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EXHIBIT 1
8,000,000 SHARES
TAUBMAN CENTERS, INC.
8.30% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
PAR VALUE $0.01 PER SHARE
(LIQUIDATION PREFERENCE $25 PER SHARE)
UNDERWRITING AGREEMENT
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8,000,000 SHARES
TAUBMAN CENTERS, INC.
8.30% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
PAR VALUE $0.01 PER SHARE
(LIQUIDATION PREFERENCE $25 PER SHARE)
UNDERWRITING AGREEMENT
September 30, 1997
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
As Representatives of the Several
Underwriters listed on Schedule I hereto
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
Taubman Centers, Inc., a Michigan corporation (the "Company"), proposes
to issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), 8,000,000 shares of its 8.30% Series A Cumulative
Redeemable Preferred Stock, par value $0.01 per share (the "Shares").
The Company has filed with the U.S. Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating
to the Shares. The registration statement as amended at the time it became
effective, or, if a post-effective amendment is filed with respect thereto, as
amended by such post-effective amendment at the time of its effectiveness,
under the Securities Act of 1933, as amended (the "1933 Act"), is referred to
as the "Registration Statement," and the prospectus included in the
Registration Statement at the time it became effective under the Securities
Act, as supplemented by the preliminary prospectus supplement dated September
29, 1997 and by a final prospectus supplement of even date in the form first
used to confirm sales of Shares, is referred to as the "Prospectus." All
references in this Agreement to financial statements and
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schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and included
the filing of any document under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), which is or is deemed to be incorporated by reference
in the Registration Statement or the Prospectus, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply, and when filed pursuant to
Rule 424 under the Securities Act will comply, in all material respects with
the 1933 Act and the applicable rules and regulations of the Commission
thereunder (the "1933 Act Regulations") and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain, and
on the Closing Date will not contain, any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph 1(a)
do not apply to statements in or omissions from the Registration Statement or
the Prospectus under the caption "Underwriters" relating to the Underwriters.
(b) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
is in effect, and no proceeding for such purpose is pending before or, to the
knowledge of the Company, threatened by the Commission or by the state
securities authority of any jurisdiction. No order preventing or suspending
the use of the Prospectus has been issued, and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission or by the state securities authority of any jurisdiction.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property, to
conduct its business as described in the Prospectus, and to enter into and
perform its obligations under this Agreement and is duly qualified to transact
business and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or to be in good standing would not
have
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a material adverse effect on the condition, financial or otherwise, or the
earnings, assets, business, or operations of the Company.
(d) Each of The Taubman Realty Group Limited Partnership, a Delaware
limited partnership ("TRG"), and each Subsidiary (as defined below) other than
Taub-Co (as defined below) has been duly formed and is validly existing and in
good standing as a partnership or trust under the laws of its jurisdiction of
organization, with partnership or trust power and authority to carry on its
business and to own or lease its properties as described in the Prospectus. As
used in this Agreement, the term "Subsidiary" shall mean each consolidated
subsidiary of TRG (other than corporate subsidiaries of Taub-Co) and each joint
venture included in determining TRG's income from unconsolidated joint ventures
in the consolidated financial statements for TRG for the most recent fiscal
period included in the Prospectus, and "Taub-Co" shall mean Taub-Co Management,
Inc.
(e) TRG and each Subsidiary (other than Taub-Co) is duly qualified or
registered as a foreign partnership or trust in good standing and authorized to
do business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets, business, or
operations of TRG or such Subsidiary, as the case may be.
(f) Taub-Co has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of its jurisdiction of
organization, with corporate power and authority to carry on its business as
described in the Prospectus, and is duly qualified and in good standing as a
foreign corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, assets, business, or operations of TRG.
