Ramco-Gershenson Properties
Trust
10,500,000 Common Shares of
Beneficial Interest
J.P. Morgan
Securities Inc.
Deutsche Bank
Securities Inc.
KeyBanc Capital
Markets Inc.
As
Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan
Securities Inc.
383 Madison Avenue
New York, New York 10179
Ramco-Gershenson
Properties Trust, a Maryland real estate investment trust (the
“Company”), proposes to issue and sell to the several
Underwriters listed in Schedule 1 to this Agreement (the
“Underwriters”), for whom you are acting as
representatives (the “Representatives”), an aggregate
of 10,500,000 common shares of beneficial interest, par value $0.01
per share, of the Company (the “Underwritten Shares”)
and, at the option of the Underwriters, up to an additional
1,575,000 common shares of beneficial interest of the Company (the
“Option Shares”). The Underwritten Shares and the
Option Shares are herein referred to as the “Shares.”
The common shares of beneficial interest of the Company to be
outstanding after giving effect to the sale of the Shares are
referred to herein as the “Stock.”
The Company hereby
confirms its agreement with the several Underwriters concerning the
purchase and sale of the Shares, as follows:
1.
Registration Statement . The Company has prepared and filed
with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration
statement (File No. 333- 156689), including a prospectus,
relating to the Shares. Such registration statement, as amended at
the time it became effective, including the information, if any,
deemed pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time
of its effectiveness (“Rule 430 Information”), is
referred to herein as the “Registration Statement;” and
as used herein, the term “Preliminary Prospectus” means
each prospectus included in such Registration Statement (and any
amendments thereto) before effectiveness, and any prospectus
(including any prospectus supplement) filed with the Commission
pursuant to Rule 424(a) under the Securities Act, and any
prospectus (including any prospectus supplement) included in the
Registration Statement at the time of its effectiveness that omits
Rule 430 Information, and the term “Prospectus” means
the prospectus (including any prospectus supplement) in the form
first used (or made available upon request of purchasers pursuant
to Rule 173 under the Securities Act) in connection with
confirmation of sales of the Shares. Any
reference in
this Agreement to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the
effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
any reference to “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated
by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At or prior to the
Applicable Time (as defined below), the Company had prepared the
following information (collectively, the “Pricing Disclosure
Package”): a Preliminary Prospectus dated February 9,
2009 (including the preliminary prospectus supplement dated
September 8, 2009) and the information listed on Annex C to
this Agreement.
“Applicable
Time” means 6:00 P.M., New York City time, on
September 10, 2009.
2.
Purchase of the Shares by the Underwriters .
(a) The
Company agrees to issue and sell the Underwritten Shares to the
several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth
herein, agrees, severally and not jointly, to purchase from the
Company the respective number of Underwritten Shares set forth
opposite such Underwriter’s name in Schedule 1 to this
Agreement at a price per share (the “Purchase Price”)
of $8.09625.
In addition, the
Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and each Underwriter,
on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein, shall
have the option to purchase, severally and not jointly, from the
Company the respective number of Option Shares at the Purchase
Price less an amount per share equal to any dividends or
distributions declared by the Company and payable on the
Underwritten Shares but not payable on the Option
Shares.
If any Option
Shares are to be purchased, the number of Option Shares to be
purchased by each Underwriter shall be the number of Option Shares
which bears the same ratio to the aggregate number of Option Shares
being purchased as the number of Underwritten Shares set forth
opposite the name of such Underwriter in Schedule 1 to this
Agreement (or such number increased as set forth in Section 10
hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Company by the several Underwriters, subject,
however, to such adjustments to eliminate any fractional Shares as
the Representatives in their sole discretion shall make.
The Underwriters
may exercise the option to purchase Option Shares at any time in
whole, or from time to time in part, on or before the thirtieth day
following the date of the Prospectus, by written notice from the
Representatives to the Company. Such notice shall set forth the
aggregate number of Option Shares as to which the option is being
exercised and the date and time when the Option Shares are to be
delivered and paid for, which may be the same date and time as the
Closing Date (as hereinafter defined) but shall not be earlier than
the Closing Date or later than the tenth full business day (as
hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the provisions of
Section 10 hereof). Any such notice shall be given at least
two business days prior to the date and time of delivery specified
therein.
