EXHIBIT 1.1
___________ SHARES
GENERAL GROWTH PROPERTIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[date]
[Representative]
As Representative of the several
Underwriters named in Schedule I,
c/o [Representative]
Ladies and Gentlemen:
General Growth Properties, Inc., a Delaware corporation (the "Company")
and the general partner of GGP Limited Partnership, a Delaware limited
partnership (the "Operating Partnership"), proposes to issue and sell up to an
aggregate of ___________ shares of the Company's common stock par value $.10 per
share (the "Common Stock"). Subject to the terms and conditions stated herein,
the Company hereby agrees to sell to the firms named in Schedule I hereto (the
"Underwriters"), and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company, at the time and place and at the purchase price to
the Underwriters set forth in Schedule II hereto, the number of shares of Common
Stock set forth in Schedule I hereto (the "Firm Shares"). At the election of the
Underwriters, the Underwriters may purchase up to an additional ___________
shares of the Common Stock on the terms and for the purposes set forth in
Section 2 hereof (the "Option Shares"). The Firm Shares and the Option Shares,
if purchased, are herein collectively called "Shares". In the event and to the
extent that the Underwriters shall exercise the election to purchase Option
Shares pursuant to Section 2 and subject to the terms and conditions stated
therein, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agree, severally and not jointly, to purchase from the
Company at the purchase price to the Underwriters set forth in Schedule II
hereto that portion of the number of Option Shares as set forth in Section 2
hereof as to which such election shall have been exercised.
This is to confirm the agreement concerning the purchase of the Shares
from the Company by the Underwriters.
1. The Company and the Operating Partnership, jointly and severally,
represent and warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
___________) in respect of the Shares has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to you as the
representative (the "Representative") of the Underwriters and,
excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus included therein,
have been declared effective by the Commission in such form; no other
document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed, or
transmitted for filing, with the Commission (other than documents
incorporated by reference in such prospectus and prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Securities Act of 1933, as amended (the "Act"), each in the
form heretofore delivered to the Representative); and no stop order
suspending the effectiveness of such registration
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statement has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission
pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective, each as amended at the time such part of
the registration statement became effective, are hereinafter
collectively called the "Registration Statement"; the prospectus
relating to the Shares, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior to
the date of this Agreement, is hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 4(a) hereof, including any documents incorporated by
reference therein as of the date of such filing); if the Company has
filed an abbreviated registration statement to register additional
securities, including shares of Common Stock, pursuant to Rule 462(b)
under the Securities Act (the "Rule 462 Registration Statement"), then
any reference herein to the term "Registration Statement" shall be
deemed to include such Rule 462 Registration Statement, unless the
context otherwise requires;
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
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; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through the Representative expressly for use in the Prospectus as
amended or supplemented;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement or a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through the Representative expressly for use in the Prospectus as
amended or supplemented;
(d) Neither the Company nor any of its subsidiaries
("subsidiaries", as used in this Agreement, shall include the Operating
Partnership, GGPLP L.L.C. and each other partnership which is together
wholly-owned by the Company, the Operating Partnership and GGPLP L.L.C.
(each, a "Property
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Partnership")), has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus as amended or
supplemented, there has not been any change in the capital stock (other
than issuances pursuant to stock option plans) of the Company or the
short-term or long-term debt of the Company (other than reductions in
short-term or long-term debt pursuant to scheduled reductions in the
applicable debt instrument) or the capital stock or equity capital of
any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity (or, with respect to partnership subsidiaries,
partnership capital) or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each material subsidiary of the Company has been duly
organized and is validly existing as a partnership or corporation, as
the case may be, in good standing (to the extent applicable) under the
laws of its jurisdiction of organization and has been duly qualified
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, or is
subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction;
(f) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable. Except as disclosed in the Prospectus, no
shares of the Company's Common Stock are reserved for any purpose and
there are no outstanding securities convertible into or exchangeable
for any shares of Common Stock of the Company, and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or
subscribe for shares of Common Stock or any other securities of the
Company (except, in the case of options, any options granted on or
after the date on which the Company filed its definitive proxy
statement on Schedule 14A);
(g) The Shares have been duly and validly authorized and, when
issued and delivered pursuant to this Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to the
preemptive rights or other similar rights of any stockholder of the
Company; all corporate action required to be taken for the
authorization, issue and sale of the Shares has been validly and
sufficiently taken; and the Shares will conform to the description
thereof contained in the Prospectus as amended or supplemented;