(g) The Company is the managing general partner of TRG. The ownership
by the Company of its interest in TRG, and the ownership (direct or indirect)
by TRG of the capital stock or partnership interests of each Subsidiary, are as
set forth in the Prospectus, free and clear of any liens or encumbrances except
as described in the Prospectus and (in the case of TRG) except pursuant to that
certain Shareholders Agreement dated as of November 20, 1992 among Taub-Co,
TRG, The A. Alfred Taubman Restated Revocable Trust, as amended, and Taub-Co
Holdings Limited Partnership. Neither the Company nor TRG owns any direct or
indirect equity interest in any entity other than, in the case of the Company,
TRG or, in the case of TRG, the Subsidiaries and (through Taub-Co) the
corporate subsidiaries of Taub-Co.
(h) This Agreement has been duly authorized, executed, and delivered
by the Company and (for the limitedsole purposes as set forth herein) TRG.
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(i) The authorized capital stock of the Company and the authorized
partnership interests in TRG conform to the descriptions thereof contained in
the Prospectus in all material respects.
(j) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of the Shares will not
be subject to any preemptive or similar rights. The Shares conform to the
description thereof in the Prospectus in all material respects.
(k) Deloitte & Touche LLP, the accountants who have audited and
reported on the consolidated financial statements of the Company and TRG and
the financial statements of the unconsolidated joint ventures of TRG included
in the Registration Statement and the Prospectus, are independent certified
accountants as required by the 1933 Act and the 1933 Act Regulations.
(l) The financial statements of the Company, the consolidated
financial statements of TRG, and the financial statements of the unconsolidated
joint ventures of TRG included in the Registration Statement and the Prospectus
present fairly the financial position and results of operations of the Company
and TRG and the other entities purported to be shown thereby at the respective
dates and for the respective periods specified, and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis throughout such periods. The supporting schedules included in
the Registration Statement present fairly the information required to be stated
therein. The financial information and data included in the Registration
Statement and the Prospectus present fairly the information included therein
and have been prepared on a basis consistent with that of the financial
statements included in the Registration Statement and the Prospectus and the
books and records of the respective entities presented therein. Other than the
financial statements (and schedules) included therein, no other financial
statements (or schedules) are required by the 1933 Act or the 1933 Act
Regulations to be included in the Registration Statement. Except as reflected
or disclosed in the financial statements included in the Registration Statement
or otherwise set forth in the Prospectus, none of the Company, TRG, or any
Subsidiary is subject to any material indebtedness, obligation, or liability,
contingent or otherwise.
(m) There are (i) no legal or governmental proceedings pending or
threatened to which the Company, TRG, or any of the Subsidiaries is a party
other than proceedings accurately described in the Registration Statement or
the Prospectus and proceedings that would not have a material adverse effect on
the Company, TRG, and the Subsidiaries, considered as a single enterprise, or
on the power or ability of the Company or TRG to perform its obligations under
this Agreement or to consummate the transactions contemplated by the
Registration Statement or the Prospectus; and (ii) no statutes, regulations,
contracts, or other documents that are required to be described in the
Prospectus or to be filed as exhibits to the Registration Statement that are
not described or filed as required, except for this Agreement, the amendment to
the Company's articles of incorporation designating the terms of the Shares,
and the amendment to TRG's partnership agreement as of even date, all of
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which will be filed prior to Closing Time under a Form 8-K or post-effective
amendment to the Registration Statement that becomes effective upon filing
under Rule 462(d) of the 1933 Act RegulationsForm 8-K.
(n) Each of TRG and each Subsidiary has good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by them which is material to the business of TRG and the
Subsidiaries, considered as a single enterprise, in each case free and clear of
all liens, claims, encumbrances, and defects except such as are described in
the Prospectus or such as do not materially interfere with the use made and
proposed to be made of such property by TRG or such Subsidiary and do not
materially affect the value of such property (except for reciprocal easement
agreements or agreements relating to common area maintenance that do not
materially interfere with the use made and proposed to be made of such property
by TRG or such Subsidiary); and any real property and buildings held under
lease by TRG and each Subsidiary are held by them under valid, subsisting, and
enforceable leases with such exceptions as do not materially interfere with the
use made and proposed to be made of such property and buildings by TRG or such
Subsidiary, in each case except as described in or contemplated by the
Registration Statement and the Prospectus.