(b) The
Company understands that the Underwriters intend to make a public
offering of the Shares as soon after the effectiveness of this
Agreement as in the judgment of the Representatives is advisable,
and initially to offer the Shares on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the
Underwriters may offer and sell Shares to or through any affiliate
of an Underwriter.
(c) Payment
for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Company to the
Representatives in the case of the Underwritten Shares, at the
offices of Skadden, Arps, Slate, Meagher & Flom LLP at
10:00 A.M., New York City time, on September 16, 2009, or
at such other time or place on the same or such other date, not
later than the fifth business day thereafter, as the
Representatives and the Company may agree upon in writing or, in
the case of the Option Shares, on the date and at the time and
place specified by the Representatives in the written notice of the
Underwriters’ election to purchase such Option Shares. The
time and date of such payment for the Underwritten Shares is
referred to herein as the “Closing Date,” and the time
and date for such payment for the Option Shares, if other than the
Closing Date, is herein referred to as the “Additional
Closing Date. ”
Payment for the
Shares to be purchased on the Closing Date or the Additional
Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several
Underwriters of the Shares to be purchased on such date with any
transfer taxes payable in connection with the sale of such Shares
duly paid by the Company. Delivery of the Shares shall be made
through the facilities of The Depository Trust Company
(“DTC”).
(d) The
Company acknowledges and agrees that the Underwriters are acting
solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to the offering of Shares
contemplated hereby (including in connection with determining the
terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other person.
Additionally, none of the Representatives nor any other Underwriter
is advising the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction.
The Company shall consult with its own advisors concerning such
matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated
hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the
Underwriters of the Company, the transactions contemplated hereby
or other matters relating to such transactions will be performed
solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
3.
Representations and Warranties of the Company and the Operating
Partnership . The Company and Ramco-Gershenson Properties, L.P.
(the “Operating Partnership”) each severally represents
and warrants to each Underwriter, on and as of the date hereof and
on and as of the Closing Date and any Additional Closing Date, as
the case may be, that:
(a) Preliminary
Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus included in the Pricing Disclosure Package,
at the time of filing thereof, complied in all material respects
with the Securities Act, and no Preliminary Prospectus, at the time
of filing thereof, contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives
expressly for use in any Preliminary Prospectus, it being
understood and agreed
that the only
such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(b)
Pricing Disclosure Package . The Pricing Disclosure Package
as of the Applicable Time did not, and as of the Closing Date and
as of the Additional Closing Date, as the case may be, will not,
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
such Pricing Disclosure Package, it being understood and agreed
that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof.
(c)
Issuer Free Writing Prospectus. Other than the Registration
Statement, the Preliminary Prospectus and the Prospectus, the
Company (including its agents and representatives, other than the
Underwriters in their capacity as such) has not prepared, used,
authorized, approved or referred to and will not prepare, use,
authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the
Securities Act) that constitutes an offer to sell or solicitation
of an offer to buy the Shares (each such communication by the
Company or its agents and representatives (other than a
communication referred to in clause (i) below) an
“Issuer Free Writing Prospectus”) other than
(i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act or (ii) the documents listed on Annex
B to this Agreement, each electronic road show and any other
written communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied
in all material respects with the Securities Act, has been or will
be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus
accompanying, or delivered prior to delivery of, such Issuer Free
Writing Prospectus, did not, and as of the Closing Date and as of
the Additional Closing Date, as the case may be, will not, contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus or
Preliminary Prospectus in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly
for use in such Issuer Free Writing Prospectus or Preliminary
Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(d)
Registration Statement and Prospectus. The Registration
Statement has been declared effective by the Commission. No order
suspending the effectiveness of the Registration Statement has been
issued by the Commission, and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the
Company or related to the offering of the Shares has been initiated
or threatened by the Commission; as of the applicable effective
date of the Registration Statement and any post-effective amendment
thereto, the Registration Statement and any such post-effective
amendment complied and will comply in all material respects with
the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the
Closing Date and as of the Additional Closing Date, as the case may
be, the
Prospectus will
not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
the Registration Statement and the Prospectus and any amendment or
supplement thereto, it being understood and agreed that the only
such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(e)
Incorporated Documents. The documents incorporated by
reference in the Registration Statement, the Prospectus and the
Pricing Disclosure Package, when they were filed with the
Commission conformed in all material respects to the requirements
of the Exchange Act, and none of such documents contained any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Registration Statement, the Prospectus or the Pricing Disclosure
Package, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the
