EXHIBIT 1
2,150,000 Shares
Ramco-Gershenson Properties Trust
Common Shares of Beneficial Interest
(Par Value $0.01 Per Share)
EQUITY UNDERWRITING AGREEMENT
June 10, 2003
Deutsche Bank Securities Inc.
1301 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
Ramco-Gershenson Properties Trust, a Maryland real estate investment
trust (the "Company"), and Ramco-Gershenson Properties, L.P., a Delaware limited
partnership (the "Operating Partnership"), each confirms its agreement with
respect to the issue and sale by the Company and the purchase by Deutsche Bank
Securities Inc. (the "Underwriter") of an aggregate of 2,150,000 shares (the
"Firm Shares") of the Company's common shares of beneficial interest, par value
$0.01 per share (the "Common Shares"). The Company also proposes to sell at the
Underwriter's option an aggregate of up to 322,500 additional shares of the
Company's Common Shares (the "Option Shares") as set forth below. The Firm
Shares and the Option Shares (to the extent the aforementioned option is
exercised) are herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
OPERATING PARTNERSHIP.
The Company and the Operating Partnership each severally
represents and warrants to the Underwriter as follows:
(a) A registration statement on Form S-3 (File No. 333-99345)
with respect to the Shares and certain other securities has been prepared by the
Company and filed with the Securities and Exchange Commission (the "Commission")
in conformity with the requirements of the Securities Act of 1933, as amended
(the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Commission and has been declared effective thereunder. Such
registration statement, as amended as of the date of this Agreement, is
hereinafter referred to as the "Registration Statement," and the prospectus
included in such Registration Statement, as supplemented to reflect the terms of
the offering of the Shares, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("Rule 424(b)") under the Act, including all
material incorporated by reference therein, is hereinafter referred to as the
"Prospectus." The Company and the transactions contemplated by this Agreement
meet the requirements and comply with the conditions for the use of Form S-3.
Copies of such registration statement, including any amendments thereto, the
exhibits, financial statements and schedules, as finally amended and revised,
have heretofore been delivered by the Company to you. Any reference herein to
the Registration Statement or to the Prospectus or to any amendment or
supplement to any of the foregoing documents shall be deemed to refer to and
include any documents incorporated by reference therein, and, in the case of any
reference herein to any Prospectus, also shall be deemed to include any
documents incorporated by reference therein, and any supplements or amendments
thereto, filed with the Commission after the date of filing of the Prospectus
under Rules 424(b) or 430A, and prior to the termination of the offering of the
Shares by the Underwriter.
(b) The Company has been duly organized and is validly
existing as a real estate investment trust in good standing under the laws of
the State of Maryland, with all requisite trust power and authority to own or
lease its properties and conduct its business as described in the Registration
Statement. Each of the subsidiaries of the Company as listed on Schedule I
hereto (collectively, the "Subsidiaries") has been duly organized and is validly
existing as a corporation, limited partnership or limited liability company in
good standing under the laws of the jurisdiction of its organization, with all
requisite corporate, limited partnership or limited liability company power and
authority, as the case may be, to own or lease its properties and conduct its
business as described in the Registration Statement. The Subsidiaries are the
only subsidiaries, direct or indirect, of the Company. The Company and each of
the Subsidiaries are duly qualified to transact business in all jurisdictions in
which the conduct of their business requires such qualification. The outstanding
shares of capital stock of each of the Subsidiaries that is a corporation, the
outstanding partnership interests of each of the Subsidiaries that is a limited
partnership and the outstanding limited liability company interests of each of
the Subsidiaries that is a limited liability company have been duly authorized
and validly issued, are fully paid and non-assessable and, to the extent set
forth in Schedule I hereto, are owned by the Company or another Subsidiary free
and clear of all liens, encumbrances and equities and claims; and no options,
warrants or other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligations into shares of capital stock,
partnership interests, limited liability company interests or other ownership
interests in the Subsidiaries are outstanding.
(c) The outstanding Common Shares of the Company have been
duly authorized and validly issued and are fully paid and non-assessable; the
Shares to be issued and sold by the Company have been duly authorized and when
issued and paid for as contemplated herein will be validly issued, fully paid
and non-assessable; and no preemptive rights of shareholders exist with respect
to any of the Shares or the issue and sale thereof which have not been waived.
The Company has duly reserved a sufficient number of Common Shares for issuance
upon exchange of outstanding units of limited partnership of the Operating
Partnership ("OP Units") in accordance
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with the Amended and Restated Agreement of Limited Partnership of the Operating
Partnership, as amended to date (the "Operating Partnership Agreement"). Neither
the filing of the Registration Statement nor the offering or sale of the Shares
as contemplated by this Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the registration of any
Common Shares.
(d) The outstanding OP Units of the Operating Partnership have
been duly authorized and validly issued and are fully paid and non-assessable.
OP Units issued and sold in connection with the acquisition of properties
currently under contract to be acquired have been and will be offered, issued
and sold in compliance with all applicable laws (including, without limitation,
federal and state securities laws).
(e) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct. All of the Shares
conform to the description thereof contained in the Registration Statement. The
form of certificates for the Shares conforms to the law of the jurisdiction of
the Company's organization.
(f) The Commission has not issued an order preventing or
suspending the effectiveness of the Registration Statement or the use of any
Prospectus relating to the proposed offering of the Shares nor instituted
proceedings for that purpose. The Registration Statement contains, and the
Prospectus and any amendments or supplements thereto will contain, all
statements which are required to be stated therein by, and will conform to, the
requirements of the Act and the Rules and Regulations. The documents
incorporated, or to be incorporated, by reference in the Prospectus, at the time
filed with the Commission, conformed or will conform, in all respects to the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or the Act, as applicable, and the rules and regulations of the
Commission thereunder. On the effective date of the Registration Statement, the
Registration Statement did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and on the date of this Agreement,
the Registration Statement and the Prospectus conform in all material respects
to the requirements of the Act and the Rules and Regulations, and neither the
Registration Statement nor the Prospectus include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that neither the
Company nor the Operating Partnership makes any representations or warranties as
to information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Company by the
Underwriter, specifically for use in the preparation thereof.
(g) There are no contracts or documents required to be filed
as exhibits to or incorporated by reference in the Registration Statement or
described in the Registration Statement or the Prospectus which are not so
filed, incorporated by reference or described as required.
