Exhibit 1.1
TANGER PROPERTIES LIMITED PARTNERSHIP
Debt Securities
UNDERWRITING AGREEMENT
----------------------
February 9, 2001
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Tanger Properties Limited Partnership, a North Carolina limited
partnership (the "Operating Partnership"), proposes to issue and sell senior
debt securities (the "Senior Securities") or subordinated debt securities (the
"Subordinated Securities," and collectively with the Senior Securities, the
"Debt Securities"), or both, from time to time, in one or more offerings on
terms to be determined at the time of sale. If specified in the applicable Terms
Agreement (as defined below), the Underwritten Securities (as defined below)
will be unconditionally guaranteed as to payment of the principal thereof (and
premium, if any) and interest and Additional Amounts (as defined in the
applicable Indenture referred to below), if any, thereon pursuant to Guarantees
endorsed on such Underwritten Securities (each, a "Guarantee") by Tanger Factory
Outlet Centers, Inc., a North Carolina corporation (the "Company"). The Company
is the sole shareholder of Tanger GP Trust, a Maryland business trust (the "GP
Trust"). The GP Trust is the sole general partner of the Operating Partnership.
The Senior Securities and related Guarantees, if any, will be issued under an
Indenture, dated as of March 1, 1996 (as amended, modified and supplemented from
time to time, the "Senior Indenture"), among the Operating Partnership, the
Company and State Street Bank and Trust Company, as trustee thereunder (the
"Senior Trustee"), and the Subordinated Securities and related Guarantees, if
any, will be issued under an Indenture, to be dated on or prior to the date of
the first issuance of Subordinated Securities thereunder (as amended, modified
and supplemented from time to time, the "Subordinated Indenture," and
collectively with the Senior Indenture, the "Indentures"), among the Operating
Partnership, the Company and State Street Bank and Trust Company, as trustee
thereunder (the "Subordinated Trustee," and collectively with the Senior
Trustee, the "Trustees").
Each series of Debt Securities may vary, as applicable, as to title, rank,
aggregate principal amount, stated maturity date, interest rate or formula and
timing of payments thereof, redemption and/or repayment provisions, sinking fund
requirements and any other variable terms which the applicable Indenture
contemplates. As used herein, "you" and "your," unless the context otherwise
requires, shall mean Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, and any other co-managers identified in the applicable Terms
Agreement with respect to the Underwritten Securities purchased pursuant
thereto.
Whenever the Operating Partnership determines to make an offering of Debt
Securities through you or through an underwriting syndicate managed by you, the
Operating Partnership will enter into an agreement (each, a "Terms Agreement"),
providing for the sale of such Debt Securities to, and the purchase and offering
thereof by, you and such other underwriters, if any, selected by you (the
"Underwriters," which term shall include you, whether acting alone or as a
member of an underwriting syndicate, and any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to an offering of Underwritten
Securities shall specify the rank and aggregate principal amount of Debt
Securities to be initially issued (the "Initial Underwritten Securities"), the
name of each Underwriter participating in such offering (subject to substitution
as provided in Section 10 hereof) and the name of each additional co-manager, if
any, participating in such offering, the principal amount of Initial
Underwritten Securities which each such Underwriter severally agrees to
purchase, whether such offering is on a fixed or variable price basis, the price
at which the Initial Underwritten Securities are to be purchased by the
Underwriters, the initial public offering price, if any, and the form, time,
date and place of delivery and payment for, and any other material variable
terms of, the Initial Underwritten Securities, as well as the applicability and
terms of any Guarantees. In addition, each Terms Agreement shall specify whether
the Operating Partnership has agreed to grant to the Underwriters an option to
purchase additional Debt Securities to cover over-allotments, if any, and the
aggregate principal amount of Debt Securities subject to such option (the
"Option Securities"). As used herein, the term "Underwritten Securities" shall
include the Initial Underwritten Securities and all or any portion of any Option
Securities. The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Operating Partnership. Each
offering of Underwritten Securities through you or through an underwriting
syndicate managed by you will be governed by this Underwriting Agreement, as
supplemented by the applicable Terms Agreement.
The Operating Partnership and the Company have filed with the Securities
and Exchange Commission (the "Commission") three registration statements on Form
S-3 (Nos. 33-99736/33-99736-01, 333-03526/333-03526-01 and
333-39365/333-39365-01), for the registration of the Debt Securities of the
Operating Partnership and the Guarantees, common shares, warrants to purchase
common shares, preferred shares and depositary shares of the Company under the
Securities Act of 1933, as amended (the "1933 Act"), the offering thereof from
time to time in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"), and each such
registration statement has been declared effective by the Commission. The
Operating Partnership and the Company have filed such post-effective amendments
thereto as may have been required prior to the execution of the applicable Terms
Agreement, and each such post-effective amendment has been declared effective by
the Commission, and the Indentures have been qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"). Such registration statements (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 434 of the 1933 Act Regulations (the "Rule 434
Information"), are collectively referred to herein as the "Registration
Statement"; and the prospectus and the prospectus supplement relating to the
offering of the Underwritten Securities, in the forms first furnished to the
Underwriters by the
2
Operating Partnership for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if the Operating Partnership and the
Company file a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration Statement"),
then all references to the "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement; and provided, further, that if
the Operating Partnership and the Company elect to rely upon Rule 434 of the
1933 Act Regulations, then all references to the "Prospectus" shall also be
deemed to include the final prospectus or preliminary prospectus, as the case
may be, and the term sheet or abbreviated term sheet, as the case may be (the
"Term Sheet"), taken together, in the form first furnished to the Underwriters
by the Operating Partnership in reliance on Rule 434 of the 1933 Act
Regulations, and all references herein to the date of the Prospectus shall mean
the date of the Terms Agreement. A "Preliminary Prospectus" shall be deemed to
refer to any prospectus used after the effectiveness of the Registration
Statement and prior to the execution and delivery of the applicable Terms
Agreement that omitted information to be included upon pricing in the form of a
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations. For purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus, Term Sheet or Preliminary Prospectus or to
any amendment or supplement to any of the foregoing shall be deemed to include
any copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included," "stated" or
"described" in the Registration Statement, the Preliminary Prospectus or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement,
the Preliminary Prospectus or the Prospectus, as the case may be; and all
references in this Underwriting Agreement to amendments or supplements to the
Registration Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to include the filing of any document under the 1934 Act which is or is
deemed to be incorporated by reference in the Registration Statement, the
Preliminary Prospectus or the Prospectus, as the case may be.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Operating Partnership severally represents and warrants to you,
and, if applicable, to an Underwriter acting in its capacity as a "qualified
independent underwriter" within the meaning of Rule 2720 of the Conduct Rules of
the National Association of Securities Dealers, Inc. (the "NASD") with respect
to the offering and sale of the Underwritten Securities, such Underwriter is
referred to herein as the "Independent Underwriter," as to matters relating to
the Operating Partnership, and the Company severally represents and warrants to
you, the Independent Underwriter, if any, and to each other Underwriter named in
the applicable Terms Agreement, as of the date thereof, as of the Closing Time
(as defined below) and, if applicable, as of each Date of Delivery (as defined
below) (in each case, a "Representation Date"), as follows:
3
(i) The Registration Statement and the Prospectus, and each
amendment or supplement thereto at the time the Registration
Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment became effective and at each time
thereafter on which the Operating Partnership or the Company filed
an Annual Report on Form 10-K with the Commission, complied, and as
of each Representation Date will comply, in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations
and the 1939 Act; the Registration Statement and each post-effective
amendment thereto, at the time the Registration Statement or any
such post-effective amendment became effective and at each time
thereafter on which the Operating Partnership or the Company filed
an Annual Report on Form 10-K with the Commission, did not, and as
of each Representation Date, and at the Closing Time, will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus and each
amendment or supplement thereto, as of the date hereof, does not,
and as of each Representation Date will not, include an 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, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and
in conformity with information furnished to the Operating
Partnership or the Company in writing by any Underwriter through you
expressly for use in the Registration Statement or the Prospectus or
that part of the Registration Statement which shall constitute the
Statements of Eligibility of the Senior Trustee and the Subordinated
Trustee under the 1939 Act on Form T-1 (the "Statements of
Eligibility").