(h) The issue and sale of the Shares by the Company, the
compliance by the Company with all of the provisions of this Agreement
and the consummation of the transactions contemplated herein will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any subsidiary is a party or by which the Company or any
subsidiary is bound or to which any of the property or assets of the
Company or any subsidiary is subject, except for a conflict, breach,
violation, or default which would not have a material adverse effect on
(i) the Company's ability to perform its obligations hereunder or (ii)
the Company and its subsidiaries taken as a whole, nor will such action
result in any violation of the provisions of the certificate of
incorporation or bylaws of the Company or the constituent documents of
any subsidiary or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Shares or the
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consummation by the Company of the transactions contemplated by this
Agreement, except such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(i) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject, which might reasonably be
expected to individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(j) Neither the Company nor any of its subsidiaries is in
violation of its certificate of incorporation or certificate of limited
partnership, as the case may be, or bylaws or partnership agreement, as
the case may be, or in breach of or default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument or under any applicable law,
rule, order, administrative regulation or administrative or court
decree to which it is a party or by which it or any of its properties
may be bound, which breaches or defaults would, in the aggregate, have
a material adverse effect on the general affairs, management, financial
position, stockholders equity or results of operations of the Company
and its subsidiaries taken as a whole;
(k) The statements set forth in the Prospectus (i) under the
captions "Description of Common Stock", insofar as they purport to
constitute a summary of the terms of the securities of the Company and
the provisions of the laws and documents referred to therein, and (ii)
under the caption "Federal Income Tax Considerations", insofar as they
purport to describe the provisions of the laws and documents referred
to therein, are accurate and complete;
(l) Neither the Company, nor any of its subsidiaries, is, or
will be, after giving effect to the issue and sale of the Shares by the
Company, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "Investment Company Act");
(m) During the periods covered by the financial statements on
which they reported and on the date of their report,
PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries or affiliates, were
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(n) Deloitte & Touche LLP, who have been engaged by the
Company as its independent accountants, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(o) The Company and its subsidiaries have good and marketable
title in fee simple to, or good and marketable leasehold estates in,
all real property described in the Prospectus as being owned or leased
by them, and good and marketable title to all personal property owned
by them which is material to the business of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as
do not materially affect the value of such property, and do not
materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held
by them under valid and subsisting leases, in each case except as set
forth or contemplated in the Prospectus;
(p) The partnership agreement, shareholder agreement or
operating agreement of each subsidiary of the Company has been duly
authorized, executed and delivered by each party thereto and is valid,
legally binding and enforceable in accordance with its terms; all of
the partnership interests in each partnership subsidiary of the
Company, all of the stock of each corporate subsidiary of the Company
and all
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of the membership interests in each limited liability company of the
Company have been duly and validly authorized and issued and are owned,
directly or indirectly, by the Company, the Operating Partnership or
GGPLP L.L.C., free and clear of all liens, encumbrances, equities and
claims (except with respect to the pledge of membership interests in
GGP-Grandville L.L.C. and capital stock of Grandville Mall, Inc.
(collectively, the "Pledged Securities");
(q) Application will be made to list the Shares on the New
York Stock Exchange ("NYSE");
(r) This Agreement has been duly and validly authorized,
executed and delivered by each of the Company and the Operating
Partnership and is a valid and legally binding agreement of each of the
Company and the Operating Partnership in accordance with its terms;
(s) The financial statements (including the related notes and
supporting schedules) filed as part of, or incorporated by reference
in, the Registration Statement and the Prospectus present fairly the
financial condition and results of operations of the entities purported
to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved;
(t) Each of the Company and the Operating Partnership and
their subsidiaries, and each property carries, or is covered by,
insurance in such amounts and covering such risks as is adequate for
the conduct of its business and the value of such property and as is
customary for companies engaged in similar businesses in similar
industries; and
(u) At all times commencing with the Company's taxable year
ending December 31, 1993, the Company and the Operating Partnership
have been and upon the sale of the Shares will continue to be,
organized and operated in conformity with the requirements for
qualification of the Company as a real estate investment trust under
the Internal Revenue Code of 1986, as amended (the "Code") and the
proposed method of operation of the Company and the Operating
Partnership will enable the Company to continue to meet the
requirements for qualification and taxation as a real estate investment
trust under the Code.
2. On the basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, the Company agrees to
sell the Firm Shares to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Shares set opposite that Underwriter's name in Schedule I hereto.
The Company hereby grants to the Underwriters the right (an
"Overallotment Option") to purchase at their election up to the number of
Optional Shares set forth in Schedule II hereto on the terms referred to herein
for the sole purpose of covering over-allotments in the sale of the Firm Shares.