(h) The consolidated financial statements of the Company and
the Subsidiaries, together with related notes and schedules as set forth or
incorporated by reference in the
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Registration Statement and the Prospectus, present fairly the financial position
and the results of operations and cash flows of the Company and the consolidated
Subsidiaries, at the indicated dates and for the indicated periods. Such
financial statements and related schedules have been prepared in accordance with
generally accepted principles of accounting, consistently applied throughout the
periods involved, except as disclosed therein, and all adjustments necessary for
a fair presentation of results for such periods have been made. The summary
financial and statistical data included or incorporated by reference in the
Registration Statement and the Prospectus presents fairly the information shown
therein and such data has been compiled on a basis consistent with the financial
statements presented therein and the books and records of the company.
(i) Deloitte & Touche LLP, who have audited certain of the
financial statements filed with the Commission as part of, or incorporated by
reference in, the Registration Statement, are independent public accountants as
required by the Act and the Rules and Regulations.
(j) There is no action, suit, claim or proceeding pending or,
to the knowledge of the Company or the Operating Partnership, threatened against
the Company or any of the Subsidiaries before any court or administrative agency
or otherwise which if determined adversely to the Company or any of its
Subsidiaries could reasonably be expected to result in any material adverse
change in the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company and
of the Subsidiaries taken as a whole or prevent the consummation of the
transactions contemplated hereby, except as set forth in the Registration
Statement.
(k) The Company and the Subsidiaries have good and marketable
title in fee simple to all the real properties, or any part thereof, owned by
them (collectively, and with all buildings, structures and other improvements
located thereon and all easements, rights and other appurtenances thereto, the
"Properties") and good and marketable title to all the other properties and
assets reflected in the consolidated financial statements hereinabove described
or described in the Registration Statement, subject to no lien, security
interest, mortgage, pledge, charge, claim, restriction or encumbrance of any
kind except those reflected in such financial statements or described in the
Registration Statement or which are not material in amount or which do not
materially impair the use of such Property for retail shopping center purposes;
all liens, security interests, mortgages, pledges, charges, claims, restrictions
or encumbrances on or affecting the properties and assets of the Company or any
of the Subsidiaries that are required to be disclosed in the Registration
Statement are disclosed therein or in documents incorporated by reference
therein; neither the Company nor the Operating Partnership knows of any
violation of any municipal, state or federal law, rule or regulation (including
those pertaining to environmental matters) concerning the Properties which would
have a material adverse effect on the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise) or
prospects of the Company and the Subsidiaries taken as a whole; each of the
Properties complies with all applicable zoning laws, ordinances, regulations and
deed restrictions or other covenants in all material respects and, if and to the
extent there is a failure to comply, such failure does not result in a material
adverse effect on the earnings, business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of the
Company and the Subsidiaries taken as a whole and will not result in a
forfeiture or reversion of title; none of the Company nor any Subsidiary has
received from any
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governmental authority any written notice of any condemnation of or zoning
change affecting the Properties or any part thereof, and none of the Company nor
any Subsidiary knows of any such condemnation or zoning change which is
threatened and which if consummated would have a material adverse effect on the
earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and the
Subsidiaries taken as a whole; no lessee of any portion of any of the Properties
is in default under any of the leases governing such Properties and there is no
event which, but for the passage of time or the giving of notice or both, would
constitute a default under any of such leases, except such defaults as are
described in the Registration Statement or that would not have a material
adverse effect on the earnings, business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of the
Company and the Subsidiaries taken as a whole; and the Company and the
Subsidiaries occupy their leased properties under valid and binding leases.
(l) The Company and the Subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be filed and
have paid all taxes indicated by such returns and all assessments, fines and
penalties levied against them or any of them to the extent that any of the
foregoing has become due, except for any such assessment, fine or penalty that
is currently being contested in good faith and which, if material, is described
in the Registration Statement. All tax liabilities have been adequately provided
for in the financial statements of the Company, and the Company does not know of
any actual or proposed additional material tax assessments except as described
in the Registration Statement.
(m) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or supplemented, (A)
there has not been any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings, business,
management, properties, assets, rights, operations, condition (financial or
otherwise), or prospects of the Company and its Subsidiaries taken as a whole,
whether or not occurring in the ordinary course of business, (B) there has not
been any material transaction entered into or any material transaction that is
probable of being entered into by the Company or the Subsidiaries, other than
transactions in the ordinary course of business and changes and transactions
described in the Registration Statement, as it may be amended or supplemented,
(C) no material casualty loss or material condemnation or other material adverse
event with respect to any of the Properties has occurred, and (D) there has been
no dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock except as described in the Registration Statement
or by the Operating Partnership or any of its Subsidiaries with respect to any
class of their capital stock, partnership interests, limited liability company
interests or other ownership interests, as applicable. The Company and the
Subsidiaries have no material contingent obligations which are not disclosed in
the Company's financial statements which are included in the Registration
Statement.
(n) Neither the Company nor any of the Subsidiaries is or with
the giving of notice or lapse of time or both, will be, in violation of or in
default under (i) its declaration of trust, certificate of formation, charter,
by-laws, partnership agreement, limited liability company agreement or other
organizational document, as the case may be, or (ii) under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a party or
by which it, or any of
5
its properties, is bound and, solely with respect to this clause (ii), which
violation or default would have a material adverse effect on the earnings,
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and the Subsidiaries taken
as a whole. The execution and delivery of this Agreement and the consummation of
the transactions herein contemplated and the fulfillment of the terms hereof
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or any Subsidiary is a party
or by which the Company or any Subsidiary or any of their respective properties
is bound, or of the Articles of Amendment and Restatement of Declaration of
Trust or By-Laws of the Company, or of the Operating Partnership Agreement of
the Operating Partnership or any law, order, rule or regulation, judgment,
order, writ or decree applicable to the Company or any Subsidiary of any court
or of any government, regulatory body or administrative agency or other
governmental body having jurisdiction.
(o) The execution and delivery of, and the performance by each
of the Company and the Operating Partnership of its respective obligations
under, this Agreement has been duly and validly authorized by all requisite
trust or partnership action, as the case may be, on the part of the Company and
the Operating Partnership, and this Agreement has been duly executed and
delivered by the Company and the Operating Partnership.
(p) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and delivery
by the Company and the Operating Partnership of this Agreement and the
consummation of the transactions herein contemplated (except such additional
steps as may be required by the Commission, the National Association of
Securities Dealers, Inc. (the "NASD") or such additional steps as may be
necessary to qualify the Shares for public offering by the Underwriter under
state securities or "blue sky" laws) has been obtained or made and is in full
force and effect.
(q) The Company and each of the Subsidiaries hold all material
licenses, certificates and permits from governmental authorities which are
necessary to the conduct of their businesses.
(r) Neither the Company nor, to the Company's or the Operating
Partnership's knowledge, any of its affiliates, has taken or may take, directly
or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Common Shares to facilitate
the sale or resale of the Shares. Each of the Company and the Operating
Partnership acknowledges that the Underwriter may engage in passive market
making transactions in the Shares on the New York Stock Exchange in accordance
with Regulation M under the Exchange Act.