Exchange Act and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(f)
Financial Statements. The financial statements (including
the related notes thereto) of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and the changes in their cash
flows for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis
throughout the periods covered thereby, and any supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated
therein; the other financial information included or incorporated
by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus has been derived from the accounting
records of the Company and its consolidated subsidiaries and
presents fairly the information shown thereby; and the pro
forma financial information and the related notes thereto
included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus have
been prepared in accordance with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and the
assumptions underlying such pro forma financial information are
reasonable and are set forth in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(g) No Material
Adverse Change. Since the date of the most recent financial
statements of the Company included or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package and the
Prospectus, and except as otherwise disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus
(i) there has not been (A) any material change in the
capital stock or other equity interest (other than the issuance of
common shares upon exercise of stock options and warrants, the
exchange of units of the Operating Partnership or the vesting of
restricted stock described as outstanding in, and the grant of
options, restricted stock and other awards under existing equity
incentive plans described in, the Registration Statement, the
Pricing Disclosure Package and the Prospectus), or
material
change in the
short-term debt or long-term debt (other than the repayment of debt
at maturity through existing lines of credit, the repayment of
certain hedging obligations, the repayment of existing lines of
credit resulting from asset sales, and borrowings or repayments
under existing lines of credit to fund working capital consistent
with past practices), of the Company or any of its subsidiaries,
taken as a whole, or (B) any dividend or distribution of any
kind declared, set aside for payment, paid or made by the Company
on any shares of beneficial interest, or any material adverse
change in or affecting the business, properties, management,
financial position, shareholders’ equity, results of
operations or prospects of the Company and its subsidiaries taken
as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether
or not in the ordinary course of business) that is material to the
Company and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, that is material to
the Company and its subsidiaries taken as a whole; and
(iii) neither the Company nor any of its subsidiaries has
sustained any loss or interference with its business that is
material to the Company and its subsidiaries taken as a whole and
that is either from fire, explosion, flood or other similar
calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court
or arbitrator or governmental or regulatory authority.
(h)
Organization and Good Standing. The Company has been duly
organized and is validly existing as a real estate investment trust
in good standing under the laws of the State of Maryland, with all
requisite trust power and authority to own or lease its properties
and conducts its business as described in the Registration
Statement. Each of the subsidiaries of the Company has been duly
organized and is validly existing as a corporation, limited
partnership or limited liability company in good standing under the
laws of the jurisdiction of its organization, with all requisite
corporate, limited partnership or limited liability company power
and authority, as the case may be, to own or lease its properties
and conduct its business as described in the Registration
Statement. The Company and each of its subsidiaries are duly
qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to
be so qualified or in good standing or have such power or authority
would not, individually or in the aggregate, have a material
adverse effect on the business, properties, management, financial
position, shareholders’ equity, results of operations or
prospects of the Company and its subsidiaries taken as a whole or
on the performance by the Company of its obligations under this
Agreement (as defined below) (a “Material Adverse
Effect”).
(i)
Capitalization. The Company has an authorized capitalization
as set forth in the Registration Statement, the Pricing Disclosure
Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of
beneficial interest of the Company have been duly authorized and
validly issued and are fully paid and non-assessable and are not
subject to any pre-emptive or similar rights; except as set forth
on Schedule A to this Agreement or as described in or
expressly contemplated by the Registration Statement, Pricing
Disclosure Package and the Prospectus, there are no outstanding
rights (including, without limitation, pre-emptive rights),
warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity
interest in the Company or any of its subsidiaries, or any
contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any shares of capital stock or
other equity interest of the Company or any such subsidiary, any
such convertible or exchangeable securities or any such rights,
warrants or options; the shares of beneficial interest of the
Company conform in all material respects to the description thereof
contained in the Registration Statement, the Pricing Disclosure
Package and the Prospectus; and
all the
outstanding shares of capital stock or other equity interests of
each subsidiary owned, directly or indirectly, by the Company have
been duly authorized and validly issued, are fully paid and
non-assessable and, except to the extent set forth in
Schedule B to this Agreement or the Registration Statement,
the Pricing Disclosure Package and the Prospectus, are owned
directly or indirectly by the Company, free and clear of any lien,
charge, encumbrance, security interest, restriction on voting or
transfer or any other claim of any third party. The Company has
duly reserved a sufficient number of Common Shares for issuance
upon exchange of outstanding units of limited partnership of the
Operating Partnership (“OP Units”) in accordance with
the Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, as amended to date.