Any such election to purchase Option Shares may be exercised by written notice
from the Representative to the Company given within a period of 30 calendar days
after the date of this Agreement, setting forth the aggregate number of Option
Shares to be purchased and the date on which such Option Shares are to be
delivered, as determined by the Representative, but in no event earlier than the
First Time of Delivery or, unless the Representative and the Company otherwise
agree in writing, earlier than two or later than ten business days after the
date of such notice.
The number of Option Shares to be added to the number of Firm Shares to
be purchased by each Underwriter as set forth in Schedule I hereto shall be, in
each case, the number of Option Shares which the Company has been advised by the
Representative have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the number of Option Shares to be so added
shall be, in each case, that proportion of Option Shares which the number of
Firm Shares to be purchased by such Underwriter under this Agreement bears to
the aggregate number of Firm Shares (rounded as the Representative may determine
to the nearest 100 shares). The total number of Shares to be purchased by all
the Underwriters pursuant to this Agreement shall be the aggregate number of
Firm Shares set forth in Schedule I to this Agreement plus the aggregate number
of Option Shares which the Underwriters elect to purchase.
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3. Upon the authorization by the Representative of the release of the
Firm Shares, the several Underwriters propose to offer the Firm Shares for sale
upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
4. Certificates representing the Firm Shares and the Option Shares to
be purchased by each Underwriter pursuant to this Agreement, and in such
authorized denominations and registered in such names as the Representative may
request upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representative for the account
of such Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks or by
transfer to an account designated by the Company, payable to the order of the
Company in funds specified in Schedule II, (i) with respect to the Firm Shares,
all in the manner and at the place and time and date specified in Schedule II or
at such other place and time and date as the Representative and the Company may
agree upon in writing, such time and date being herein called the "First Time of
Delivery" and (ii) with respect to the Option Shares, if any, in the manner and
at the time and date specified by the Representative in the written notice given
by the Representative of the Underwriters' election to purchase such Option
Shares, or at such other time and date as the Representative and the Company may
agree upon in writing, such time and date, if not the First Time of Delivery,
herein called the "Second Time of Delivery". Each such time and date for
delivery is herein called a "Time of Delivery". For the purpose of expediting
the checking and packaging of the certificates for the Shares, the Company shall
make the certificates representing the Shares available for inspection by the
Representative in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to each Time of Delivery.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended and supplemented in a
form approved by the Representative and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution
and delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of this Agreement and prior to any Time of
Delivery which shall be disapproved by the Representative promptly
after reasonable notice thereof; to advise the Representative promptly
of any such amendment or supplement after any Time of Delivery for such
Shares and furnish the Representative with copies thereof; to prepare
any Rule 462 Registration Statement, as needed, and file such Rule 462
Registration Statement pursuant to Rule 462(b) under the Act with the
Commission; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares, and during such
same period to advise the Representative, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating
to the Shares, of the suspension of the qualification of such Shares
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Shares or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representative may reasonably request to qualify such Shares for
offering and sale under the securities laws of such jurisdictions as
the Representative may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
as amended or supplemented in such quantities as the Representative may
from time to time reasonably request, and, if the delivery of a
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prospectus is required at any time in connection with the offering or
sale of the Shares and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act or the
Exchange Act, to notify the Representative and upon their request to
file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representative may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the
date hereof, upon the request of the Representative but at the expense
of such Underwriter, as many copies as the Representative may from time
to time reasonably request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) To use its best efforts to list, subject to notice of
issuance, the Shares on the NYSE;
(f) During the period beginning from the date of the
Prospectus Supplement and continuing to and including the date 30 days
after the date of the Prospectus Supplement, the Company will not
offer, sell, contract to sell or otherwise dispose of any securities of
GGP which are substantially similar to Common Stock or which are
convertible or exchangeable into Common Stock or securities which are
substantially similar to common stock, without the prior written
consent of Xxxxxx Brothers, except for (i) the Shares; (ii) any Common
Stock or securities convertible into or exercisable or exchangeable for
Common Stock issued by the Company in connection with acquisitions;
(iii) shares issued under employee stock option or stock purchase plans
existing on the date of the Prospectus Supplement; (iv) shares issued
on or in connection with the conversion, exchange or put of
convertible, exchangeable or other securities outstanding on the date
of the Prospectus Supplement; and (v) securities having substantially
the same terms as the Company's 7.25% Preferred Income Equity
Redeemable Stock, Series A, par value $100 per share (the "PIERS").