(s) Neither the Company nor any Subsidiary is or, after giving
effect to the offering and sale of the Shares contemplated hereunder and the
application of the net proceeds from such sale as described in the Prospectus,
will be an "investment company" as such term is defined
6
in the Investment Company Act of 1940, as amended (the "1940 Act"), and the
rules and regulations of the Commission thereunder.
(t) The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(u) The Company and each of its Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses; and
neither the Company nor any of the Subsidiaries has any reason to believe that
any of them will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business.
(v) The Company and each Subsidiary, and each of their
respective "pension plans" (as defined in the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA")), are in compliance in all material
respects with all currently applicable provisions of ERISA; no "reportable
event" (as defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company or any Subsidiary would have any
liability; neither the Company nor any of its Subsidiaries has incurred, and
neither the Company nor any of its Subsidiaries expects to incur, liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any "pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the Company or any
Subsidiary would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would cause the loss
of such qualification.
(w) The tax agreement, dated as of May 10, 1996 (the "Tax
Agreement"), by and between Atlantic Realty Trust ("Atlantic") and the Company's
predecessor is valid, effective and binding on the parties thereto, subject to
no defenses, and no default has occurred thereunder. Pursuant to the Tax
Agreement, Atlantic has assumed all tax liability arising out of the Internal
Revenue Service's audit of the Company for the taxable years ending 1991 through
1995, excluding any tax liability relating to any actions or events occurring,
or any tax return position taken, after May 10, 1996, but including liabilities
for interest, penalties, additions to tax and costs relating to covered taxes.
To the Company's and the Operating Partnership's knowledge, Atlantic (i) had
sufficient financial resources to meet its obligations on a timely basis under
the Tax Agreement as of March 31, 2003 and (ii) has no plans under which the net
worth of Atlantic
7
would be diminished to an extent which would impair the ability of Atlantic to
fulfill its obligations under the Tax Agreement.
(x) The Company is organized in conformity with the
requirements for qualification as a real estate investment trust ("REIT") under
Sections 856 through 860 of the Code, and its actual method of operation as
described in the Registration Statement has enabled it since January 1, 1999,
and its proposed method of operation will enable it to continue, to meet the
requirements for qualification and taxation as a REIT under the Code.
(y) To the Company's or the Operating Partnership's knowledge,
there are no affiliations or associations between any member of the NASD and any
of the Company's officers, trustees or 5% or greater security holders, except as
set forth in the Registration Statement.
(z) Except as described in or contemplated by the Registration
Statement, or except as would not otherwise be expected to have a material
adverse effect on the earnings, business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of the
Company and the Subsidiaries taken as a whole, (A) the Company and each of the
Subsidiaries is in compliance with and not subject to any known liability under
applicable Environmental Laws (as defined below), (B) the Company and each of
its Subsidiaries has made all filings and provided all notices required under
any applicable Environmental Law, (C) there is no civil, criminal or
administrative action, suit, demand, claim, hearing, notice of violation,
investigation, proceeding, notice or demand letter or request for information
pending or, to the knowledge of the Company or the Operating Partnership,
threatened against the Company or any of its Subsidiaries under any
Environmental Law, (D) no lien, charge, encumbrance or restriction has been
recorded under any Environmental Law with respect to any assets, facility or
property owned, operated or leased by the Company or any of its Subsidiaries,
(E) neither the Company nor any of its Subsidiaries has received notice that it
has been identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or any comparable law, (F) no property owned or operated by the
Company or any of its Subsidiaries is (i) listed or, to the knowledge of the
Company or the Operating Partnership, proposed for listing on the National
Priorities List under CERCLA or (ii) listed in the Comprehensive Environmental
Response, Compensation and Liability Information System List promulgated
pursuant to CERCLA, or on any comparable list maintained by any governmental
authority, (G) neither the Company nor any of its Subsidiaries is subject to any
order, decree or agreement requiring, or otherwise obligated or required to
perform any response or corrective action under any Environmental Law, and (H)
there are no past or present actions, occurrences or operations which could
reasonably be expected to prevent or interfere with compliance by the Company or
any of its Subsidiaries with any applicable Environmental Law or to result in
liability under any applicable Environmental Law. For purposes of this
Agreement, "Environmental Laws" means the common law and all applicable foreign,
federal, provincial, state and local laws or regulations, codes, orders,
decrees, judgments or injunctions issued, promulgated, approved or entered
thereunder, relating to pollution or protection of public or employee health and
safety or the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata), including, without
limitation, laws relating to (i) emissions, discharges, releases or threatened
releases of
8
Hazardous Materials (as defined below) into the environment, (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of Hazardous Materials and (iii) underground and
aboveground storage tanks and related piping, and emissions, discharges,
releases or threatened releases therefrom. "Hazardous Material" means any
pollutant, contaminant, waste, chemical, substance or constituent, including,
without limitation, petroleum or petroleum products subject to regulation or
which can give rise to liability under any Environmental Law.
(aa) No labor dispute with the employees of the Company or any
of its Subsidiaries exists or is threatened or imminent that could have a
materially adverse effect on or constitute a materially adverse change in, or
constitute a development involving a prospective materially adverse effect on or
change in, the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company and
the Subsidiaries taken as a whole, except as described in or contemplated by the
Registration Statement.
(bb) Except as set forth in the Registration Statement, the
mortgages and deeds of trust encumbering the properties and assets described in
the Registration Statement are not convertible and neither the Company, any of
its Subsidiaries, nor any person affiliated therewith holds a participating
interest therein, and such mortgages and deeds of trust are not cross-defaulted
or cross-collateralized to any property not owned directly or indirectly by the
Company or any of its Subsidiaries.
(cc) The Operating Partnership has not offered, issued or sold
any OP Units at any time during the six-month period preceding the date hereof.
(dd) The Company's Common Shares are listed on the New York
Stock Exchange. The Shares have been approved for listing on the New York Stock
Exchange.
(ee) The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 under the
Exchange Act); (ii) such disclosure controls and procedures are designed to
ensure that information required to be disclosed by the Company in the reports
it files or submits under the Exchange Act is accumulated and communicated to
the Company's management, including its principal executive officer and its
principal financial officer, as appropriate, to allow timely decisions regarding
disclosure; and (iii) such disclosure controls and procedures are effective in
all material respects to perform the functions for which they were established.
(ff) Since the date of the filing of the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 2003, the Company's auditors
and the audit committee of the board of trustees of the Company have not been
advised of (i) any significant deficiencies in the design or operation of
internal controls which could adversely affect the Company's ability to record,
process, summarize and report financial data nor any material weaknesses in
internal controls; and (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company's
internal controls.