(j) Stock
Options. With respect to the stock options (the “Stock
Options”) granted pursuant to the stock-based compensation
plans of the Company and its subsidiaries (the “Company Stock
Plans”), (i) each Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the
Code so qualifies, (ii) each grant of a Stock Option was duly
authorized no later than the date on which the grant of such Stock
Option was by its terms to be effective (the “Grant
Date”) by all necessary corporate action, including, as
applicable, approval by the board of directors of the Company (or a
duly constituted and authorized committee thereof) and any required
shareholder approval by the necessary number of votes or written
consents, and the award agreement governing such grant (if any) was
duly executed and delivered by each party thereto, (iii) each
such grant was made in accordance with the terms of the Company
Stock Plans, the Exchange Act and all other applicable laws and
regulatory rules or requirements, including the rules of the New
York Stock Exchange and any other exchange on which Company
securities are traded, and (iv) each such grant was properly
accounted for in accordance with United States generally accepted
accounting principles, in the financial statements (including the
related notes) of the Company and disclosed in the Company’s
filings with the Commission in accordance with the Exchange Act and
all other applicable laws. The Company has not knowingly granted,
and there is no and has been no policy or practice of the Company
of granting, Stock Options prior to, or otherwise coordinating the
grant of Stock Options with, the release or other public
announcement of material information regarding the Company or its
subsidiaries or their results of operations or
prospects.
(k) Due
Authorization. The Company and the Operating Partnership have
the requisite power and authority to execute and deliver this
Agreement and to perform their obligations hereunder; and all
action required to be taken for the due and proper authorization,
execution and delivery by each of this Agreement and the
consummation by each of the transactions contemplated hereby has
been duly and validly taken.
(l)
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the Operating
Partnership.
(m) The
Shares. The Shares to be issued and sold by the Company
hereunder have been duly authorized and, when issued and delivered
and paid for as provided herein, will be duly and validly issued,
will be fully paid and nonassessable and will conform to the
descriptions thereof in the Registration Statement, the Pricing
Disclosure Package and the Prospectus; and the issuance of the
Shares is not subject to any preemptive or similar
rights.
(n) No
Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in violation of its declaration of trust,
certificate of formation, charter, by-laws, partnership agreement,
limited liability company agreement or other organization document,
as the case may be; (ii) in default, and no event has occurred
that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant
or condition contained in any
indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject; or (iii) in violation of any law
or statute or any judgment, order, rule or regulation of any court
or arbitrator or governmental or regulatory authority, except, in
the case of clauses (ii) and (iii) above, for any such
default or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(o) No
Conflicts. The execution, delivery and performance by the
Company and the Operating Partnership of this Agreement, the
issuance and sale of the Shares and the consummation of the
transactions contemplated by this Agreement will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the
declaration of trust, certificate of formation, charter, by-laws,
partnership agreement, limited liability company agreement or other
organization document of the Company or any of its subsidiaries or
(iii) result in the violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of
clauses (i) and (iii) above, for any such conflict,
breach, violation or default that would not, individually or in the
aggregate, have a Material Adverse Effect.
(p) No
Consents Required. No consent, approval, authorization, order,
license, registration or qualification of or with any court or
arbitrator or governmental or regulatory authority is required for
the execution, delivery and performance by the Company and the
Operating Partnership of this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated by
this Agreement, except such as have already been obtained regarding
the registration of the Shares under the Securities Act and such
consents, approvals, authorizations, orders and registrations or
qualifications as may be required by the Financial Industry
Regulatory Authority, Inc. (“FINRA”), under applicable
state securities laws in connection with the purchase and
distribution of the Shares by the Underwriters, and the New York
Stock Exchange.