(o) Each of the Company, TRG, and each Subsidiary is insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which
they are engaged; and the Company has no reason to believe that it, TRG, or
any Subsidiary will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its businesses at a cost that would not
materially and adversely affect the condition, financial or otherwise, or the
earnings, assets, business, or operations of the Company, TRG, and the
Subsidiaries, considered as a single enterprise, except as described in or
contemplated by the Registration Statement and the Prospectus.
(p) Each of the Company, TRG, and the Subsidiaries has all consents,
authorizations, approvals, orders, certificates, and permits of and from, and
has made all declarations and filings with, all federal, state, local, and
other governmental authorities, all self- regulatory organizations, and all
courts and other tribunals required for it to own, lease, license, and use its
properties and assets and to conduct its business in the manner described in
the Registration Statement and the Prospectus, except to the extent that the
failure to obtain or file would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets, business, or
operations of the Company, TRG, and the Subsidiaries, considered as a single
enterprise, and none of the Company, TRG, or any Subsidiary has received any
notice of proceedings relating to the revocation or modification of any such
consent, authorization, approval, order, certificate, or permit that, singly or
in the aggregate, if the subject of an unfavorable decision, ruling, or
finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, assets, business, or operations of the Company,
TRG, and the Subsidiaries, considered as a single enterprise.
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(q) Since the dates as of which information is given in the
Registration Statement, except as otherwise described therein, (i) there has
been no material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in the
earnings, assets, business, or operations of the Company, TRG, and the
Subsidiaries, considered as a single enterprise, (ii) there have been no
material transactions entered into by the Company, TRG, or to the knowledge of
the Company, any Subsidiary, other than transactions in the ordinary course of
business, (iii) none of the Company, TRG, or any Subsidiary has incurred any
material obligation or liability, direct, contingent, or otherwise, and (iv)
there has been no material change in the short-term debt or long-term debt of
the Company or TRG.
(r) None of the Company, TRG, or any Subsidiary is in violation of its
partnership agreement, charter documents, or bylaws or in default in the
performance of any obligation, agreement, or condition included in any bond,
debenture, note, or any other evidence of indebtedness or in any indenture,
instrument, or agreement to which the Company or TRG or, to the knowledge of
the Company, any Subsidiary is a party or by which any of their respective
properties may be bound or affected, except where any such violation or default
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, assets, business, or operations of the Company,
TRG, and the Subsidiaries, considered as a single enterprise.
(s) The execution and delivery by the Company and TRG of this
Agreement, and the performance by the Company and TRG of their respective
obligations hereunder, and the compliance by the Company and TRG with all
provisions hereof, will not violate or conflict with or constitute a breach of
any of the terms or provisions of, or constitute a default under, (i) the
charter documents or bylaws of the Company, the partnership agreement of TRG
or, to the knowledge of the Company, the respective partnership agreements or
other organizational documents of any Subsidiary or (ii) any bond, debenture,
note, or other evidence of indebtedness or any material instrument or agreement
to which the Company, TRG or any Subsidiary is a party or may be bound, or to
which any of their respective properties may be subject, or (iii) any law,
regulation, ruling, order, judgment, or decree to which the Company, TRG or any
Subsidiary or any of their respective properties may be subject.
(t) All authorizations, approvals, orders, consents, qualifications
of, or filings with, any court or governmental or regulatory authority or
agency that are necessary in connection with the offering, issuance, or sale of
the Shares under this Agreement, and the performance by the Company and TRG of
their respective obligations hereunder, have been obtained or made, except such
as will be obtained on or prior to Closing Time under the 1933 Act and the 1933
Act Regulations, and except as may be required under state securities laws or
regulations with respect to the Shares.