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(gg) Since the date of the filing of the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 2003, there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth, the
Company agrees to sell to the Underwriter and the Underwriter agrees to
purchase, at a price of $23.65 per share, the Firm Shares.
(b) Payment for the Firm Shares to be sold hereunder is to be
made in federal (same day) funds against delivery of certificates therefor to
the Underwriter. Such payment and delivery are to be made through the facilities
of The Depository Trust Company, New York, New York at 10:00 a.m., New York
time, on the fourth business day after the date of this Agreement or at such
other time and date not later than five business days thereafter as you and the
Company shall agree upon, such time and date being herein referred to as the
"Closing Date." (As used herein, "business day" means a day on which the New
York Stock Exchange is open for trading and on which banks in The City of New
York are open for business and are not permitted by law or executive order to be
closed.)
(c) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants an option to the Underwriter to purchase the
Option Shares at the price per share set forth in Section 2(a). The option
granted hereby may be exercised in whole or in part by giving written notice (i)
at any time before the Closing Date and (ii) only once thereafter within 30 days
after the date of this Agreement, by the Underwriter, to the Company setting
forth the number of Option Shares as to which the Underwriter is exercising the
option and the time and date at which such certificates are to be delivered. The
time and date at which certificates for Option Shares are to be delivered shall
be determined by the Underwriter but shall not be earlier than three nor later
than 10 full business days after the exercise of such option, nor in any event
prior to the Closing Date (such time and date being herein referred to as the
"Option Closing Date"). If the date of exercise of the option is three or more
days before the Closing Date, the notice of exercise shall set the Closing Date
as the Option Closing Date. The option with respect to the Option Shares granted
hereunder may be exercised only to cover over-allotments in the sale of the Firm
Shares by the Underwriter. The Underwriter may cancel such option at any time
prior to its expiration by giving written notice of such cancellation to the
Company. To the extent, if any, that the option is exercised, payment for the
Option Shares shall be made on the Option Closing Date in federal (same day
funds) through the facilities of The Depository Trust Company in New York, New
York drawn to the order of the Company.
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3. OFFERING BY THE UNDERWRITER.
It is understood that the Underwriter is to make a public
offering of the Firm Shares as soon as the Underwriter deems it advisable to do
so. The Firm Shares are to be initially offered to the public at the public
offering price set forth on the cover of the Prospectus. The Underwriter may
from time to time thereafter change the public offering price and other selling
terms. To the extent, if at all, that any Option Shares are purchased pursuant
to Section 2 hereof, the Underwriter will offer them to the public on the
foregoing terms.
4. COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP.
Each of the Company and the Operating Partnership severally
covenants and agrees with the Underwriter that:
(a) The Company will (A) file with the Commission pursuant to
and in accordance with Rule 424(b) of the Rules and Regulations a Prospectus in
a form approved by the Underwriter containing information previously omitted at
the time of effectiveness of the Registration Statement not later than the
second business day following the execution and delivery of this Agreement, (B)
not file any amendment to the Registration Statement or supplement to the
Prospectus or document incorporated by reference therein of which the
Underwriter shall not previously have been advised and furnished with a copy or
to which the Underwriter shall have reasonably objected in writing or which is
not in compliance with the Rules and Regulations and (C) file on a timely basis
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission subsequent to the date of the
Prospectus and prior to the termination of the offering of the Shares by the
Underwriter.
(b) The Company will advise the Underwriter promptly (A) when
any post-effective amendment to the Registration Statement or any supplement or
amendment to the Prospectus shall have been filed, (B) of receipt of any
comments from the Commission, (C) of any request of the Commission for amendment
of the Registration Statement or for supplement to the Prospectus or for any
additional information, and (D) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the use of
the Prospectus or of the institution of any proceedings for that purpose. The
Company will use its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus and to obtain as soon as
possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriter in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as the Underwriter may reasonably have designated in writing and
will make such applications, file such documents, and furnish such information
as may be reasonably required for that purpose, provided the Company shall not
be required to qualify as a foreign trust or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or
required to file such a consent. The Company will, from time to time, prepare
and file such statements, reports and other documents as are or may be required
to continue such qualifications in effect for so long a period as the
Underwriter may reasonably request for distribution of the Shares.
11
(d) The Company will deliver to, or upon the order of, the
Underwriter during the period when delivery of a Prospectus is required under
the Act, as many copies of the Prospectus in final form, or as thereafter
amended or supplemented, as the Underwriter may reasonably request. The Company
will deliver to the Underwriter at or before the Closing Date, one signed copy
of the Registration Statement in the form it became effective and all amendments
thereto including all exhibits filed therewith, and will deliver to the
Underwriter such number of copies of the Registration Statement (including such
number of copies of the exhibits filed therewith that may reasonably be
requested), including documents incorporated by reference therein, and of all
amendments thereto, as the Underwriter may reasonably request.
(e) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of the
Shares as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus is required by law to be delivered by the
Underwriter or a dealer, any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriter, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it is necessary
at any time to amend or supplement the Prospectus to comply with any law, the
Company promptly will either (i) prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an appropriate filing
under the Exchange Act which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented will not, in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with the law.
(f) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the filing of the Prospectus, an earning statement (which need
not be audited) in reasonable detail, covering a period of at least 12
consecutive months beginning after the filing of the Prospectus, which earning
statement shall satisfy the requirements of Section 11(a) of the Act and Rule
158 of the Rules and Regulations and will advise you in writing when such
statement has been so made available.
(g) Prior to the Closing Date, the Company will furnish to the
Underwriter, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim financial statements of the Company for
any fiscal quarter subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.
(h) No offering, sale, short sale or other disposition of any
Common Shares of the Company or other securities convertible into or
exchangeable or exercisable for Common Shares or derivative of Common Shares (or
agreement for such) will be made for a period of 90 days after the date of this
Agreement, directly or indirectly, by the Company otherwise than hereunder or
with the prior written consent of the Underwriter other than the issuance of
Common Shares upon conversion of outstanding preferred shares of the Company or
OP units or upon exercise of stock options issued by the Company.
12
(i) The Company will use its best efforts to continue to meet
the requirements to qualify as a REIT under the Code, subject to the fiduciary
duties of the Board of Trustees of the Company to manage the business of the
Company in the best interest of its shareholders.
(j) The Company has caused each officer and trustee of the
Company to furnish to you, on or prior to the date of this Agreement, a letter
or letters, in form and substance satisfactory to you, pursuant to which each
such person shall agree not to offer, sell, sell short or otherwise dispose of
any Common Shares of the Company or OP Units of the Operating Partnership or
other capital stock of the Company or the Operating Partnership, or any other
securities convertible, exchangeable or exercisable for Common Shares or OP
Units or derivative of Common Shares or OP Units owned by such person or request
the registration for the offer or sale of any of the foregoing (or as to which
such person has the right to direct the disposition of) for a period of 90 days
after the date of this Agreement, directly or indirectly, except with the prior
written consent of the Underwriter (collectively, the "Lock-up Agreements").