Each Preliminary Prospectus and Prospectus 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
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the
offering of Underwritten Securities will, at the time of such
delivery, be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(ii) The accountants who certified the financial statements
and supporting schedules thereto included or incorporated by
reference in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations; and there have been no disagreements with any
accountants or "reportable events" (as defined in Item 304 of
Regulation S-K promulgated by the Commission) required to be
disclosed in the Prospectus or elsewhere pursuant to such Item 304
which have not been so disclosed.
4
(iii) The historical consolidated financial statements of the
Operating Partnership and of the Company included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly their respective financial positions as of the dates
indicated and their respective results of operations for the periods
specified; except as otherwise stated in the Registration Statement
and the Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis and comply with the applicable accounting
requirements of the 1933 Act (including, without limitation, Rule
3-14 of Regulation S-X promulgated by the Commission), and all
adjustments necessary for a fair presentation of the results for
such periods have been made; the supporting schedules included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated
therein; and the selected financial data (both historical and pro
forma) included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information shown
therein and have been compiled and derived on a basis consistent
with the related financial statements presented or incorporated by
reference therein.
(iv) Any historical summaries of revenue and certain operating
expenses included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the revenue and those
operating expenses included in such summaries of the properties
related thereto for the periods specified in conformity with
generally accepted accounting principles; any pro forma consolidated
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the pro
forma financial position of the Operating Partnership and its
consolidated subsidiaries and the Company and its consolidated
subsidiaries as of the dates indicated and the results of operations
for the periods specified; and such pro forma financial statements
have been prepared in accordance with generally accepted accounting
principles applied on a basis consistent with the audited financial
statements of the Operating Partnership and the Company included or
incorporated by reference in the Registration Statement and the
Prospectus, the assumptions on which such pro forma financial
statements have been prepared are reasonable and all material
assumptions are set forth in the notes thereto, and such pro forma
financial statements have been prepared, and the pro forma
adjustments set forth therein have been applied, in accordance with
the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations (including, without limitation, Regulation S-X
promulgated by the Commission), and such pro forma adjustments have
been properly applied to the historical amounts in the compilation
of such statements.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (a) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company, the Operating
Partnership, and their subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (b) no
material casualty
5
loss or material condemnation or other material adverse event with
respect to any of the Centers (as defined in the Prospectus) has
occurred, (c) there have been no transactions entered into by the
Operating Partnership, the Company or any of their subsidiaries
other than those in the ordinary course of business, which are
material with respect to the Company, the Operating Partnership and
their subsidiaries considered as one enterprise and (d) except for
regular quarterly dividends on the Company's common shares or
dividends or distributions declared, paid or made in accordance with
the terms of any class or series of the Company's preferred shares
which are set forth in the Company's Amended and Restated Articles
of Incorporation, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its
capital stock and, except for regular quarterly distributions, there
has been no distribution of any kind made by the Operating
Partnership with respect to its partnership interests.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of North Carolina, with corporate power and authority to
conduct its business as described in the Prospectus and to enter
into and perform its obligations under, or contemplated under, this
Underwriting Agreement and the Terms Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to so qualify
or to be in good standing would not have a material adverse effect
on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company, the Operating
Partnership, and their subsidiaries considered as one enterprise.
(vii) The Amended and Restated Agreement of Limited
Partnership of the Operating Partnership, as amended (the "Agreement
of Limited Partnership"), has been duly and validly authorized,
executed and delivered by the Company, the GP Trust and by the
partners of the Operating Partnership, including the GP Trust in its
capacity as sole general partner of the Operating Partnership, and
is a valid and binding agreement of the GP Trust and the partners of
the Operating Partnership, including the GP Trust in its capacity as
sole general partner of the Operating Partnership, enforceable in
accordance with its terms; the Operating Partnership has been duly
formed and is validly existing and is in good standing under the
laws of the State of North Carolina, has power and authority to own,
lease and operate its factory outlet centers (the "Centers") and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company, the Operating Partnership, and
their subsidiaries considered as one enterprise; the GP Trust has
been duly formed and is validly existing and is in good standing
under the laws of
6
the State of Maryland, has power and authority to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or to be in good standing would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects
of the Company, the Operating Partnership and their subsidiaries
considered as one enterprise, the GP Trust is the sole general
partner of the Operating Partnership and is entitled to all rights,
benefits, interests and preferences as a general partner of a North
Carolina limited partnership under the laws of the State of North
Carolina and the Agreement of Limited Partnership (including,
without limitation, those rights, benefits, interests and
preferences afforded to the Company as a holder of the general
partnership units and the preferred general partnership units under
the Agreement of Limited Partnership); and the Company is the sole
shareholder of the GP Trust.
(viii) Each subsidiary (which term, as used in this
Underwriting Agreement, includes corporations, limited and general
partnerships, joint ventures and other entities, and includes direct
and indirect subsidiaries) of the Operating Partnership and the
Company, if any, has been duly formed and is validly existing and in
good standing under the laws of the jurisdiction of its origin, has
power and authority to own, lease and operate its Centers and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company, the Operating Partnership, and
their subsidiaries considered as one enterprise; and except as
otherwise stated in the Prospectus, all of the issued and
outstanding capital stock or other ownership interests in each such
subsidiary have been duly authorized and validly issued, are fully
paid and non-assessable and are owned by the Operating Partnership
or the Company, as the case may be, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except for security
interests granted in respect of indebtedness of the Operating
Partnership or the Company or any of their subsidiaries that is
described in the Prospectus.
(ix) The authorized, issued and outstanding capital stock of
the Company is as stated in the Prospectus; such shares of capital
stock have been duly authorized and validly issued, are fully paid
and non-assessable and are not subject to preemptive or other
similar rights; and the Company has duly reserved a sufficient
number of common shares for issuance upon exchange of outstanding
partnership units in the Operating Partnership.
7
(x) This Underwriting Agreement has been, and the applicable
Terms Agreement as of the date thereof will have been, duly
authorized, executed and delivered by the Operating Partnership and
the Company, as applicable.
(xi) The Underwritten Securities being sold pursuant to this
Underwriting Agreement and the applicable Terms Agreement have been,
or as of the date of such Terms Agreement will have been, duly
authorized by the Operating Partnership for issuance and sale
pursuant to this Underwriting Agreement and such Terms Agreement;
such Underwritten Securities, when issued and delivered by the
Operating Partnership and authenticated by the applicable Trustee
pursuant to the provisions of the applicable Indenture against
payment of the consideration therefor specified in such Terms
Agreement, will constitute valid and legally binding obligations of
the Operating Partnership, enforceable against the Operating
Partnership in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by general equity principles (regardless or
whether enforcement is considered in a proceeding in equity or at
law); such Underwritten Securities and the applicable Indenture
conform in all material respects to all statements relating thereto
contained in the Prospectus; and registered holders of such
Underwritten Securities will be entitled to the benefits provided by
the applicable Indenture.
(xii) The Indenture(s) have been duly and validly authorized,
executed and delivered by the Operating Partnership and the Company
and constitute valid and legally binding agreements of the Operating
Partnership and the Company, enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equity principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
(xiii) The Guarantees, if any, have been duly and validly
authorized by the Company and, when the related Underwritten
Securities are issued, authenticated and delivered pursuant to the
provisions of the applicable Indenture against payment of the
consideration therefor specified in the applicable Terms Agreement,
will be valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equity principles (regardless of whether enforcement is considered
in a proceeding in equity or at law); such Guarantees conform in all
material respects to all statements relating thereto contained in
the Prospectus; and registered holders of the Underwritten
Securities upon which such Guarantees are endorsed will be entitled
to the benefits of such Guarantees and the applicable Indenture.
8
(xiv) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement will conform in all material respects to
all statements relating thereto contained in the Prospectus and will
be in substantially the form filed or incorporated by reference, as
the case may be, as an exhibit to the Registration Statement.
(xv) None of the Operating Partnership, the Company or any of
their subsidiaries is in violation of its agreement of limited
partnership, charter, by-laws, or other organizational documents or
in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Operating Partnership, the Company or any of
their subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Operating
Partnership, the Company or any of their subsidiaries is subject,
except for any such violation or default that would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company,
the Operating Partnership, and their subsidiaries considered as one
enterprise; and the execution, delivery and performance of this
Underwriting Agreement, the applicable Terms Agreement and the
applicable Indenture and the consummation of the transactions
contemplated herein and therein and compliance by the Operating
Partnership and the Company, each severally, with obligations
hereunder and thereunder have been or, on or prior to the date of
the applicable Terms Agreement, will be duly authorized by all
necessary action, and will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Operating Partnership, the Company, or any of their subsidiaries
pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Operating Partnership,
the Company, or any of their subsidiaries is a party or by which any
of them may be bound, or to which any of the property or assets of
the Operating Partnership, the Company, or any of their subsidiaries
is subject, nor will such action result in any violation of the
agreement of limited partnership, charter, by-laws or other
organizational documents of the Operating Partnership, the Company,
or any of their subsidiaries or any applicable law, administrative
regulation or administrative or court decree.