(u) Neither the Company nor TRG is an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
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(v) Each of the Company, TRG, and each Subsidiary (i) is in compliance
with any and all applicable foreign, federal, state, and local laws and
regulations relating to the protection of human health and safety, the
environment, or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits, licenses,
and other approvals required of it under applicable Environmental Laws to
conduct its respective businesses, and (iii) is in compliance with all terms
and conditions of any such permit, license, or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses, or other approvals, or failure to comply with the terms and
conditions of such permits, licenses, or approvals are otherwise disclosed in
the Prospectus or would not, singly or in the aggregate, have a material
adverse effect on the Company, TRG, and the Subsidiaries, considered as a
single enterprise.
(w) In the ordinary course of its business, TRG conducts a periodic
review of the effect of Environmental Laws on the business, operations, and
properties of it and the Subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties,
or compliance with Environmental Laws or any permit, license, or approval, any
related constraints on operating activities, and any potential liabilities to
third parties). On the basis of such review, TRG has reasonably concluded that
such associated costs and liabilities would not, singly or in the aggregate,
have a material adverse effect on the Company, TRG, and the Subsidiaries,
considered as a single enterprise.
(x) Neither the Company nor TRG has taken and neither will take,
directly or indirectly, any action prohibited by Regulation M under the 1934
Act.
(y) The assets of TRG do not constitute "plan assets" under the
Employee Retirement Income Security Act of 1974, as amended.
(z) There are no contracts, agreements, or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the 1933 Act with respect to any securities
of the Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement, except for such
contracts or agreements as are described in the Registration Statement
(including the contracts and agreements incorporated by reference in the
Registration Statement) and with which the Company has complied.
(aa) The statements set forth in the Prospectus under the captions
"Description of the Series A Preferred Stock" and "Description of Preferred
Stock," insofar as they purport to constitute a summary of the terms of the
Shares, and under "Underwriters," "Plan of Distribution" and "Federal Income
Tax Considerations," insofar as they purport to describe factual matters or
relate to matters of law or regulation or constitute summaries of documents
described therein, are accurate and complete in all material respects.
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(bb) The Company has qualified to be taxed as a real estate investment
trust pursuant to Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), for its taxable years ended December 31, 1992,
1993, 1994, 1995, and 1996, and the Company's present and contemplated
organization, ownership, method of operation, assets, and income are such that
the Company is in a position under present law to so qualify for the taxable
year ending December 31, 1997, and in the future.
Any certificate signed by any officer of the Company and delivered to
an Underwriter or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to the Underwriters as to the
matters covered thereby.
SECTION 2. AGREEMENTS TO SELL AND PURCHASE; PUBLIC OFFERING;
CLOSING.
(a) The Company hereby agrees to sell to the several Underwriters, and
each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from the Company, the respective numbers of Shares
set forth in Schedule I hereto opposite its name at $25.00 per share (the
"Purchase Price"), provided that TRG pays each Underwriter at Closing Time an
underwriting discount or commission of $0.7875 per share purchased by it as
required under Section 4 below.
(b) The Company hereby agrees that during the period beginning on the
date hereof and continuing to and including the date which is thirty (30) days
after the Closing Date, it will not offer, sell, contract to sell, or otherwise
dispose of any preferred stock of the Company or warrants to purchase preferred
stock of the Company substantially similar to the Shares (other than the
Shares) without the prior written consent of Morgan Stanley & Co. Incorporated.
(c) The Company is advised by the Representatives that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon as is advisable in the judgment of the Representatives. The
Company is further advised by the Representatives that the Shares are to be
offered to the public initially at $25.00 a share (the "Public Offering Price")
and to certain dealers selected by you at a price that represents a concession
not in excess of $.50 a share under the Public Offering Price, and that any
Underwriter may allow, and such dealers may reallow, a concession, not in
excess of $.40 a share, to any Underwriter or to certain other dealers.