(k) The Company shall apply the net proceeds of its sale
of the Shares as set forth in the Prospectus.
(l) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a manner as
would require the Company or any of the Subsidiaries to register as an
investment company under the 1940 Act.
(m) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of organization of the Company, a registrar for
the Common Shares.
(n) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company.
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to
the performance of the obligations of the Company and the Operating Partnership
under this Agreement, including, without limiting the generality of the
foregoing, the following: (i) accounting fees of the Company; (ii) the fees and
disbursements of counsel for the Company; (iii) the cost of printing and
delivering to, or as requested by, the Underwriter copies of the Registration
Statement, the Prospectus, this Agreement, the New York Stock Exchange
supplemental listing application and any supplements or amendments thereto; (iv)
the filing fees of the Commission; (v) the filing fees and expenses (including
legal fees and disbursements) incident to securing any required review by the
NASD of the terms of the sale of the Shares; (vi) any listing fees of the New
York Stock Exchange; (vii) the Company's miscellaneous travel and road show
expenses and (viii) the Underwriter's out-of-pocket expenses. The Company shall
not, however, be required to pay for any of the fees and disbursements of
counsel for the Underwriter or any of the Underwriter's road show expenses. If
this Agreement shall not be consummated because the conditions in Section 6
hereof are not
13
satisfied, or because this Agreement is terminated by the Underwriter pursuant
to Section 10 hereof, or by reason of any failure, refusal or inability on the
part of the Company or the Operating Partnership to perform any undertaking or
satisfy any condition of this Agreement or to comply with any of the terms
hereof on its part to be performed, unless such failure, refusal or inability is
due primarily to the default or omission of the Underwriter, the Company shall
reimburse the Underwriter for all additional documented out-of-pocket expenses,
including (i) fees and disbursements of counsel for the Underwriter and (ii) the
Underwriter's road show expenses, reasonably incurred in connection with
investigating, marketing and proposing to market the Shares or in contemplation
of performing its obligations hereunder; but the Company shall not in any event
be liable to the Underwriter for damages on account of loss of anticipated
profits from its sale of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITER.
The obligations of the Underwriter to purchase the Firm Shares
on the Closing Date and the Option Shares, if any, on the Option Closing Date
are subject to the accuracy, as of the Closing Date or the Option Closing Date,
as the case may be, of the representations and warranties of the Company and the
Operating Partnership contained herein, and to the performance by the Company
and the Operating Partnership of their respective covenants and obligations
hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective and the Prospectus shall have
been filed with the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed by, and in compliance with, the Rules and
Regulations. No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been taken or, to the knowledge of the
Company or the Operating Partnership, shall be contemplated or threatened by the
Commission and no injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance of the Shares.
(b) The Underwriter shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of Ballard Spahr
Andrews & Ingersoll, LLP, Maryland counsel for the Company, dated the Closing
Date or the Option Closing Date, as the case may be, addressed to the
Underwriter, in form and substance satisfactory to counsel for the Underwriter
to the effect that:
(i) The Company has been duly formed and is validly
existing as a real estate investment trust in good standing under the laws of
the State of Maryland.
(ii) The Company has the requisite real estate
investment trust power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement.
14
(iii) The Company has authorized and outstanding
common shares of beneficial interest and preferred shares of beneficial interest
as set forth under the caption "Capitalization" in the Prospectus as of the date
set forth under such caption in the Prospectus; the outstanding common shares of
beneficial interest and preferred shares of beneficial interest of the Company
as of a recent date have been duly authorized and validly issued and are fully
paid and non-assessable; the Shares conform, as to legal matters, to the
description thereof incorporated by reference in the Registration Statement.
(iv) The Shares, including the Option Shares, if any,
to be sold by the Company pursuant to this Agreement have been duly authorized
for issuance by the Company, and when issued and delivered in exchange for
payment of the consideration therefor as contemplated by this Agreement, will be
validly issued, fully paid and non-assessable.
(v) Neither the Shares nor the issuance and sale of
the Shares by the Company are subject to preemptive or other similar rights
arising under Maryland law or the Articles of Amendment and Restatement of
Declaration of Trust and By-Laws of the Company.
(vi) The statements under the caption "Restrictions
on Ownership and Transfer of Shares" in the Prospectus, insofar as such
statements constitute summaries of provisions of the Articles of Amendment and
Restatement of Declaration of Trust or By-Laws of the Company or matters of
Maryland law, fairly summarize, in all material respects, such provisions and
matters.
(vii) The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not conflict with, or result in any breach
of, or constitute a default under, the Articles of Amendment and Restatement of
Declaration of Trust or By-Laws of the Company.
(viii) The execution and delivery by the Company of
this Agreement have been duly authorized by all necessary real estate investment
trust action required under the Articles of Amendment and Restatement of
Declaration of Trust and By-Laws of the Company and Maryland law, and this
Agreement has been duly executed and, to the knowledge of such counsel,
delivered by the Company.
(ix) No approval, authorization, consent,
designation, declaration or order of, or filing with any governmental,
administrative or regulatory commission, board, body, authority or agency of the
State of Maryland is necessary under any provisions of Maryland law in
connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(x) The form of certificate used to evidence the
Shares complies in all material respects with all legal requirements applicable
under Maryland law and with any applicable requirements under the Articles of
Amendment and Restatement of Declaration of Trust and By-Laws of the Company.
15
In rendering such opinion, Ballard Spahr Andrews & Ingersoll,
LLP need not opine as to matters governed by the laws of jurisdictions other
than the law of the State of Maryland.