(g) Except as stated in this Agreement and in the Prospectus,
neither the Company nor the Operating Partnership has taken, nor will
take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Shares or the Common Stock to
facilitate the sale or resale of the Shares.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Blue Sky Memorandum,
closing documents (including compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
survey(s); (iv) any filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, any required reviews by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (v) the cost of preparing certificates for the Shares and Receipts; (vi)
the cost and charges of any transfer agent or registrar; (vii) listing fees of
the NYSE; (viii) fees payable to credit rating agencies;
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and (ix) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Shares by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters shall be subject, in the
discretion of the Representative, to the condition that all representations and
warranties and other statements of the Company and the Operating Partnership in
this Agreement are, at and as of each Time of Delivery, true and correct, the
condition that the Company and the Operating Partnership shall have performed
all of their obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; any Rule 462
Registration Statement shall have been filed with the Commission; no
stop order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission
shall have been complied with to the Representative's reasonable
satisfaction;
(b) The Underwriters shall have received from Xxxxxxx Xxxxxxx
& Xxxxxxxx, counsel to the Underwriters, such opinion or opinions,
dated such Time of Delivery, with respect to the issuance and sale of
the Shares, the Registration Statement, the Prospectus and other
related matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters;
(c) Xxxx, Gerber & Xxxxxxxxx, counsel to the Company, shall
have furnished to the Representative its written opinion or opinions,
dated each Time of Delivery, in form and substance satisfactory to the
Representative, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the General Corporation Law
of the State of Delaware;
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of its failure to be so qualified in any such jurisdiction (such
counsel being entitled to rely in respect of matters of fact upon
certificates of officers of the Company, provided that such counsel
shall state that they believe that both the Underwriters and they are
justified in relying upon such certificates);
(iii) Each subsidiary of the Company listed on Annex
IV has been duly organized and is validly existing as a partnership,
limited liability company or corporation, as the case may be, in good
standing (to the extent applicable) under the laws of its jurisdiction
of incorporation or organization and, to the best of such counsel's
knowledge, each other subsidiary of the Company has been duly organized
or formed and is validly existing as a partnership, limited liability
company, trust or corporation, as the case may be, in good standing (to
the extent applicable) under the laws of its jurisdiction of
incorporation or organization or is subject to no material liability or
disability by reason of its failure to be so duly organized, formed or
validly existing in good standing in any such jurisdiction; the
partnership agreement, shareholder agreement or operating agreement of
each subsidiary of the Company has been duly authorized, executed and
delivered by each party thereto and is valid, legally binding and
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and the effect of general principles of equity; all of the
partnership interests in each partnership subsidiary of the Company,
all of the membership interests in each limited liability company
subsidiary of the Company and all of the stock of each corporate
subsidiary of the Company have been duly and validly authorized and
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issued and (except as described in the Prospectus) are owned directly
or indirectly by the Company, the Operating Partnership or GGPLP
L.L.C., free and clear of all liens, encumbrances, equities and claims
(except with respect to the pledge of the Pledged Securities); (such
counsel being entitled to rely in respect of the opinion in this clause
(iii) upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that they believe both the
Underwriters and they are justified in relying upon such opinions and
certificates);
(iv) All of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(v) The Shares have been duly authorized and are
validly issued and fully paid and non-assessable;
(vi) The Shares are free of any preemptive or other
similar rights created by the Company's certificate of incorporation
and, to the knowledge of such counsel, are free of any preemptive or
other similar rights created pursuant to any agreement entered into by
the Company;
(vii) This Agreement has been duly authorized,
executed and delivered by the Company;
(viii) The initial Registration Statement and the
Rule 462 Registration Statement, if applicable, were declared effective
under the Securities Act as of the dates specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the rules and regulations specified in such opinion
on the date specified therein and no stop order suspending the
effectiveness of either the initial Registration Statement or the Rule
462 Registration Statement, if applicable, has been issued and, to the
knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(ix) The issue and sale of the Shares by the Company
to the Underwriters pursuant to this Agreement do not (i) violate the
Company's certificate of incorporation or by-laws, in each case as in
effect on the date hereof, or (ii) violate any existing Federal law of
the United States or the existing General Corporation Law of the State
of Delaware; provided that such counsel need not express any opinion
with respect to state securities laws;
(x) The issue and sale of the Shares being delivered
at such Time of Delivery, and the compliance by the Company and the
Operating Partnership with all of the provisions of this Agreement and
the consummation of the transactions herein will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or the Operating Partnership is a party or by