(xvi) Commencing with the Company's taxable year ending
December 31, 1993, the Company has been organized in conformity with
the requirements for qualification as a real estate investment trust
(a "REIT") under the Internal Revenue Code of 1986, as amended (the
"Code"), and it has operated and intends to continue to operate in
such a manner as to enable it to meet the requirements for taxation
as a REIT under the Code.
(xvii) Neither the Operating Partnership, nor the Company is
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended (the "1940 Act").
9
(xviii) The Underwritten Securities will be excluded or
exempted under, or beyond the purview of, the Commodity Exchange
Act, as amended (the "Commodity Exchange Act"), and the rules and
regulations of the Commodity Futures Trading Commission thereunder
(the "Commodity Exchange Act Regulations").
(xix) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Operating Partnership, the
Company or any of their subsidiaries threatened against or affecting
the Operating Partnership, the Company or any of their subsidiaries
which is required to be disclosed in the Prospectus (other than as
disclosed therein), or which might be reasonably expected to (a)
result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company, the Operating Partnership and their
subsidiaries considered as one enterprise, or (b) materially and
adversely affect the property or assets thereof taken as one
enterprise or (c) materially and adversely affect the consummation
of this Underwriting Agreement, the applicable Terms Agreement or
the applicable Indenture or the transactions contemplated herein or
therein; all pending legal or governmental proceedings to which the
Operating Partnership, the Company or any of their subsidiaries is a
party or of which any property or assets of the Operating
Partnership, the Company or any of their subsidiaries is subject
which are not described in the Prospectus, including ordinary
routine litigation incidental to the business, are, considered in
the aggregate, not material; and there are no contracts or documents
of the Operating Partnership, the Company or any of their
subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xx) Neither the Company nor the Operating Partnership is
required to own or possess any trademarks, service marks, trade
names or copyrights in order to conduct the business to be operated
by it which are not currently owned or possessed, the failure of
which to own or possess would have a material adverse effect.
(xxi) No authorization, approval, permit or consent of any
court or governmental authority or agency is necessary in connection
with the consummation by the Operating Partnership or the Company of
the transactions contemplated by this Underwriting Agreement, the
applicable Terms Agreement or the applicable Indenture, except such
as may be required under the 1933 Act or the 1933 Act Regulations,
state securities laws or real estate syndication laws.
(xxii) Each of the Operating Partnership and the Company
possesses such certificates, authorities or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct its business as presently conducted, and
neither the Operating Partnership nor the Company has received any
notice of proceedings relating to the revocation or modification of
10
any such certificate, authority or permit which, 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, business affairs or
business prospects of the Company, the Operating Partnership and
their subsidiaries considered as one enterprise.
(xxiii) The Operating Partnership and the Company have full
right, power and authority to enter into this Underwriting Agreement
and the applicable Terms Agreement and this Underwriting Agreement
has been duly authorized, executed and delivered by the Operating
Partnership and the Company, and as of each Representation Date, the
applicable Terms Agreement will have been, duly authorized, executed
and delivered by the Operating Partnership and the Company.
(xxiv) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement and Prospectus, at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission under
the 1934 Act (the "1934 Act Regulations"), and, when read together
with the other information in the Prospectus, at the time the
Registration Statement or any post-effective amendment became
effective and as of the applicable Representation Date or Closing
Time or during the period specified in Section 3(f) hereof, did not
and will not include an 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, in the light of the
circumstances under which they were made, not misleading.
(xxv) (a) Except as otherwise disclosed or referred to in the
Prospectus and except as would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company, the Operating
Partnership and their subsidiaries considered as one enterprise, the
Operating Partnership has good and marketable title to the Centers,
in each case free and clear of all liens, encumbrances, claims,
security interests and defects, other than as described or referred
to in the Prospectus (including the financial statements
incorporated by reference therein) or which are not material in
amount; (b) all liens, charges, encumbrances, claims, or
restrictions on or affecting the properties and assets of the
Company or the Operating Partnership which are required to be
disclosed in the Prospectus are disclosed therein; (c) neither the
Company or the Operating Partnership nor, to the best of the
knowledge of the Company or the Operating Partnership, any lessee
under a lease relating to any of the Centers, is in default under
any of the leases relating to the Centers and neither the Company
nor the Operating Partnership knows of any 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 that would
not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company or the Operating Partnership taken as one
enterprise; (d) each of the Centers is in compliance with
11
all applicable codes and zoning laws and regulations, except for
such failures to comply which would not individually or in the
aggregate have a material adverse effect on the condition, financial
or otherwise, or on the earnings, business affairs or business
prospects of the Company or the Operating Partnership taken as one
enterprise; and (e) neither the Company nor the Operating
Partnership has knowledge of any pending or threatened condemnation,
zoning change, or other proceeding or action that will in any manner
affect the size of, use of, improvements on, construction on, or
access to the Centers, except as disclosed in the Prospectus or such
proceedings or actions that would not have a material adverse effect
on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company or the
Operating Partnership taken as one enterprise.
(xxvi) The mortgages and deeds of trust encumbering the
properties and assets described in the Prospectus are not
convertible into an equity ownership interest nor does the Company
or the Operating Partnership hold a participating interest therein
and said mortgages and deeds of trust will not be cross-defaulted or
cross-collateralized with any property not owned or leased by the
Company or the Operating Partnership or any of their subsidiaries.
(xxvii) The Company or the Operating Partnership have coverage
under title insurance policies or the indirect benefit of such
coverage by having accepted the Centers pursuant to warranty deeds
from a grantor who has coverage under prior title insurance policies
on each of the Centers in an amount at least equal to the cost of
acquisition of such Property.
(xxviii) Neither the Operating Partnership nor the Company has
any knowledge of: (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste materials
(collectively, "Hazardous Materials") on any of the Centers or,
without independent investigation, any other property on which the
Company has an option or (b) any spills, releases, discharges or
disposal of Hazardous Materials that have occurred or are presently
occurring on or from the Centers as a result of any construction on
or operation and use of the Centers or, without independent
investigation, any other property on which the Company has an
option, which presence or occurrence would have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company, the Operating
Partnership, and their subsidiaries considered as one enterprise;
and in connection with the construction on or operation and use of
the Centers, each of the Operating Partnership and the Company has
no knowledge of any material failure to comply with all applicable
local, state and federal environmental laws, regulations, ordinances
and administrative and judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and disposal of
any Hazardous Materials that would have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company, the Operating
Partnership, and their subsidiaries considered as one enterprise.