(c) The Underwriter shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of Honigman Miller
Schwartz and Cohn LLP, counsel for the Company, dated the Closing Date or the
Option Closing Date, as the case may be, addressed to the Underwriter to the
effect that:
(i) Each of the Subsidiaries designated in such
opinion (the "Designated Subsidiaries") has been duly incorporated or formed and
is validly existing as a corporation, limited partnership or limited liability
company in good standing under the laws of the jurisdiction of its incorporation
or formation, with all requisite corporate, limited partnership or limited
liability company power and authority, as the case may be, to own or lease its
properties and conduct its business as described in the Prospectus; the Company
and the Designated Subsidiaries are duly qualified to transact business in the
respective jurisdictions set forth in such opinion;
(ii) Assuming receipt of the consideration therefor
as provided in the applicable resolutions authorizing issuance thereof, the
outstanding shares of capital stock of each of the Designated Subsidiaries that
is a corporation have been duly authorized, have been validly issued and are
fully paid and non-assessable; to the extent described in such opinion, the
outstanding shares of capital stock of each of the Designated Subsidiaries that
is a corporation, the outstanding partnership interests of each of the
Designated Subsidiaries that is a limited partnership and the outstanding
limited liability company interests of each of the Designated Subsidiaries that
is a limited liability company are owned by the Company or a Designated
Subsidiary; and, to such counsel's knowledge, the outstanding shares of capital
stock of each of the Designated Subsidiaries that is a corporation, the
outstanding partnership interests of each of the Designated Subsidiaries that is
a limited partnership and the outstanding limited liability company interests of
each of the Designated Subsidiaries that is a limited liability company, in each
case, which are owned by the Company or a Designated Subsidiary, are owned free
and clear of all liens, encumbrances and equities and claims, and to such
counsel's knowledge, no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into shares of capital stock, partnership interests, limited
liability company interests or other ownership interests in the Designated
Subsidiaries are outstanding.
(iii) Except as described in or contemplated by the
Registration Statement, to such counsel's knowledge, there are no outstanding
securities of the Company convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of capital stock of the Company,
and there are no outstanding or authorized options, warrants or rights of any
character obligating the Company to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock; and except as described in or
contemplated by the Registration Statement, to such counsel's knowledge, no
holder of any securities of the Company or any other person has the right,
contractual or otherwise, which has not been satisfied or effectively waived, to
cause the Company to sell or otherwise issue to them, or to permit them to
underwrite the sale of, any of the Shares or the right to have any Common Shares
or other securities of the Company included in the
16
Registration Statement or the right, as a result of the filing of the
Registration Statement, to require registration under the Act of any Common
Shares or other securities of the Company.
(iv) The Registration Statement was declared
effective under the Act and the Prospectus has been filed with the Commission in
the manner and within the time period required by Rule 424(b); and to the
knowledge of such counsel, no stop order proceedings with respect thereto have
been instituted or are pending or threatened by the Commission under the Act.
(v) The Registration Statement, the Prospectus and
each amendment or supplement thereto, and each document incorporated by
reference therein which has been filed with the Commission on or prior to the
date of such opinion (except that such counsel need express no opinion as to the
financial statements, schedules and other financial or statistical data
contained therein), comply as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the applicable
rules and regulations thereunder. The conditions for use of Form S-3, set forth
in the General Instructions thereto, have been satisfied by the Company.
(vi) The discussion set forth in the Registration
Statement under the caption "Federal Income Tax Considerations," although
general in nature, is a fair and accurate discussion under current law of the
material federal income tax consequences of the acquisition, ownership and
disposition of the Common Shares, subject to the qualifications set forth in the
discussions set forth in the Registration Statement.
(vii) Such counsel does not know of any contracts or
documents which are required to be filed as exhibits to or incorporated by
reference in the Registration Statement or described in the Registration
Statement or the Prospectus which are not so filed, incorporated by reference or
described as required, and such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized in all material
respects.
(viii) Such counsel does not know of any statutes or
regulations that are required to be described in the Registration Statement or
the Prospectus which are not so described as required.
(ix) Such counsel does not know of any action, suit,
claim or proceeding pending or threatened against the Company or any of the
Designated Subsidiaries before any court or administrative agency or otherwise
which if determined adversely to the Company or any of the Designated
Subsidiaries could reasonably be expected to result in a material adverse change
in the senior management, properties, results of operations or financial
condition of the Company and the Subsidiaries taken as a whole, or to prevent
the consummation of the transactions contemplated hereby, except as set forth in
the Registration Statement.
(x) The execution and delivery of this Agreement and
the consummation of the transactions herein contemplated do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, the Operating Partnership Agreement of the Operating
Partnership or any indenture, mortgage, deed of trust or other agreement or
17
instrument filed as an exhibit to the Registration Statement or as an exhibit to
any document incorporated by reference in the Registration Statement.
(xi) This Agreement has been duly authorized,
executed and delivered by the Operating Partnership.
(xii) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body is necessary in connection with the execution or
delivery of this Agreement and the consummation of the transactions herein
contemplated, except such as may be required under the Act and the Rules and
Regulations, which have been obtained or made, and except under the bylaws and
rules of the NASD in connection with the purchase and distribution through the
Underwriter of the Shares and under state securities or "blue sky" laws in
connection with the purchase and distribution through the Underwriter of the
Shares.
(xiii) The Company is not, and will not become, as a
result of the consummation of the transactions contemplated by this Agreement,
and application of the net proceeds therefrom as described in the Prospectus,
required to register as an investment company under the 1940 Act.
(xiv) The form of certificate used to evidence the
Common Shares complies in all material respects with the requirements of the New
York Stock Exchange.
(xv) Since the Company's taxable year which began on
January 1, 2002, the Company has been organized in conformity with the
requirements for qualification as a REIT under the Code, and its actual method
of operation has enabled, and its proposed method of operation will enable, the
Company to meet the requirements for qualification and taxation as a REIT.
In rendering such opinion, Honigman Miller Schwartz and Cohn
LLP need not opine as to matters governed by the laws of jurisdictions other
than the laws of the State of Michigan and the State of Delaware and the federal
law of the United States. In addition to the matters set forth above, such
opinion shall also include a statement to the effect that nothing has come to
the attention of such counsel which leads them to believe that (i) the
Registration Statement, at the time it was declared effective under the Act
(including the information deemed to be part of the Registration Statement at
the time it was declared effective pursuant to Rule 430A under the Act) and as
of the Closing Date or the Option Closing Date, as the case may be, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and (ii) the Prospectus, or any supplement thereto, on
the date it was filed pursuant to the Rules and Regulations and as of the
Closing Date or the Option Closing Date, as the case may be, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (except that such
counsel need express no view as to financial statements, schedules and
statistical information therein). With respect to such statement,
18
Honigman Miller Schwartz and Cohn LLP may state that their belief is based upon
the procedures set forth therein, but is without independent check and
verification.