which the Company or the Operating Partnership is bound or to which any
of the property or assets of the Company, the Operating Partnership or
any Property Partnership is subject, nor will such action result in any
violation of the provisions of the certificate of incorporation or
bylaws of the Company or the certificate of limited partnership or
partnership agreement of the Operating Partnership or any statute or
any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or the
Operating Partnership or any of their properties;
(xi) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and to
the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
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(xii) Neither the Company nor, to the knowledge of
such counsel, any of its subsidiaries, is in violation of its
certificate of incorporation, certificate of limited partnership or
operating agreement, as the case may be, or bylaws or partnership
agreement, as the case may be, or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument known to us to which it is a
party or by which it or any of its properties may be bound, except for
any such violations or defaults as would not individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole;
(xiii) The partnership agreement of the Operating
Partnership has been duly authorized, executed and delivered by the
Company and is the valid and legally binding obligation of, and is
enforceable against, the Company, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
the effect of general principles of equity; and the partnership
agreement of each Property Partnership has been duly authorized,
executed and delivered by the Company in its corporate capacity or by
the Company or a subsidiary of the Company in its capacity as general
partner of the Operating Partnership or the Property Partnerships;
(xiv) The Company is not an "investment company" as
that term is defined in the Investment Company Act of 1940, as amended;
(xv) All regulatory consents, authorizations,
approvals and filings required to be obtained or made by the Company
under the Federal laws of the United States for the issuance, sale and
delivery of the Shares by the Company to you have been obtained or
made;
In addition, Xxxx, Gerber & Xxxxxxxxx shall state in its letter
containing these opinions that, as counsel to the Company, they
reviewed the Registration Statement, the prospectus contained therein
(the "Basic Prospectus") and the prospectus supplement, dated
_____________________ (the "Prospectus Supplement"), participated in
discussions with the Representative and representatives of the Company
and its accountants, and advised the Company as to the requirements of
the Act and the applicable rules and regulations thereunder; on the
basis of the information that such counsel gained in the course of the
performance of such services, considered in the light of their
understanding of the applicable law (including the requirements of Form
S-3 and the character of the prospectus contemplated thereby) and the
experience they have gained through their practice under the Act, they
confirm to you that, in their opinion, each part of the Registration
Statement, when such part became effective, and the Basic Prospectus,
as supplemented by the Prospectus Supplement, as of the date of the
Prospectus Supplement, appeared on their face to be appropriately
responsive, in all material respects relevant to the offering of the
Shares, to the requirements of the Act and the applicable rules and
regulations of the Commission thereunder; nothing that came to such
counsel's attention in the course of such review has caused such
counsel to believe, insofar as relevant to the offering of the Shares,
any part of the Registration Statement, when such part became
effective, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that, insofar as
relevant to the offering of the Shares, the Basic Prospectus, as
supplemented by the Prospectus Supplement, as of the date of the
Prospectus Supplement and as of the date of such letter, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Such counsel may state that the limitations inherent in the
independent verification of factual matters and the character of
determinations involved in the registration process are such that they
do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, the
Basic Prospectus or the Prospectus Supplement except for those made
under the captions "Description of Common Stock" and "Plan of
Distribution" in the Basic Prospectus, as supplemented by the
statements made under the captions "Description of Common Stock," and
"Underwriting" in the Prospectus Supplement, respectively, insofar as
they relate to provisions of the Company's certificate of
incorporation, the Company's by-laws, the Company's Rights Agreement,
indemnification agreements with officers and directors of the Company
and this Agreement; and that such counsel do not express any opinion or
belief as
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to the financial statements or other financial data derived from
accounting records contained in the Registration Statement, the Basic
Prospectus or the Prospectus Supplement.
(d) Xxxx, Gerber & Xxxxxxxxx, counsel to the Company, shall
have furnished to the Representative its written opinion or opinions,
dated each Time of Delivery, in form and substance satisfactory to the
Representative, to the effect that:
Each partnership in which the Company owns an interest in excess of 10
percent is properly treated (x) as a partnership for federal income tax
purposes and (y) not as a "publicly traded partnership" as defined in
the Code;
The statements set forth in the Prospectus under the caption "Federal
Income Tax Considerations" insofar as they purport to describe the
provisions of the laws, legal conclusions with respect thereto and
documents referred to therein, are accurate and complete in all
material respects; and
In the opinion of such counsel, 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, and its historic and proposed methods of operation
have enabled and will enable it to meet the requirements for
qualification and taxation as a real estate investment trust under the
Code and the right, in certain circumstances, of holders of interests
in the Operating Partnership to exchange those interests for shares of
Common Stock has not caused and will not cause the Company to fail the
diversity test of Section 856(a)(6) of the Code.