(q) Legal
Proceedings. Except as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, there are no
legal, governmental or regulatory investigations, actions, suits or
proceedings pending, or, to the knowledge of the Company or the
Operating Partnership, threatened, to which the Company or any of
its subsidiaries is or may be a party or to which any property of
the Company or any of its subsidiaries is or may be the subject
that, individually or in the aggregate, if determined adversely to
the Company or any of its subsidiaries, could reasonably be
expected to have a Material Adverse Effect; and (i) there are
no current or pending legal, governmental or regulatory actions,
suits or proceedings that are required under the Securities Act to
be described in the Registration Statement, the Pricing Disclosure
Package or the Prospectus that are not so described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus and (ii) there are no statutes, regulations or
contracts or other documents that are required under the Securities
Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement, the Pricing Disclosure
Package or the Prospectus that are not so filed as exhibits to the
Registration Statement or described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(r)
Independent Accountants . Grant Thornton, LLP, who have
audited certain financial statements of the Company and its
subsidiaries, is an independent registered public accounting firm
with respect to the Company and its subsidiaries within the
applicable rules and regulations adopted by the Commission and the
Public Company Accounting Oversight Board (United States) and as
required by the Securities Act.
(s) Title
to Real and Personal Property . Except as set forth on
Schedule C to this Agreement, the Company and its subsidiaries
have good and marketable title in fee simple to all the real
properties, or any part thereof, owned by them (collectively, and
with all buildings, structures and other improvements located
thereon and all easements, rights and other appurtenances thereto,
the “Properties”) and good and marketable title to all
the other properties and assets reflected in the consolidated
financial statements included or incorporated by reference or
described in the Registration Statement, Pricing Disclosure Package
and Prospectus subject to no lien, security interest, mortgage,
pledge, charge, claim, restriction or encumbrance of any kind
except those reflected in such financial statements or described in
the Registration Statement, Pricing Disclosure Package and
Prospectus or which are not material in amount or which do not
materially impair the use of such Property for retail shopping
center purposes; all liens, security interests, mortgages, pledges,
charges, claims, restrictions or encumbrances on or affecting the
properties and assets of the Company or any of its subsidiaries
that are required to be disclosed in the Registration Statement are
disclosed therein or in documents incorporated by reference
therein; neither the Company nor the Operating Partnership knows of
any violation of any municipal, state or federal law, rule or
regulation (including those pertaining to environmental matters)
concerning the Properties which would have a Material Adverse
Effect; each of the Properties complies with all applicable zoning
laws, ordinances, regulations and deed restrictions or other
covenants in all material respects and, if and to the extent there
is a failure to comply, such failure does not result in a Material
Adverse Effect and will not result in a forfeiture or reversion of
title; none of the Company nor any subsidiary has received from any
governmental authority any written notice of any condemnation of or
zoning change affecting the Properties or any part thereof, which
if consummated would have a Material Adverse Effect, and to the
knowledge of the Company and the Operating Partnership, no such
condemnation or zoning change is threatened and which if
consummated could have a Material Adverse Effect; no lessee of any
portion of any of the Properties is in default under any of the
leases governing such Properties and there is no event which, but
for the passage of time or the giving of notice or both, would
constitute a default under any of such leases, except such defaults
as are described in the Registration Statement, Pricing Disclosure
Package and Prospectus or that would not have a Material Adverse
Effect; and the Company and its subsidiaries occupy their leased
properties under valid and binding leases.
(t) No
Undisclosed Relationships . No business relationship, direct or
indirect, or related person transaction exists between or among the
Company or any of its subsidiaries, on the one hand, and any other
person required to be described in the Registration Statement, on
the other hand, that has not been described as required by the
Securities Act to be described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(u)
Investment Company Act . The Company is not and, after
giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, will not be required to register as an
“investment company” or an entity
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Investment Company
Act”).
(v) Taxes.
The Company and the subsidiaries have filed all federal, state,
local and foreign income and franchise tax returns and all other
material federal, state, local and foreign tax returns which have
been required to be filed and have paid all taxes indicated by such
returns and all assessments, fines and penalties levied against
them or any of them to the extent that any of the foregoing has
become due, except for any such assessment, fine or penalty that is
currently being contested in good faith and which, if material, is
described in the Registration Statement. All tax liabilities have
been adequately provided for in the financial statements of the
Company, and the Company does not know of any actual or proposed
additional material tax assessments except as described in the
Registration Statement.