(d) The Underwriter shall have received from Skadden, Arps,
Slate, Meagher & Flom LLP, counsel for the Underwriter, an opinion dated the
Closing Date or the Option Closing Date, as the case may be, substantially to
the effect specified in subparagraph (viii) of Paragraph (b) of this Section 6
and subparagraphs (iv), (v) and (xi) of Paragraph (c) of this Section 6. In
rendering such opinion, Skadden, Arps, Slate, Meagher & Flom LLP need not opine
as to matters governed by the laws of jurisdictions other than the laws of the
State of New York and the State of Delaware and the federal law of the United
States. In addition to the matters set forth above, such opinion shall also
include a statement to the effect that nothing has come to the attention of such
counsel which leads them to believe that (i) the Registration Statement, at the
time it was declared effective under the Act (including the information deemed
to be part of the Registration Statement at the time it was declared effective
pursuant to Rule 430A under the Act) and as of the Closing Date or the Option
Closing Date, as the case may be, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and (ii) the
Prospectus, or any supplement thereto, on the date it was filed pursuant to the
Rules and Regulations and as of the Closing Date or the Option Closing Date, as
the case may be, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except that such counsel need express no view as to
financial statements, schedules and statistical information therein). With
respect to such statement, Skadden, Arps, Slate, Meagher & Flom LLP may state
that their belief is based upon the procedures set forth therein, but is without
independent check and verification.
(e) The Underwriter shall have received, on each of the date
hereof, the Closing Date and, if applicable, the Option Closing Date, a letter
dated the date hereof, the Closing Date or the Option Closing Date, as the case
may be, in form and substance satisfactory to you, of Deloitte & Touche LLP
confirming that they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations thereunder and
stating that in their opinion the financial statements and schedules examined by
them and included in the Registration Statement and the Prospectus comply in
form in all material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations; and containing such other
statements and information as is ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial and statistical information contained in the Registration Statement
and Prospectus.
(f) The Underwriter shall have received on the Closing Date
and, if applicable, the Option Closing Date, as the case may be, a certificate
or certificates of the Chief Executive Officer and the Chief Financial Officer
of the Company and appropriate officers of the Company, as General Partner, on
behalf of the Operating Partnership, to the effect that, as of the Closing Date
or the Option Closing Date, as the case may be, each of them severally
represents as follows:
19
(i) The Registration Statement was declared effective
under the Act and no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have been taken
or are, to his knowledge, contemplated or threatened by the Commission;
(ii) The representations and warranties of the
Company and the Operating Partnership contained in Section 1 hereof are true and
correct as of the Closing Date or the Option Closing Date, as the case may be;
(iii) All filings required to have been made pursuant
to Rules 424 or 430A under the Act have been made as and when required by such
rules;
(iv) He has carefully examined the Registration
Statement and the Prospectus and, in his opinion, as of the effective date of
the Registration Statement and the filing date of the Prospectus, the statements
contained in the Registration Statement and the Prospectus were true and
correct, and such Registration Statement and Prospectus did not omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, and since the effective date of the
Registration Statement and the filing date of the Prospectus, no event has
occurred which should have been set forth in a supplement to or an amendment of
the Registration Statement or the Prospectus which has not been so set forth in
such supplement or amendment; and
(v) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any material adverse change or any development involving a prospective
material adverse change in or affecting the business, management, properties,
assets, rights, operations, condition (financial or otherwise) or prospects of
the Company and the Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business.
(g) The Company and the Operating Partnership shall have
furnished to the Underwriter such further certificates and documents confirming
the representations and warranties, covenants and conditions contained herein
and related matters as the Underwriter may reasonably have requested.
(h) The Firm Shares and Option Shares, if any, shall have been
duly listed, subject to notice of issuance, on the New York Stock Exchange.
(i) The Lock-up Agreements described in Section 4(j) shall be
in full force and effect.
The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects reasonably satisfactory to the Underwriter and to
Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriter.
20
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the Underwriter may terminate its obligations hereunder by
notifying the Company and the Operating Partnership of such termination in
writing or by facsimile at or prior to the Closing Date or the Option Closing
Date, as the case may be.
In such event, the Company, the Operating Partnership and the
Underwriter shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company to sell and deliver the portion
of the Shares required to be delivered as and when specified in this Agreement
are subject to the conditions that at the Closing Date or the Option Closing
Date, as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company and the Operating Partnership jointly agree:
(1) to indemnify and hold harmless the Underwriter and each
person, if any, who controls the Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, against
any losses, claims, damages or liabilities to which the Underwriter or
any such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus
or any amendment or supplement thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or (iii) any
act or failure to act, or any alleged act or failure to act by the
Underwriter in connection with, or relating in any manner to, the
Shares or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action
arising out of or based upon matters covered by clause (i) or (ii)
above (provided, that the Company and the Operating Partnership shall
not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly
from any such acts or failures to act undertaken or omitted to be taken
by the Underwriter through its gross negligence or willful misconduct);
provided, however, that the Company and the Operating Partnership will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement, or omission or alleged omission made in
the Registration Statement, the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by the Underwriter specifically for use in the
preparation thereof; and
21
(2) to reimburse the Underwriter and each such controlling
person upon demand for any legal or other out-of-pocket expenses
reasonably incurred by the Underwriter or such controlling person in
connection with investigating or defending any such loss, claim, damage
or liability, action or proceeding or in responding to a subpoena or
governmental inquiry related to the offering of the Shares, whether or
not the Underwriter or controlling person is a party to any action or
proceeding. In the event that it is finally judicially determined that
the Underwriter was not entitled to receive payments for legal and
other expenses pursuant to this subparagraph, the Underwriter will
promptly return all sums that had been advanced pursuant hereto.
(b) The Underwriter will indemnify and hold harmless the
Company, each of its trustees, each of its officers who have signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Act, against any losses, claims, damages or liabilities to
which the Company or any such trustee, officer or controlling person may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; and will reimburse any legal or other
expenses reasonably incurred by the Company or any such trustee, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; provided, however, that the
Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by the Underwriter specifically for use in
the preparation thereof. This indemnity agreement will be in addition to any
liability which the Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be available to any
party who shall fail to give notice as provided in this Section 8(c) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have to
the indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a) or (b). In case any such proceeding shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party and shall pay as incurred the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the
22
right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by the indemnified
party in the event (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel, (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party shall have failed to
assume the defense and employ counsel acceptable to the indemnified party within
a reasonable period of time after notice of commencement of the action. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by you in the case
of parties indemnified pursuant to Section 8(a) and by the Company in the case
of parties indemnified pursuant to Section 8(b). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. In
addition, the indemnifying party will not, without the prior written consent of
the indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Operating Partnership on the one hand and the Underwriter on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Operating Partnership on the
one hand and the Underwriter on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Operating Partnership on the one hand and the Underwriter on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriter, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Operating Partnership on the
23
one hand or the Underwriter on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Operating Partnership and the Underwriter
agree that it would not be just and equitable if contributions pursuant to this
Section 8(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 8(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 8(d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), (i) the
Underwriter shall not be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased by the
Underwriter and (ii) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) In any proceeding relating to the Registration Statement,
the Prospectus or any supplement or amendment thereto, each party against whom
contribution may be sought under this Section 8 hereby consents to the
jurisdiction of any court having jurisdiction over any other contributing party,
agrees that process issuing from such court may be served upon it by any other
contributing party and consents to the service of such process and agrees that
any other contributing party may join it as an additional defendant in any such
proceeding in which such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company and the Operating Partnership set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of the Underwriter or
any person controlling the Underwriter, the Operating Partnership or any person
controlling the Operating Partnership, the Company, its trustees or officers or
any persons controlling the Company, (ii) acceptance of any Shares and payment
therefor hereunder, and (iii) any termination of this Agreement. A successor to
the Underwriter, or any person controlling the Underwriter, to the Operating
Partnership, or any person controlling the Operating Partnership, or to the
Company, its trustees or officers, or any person controlling the Company, shall
be entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. NOTICES.