12
(b) Any certificate signed by any officer of the Company in such capacity
or by the GP Trust as general partner of the Operating Partnership and delivered
to you, the Independent Underwriter, if any, or to counsel for the Underwriters
in connection with the offering of the Underwritten Securities shall be deemed a
representation and warranty by the Company or the Operating Partnership, as the
case may be, to each Underwriter participating in such offering as to the
matters covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
Section 2. PURCHASE AND SALE.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
(b) In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Operating Partnership may grant, if so specified in the applicable Terms
Agreement, an option to the Underwriters named in such Terms Agreement,
severally and not jointly, to purchase up to the aggregate principal amount of
Option Securities set forth therein at the same price per Option Security as is
applicable to the Initial Underwritten Securities. Such option, if granted, will
expire 30 days (or such lesser number of days as may be specified in such Terms
Agreement) after the date of the Terms Agreement relating to the Initial
Underwritten Securities, and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by you to the Operating Partnership setting forth the
aggregate principal amount of Option Securities as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Securities. Any such time and date of
payment and delivery (each, a "Date of Delivery") shall be determined by you,
but shall not be later than seven full business days and not be earlier than two
full business days after the exercise of said option, unless otherwise agreed
upon by you and the Operating Partnership. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total aggregate
principal amount of Option Securities then being purchased which the aggregate
principal amount of Initial Underwritten Securities each such Underwriter has
severally agreed to purchase as set forth in such Terms Agreement bears to the
total aggregate principal amount of Initial Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the Underwritten
Securities to be purchased by the Underwriters shall be made at the office of
Brown & Wood LLP, 56th Floor, One World Trade Center, New York, New York
10048-0557, or at such other place as shall be agreed upon by you and the
Company, at 9:00 a.m., New York City time, on the third business day (unless
postponed in accordance with the provisions of Section 10 hereof) following the
date of the applicable Terms Agreement or, if pricing takes place after 4:30
p.m., New York City time, on the date of the applicable Terms Agreement, on the
fourth business day (unless postponed in accordance with the provisions of
Section 10 hereof) following the date of the applicable Terms Agreement or at
such other time as shall be agreed upon by you and the
13
Operating Partnership (each such time and date of payment and delivery being
referred to as the "Closing Time"). In addition, in the event that any or all of
the Option Securities are purchased by the Underwriters, payment of the purchase
price for, and delivery of, such Option Securities shall be made at the
above-mentioned offices of Brown & Wood LLP, or at such other place as shall be
agreed upon by you and the Operating Partnership on each Date of Delivery as
specified in the notice from you to the Operating Partnership. Unless otherwise
specified in the applicable Terms Agreement, payment shall be made to the
Operating Partnership by certified or official bank check or checks in Federal
or similar same-day funds payable to the order of the Operating Partnership
against delivery to you for the respective accounts of the Underwriters for the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized you, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Underwritten Securities
which it has severally agreed to purchase, and you, Merrill Lynch, individually
and not as representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Underwritten Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
The Underwritten Securities shall be in such authorized form and
denominations and registered in such names as you may request in writing at
least one business day prior to the applicable Closing Time or Date of Delivery,
as the case may be. The Underwritten Securities will be made available for
examination and packaging by you on or before the last business day prior to the
Closing Time or Date of Delivery, as the case may be.
Section 3. COVENANTS OF THE OPERATING PARTNERSHIP AND THE COMPANY. Each of
the Operating Partnership and the Company, jointly and severally, covenants with
you, and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) Immediately following the execution of the applicable Terms Agreement,
the Operating Partnership and the Company will prepare a prospectus supplement
setting forth the aggregate principal amount of Underwritten Securities covered
thereby and any material terms not otherwise described in the base prospectus,
the name of each Underwriter participating in the offering and the name of each
additional co-manager, if any, participating in the offering, the principal
amount of Underwritten Securities which each severally has agreed to purchase,
the price at which the Underwritten Securities are to be purchased by the
Underwriters from the Operating Partnership, the initial public offering price,
if any, the selling concession and reallowance, if any, any over-allotment
option (and the aggregate principal amount of Option Securities), the
applicability and existence of any Guarantees, and such other information as you
and the Operating Partnership deem appropriate in connection with the offering
of the Underwritten Securities; the Operating Partnership will, by the close of
business in New York on the business day immediately succeeding the date of the
applicable Terms Agreement, transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and
will furnish to the Underwriters, without charge, as many copies of the
Prospectus as you shall reasonably request; and if the Operating Partnership
elects to rely on Rule 434 of the 1933 Act Regulations, the Operating
Partnership will prepare the Term Sheet in a manner that complies with the
requirements of Rule 434 of the 1933 Act Regulations and will furnish to the
Underwriters, without charge, as many copies of the Prospectus as you shall
14
reasonably request and will file or transmit for filing with the Commission the
Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations by the close of business
in New York on the business day immediately succeeding the date of the
applicable Terms Agreement.
(b) The Operating Partnership or the Company will notify you immediately,
and confirm such notice in writing, of (i) the effectiveness of any amendment to
the Registration Statement, (ii) the transmittal to the Commission for filing of
any prospectus supplement or other supplement or amendment to the Prospectus or
any document to be filed pursuant to the 1934 Act, (iii) the receipt of any
comments from the Commission, (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) 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 Operating Partnership
and 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.
(c) At any time when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Operating Partnership or the Company will give you notice of its
intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and
will furnish to you, without charge, copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such documents to which you or counsel for the
Underwriters shall reasonably object.
(d) The Operating Partnership and the Company have furnished or will
furnish to each Underwriter, without charge, as many signed and conformed copies
of the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) as
such Underwriter reasonably requests. The Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) The Operating Partnership and the Company will furnish, without
charge, to each Underwriter, from time to time during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Underwritten Securities, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations,
the 1934 Act or the 1934 Act Regulations. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
15
(f) If at any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for the
Operating Partnership or the Company, to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, then the Operating
Partnership and the Company will promptly prepare and file with the Commission,
subject to Section 3(c), such amendment or supplement, whether by filing
documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements, and the
Operating Partnership and the Company will furnish to the Underwriters, without
charge, a reasonable number of copies of such amendment or supplement.
(g) The Operating Partnership and the Company will endeavor, in
cooperation with the Underwriters, to qualify the Underwritten Securities and
any related Guarantees for offering and sale under the applicable securities
laws and real estate syndication laws of such states and other jurisdictions of
the United States as you may designate; and in each jurisdiction in which the
Underwritten Securities and any related Guarantees have been so qualified, the
Operating Partnership and 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 may be required for the distribution of the
Underwritten Securities and any Guarantees endorsed thereon; provided, however,
that neither the Operating Partnership nor the Company shall be obligated to
qualify as a foreign partnership or corporation or subject itself to general
service of process in any jurisdiction where it is not so qualified or so
subject.
(h) With respect to each sale of Underwritten Securities, the Operating
Partnership and the Company each will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering a twelve month
period beginning not later than the earlier of the first day of the Operating
Partnership's or Company's fiscal quarter, respectively, next following the
"effective date" (as defined in such Rule 158) of the Registration Statement.
(i) Absent a vote of the Board of Directors or a vote of the shareholders,
the Company will use its best efforts to meet the requirements to qualify as a
REIT under the Code.
(j) The Operating Partnership and the Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Underwritten Securities, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the
1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
16
(k) Except as otherwise specified in the applicable Terms Agreement, the
Company will not, between the date of the applicable Terms Agreement and the
termination of any trading restrictions (which will not be greater than 90 days
after the Closing Time) or the Closing Time, whichever is later, with respect to
the Underwritten Securities covered thereby, without the prior written consent
of Merrill Lynch, directly or indirectly offer or sell, grant any option for the
sale of, or enter into any agreement to sell, any debt securities of the
Operating Partnership or the Company (other than the Underwritten Securities
which are to be sold pursuant to such Terms Agreement, commercial paper and debt
securities issued pursuant the Operating Partnership's secured and unsecured
credit facilities).
(l) The Operating Partnership will use the net proceeds received by it
from each sale of Underwritten Securities in the manner set forth in the
Prospectus under the caption "Use of Proceeds."
(m) If specified in the applicable Terms Agreement, the Operating
Partnership and the Company will use their best efforts to list the Underwritten
Securities on any national securities exchange or quotation system identified in
such Terms Agreement.
(n) Each of the Operating Partnership and the Company have complied and
will comply with all of the provisions of Florida H.B. 1771, Section 1, P.
17,130 of the Florida Securities and Investors Act, and all regulations
thereunder relating to issuers doing business with Cuba.
Section 4. PAYMENT OF EXPENSES. The Operating Partnership and the Company,
jointly and severally, agree to pay all expenses incident to the performance of
their obligations under this Underwriting Agreement or the applicable Terms
Agreement, including (i) the printing and filing of the Registration Statement
as originally filed and of each amendment thereto, (ii) the printing,
reproduction and filing of this Underwriting Agreement and the applicable Terms
Agreement, (iii) the preparation, issuance and delivery of the Underwritten
Securities to the Underwriters, (iv) the fees and disbursements of the Operating
Partnership's and the Company's counsel and accountants, of the Trustees and
their counsel and any applicable calculation agent or exchange rate agent, (v)
the qualification of the Underwritten Securities and any related Guarantees
under state securities laws and real estate syndication laws in accordance with
the provisions of Section 3(g), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey, (vi) the printing,
reproduction and delivery to the Underwriters copies of the Blue Sky Survey,
(vii) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, each
preliminary prospectus and of the Prospectus and any amendments or supplements
thereto, including any Terms Sheet delivered by the Operating Partnership and
the Company pursuant to Rule 434 of the 1933 Act Regulations, (viii) any fees
charged by nationally recognized statistical rating organizations for the rating
of the Underwritten Securities, (ix) the fees and expenses, if any, incurred
with respect to the listing of the Underwritten Securities on any national
securities exchange or quotation system, (x) the cost of providing any CUSIP or
other identification numbers for the Underwritten Securities and any Guarantees
endorsed thereon (xi) the fees and expenses of any depository in connection with
the Underwritten Securities, and (xii) the fees and expenses, if any, incurred
with respect to any filing with the NASD of the terms of the sale of
Underwritten Securities and any related Underwritten Securities, and (xiii) the
fees and expenses of any Underwriter acting in
17
the capacity of a "qualified independent underwriter" (as defined in Section
2(1) of Schedule E of the bylaws of the NASD), if applicable.