(e) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, shall have
furnished to the Representative a letter, dated each Time of Delivery,
to the effect set forth in Annex I hereto and as to such other matters
as the Representative may reasonably request and in form and substance
satisfactory to the Representative;
(f) Deloitte & Touche LLP, who have been engaged by the
Company as its independent accountants, shall have furnished to the
Representative a letter, dated each Time of Delivery, to the effect set
forth in Annex II hereto and as to such other matters as the
Representative may reasonably request and in form and substance
satisfactory to the Representative;
(g) If applicable, those executive officers and directors that
the Representative and the Company shall have agreed upon shall have
furnished to the Representative a letter, dated the date hereof, to the
effect set forth in Annex III hereto and in form and substance
satisfactory to the Representative;
(h) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended prior to the date of this Agreement relating to the Shares any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended prior to
the date of this Agreement, and (ii) since the respective dates as of
which information is given in the Prospectus as amended and
supplemented prior to the date of this Agreement there shall not have
been any change in the capital stock (other than issuances pursuant to
stock option plans) or long-term or short-term debt of the Company or
any of its subsidiaries (other than reductions in short-term or
long-term debt pursuant to scheduled reductions in the applicable debt
instrument) or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus as amended prior to the date of this Agreement, the
effect of which, in any such case described in clauses (i) or (ii), is
in the judgment of the Representative so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented;
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(i) On or after the date of this Agreement (i) no downgrading
shall have occurred in the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(j) On or after the date of this Agreement there shall not
have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the NYSE; (ii) a
suspension or material limitation in trading in the Company's
securities on the NYSE; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; (iv) any material disruption in securities settlement or
clearance services; and (v) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this Clause (v) in the judgment of the Representative made it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Firm Shares or Option Shares or both on the terms and
in the manner contemplated in the Prospectus as first amended or
supplemented;
(k) The Shares at each Time of Delivery shall have been duly
listed, subject to notice of issuance, on the NYSE; and
(l) The Company shall have furnished or caused to be furnished
to the Representative at such Time of Delivery certificates of officers
of the Company satisfactory to the Representative as to the accuracy of
the representations and warranties of the Company herein at and as of
such Time of Delivery, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (h) of
this Section 7 and as to such other matters as the Representative may
reasonably request.
8. (a) The Company and the Operating Partnership, jointly and
severally, shall indemnify and hold harmless each Underwriter, its officers and
employees and each person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any loss, claim, damage, or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Shares), to which that Underwriter, officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus or in any
amendment or supplement thereto (with respect to the Prospectus, in light of the
circumstances under which they were made), (ii) the omission or alleged omission
to state in the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading (with respect to the Prospectus,
in light of the circumstances under which they were made), or (iii) any act or
failure to act or any alleged act or failure to act by any 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 neither the Company nor the
Operating Partnership shall 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 such Underwriter
through its gross negligence or willful misconduct), and shall reimburse each
Underwriter and each such officer, employee or controlling person for any legal
or other expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that neither the Company nor the
Operating Partnership shall be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement or the Prospectus, or in any such amendment
or supplement, in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the Underwriters by
or on behalf of any Underwriter specifically for inclusion therein. The
foregoing indemnity agreement is in addition to any liability which the Company
and the Operating Partnership may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
-12-
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless each of the Company and the Operating
Partnership, its officers and employees, each of its directors, and
each person, if any, who controls the Company or the Operating
Partnership within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action
in respect thereof, to which each of the Company or the Operating
Partnership or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus
or in any amendment or supplement thereto, or (ii) the omission or
alleged omission to state in the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, any material
fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company
through the Underwriters by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company or
the Operating Partnership and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the
Company or the Operating Partnership or any such director, officer or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity agreement
is in addition to any liability which any Underwriter may otherwise
have to the Company, the Operating Partnership or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 8 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 8. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the indemnified party shall have
the right to employ its own counsel, with such counsel, in the case of
the Underwriters, to represent jointly the Underwriters and their
respective officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company or the
Operating Partnership under this Section 8 if, in the reasonable
judgment of the Underwriters, it is advisable for the Underwriters and
those officers, employees and controlling persons to be jointly
represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Company and the
Operating Partnership. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall
not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of
such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with
the consent of the indemnifying party or if there be a final judgment
of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 8(a) or 8(b) in respect of any loss,
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claim, damage or liability, or any action in respect thereof, referred
to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the
Company and the Operating Partnership on the one hand and the
Underwriters on the other from the offering of the Shares or (ii) if
the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Operating Partnership on the one
hand and the Underwriters on the other with respect to the statements
or omission which resulted in such loss, claim, damage or liability, or
action 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 Underwriters on the other
with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares
purchased under this Agreement (before deducting expenses) received by
the Company or the Operating Partnership, on the one hand, and the
total underwriting discounts and commissions received by the
Underwriters with respect to the Shares purchased under this Agreement,
on the other hand, bear to the total gross proceeds from the offering
of the Shares under this Agreement. The relative fault shall be
determined by reference to whether the 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 or the
Operating Partnership or the Underwriters, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the
Operating Partnership and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section were to be
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability,
or action in respect thereof, referred to above in this Section shall
be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and
distributed to the public was offered to the public exceeds the amount
of any damages which such Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 8(d) are several
in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm and the Company and the
Operating Partnership each acknowledge that the statements with respect
to the public offering of the Shares by the Underwriters set forth on
the cover page of and, pursuant to Item 508 of Regulation S-K of the
Act, the second and eleventh paragraphs appearing in the section
captioned "Underwriting" in, the Prospectus are correct and constitute
the only information concerning such Underwriters furnished in writing
to the Company by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and the Prospectus.