All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered, telecopied or
telegraphed and confirmed as follows: if to the Underwriter, to Deutsche Bank
Securities Inc., 31 West 52nd Street, New York, New York 10019, Attention:
Syndicate Manager, with a copy to Deutsche Bank Securities Inc., 60 Wall Street,
New
24
York, New York 10005, Attention: General Counsel; and if to the Company or the
Operating Partnership, to Ramco-Gershenson Properties Trust, 27600 Northwestern
Highway, Suite 200, Southfield, Michigan 48034, Attention: Chief Executive
Officer, with a copy to Honigman Miller Schwartz and Cohn LLP, 32270 Telegraph
Road, Suite 225, Bingham Farms, Michigan 48025, Attention: Richard J. Burstein,
Esq.
10. TERMINATION.
This Agreement may be terminated by the Underwriter by notice
to the Company and the Operating Partnership (a) at any time prior to the
Closing Date or any Option Closing Date (if different from the Closing Date and
then only as to Option Shares) if any of the following has occurred: (i) since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change or any development
involving a prospective material adverse change in or affecting the earnings,
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and its Subsidiaries taken
as a whole, whether or not arising in the ordinary course of business, (ii) any
outbreak or escalation of hostilities or declaration of war or national
emergency or other national or international calamity or crisis or change in
economic or political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial markets of
the United States would, in the Underwriter's reasonable judgment, make it
impracticable or inadvisable to market the Shares or to enforce contracts for
the sale of the Shares, or (iii) suspension of trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the Nasdaq
National Market or limitation on prices (other than limitations on hours or
numbers of days of trading) for securities on either such Exchange, (iv) the
enactment, publication, decree or other promulgation of any statute, regulation,
rule or order of any court or other governmental authority which in your opinion
materially and adversely affects or may materially and adversely affect the
business or operations of the Company, (v) the declaration of a banking
moratorium by United States or New York State authorities, (vi) the suspension
of trading of the Company's Common Shares by the New York Stock Exchange, the
Commission, or any other governmental authority or, (vii) the taking of any
action by any governmental body or agency in respect of its monetary or fiscal
affairs which in your reasonable opinion has a material adverse effect on the
securities markets in the United States; or
(b) as provided in Section 6 of this Agreement.
11. SUCCESSORS.
This Agreement has been and is made solely for the benefit of
the Underwriter, the Company and the Operating Partnership and their respective
successors, executors, administrators, heirs and assigns, and the officers,
trustees and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. No purchaser of any of the Shares from
the Underwriter shall be deemed a successor or assign merely because of such
purchase.
25
12. INFORMATION PROVIDED BY UNDERWRITER.
The Company, the Operating Partnership and the Underwriter
acknowledge and agree that the only information furnished or to be furnished by
the Underwriter to the Company for inclusion in any Prospectus or the
Registration Statement consists of the information set forth in the third,
seventh and eighth paragraphs under the caption "Underwriting" in the
Prospectus.
13. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of the
Underwriter or any controlling person thereof, by or on behalf of the Operating
Partnership or any controlling person thereof or by or on behalf of the Company
or its trustees or officers and (c) delivery of and payment for the Shares under
this Agreement.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
26
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Operating
Partnership and the Underwriter in accordance with its terms.
Very truly yours,
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Richard J. Smith
------------------------------------------
Name: Richard J. Smith
Title: Chief Financial Officer
RAMCO-GERSHENSON PROPERTIES, L.P.
By: RAMCO-GERSHENSON PROPERTIES TRUST
Its General Partner
By: /s/ Richard J. Smith
------------------------------------------
Name: Richard J. Smith
Title: Chief Financial Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ Robert Blumenthal
---------------------------------
Authorized Officer
By: /s/ John G. Kennedy III
----------------------------------
Authorized Officer
SCHEDULE I
SCHEDULE OF SUBSIDIARIES
Percent Owned by the Company
Name of Subsidiary and/or the Subsidiaries
- ------------------ -----------------------
Chester Springs SC, L.L.C. 100%
Chester Springs SC Holdings Corp. 100%
Double Rivers, LLC 100%
East Town Plaza, LLC 100%
East Town Plaza Holdings Corp. 100%
East Town SP, LLC 100%
North Lakeland Properties, Inc. 100%
Novi West Development, L.L.C. 100%
PLC/Novi West, L.L.C. 9.88%
Ramco Acquisitions IV, L.L.C. 100%
Ramco Auburn Hills Acquisitions, Inc. 100%
Ramco Cox Creek LLC 100%
Ramco Crofton Plaza LLC 100%
Ramco Gaines LLC 100%
Ramco-Gershenson, Inc. 100%
Ramco-Gershenson Properties, L.P. 80.8%
Ramco Madison Center LLC 100%
Ramco Properties Associates Limited Partnership 100%
Ramco Properties GP, L.L.C. 100%
Ramco Roseville Plaza, LLC 100%
Ramco/Coral Creek Manager, LLC 100%
Ramco/Coral Creek, LLC 100%
Ramco/Crossroads at Royal Palm, LLC 100%
Ramco/Crossroads at Royal Palm Manager, LLC 100%
Ramco/West Oaks II-Spring Meadows, LLC 100%
Ramco/WOII-SM Manager, LLC 100%
RG Naples, LLC 100%
Ramco/Shenandoah LLC 40%
Ramco/Shenandoah Managing Member LLC 100%
Ramco SPC, Inc. 100%
Ramco SPC II, Inc. 100%
Ramco Virginia Management, L.L.C. 100%
Ramco Virginia Properties, L.L.C. 100%
Ramco/West Acres LLC 40%
Rivertowne Holdings Corp. 100%
Rossford Development LLC 100%
RSSC, LLC 100%
RPT/Invest L.L.C. 100%
RPT/Invest II L.L.C. 100%
S-12 Associates 50%
Signal Hill, L.L.C. 100%
Stonegate Acquisition LLC 100%
28th Street Kentwood Associates 50%
I-1