(w) Licenses
and Permits. The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by,
and have made all declarations and filings with, the appropriate
federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their
respective properties or the conduct of their respective businesses
as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, except where the failure to possess or
make the same would not, individually or in the aggregate, have a
Material Adverse Effect; and except as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, neither the Company nor any of its subsidiaries has
received notice of any revocation or modification of any such
license, certificate, permit or authorization, and, to the
knowledge of the Company and the Operating Partnership, no such
license, certificate, permit or authorization will not be renewed
in the ordinary course, in each case except as would not,
individually or in the aggregate, have a Material Adverse
Effect.
(x) No Labor
Disputes. Except as would not, individually or in the
aggregate, have a Material Adverse Effect, (i) no labor
disturbance by or dispute with employees of the Company or any of
its subsidiaries exists or, to the knowledge of the Company or the
Operating Partnership, is contemplated or threatened, and
(ii) to the knowledge of the Company, there is no existing or
threatened labor disturbance by, or dispute with, the employees of
any of its or its subsidiaries’ principal suppliers,
contractors or customers.
(y) Compliance
with and Liability under Environmental Laws. (i) The
Company and its subsidiaries (a) are in compliance with any
and all applicable federal, state, local and foreign laws, rules,
regulations, requirements, decisions, judgments, decrees, orders
and the common law relating to pollution or the protection of the
environment, natural resources or human health or safety, including
those relating to the generation, storage, treatment, use,
handling, transportation, Release or threat of Release of Hazardous
Materials (collectively, “Environmental Laws”),
(b) have received and are in compliance with all permits,
licenses, certificates or other authorizations or approvals
required of them under applicable Environmental Laws to conduct
their respective businesses, (c) have not received notice of
any actual or potential liability under or relating to, or actual
or potential violation of, any Environmental Laws, including for
the investigation or remediation of any Release or threat of
Release of Hazardous Materials, and there is no event or condition
that would reasonably be expected to result in any such notice,
(d) are not conducting or paying for, in whole or in part, any
investigation, remediation or other corrective action pursuant to
any Environmental Law at any location, and (e) are not a party
to any order, decree or agreement that imposes any obligation or
liability under any Environmental Law, and (ii) there are no costs
or liabilities associated with Environmental Laws of or relating to
the Company or its subsidiaries, except in the case of each of
(i) and (ii) above, for any such matter, as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and (iii) except as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, (a) there are no proceedings that are pending or
threatened against the Company or any of its subsidiaries under any
Environmental Laws in which a governmental entity is also
a
party, other
than such proceedings regarding which it is reasonably believed no
civil or criminal penalties of $100,000 or more will be imposed,
(b) the Company and its subsidiaries are not aware of any
facts or issues regarding compliance with Environmental Laws, or
liabilities or other obligations under Environmental Laws,
including the Release or threat of Release of Hazardous Materials,
that could reasonably be expected to have a Material Adverse
Effect, and (c) none of the Company and its subsidiaries
anticipates material capital expenditures relating to any
Environmental Laws.
(z) Hazardous
Materials . There has been no storage, generation,
transportation, use, handling, treatment, Release or threat of
Release of Hazardous Materials by, relating to or caused by the
Company or any of its subsidiaries (or, to the knowledge of the
Company and its subsidiaries, any other entity (including any
predecessor) for whose acts or omissions the Company or any of its
subsidiaries is or could reasonably be expected to be liable) at,
on, under or from any property or facility now or previously owned,
operated or leased by the Company or any of its subsidiaries, or
at, on, under or from any other property or facility, in violation
of any Environmental Laws or in a manner or amount or to a location
that could reasonably be expected to result in any liability under
any Environmental Law, except for any violation or liability which
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. “Hazardous
Materials” means any material, chemical, substance ,waste,
pollutant, contaminant, compound, mixture, or constituent thereof,
in any form or amount, including petroleum (including crude oil or
any fraction thereof) and petroleum products, natural gas
liqui
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