If the applicable Terms Agreement is terminated by you in accordance with
the provisions of Section 5, or Section 9(b)(i) or Section 9(b)(iv), the
Operating Partnership and/or Company shall reimburse the Underwriters named in
such Terms Agreement for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Operating Partnership and the Company
herein contained, to the accuracy of the statements of the Company's officers,
on behalf of the Company in its capacity as general partner of the Operating
Partnership and on behalf of the Company, made in any certificate pursuant to
the provisions hereof, to the performance by each of the Operating Partnership
and the Company of all of its covenants and other obligations hereunder, and to
the following further conditions:
(a) At Closing Time, (i) 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, (ii) the rating assigned by
any nationally recognized statistical rating organization to the Underwritten
Securities or other securities of the Operating Partnership or the Company as of
the execution of the applicable Terms Agreement shall not have been lowered or
withdrawn since such execution nor shall such rating organization have publicly
announced since such execution that it has under surveillance or review, with
possible negative implications, its rating of the Underwritten Securities or
other securities of the Operating Partnership or the Company, and (iii) there
shall not have come to your attention any facts that would cause you to believe
that the Prospectus, at the time it was required to be delivered to purchasers
of the Underwritten Securities, included an 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 existing at such time, not
misleading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Latham &
Watkins, counsel for the Operating Partnership and the Company, in
form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) Each of the Company and the Operating Partnership is duly
qualified as a foreign corporation or partnership, as applicable, to
transact business and is in good standing in each jurisdiction in
which a Center is located, except where the failure to so qualify or
to be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company, the Operating
Partnership and their subsidiaries considered as one enterprise.
18
(ii) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement are in the form contemplated by the
applicable Indenture, and such Underwritten Securities, when issued
and delivered by the Operating Partnership and authenticated by the
applicable Trustee pursuant to the provisions of the applicable
Indenture against payment of the consideration therefor specified in
such Terms Agreement, will constitute valid and legally binding
obligations of the Operating Partnership, enforceable against the
Operating Partnership in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equity
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); and registered holders of such
Underwritten Securities will be entitled to the benefits of the
applicable Indenture.
(iii) The applicable Indenture (assuming due authorization,
execution and delivery by the applicable Trustee) constitutes a
valid and legally binding agreement of the Operating Partnership,
and the Company, as the case may be, enforceable in accordance with
its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by
general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law)(it being understood
that counsel need not express any opinion concerning the
enforceability of the waiver of rights or defenses contained in
Section 514 of the applicable Indenture).
(iv) When the related Underwritten Securities are issued,
authenticated and delivered pursuant to the provisions of the
applicable Indenture against payment of the consideration therefor
specified in the applicable Terms Agreement, the Guarantees, if any,
will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equity principles (regardless of whether enforcement is considered
in a proceeding of equity or at law); and registered holders of the
Underwritten Securities upon which such Guarantees are endorsed will
be entitled to the benefits of such Guarantees and the applicable
Indenture.
(v) The Indenture(s) have been duly qualified under the
1939 Act.
(vi) To the best of their knowledge and information, there are
no legal or governmental proceedings pending or threatened against
the Operating Partnership, the Company, or any of their subsidiaries
which are required to be disclosed in the Registration Statement or
the Prospectus, other than those disclosed therein.
19
(vii) The Registration Statement is effective under the 1933
Act and, to the best of their knowledge and information, 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.
(viii) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, and each
amendment or supplement thereto (including any Rule 462(b)
Registration Statement), as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements for registration statements on Form S-3 under the 1933
Act and the 1933 Act Regulations; it being understood, however, that
no opinion need be rendered with respect to the financial
statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement
or the Prospectus (in passing as to form, such counsel may assume
that the statements made therein are correct and complete).
(ix) Each document filed pursuant to the 1934 Act (other than
the financial statements, schedules and other financial and
statistical data included therein, as to which no opinion need be
rendered) and incorporated or deemed to be incorporated by reference
in the Prospectus complied when so filed as to form in all material
respects with the 1934 Act and the 1934 Act Regulations (in passing
as to form, such counsel may assume that the statements made therein
are correct and complete).
(x) No authorization, approval, permit or consent of any court
or governmental authority or agency is required that has not been
obtained in connection with the consummation by the Operating
Partnership, or the Company, or any of their subsidiaries of the
transactions contemplated by this Underwriting Agreement, the
applicable Terms Agreement or the applicable Indenture, except such
as may be required under the state securities or real estate
syndication laws.
(xi) The Underwritten Securities upon issuance will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act and the Commodity Exchange Act Regulations.
(xii) Neither the Operating Partnership nor the Company is, or
will be, required to be registered as an investment company under
the Investment Company Act of 1940 upon the issuance and sale of the
Underwritten Securities and the application of the net proceeds
therefrom as described in the Prospectus.
(xiii) Commencing with the Company's taxable year ending
December 31, 1993, the Company has been organized in conformity with
the requirements for qualification as a REIT under the Code and its
proposed method of operation, as described by representations of the
Company, will enable it to meet the requirements for taxation as a
REIT under the Code.
20
(xiv) To the best of their knowledge and information, there
are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be filed as exhibits to the
Registration Statement other than those filed as exhibits thereto.
(xv) To the best of their knowledge and information, the
execution and delivery of this Underwriting Agreement, the
applicable Terms Agreement and the applicable Indenture, and the
consummation of the transactions contemplated herein and therein and
compliance by each of the Operating Partnership, the Company, and
their subsidiaries with its obligations hereunder and thereunder,
assuming application of the proceeds of the Underwritten Securities
in accordance with the Prospectus, will not conflict with or
constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Operating Partnership, the Company, or any of their
subsidiaries pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Operating
Partnership, the Company or their subsidiaries is a party or by
which it or either of them may be bound or to which any of the
properties or assets of the Operating Partnership, the Company, or
any of their subsidiaries is subject and which has been identified
by the Operating Partnership or the Company as a material contract,
indenture, mortgage, loan agreement, note, lease or other instrument
or which has been filed as an exhibit to the Registration Statement
or any document incorporated by reference therein or any applicable
law, administrative regulation or administrative or court order or
decree known to them.
(xvi) The Underwritten Securities, any Guarantees endorsed
thereon and the applicable Indenture conform in all material
respects to the statements relating thereto contained in the
Prospectus and are in substantially the form filed or incorporated
by reference, as the case may be, as an exhibit to the Registration
Statement.
(xvii) The statements set forth in the Prospectus under the
captions "Description of Debt Securities," "Material Federal Income
Tax Considerations to Tanger Factory Outlet Centers, Inc." and "Tax
Aspects of the Operating Partnership" or any other caption
purporting to cover such matters, to the extent such statements
constitute matters of law, summaries of legal matters, or legal
conclusions, have been reviewed by them and are correct in all
material respects.
(2) The favorable opinion, dated as of Closing Time, of Vernon,
Vernon, Wooten, Brown, Andrews & Garrett, P.A., counsel for the
Company and the Operating Partnership, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of North Carolina.
21
(ii) The Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under the
laws of the State of North Carolina; the GP Trust is the sole
general partner of the Operating Partnership.
(iii) All of the partnership interests of the Operating
Partnership have been issued in accordance with the Agreement of
Limited Partnership and the capital contributions of each partner
(or its predecessor in interest) described in the Agreement of
Limited Partnership have been fully paid.
(iv) The partnership interests of the Operating Partnership
owned by the GP Trust have been issued in accordance with the
Agreement of Limited Partnership and the capital contributions of
the Company described in the Agreement of Limited Partnership have
been fully paid and such partnership interests are owned free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(v) Each of the Operating Partnership, the Company, and their
subsidiaries, if any, has the partnership or corporate power, as
applicable, required under North Carolina law (without reference to,
or consideration of, the requirements of jurisdictions other than
North Carolina in which its properties are located or its business
is conducted) to own, lease and operate its properties and to
conduct its business as described in the Prospectus.