(d) Payment for the Shares shall be made to the Company in Federal or
other funds immediately available in New York City against delivery of the
Shares to the Representatives for the respective accounts of the several
Underwriters at 10:00 A.M., New York City time, on October 3, 1997, or at such
other time on the same or such other date, not later than October 6, 1997, as
shall be designated in writing by the Representatives. The time and date of
such payment are hereinafter referred to as
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the "Closing Time," and the date of such payment is hereinafter referred to as
the "Closing Date."
(e) Certificates for the Shares shall be in temporary form and
registered in such names and in such denominations as the Representatives shall
request in writing not later than one full business day prior to the Closing
Date. The certificates evidencing the Shares shall be delivered at the Closing
Time to the Representatives for the respective accounts of the several
Underwriters, with any transfer taxes payable in connection with the transfer
of the Shares to the Underwriters duly paid, against payment of the Purchase
Price therefor.
SECTION 3. COVENANTS OF THE COMPANY. Each of the Company and
(only as provided in paragraphs (h) and (i) of this Section 3) TRG covenants
with the Underwriters as follows:
(a) The Company will notify the Representatives immediately, and
confirm the notice in writing, of: (i) the effectiveness of any post-effective
amendment to the Registration Statement; (ii) the receipt of any comments from
the Commission; (iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information relating thereto; and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of any such stop
order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company will prepare and timely file or transmit for filing
with the Commission the Prospectus in accordance with Rule 424(b) under the
1933 Act Regulations.
(c) The Company will give the Representatives notice of its intention
to file or prepare any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the Prospectus
(including any revised Prospectus or prospectus supplement that the Company
proposes for use in connection with the offering of the Shares that differs
from the Prospectus, regardless of whether such revised Prospectus or
prospectus supplement is required to be filed pursuant to Rule 424(b) under the
1933 Act Regulations), will furnish the Representatives with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such Prospectus to which counsel for the Underwriters
shall reasonably object.
(d) The Company will deliver to Morgan Stanley & Co. Incorporated the
Representatives one (1) signed copy, and to the Underwriters as many conformed
copies, of the Registration Statement and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein) as the
Underwriters may
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reasonably request. The Company will deliver or cause to be delivered
definitive certificates evidencing for the Shares as soon as practicable after
the Closing Date.
(e) If any event shall occur as a result of which it is necessary, in
the reasonable opinion of counsel for the Underwriters, to amend or supplement
the Prospectus in order to make the Prospectus not misleading in the light of
the circumstances existing at the time it is delivered to a prospective
investor or in order to otherwise comply with the 1933 Act or the 1934 Act, the
Company will forthwith prepare and furnish to the Underwriters a reasonable
number of copies of an amendment of or supplement to the Prospectus in form and
substance reasonably satisfactory to counsel for the Underwriters and the
Company's counsel, which will amend or supplement the Prospectus so that it
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances existing at the time it is delivered to a prospective
investor, not misleading, and otherwise comply with the 1933 Act and the 1934
Act.
(f) The Company will endeavor in good faith to qualify the Shares for
offering and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may designate, provided
that, in connection therewith, neither the Company nor any partner in TRG shall
be required to qualify to do business in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Shares have been so qualified,
the Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for so long
as required for the distribution of the Shares.
(g) The Company will make generally available to its security holders
as soon as reasonably practicable, but not later than 90 days after the close
of the period covered thereby, an earning statement of the Company (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations) covering
a period of at least 12 months beginning not later than the first day of the
Company's fiscal quarter next following the effective date of the Registration
Statement. "Earning statement," "make generally available," and "effective
date of the registration statement" have the meanings included in Rule 158 of
the 1933 Act Regulations.
(h) The Company and TRG will use the net proceeds received by them
from the sale of the Shares in the manner specified in the Prospectus under the
caption "Use of Proceeds" in all material respects.