9. (a) If any Underwriter shall default in its obligation to
purchase the Firm Shares or Option Shares which it has agreed to purchase under
this Agreement, the Representative may in its discretion arrange for themselves
or another party or other parties to purchase such Shares on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the
Representative does not arrange for the purchase of such Firm Shares or Option
Shares, as the case may be, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties reasonably satisfactory to the Representative to purchase such Shares on
such terms. In the event that, within the respective prescribed period, the
Representative notifies the Company that it has so arranged for the purchase of
such Shares, or the Company notifies the Representative that it has so arranged
for the purchase of such Shares, the Representative or the Company shall have
the right to postpone a Time of Delivery for such Shares for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the
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Representative may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Shares or Option Shares, as the case may be, of a
defaulting Underwriter or Underwriters by the Representative and the
Company as provided in subsection (a) above, the aggregate number of
such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of the Firm Shares or Option Shares, as the case
may be, to be purchased at the respective Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter
to purchase the number of Firm Shares or Option Shares, as the case may
be, which such Underwriter agreed to purchase under this Agreement and,
in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the number of Firm Shares or Option Shares, as
the case may be, which such Underwriter agreed to purchase under this
Agreement) of the Firm Shares or Option Shares, as the case may be, of
such defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Shares or Option Shares, as the case may be, of a
defaulting Underwriter or Underwriters by the Representative and the
Company as provided in subsection (a) above, the aggregate number of
Firm Shares or Option Shares, as the case may be, which remains
unpurchased exceeds one-eleventh of the aggregate number of the Firm
Shares or Option Shares, as the case may be, to be purchased at the
respective Time of Delivery, as referred to in subsection (b) above, or
if the Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Firm Shares or
Option Shares, as the case may be, of a defaulting Underwriter or
Underwriters, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters
as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Operating Partnership and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company or the Operating Partnership, or any officer or
director or controlling person of the Company or the Operating Partnership, and
shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
or if any Shares are not delivered by the Company as provided herein because the
condition set forth in Section 7(j) hereof has not been met, the Company shall
not then be under any liability to any Underwriter except as provided in
Sections 6 and 8 hereof; but, if for any other reason, Shares are not delivered
by or on behalf of the Company as provided herein, the Company will reimburse
the Underwriters through the Representative for all out-of-pocket expenses
approved in writing by the Representative, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of such Shares, but neither the Company nor the
Operating Partnership shall then be under any further liability to any
Underwriter with respect to such Shares except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, the Representative of the Underwriters
of Shares shall act on behalf of each of such Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by such Representative.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representative as set forth in
Schedule II hereto; and if to the Company or the Operating Partnership shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by
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mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representative upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Operating Partnership and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and the Operating Partnership and each person who controls the Company,
the Operating Partnership or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto and thereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us (one for the Company and one for the Representative plus one
for each counsel) counterparts hereof.
Very truly yours,
GENERAL GROWTH PROPERTIES, INC.