(vi) Each of the Company and the Operating Partnership is duly
qualified as a foreign corporation or partnership, as applicable, to
transact business and is in good standing in each jurisdiction in
which it owns or leases real property, except where the failure to
so qualify or to be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company, the
Operating Partnership and their subsidiaries considered as one
enterprise.
(vii) The issued and outstanding shares of capital stock of
the Company are as stated in the Prospectus under the headings
"Description of Common Shares," "Description of Preferred Shares"
and "Capitalization" as of the date set forth therein; and such
stock has been duly authorized, validly issued, fully paid and
non-assessable and to the best of their knowledge and information,
is not subject to preemptive or other similar rights.
(viii) This Underwriting Agreement has been duly authorized,
executed and delivered by the Operating Partnership and the Company
and the applicable Terms Agreement has been duly authorized,
executed and delivered by the Operating Partnership.
(ix) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement have been duly and validly authorized by
all necessary action of the Operating Partnership and the Company
and such Underwritten Securities
22
have been duly authorized by the Operating Partnership and the
Company for issuance and sale pursuant to this Underwriting
Agreement and such Terms Agreement.
(x) The applicable Indenture has been duly authorized,
executed and delivered by the Operating Partnership and the Company.
(xi) The Guarantees, if any, have been duly authorized,
executed and delivered by the Company.
(xii) The Agreement of Limited Partnership has been duly
authorized, executed and delivered by the parties thereto and is a
valid and binding agreement of each of the parties thereto,
enforceable in accordance with its terms, except as may be limited
by any applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xiii) The GP Trust is the sole general partner of the
Operating Partnership and is entitled to all rights, benefits,
interests and preferences as a general partner of a North Carolina
limited partnership under the laws of the State of North Carolina
and the Agreement of Limited Partnership (including, without
limitation, those rights, benefits, interests and preferences
afforded to the GP Trust as a holder of the partnership units under
the Agreement of Limited Partnership), except as may be limited by
any applicable bankruptcy, insolvency, reorganization, moratorium,
or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(iv) Without independent investigation, to the best of their
actual knowledge and information, all pending legal or governmental
proceedings which are not described in the Prospectus, including
ordinary routine litigation, to which the Company or the Operating
Partnership is a party or to which the Centers are subject and (i)
in which a claim is asserted against the Company for the recovery of
money, for the imposition of an equitable remedy or for the
assessment of a fine or penalty or (ii) in which a claim is asserted
which would result in the creation or imposition of any lien, charge
or encumbrance upon any of the properties of the Company or the
Operating Partnership are considered by them in the aggregate not
material. For these purposes, materiality shall have the same
meaning as that term has for the certified public accounting firm
that audits the financial statements included in any applicable
Registration Statement and Prospectus.
(v) Without independent investigation, to the best of their
actual knowledge and information, no material default exists in the
Company's or Operating Partnership's due performance or observance
of any material obligation, agreement, covenant or condition imposed
upon the Company or the
23
Operating Partnership in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument described or referred to
in the Registration Statement or filed as an exhibit thereto which
would have a material adverse effect on the condition , financial or
otherwise, or the earnings, business affairs or business prospects
of the Company, the Operating Partnership and their subsidiaries
considered as one enterprise.
(vi) Without independent investigation, they have no actual
knowledge or information that would lead them to believe that the
execution and delivery of this Underwriting Agreement, the
applicable Terms Agreement and the applicable Indenture and,
assuming facts in existence as of the date of the opinion, the
consummation of the transactions contemplated herein and therein and
compliance by the Company and the Operating Partnership with their
obligations hereunder and thereunder conflict with or constitute a
breach by the Company or the Operating Partnership of, or default by
the Company or the Operating Partnership under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or the Operating Partnership
pursuant to any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument of which they have actual
knowledge and to which the Company or the Operating Partnership is a
party or by which either of them may be bound or to which any of the
property or assets of the Company or the Operating Partnership is
subject.
(3) The favorable opinion, dated as of Closing Time, of Brown & Wood
LLP, counsel for the Underwriters, with respect to certain matters
reasonably requested by the Underwriters.
(4) In giving their opinions required by subsections (b)(1), (b)(2)
and (b)(3), respectively, of this Section, Latham & Watkins, Vernon,
Vernon, Wooten, Brown, Andrews & Garrett, P.A. and Brown & Wood LLP
shall each additionally state that nothing has come to their
attention that would lead them to believe that the Registration
Statement or any amendment thereto (except for financial statements
and schedules and other financial data, as to which counsel need
make no statement), at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Operating Partnership or the Company with
the Commission subsequent to the effectiveness of the Registration
Statement, then at the time such amendment becomes effective or at
the time of the most recent filing of any such Annual Report, as the
case may be) or at the date of the applicable Terms Agreement,
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and
schedules and other financial data, as to which counsel need make no
statement), at the date of the Applicable Terms Agreement or at
Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they
24
were made, not misleading. In giving their opinions required by
subsections (b)(1), (b)(2) and (b)(3), respectively, of this
Section, Latham & Watkins, Vernon, Vernon, Wooten, Brown, Andrews &
Garrett, P.A. and Brown & Wood LLP may rely, as to all matters of
fact, upon certificates and written statements of officers and
employees of and accountants for the Operating Partnership and the
Company, and with respect to certain other matters, upon
certificates of appropriate government officials in such
jurisdiction, and Latham & Watkins and Brown & Wood LLP may
additionally rely, as to matters involving the laws of the State of
North Carolina, upon the opinion of Vernon, Vernon, Wooten, Brown,
Andrews & Garrett, P.A. (or other counsel reasonably satisfactory to
counsel for the Underwriters) in form and substance satisfactory to
counsel for the Underwriters.
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company, the Operating Partnership and their subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business; no
proceedings shall be pending or, to the knowledge of the Operating Partnership
or the Company threatened against the Operating Partnership, the Company, any of
their subsidiaries or any of the Centers before or by any Federal, state or
other commission, board or administrative agency wherein an unfavorable
decision, ruling or finding would be reasonably expected and which would
materially and adversely affect the business, property, financial condition or
income of the Company, the Operating Partnership and their subsidiaries,
considered as one enterprise; and you shall have received a certificate of the
President or Chief Executive Officer or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company in such capacity,
and of the general partner of the Operating Partnership, dated as of such
Closing Time, to the effect that (i) there has been no such material adverse
change or proceedings and (ii) the representations and warranties in Section 1
are true and correct with the same force and effect as though such Closing Time
were a Representation Date.
(d) At the time of execution of the applicable Terms Agreement, you shall
have received a letter dated such date from PricewaterhouseCoopers LLP, in form
and substance satisfactory to you, to the effect that (i) they are independent
public accountants with respect to the Operating Partnership and the Company,
and their subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations thereunder; (ii) it is their opinion that the consolidated financial
statements and financial statement schedules of the Operating Partnership and
its subsidiaries and of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus and
audited by them and covered by their opinions therein comply as to form in all
material respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations; (iii) they have performed limited procedures, not
constituting an audit, including a reading of the latest available unaudited
interim consolidated financial statements of the Operating Partnership and the
Company, a reading of the minute books of the Company, inquiries of certain
officials of the Operating Partnership or the Company who have responsibility
for financial and accounting matters and such other inquiries and procedures as
may be specified in such letter, and on the basis of such limited review and
procedures (which shall include, without limitation, the procedures specified by
the American Institute of Certified
25
Public Accountants for a review of interim financial information as described in
SAS No. 71, Interim Financial Information, with respect to the unaudited
condensed consolidated financial statements of the Operating Partnership and its
subsidiaries and the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus), nothing has come to
their attention which causes them to believe (A) that any material modifications
should be made to the unaudited condensed financial statements of the Operating
Partnership and its subsidiaries or the Company and its subsidiaries included in
the Registration Statement and the Prospectus for them to be in conformity with
generally accepted accounting principles or that such unaudited financial
statements do not comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act Regulations, (B) the
unaudited financial data of the Operating Partnership and the Company in the
Registration Statement and the Prospectus under the caption "Selected Financial
Data," if any, was not determined on a basis substantially consistent with that
used in determining the corresponding amounts in the applicable audited
financial statements included or incorporated by reference in the Registration
Statement and the Prospectus, or (C) at a specified date not more than three
days prior to the date of the applicable Terms Agreement, there has been any
change in the partners' capital of the Operating Partnership or the capital
stock of the Company or any increase in the debt of the Operating Partnership
and its subsidiaries or the Company and its subsidiaries or any decrease in
consolidated net current assets or net assets of the Operating Partnership or
the Company, as compared with the amounts shown in the most recent consolidated
balance sheet included or incorporated by reference in the Registration
Statement and the Prospectus or, during the period from the date of the most
recent consolidated statement of operations included or incorporated by
reference in the Registration Statement and the Prospectus to a specified date
not more than three days prior to the date of the applicable Terms Agreement,
there were any decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues, operating income, funds from
operations, net income or net income per share (in the case of the Company) of
the Operating Partnership and its subsidiaries or the Company and its
subsidiaries, except in all instances for changes, increases or decreases which
the Registration Statement and the Prospectus disclose have occurred or may
occur; (iv) they have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302 and 503(d), respectively, of Regulation S-K; and
(w) in addition to the examination referred to in their opinion and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and the Prospectus and
which are specified by you, and have found such amounts, percentages and
financial information to be in agreement with the relevant accounting, financial
and other records of the Operating Partnership and its subsidiaries or the
Company and its subsidiaries, as the case may be, identified in such letter.
