the
Company shall have filed any amendments or supplements thereto, including
pursuant to Section 3(f) hereof), or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, or liabilities are caused by any such untrue statement or
omission or alleged omission based upon information relating to the Underwriter
contained in the Prospectus under the caption "Underwriting."
(b) The Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act
to the same extent as the foregoing indemnity from the Company to the
Underwriter, but only with reference to information relating to the Underwriter
and contained in the Prospectus under the caption "Underwriting."
(c) In case any proceeding (including any governmental
investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 6(a) or 6(b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by the Underwriter, in the case of parties indemnified
pursuant to Section 6(a), and by the Company, in the case of parties indemnified
pursuant to Section 6(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there is a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it will be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the terms of the settlement and (iii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request before the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any
litigation or investigation or pending or threatened proceeding by any
governmental agency or body or any claim whatsoever in respect of which
indemnity or contribution could have been sought under this Agreement (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
Section 7. Contribution.
(a) To the extent the indemnification provided for in Section 6(a)
or 6(b)
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein in connection with the
offering of the Shares, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party 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
Underwriter on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriter on the other hand in connection with the
matters 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 Underwriter on the other hand in
connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriter, in each case as set forth
in the table on the cover of the Prospectus Supplement, bear to the aggregate
Public Offering Price of the Shares. In the case of an untrue or alleged untrue
statement of a material fact or the omission to state a material fact, the
relative fault of the Company on the one hand and of the Underwriter on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement or the omission or alleged omission relates
to information supplied by the Company or by the Underwriter and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(b) The Company and the Underwriter agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriter were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to in Section 7(a). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages, and
liabilities referred to in Section 7(a) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that the 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 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(c) 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
party at law or in equity. The indemnity and contribution provisions contained
in this Section 7 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of the Underwriter or any person controlling the Underwriter or
by or on behalf of the Company or its officers or directors or any person
controlling the Company, and (iii) acceptance of and payment for any of the
Shares.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements included in this
Agreement, or included in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter or any controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Shares.
Section 9. Termination of Agreement.
(a) You may terminate this Agreement, by notice to the Company, at
any time prior to or at the Closing Time if (i) there has been, since the
respective dates as of which information is given in the Registration Statement,
any material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the earnings,
assets, business affairs, business prospects, or operations of the Company, TRG,
and the Subsidiaries, considered as a single enterprise, regardless of whether
arising in the ordinary course of business, or (ii) there has occurred any
material adverse change in the financial markets in the United States or any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of units of the Trust to the
public or to enforce contracts for the sale of such units, (iii) trading of any
securities of the Company or TRG shall have been suspended involuntarily on any
exchange or in any over-the-counter market, (iv) trading generally on the New
York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market, the
Chicago Board Options Exchange, the Chicago Mercantile Exchange, or the Chicago
Board of Trade has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
any such exchange or by order of the Commission or any other governmental
authority, or (v) a general banking moratorium has been declared by Federal or
New York authorities.
(b) You may also terminate this Agreement, by notice to the Company,
at any time prior to or at the Closing Time, in the event that the occurrence of
any of the events specified in Section 9(a), either singly or together with any
other such event, makes it, in your reasonable judgment, impracticable to market
the Shares on the terms and in the manner contemplated in the Prospectus.
(c) If this Agreement is terminated pursuant to Section 9(a) or
9(b), such termination shall be without liability of any party to any other
party except as provided in Section 4, and provided further that Sections 6 and
7 hereof shall survive such termination.
Section 10. Effectiveness. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to Merrill Lynch & Co., c/o Merrill Lynch, Pierce,
Fenner & Smith Incorporated, World Financial Center, North Tower, New York, New
York 10281-1201; and notices to the Company or TRG shall be directed to it at
Taubman Centers, Inc., 200 East Long Lake Road, Bloomfield Hills, Michigan
48304; Attention: Controller.
Section 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriter, the Company and (to the limited extent set
forth above) TRG and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than those referred to in Sections 6 and 7 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein or therein included.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties hereto and their respective
successors and, with respect to Sections 6 and 7, to the persons referred to
therein and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Shares from the Underwriter
shall be deemed to be a successor by reason merely of such purchase.
Section 13. 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 said State.
Section 14. Counterparts. This Agreement may be signed in two or
more counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
Section 15. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you and the
Company in accordance with its terms.
Very truly yours,
TAUBMAN CENTERS, INC.
By: /s/ Lisa A. Payne
-----------------------------------
Name: Lisa A. Payne
Title: Executive Vice President
TRG has executed this Agreement for the sole purpose of agreeing to
be bound by the provisions of Sections 3(i) and 4 hereof.
THE TAUBMAN REALTY GROUP LIMITED
PARTNERSHIP
By: Taubman Centers, Inc., its Managing
General Partner
By: /s/ Lisa A. Payne
-----------------------------------
Name: Lisa A. Payne
Title: Executive Vice President
Accepted as of the date hereof:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ John C. Brady
---------------------------------
Authorized Signatory