By:
----------------------------
Name:
Title:
GGP LIMITED PARTNERSHIP
By:
----------------------------
Name:
Title:
Accepted as of the date hereof:
[REPRESENTATIVE]
For itself and as Representative
of the several Underwriters named
in Schedule I hereto
By: [REPRESENTATIVE]
By:
------------------------------
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SCHEDULE I
NUMBER OF
FIRM SHARES
TO BE PURCHASED
---------------
UNDERWRITERS
------------
............................................................... 6,000,000
TOTAL..................................................... 6,000,000
=========
SCHEDULE II
NUMBER OF SHARES:
Number of Firm Shares:
Maximum Number of Option Shares:
INITIAL OFFERING PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
LISTING:
New York Stock Exchange
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Wire transfer of immediately available funds
TIME OF DELIVERY:
CLOSING LOCATION:
Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000
NAMES AND ADDRESSES OF REPRESENTATIVE:
ANNEX I
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They were independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder
during the periods covered by the financial statements on which they
reported and on the date of their report;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the unaudited consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon;
(iii) For the periods prior to December 31, 2000, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or included in
the Company's quarterly reports on Form 10-Q incorporated by reference
into the Prospectus; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
consolidated financial statements referred to in paragraph (iv)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
(iv) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) for the periods prior to December 31, 2000,
the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules
and regulations, or (ii) any material modifications should be
made to the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus or included in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus, for them to be in conformity with
generally accepted accounting principles, and
(B) for the periods prior to December 31, 2000, any
unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the
-1-
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(v) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above, they have
carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representative which are derived from the general
accounting records of the Company and its subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference), or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representative or in documents incorporated by
reference in the Prospectus specified by the Representative, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
All references in this Annex I to the Prospectus shall be deemed to
refer to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) for purposes of each letter delivered.
-2-
ANNEX II
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder
adopted by the Commission;
(ii) If applicable, in their opinion, the financial statements
and any supplementary financial information and schedules (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related published rules
and regulations thereunder; and, if applicable, they have made a review
in accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon;
(iii) For the periods commencing January 1, 2001, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or included in
the Company's quarterly reports on Form 10-Q incorporated by reference
into the Prospectus; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
consolidated financial statements referred to in paragraph (iii)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations adopted by the Commission;
(iv) On the basis of limited procedures, not constituting an
audit in accordance with auditing standards generally accepted in the
United States of America, consisting of a reading of the 2001 unaudited
financial statements and other information referred to below, a reading
of the latest available 2001 interim financial statements of the
Company and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) for the periods commencing January 1, 2001, (i)
the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included
in the Prospectus and/or included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the
unaudited consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus, for them to be
in conformity with generally accepted accounting principles;
(B) any unaudited pro forma consolidated condensed
financial statements included or incorporate by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the
published rules and
-1-
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those statements;
(C) as of a specified date not more than five days
prior to the date of such letter, there have been any changes in
the consolidated stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the mortgage
notes and other debt payable of the Company and its subsidiaries,
or any decreases in total consolidated assets or stockholders'
equity or other items specified by the Representative, or other
items specified by the Representative, in each case as compared
with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(D) for the period from the date of the latest
financial statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (C) there
were any decreases in consolidated total revenues or in the total
or per share amounts of income before extraordinary items or of
net income or other items specified by the Representative, or any
increases in any items specified by the Representative, in each
case as compared with the comparable period of the preceding year
and with any other period of corresponding length specified by
the Representative, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(v) In addition to the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs
(iii) and (iv) above, they have carried out certain specified
procedures, not constituting an examination in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representative
which are derived from the general accounting records of the Company
and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the
Representative or in documents incorporated by reference in the
Prospectus specified by the Representative, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) for purposes of each letter delivered.
-2-
ANNEX III
Pursuant to Section 7(g) of the Underwriting Agreement, if applicable,
each of the agreed upon executive officers and directors shall furnish a letter
to the Underwriters to the effect that he or she will not, directly or
indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter
into any transaction or device that is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any shares
of Common Stock (including, without limitation, shares of Common Stock that may
be deemed to be beneficially owned by him or her in accordance with the rules
and regulations of the Securities and Exchange Commission and shares of Common
Stock that may be issued upon exercise of any option or warrant) or securities
convertible into or exchangeable for Common Stock (other than the Shares) owned
by him or her on the date of execution of the lock-up letter agreement or on the
date of the completion of the offering, or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such shares of Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or other securities, in cash or otherwise,
for a period of 30 days after the date of the final Prospectus relating to the
offering; provided however that he or she may transfer his or her Shares by
sales in connection with the exercise of the Company's options held by him or
her which would otherwise expire during the above-referenced 30-day period,
provided such sales are made only to pay the exercise price for such options and
the federal and any state income taxes payable as a result of such exercise.
ANNEX IV
GGP Limited Partnership
General Growth Finance SPE, Inc.
GGP Holding, Inc.
GGP Ivanhoe, Inc.
GGP Ivanhoe II, Inc.
GGP Ivanhoe III, Inc.
GGP/Homart, Inc.
GGP/Homart II LLC
General Growth Management, Inc.
GGPLP L.L.C.