(e) At Closing Time, you shall have received a letter, dated as of Closing
Time, from PricewaterhouseCoopers LLP, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the "specified date" referred to shall be a date not more
than three days prior to such Closing Time.
26
(f) If applicable, at the time of the execution of the applicable Terms
Agreement, you shall have received a letter dated such date from such
independent accountants that have prepared any historical financial statements
included in or incorporated by reference into the Registration Statement and
Prospectus which financial statements relate to properties or assets acquired or
to be acquired by the Operating Partnership or the Company, or any of their
subsidiaries, in form and substance satisfactory to the Underwriters, to the
effect that (i) they are independent accountants with respect to the Operating
Partnership or the Company, as the case may be, and such properties or assets
acquired by the Operating Partnership or the Company, as the case may be, within
the meaning of the 1933 Act and the 1933 Act Regulations; and (ii) it is their
opinion that the historical financial statements for such properties or assets
that have been audited by them and covered by their opinions included or
incorporated by reference into the Registration Statement and the Prospectus
comply in form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations.
(g) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Underwritten
Securities as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Operating Partnership and the Company in connection with the
issuance and sale of the Underwritten Securities, as herein contemplated shall
be satisfactory in form and substance to you and counsel for the Underwriters.
(h) In the event that the Underwriters exercise their option, if any,
provided in the applicable Terms Agreement as set forth in Section 2(b) hereof
to purchase all or any portion of the Option Securities, the representations and
warranties of the Operating Partnership and the Company contained herein and the
statements in any certificates furnished by the Operating Partnership and the
Company hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery, of the President and
Chief Executive Officer or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company on
behalf of the Company and on behalf of the Company in its capacity
as general partner of the Operating Partnership confirming that the
certificate delivered at the Closing Time pursuant to Section 5(c)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Latham & Watkins, counsel for the
Operating Partnership, the GP Trust and the Company, in form and
substance satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as the
opinion required by Sections 5(b)(1) and 5(b)(4) hereof.
(3) The favorable opinion of Vernon, Vernon, Wooten, Brown, Andrews
& Garrett, P.A., counsel for the Company and the Operating
Partnership in form and substance reasonably satisfactory to counsel
for the Underwriters, dated such Date
27
of Delivery, relating to the Option Shares and otherwise to the same
effect as the opinion required by Section 5(b)(2) and 5(b)(4)
hereof.
(4) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Sections 5(b)(3) and
5(b)(4) hereof.
(5) A letter from PricewaterhouseCoopers LLP, in form and substance
satisfactory to you and dated such Date of Delivery, substantially
the same in form and substance as the letter furnished to you
pursuant to Section 5(d) hereof, except that the "specified date" in
the letter furnished pursuant to this Section 5(h)(5) shall be a
date not more than three days prior to such Date of Delivery.
(6) The rating assigned by any nationally recognized statistical
rating organization to the Underwritten Securities or other
securities of the Operating Partnership or the Company as of the
execution of the applicable Terms Agreement shall not have been
lowered or withdrawn since such execution nor shall such rating
organization have publicly announced that it has under surveillance
or review its rating of the Underwritten Securities or other
securities of the Operating Partnership or the Company.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by you by notice to the Operating Partnership or the Company at any
time at or prior to the Closing Time or Date of Delivery, as the case may be,
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 Operating Partnership and the Company,
jointly and severally, hereby agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act and Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
Rule 434 information, if any, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a
material fact included in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
28
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the indemnifying
party; and
(3) against any and all expense (including, the fees and
disbursements of counsel chosen by you) whatsoever, as incurred,
which has been reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceedings by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (1)
or (2) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership or the Company by any Underwriter through you expressly for use in
the Registration Statement (or any amendment thereto) and the Prospectus (or any
amendment or supplement thereto).
In addition to, and without limitation of, the joint and several
obligation of the Operating Partnership and the Company to indemnify each
Underwriter, the Operating Partnership and the Company jointly and severally,
also agree to indemnify and hold harmless the Independent Underwriter, if any,
and each person, if any, who controls the Independent Underwriter, if any,
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
from and against any and all loss, liability, claim, damage and expense, as
incurred as a result of the Independent Underwriter's, if any, participation as
a "qualified independent underwriter" within the meaning of the Rule 2720 of the
Conduct Rules of the NASD in connection with the offering of the Underwritten
Securities.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Operating Partnership and the Company, the directors, each of the officers who
signed the Registration Statement and each person, if any, who controls the
Operating Partnership or the Company within the meaning of Section 15 of the
1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through you expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto); PROVIDED
FURTHER, that with respect to any preliminary prospectus, such indemnity shall
not inure to the benefit of any Underwriter (or the benefit of any person
controlling such Underwriter) if the person asserting any such losses,
liabilities, claims, damages or expenses purchased the Underwritten Securities
which are the subject thereof from such Underwriter and if such person was not
sent or given a copy of the Prospectus (excluding any documents
29
incorporated therein by reference) at or prior to confirmation of the sale of
such Underwritten Securities to such person in any case where such sending or
giving is required by the 1933 Act and the untrue statement or omission of a
material fact contained in such preliminary prospectus was corrected in the
Prospectus and the Prospectus was delivered to such Underwriter a reasonable
amount of time prior to the date of delivery of such confirmation.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. In the
case of parties indemnified pursuant to the first paragraph of Section 6(a)
above, counsel to the indemnified parties shall be selected by Merrill Lynch,
and in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company and the Operating
Partnership. An indemnifying party may participate at its own expense in the
defense of such action. If it so elects within a reasonable time after receipt
of such notice, an indemnifying party, jointly with any other indemnifying
parties receiving such notice, may assume the defense of such action with
counsel chosen by it and approved by the indemnified parties defendant in such
action, unless such indemnified parties reasonably object to such assumption on
the ground that there may be legal defenses available to them which are
different from or in addition to those available to such indemnifying party. If
an indemnifying party assumes the defense of such action, the indemnifying
parties shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action. In no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
If at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(2) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
30
Notwithstanding anything to the contrary contained herein, if indemnity is
sought pursuant to the second paragraph of Section 6(a), then, in addition to
the fees and expenses of counsel for the Indemnified Persons, the Indemnifying
Person shall be liable for the fees and expenses of not more than one firm (in
addition to any local counsel) separate from its own counsel and that of the
other Indemnified Persons for the Independent Underwriter, if any, in its
capacity as a "qualified independent underwriter" and all persons, if any, who
control the Independent Underwriter, if any, within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances if, in the reasonable judgment of
the Independent Underwriter, if any, there may exist a conflict of interest
between the Independent Underwriter, if any, and the other Indemnified Persons.
Any such separate counsel for the Independent Underwriter, if any, and such
control persons, if any, of the Independent Underwriter, if any, shall be
designated in writing by the Independent Underwriter, if any.
Section 7. CONTRIBUTION. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company or the
Operating Partnership, on the one hand, and the Underwriters and the Independent
Underwriter, if any, on the other hand, from the offering of the Underwritten
Securities pursuant to the applicable Terms Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company or the Operating
Partnership, on the one hand, and of the Underwriters and the Independent
Underwriter, if any, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company or the Operating
Partnership, on the one hand, and the Underwriters and the Independent
Underwriter, if any, on the other hand, in connection with the offering of the
Debt Securities pursuant to the applicable Terms Agreement shall be deemed to be
in the same respective proportions as the total net proceeds from the offering
of the Underwritten Securities (before deducting expenses) received by the
Company or the Operating Partnership and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of such Debt
Securities as set forth on such cover. The benefits received by the Independent
Underwriter, if any, shall be limited to the fee it received.
The relative fault of the Company or the Operating Partnership on the one
hand and the Underwriters and the Independent Underwriter, if any, on the other
hand shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Operating Partnership or by the Underwriters and the parties'
31
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Operating Partnership, the Underwriters and the
Independent Underwriter, if any, 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 and the Independent Underwriter, if any,
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement on behalf of the Company as general partner of the
Operating Partnership or on behalf of the Company itself, and each person, if
any, who controls the Operating Partnership or the Company within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Operating Partnership and the Company. The Underwriter's respective obligations
to contribute pursuant to this Section 7 are several in proportion to the
aggregate principal amount of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint. For purposes of this
Section 7, the Operating Partnership, the Company, and their subsidiaries shall
be deemed one party jointly and severally liable for any obligations hereunder.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Operating Partnership and the Company submitted pursuant hereto
or thereto, shall remain operative and in full force and effect, regardless of
any termination of this Underwriting Agreement or the applicable Terms
Agreement, or investigation made by or on behalf of any Underwriter or any
controlling person, or by or on behalf of the Operating Partnership or the
Company, and shall survive delivery of and payment for the Underwritten
Securities.
32
Section 9. TERMINATION OF AGREEMENT. (a) This Underwriting Agreement
(excluding the applicable Terms Agreement) may be terminated for any reason at
any time by the Operating Partnership, the Company or by you upon the giving of
30 days' written notice of such termination to the other parties hereto.
(b) You may also terminate the applicable Terms Agreement, by notice to
the Operating Partnership or the Company, at any time at or prior to the Closing
Time or any relevant Date of Delivery, if (i) if there has been, since the date
of such Terms Agreement or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company, the Operating Partnership, and their subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (ii)
except as disclosed in the Prospectus, if any proceeding shall be pending or, to
the knowledge of the Operating Partnership or the Company threatened against the
Operating Partnership, the Company, any of their subsidiaries or any of the
Centers before or by any Federal, state or other commission board or
administrative agency wherein an unfavorable decision, ruling or finding would
materially and adversely affect the business, property, financial condition or
income of the Company, the Operating Partnership and their subsidiaries,
considered as one enterprise, (iii) if there has occurred any material adverse
change in the financial markets in the United States or, if the Underwritten
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets,
or if there has occurred 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 to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iv) if trading in any of the
securities of the Operating Partnership or the Company has been suspended or
limited by the Commission or the New York Stock Exchange, or if trading
generally on either the New York Stock Exchange, the American Stock Exchange or
the NASDAQ National Market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said Exchanges or by order of the Commission or
any other governmental authority, or if a banking moratorium has been declared
by either Federal or New York authorities or, if the Underwritten Securities
include Debt Securities denominated or payable in, or indexed to, one or more
foreign or composite currencies, by the relevant authorities in the related
foreign country or countries.
(c) In the event of any such termination, (x) the covenants set forth in
Section 3 with respect to any offering of Underwritten Securities shall remain
in effect so long as any Underwriter owns any such Underwritten Securities
purchased from the Company pursuant to the applicable Terms Agreement and (y)
the covenant set forth in Section 3(h) hereof, the provisions of Section 4
hereof, the indemnity and contribution agreements set forth in Sections 6 and 7
hereof, and the provisions of Sections 8 and 13 hereof shall remain in effect.
33
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of Delivery
to purchase the Underwritten Securities which it or they are obligated to
purchase under the applicable Terms Agreement (the "Defaulted Securities"), then
you shall have the right, within 24 hours thereafter, to make arrangements for
one or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, you
shall not have completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the non-defaulting
Underwriters named in such Terms Agreement shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of Underwritten Securities to be purchased on
such date pursuant to such Terms Agreement, the applicable Terms Agreement, in
the case of Initial Underwritten Securities, or any over-allotment option, in
the case of Option Securities, shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Underwriting
Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a termination of
the applicable Terms Agreement, either you, the Operating Partnership or the
Company shall have the right to postpone the Closing Time or the relevant Date
of Delivery for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
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
Underwriters shall be directed to Merrill Lynch at 4 World Financial Center,
North Tower, New York, New York 10080, attention of Martin J. Cicco, Managing
Director; and notices to the Operating Partnership and the Company shall be
directed to either of them at 3200 Northline Avenue, Suite 360, Greensboro,
North Carolina 27408, attention of Stanley K. Tanger.
Section 12. PARTIES. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon you and the
Operating Partnership, the Company and any Underwriter who becomes a party to
such Terms Agreement, and their respective successors. Nothing expressed or
mentioned in this Underwriting Agreement or the applicable Terms 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
34
Underwriting Agreement or such Terms Agreement or any provision herein or
therein contained. This Underwriting Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 13. GOVERNING LAW AND TIME. This Underwriting Agreement and the
applicable Terms 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 Underwriting Agreement and the applicable
Terms Agreement may be executed in one or more counterparts, and if executed in
more than one counterpart the executed counterparts shall constitute a single
instrument.
35
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership and the Company a
counterpart hereof, whereupon this instrument, along with all counterparts will
become a binding agreement between you, the Operating Partnership and the
Company in accordance with its terms.
Very truly yours,
TANGER PROPERTIES LIMITED PARTNERSHIP
By: Tanger GP Trust
(its general partner)
By: /s/ Steven B. Tanger
--------------------
TANGER FACTORY OUTLET CENTERS, INC.
By: /s/ Steven B. Tanger
--------------------
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ John Timoney
Authorized Signatory
36
Exhibit A
TANGER PROPERTIES LIMITED PARTNERSHIP
(a North Carolina limited partnership)
[Title of Securities]
TERMS AGREEMENT
---------------
Dated: , 200_
To: TANGER PROPERTIES LIMITED PARTNERSHIP
3200 Northline Avenue, Suite 360
Greensboro, North Carolina 27408
Attention: Chairman of the Board of Directors
Dear Ladies and Gentlemen:
We (the "Representative") understand that Tanger Properties Limited
Partnership (a North Carolina limited partnership), proposes to issue and sell
$____________ aggregate principal amount of its [Title of Debt Security] (the
"Underwritten Securities") [to be unconditionally guaranteed as to payment of
principal thereof (and premium, if any) and interest and Additional Amounts, if
any, thereon by Tanger Factory Outlet Centers, Inc., a North Carolina
corporation (the "Company")]. Subject to the terms and conditions set forth or
incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
principal amount of Initial Underwritten Securities set forth below opposite
their respective names[, and a proportionate share of Option Securities (as
defined in the Underwriting Agreement referred to below) to the extent any are
purchased] at the purchase price set forth below.
Principal Amount
of Initial
Underwriter Underwritten Securities
----------- -----------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $
Banc of America Securities LLC $
----------
Total $
==========
The Underwritten Securities shall have the following terms:
Title of Securities:
Currency:
Principal amount to be issued:
Current Ratings:
Interest rate or formula:
Regular Record Dates:
Interest Payment Dates:
Stated Maturity Date:
Redemption and/or repayment provisions:
Sinking fund requirements:
Number of Option Securities, if any, that may be purchased by the Underwriters:
Initial public offering price: %, plus accrued interest, if any, or amortized
original issue discount, if any, from , 200_.
Purchase price: %, plus accrued interest, if any, or amortized original
issued discount, if any, from , 200_ (payable in [same][next] day
funds).
Form:
Additional co-managers, if any:
Other terms:
Closing date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "Tanger Properties Limited Partnership - Debt Securities - Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
A-2
Please accept this offer no later than o'clock P.M. (New York City time)
on by signing a copy of this Terms Agreement in the space set forth below and
returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
-------------------------
Authorized Signatory
[Acting on behalf of itself and the other named
Underwriters.]
Accepted:
TANGER PROPERTIES LIMITED PARTNERSHIP
By: Tanger GP Trust
(its general partner)
By
---------------------------
Name:
Title:
A-3