(i) At or prior to Closing Time, TRG will take or cause to be taken
all actions necessary to accept the proceeds from the offering, and designate
such capital inas Series A Preferred Equity, and authorize guaranteed payments
with respect to such Series A Preferred Equity in amounts equal to the
dividends payable on the Shares. authorize, issue, and deliver to the Company
the Parallel TRG Interest as described in the Prospectus,, including, without
limitation, including, without limitation, the authorization, execution, and
delivery of an amendment to the partnership agreement of TRG authorizing the
designation of one or more the Sseries Aof
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Preferred Equity and the payment of guaranteed payments in respect any of such
seriesEquity, substantially in the form heretofore delivered to (and otherwise
reasonably satisfactory to) the Representatives and counsel for the
Underwriters.
SECTION 4. PAYMENT OF EXPENSES.
(a) TRG will pay all expenses incident to the performance of the
Company's obligations under this Agreement, including: (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto; (ii) a discount or commission equal to $0.7875 per Share to the
Underwriters and the costs and expenses relating to the transfer and delivery
of the Shares to the Underwriters and to the printing of the certificates
representing the Shares; (iii) the fees and disbursements of counsel for the
Company and TRG; (iv) the fees and disbursements of the Company's or TRG's
accountants; (v) the qualification of the Shares under state securities laws in
accordance with the provisions of Section 3(f), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Memorandum;
(vi) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, and
of the Prospectus and any amendments or supplements thereto; (viii) any fees
charged by rating agencies for the rating of the Shares; (ix) any transfer
taxes imposed on the sale of the Shares to the Underwriters; (x) the costs and
charges of any transfer agent, registrar, or depositary; and (xi) all other
costs and expenses incident to the performance of the obligations of the
Company and TRG under this Agreement for which provision is not otherwise made
in this Section 4. It is understood, however, that except as expressly
provided in this Section 4 and Sections 6 and 7, the Underwriters will pay all
of their costs and expenses, including fees and disbursements of their counsel,
stock transfer taxes payable on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may make.
(b) If this Agreement is terminated by the Underwriters in accordance
with the provisions of Section 5 or Section 9(a)(i), TRG shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters, (not to exceed
$100,000).
SECTION 5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company herein included, to the
performance by the Company and TRG of their respective obligations hereunder,
and to the following further conditions:
(a) All required post-effective amendments to the Registration
Statement shall have become effective not later than 5:30 P.M. on the date
hereof, or, with the consent of the Representatives, at a later time and date,
not later, however, than 5:30 P.M. on the first second business day following
the date hereof or at such later time and date as may be approved by the
Representatives; and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been
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issued under the 1933 Act or proceedings therefor initiated or threatened by
the Commission.
(b) Between the date of this Agreement and Closing Time, there shall
not have occurred any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded
any of the Company's or TRG's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of Rule
436(g)(2) under the 1933 Act.
(c) At Closing Time, the Representatives shall have received:
(1) The favorable opinion, dated as of Closing Time, of Miro Weiner &
Kramer, counsel for the Company and TRG, in form and substance satisfactory to
the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly existing
and in good standing under the Michigan Business Corporation Act, which opinion
may rely exclusively on a certificate of good standing issued by the
appropriate official of the State of Michigan;
(ii) TRG has been duly formed and is validly existing and in good
standing under the Delaware Revised Uniform Limited Partnership Act, which
opinion may rely exclusively on a certificate of good standing issued by the
appropriate official of the State of Delaware;
(iii) each of the Company and TRG has the power and authority to own
its property and conduct its business as described in the Prospectus, and is
duly qualified and in good standing and authorized to transact business in any
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except where the failure to be so
qualified or in good standing will not have a material adverse effect on it;
(iv) each Subsidiary has been formed and is validly existing and in
good standing under the laws of the jurisdiction of its formation, has the
power and authority to own its property and conduct its business as described
in the Prospectus, and is duly qualified and in good standing and authorized to
transact business in any jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except where
the failure to be so qualified or in good standing will not have a material
adverse effect on such Subsidiary, provided that as to each Subsidiary, such
opinion may rely exclusively on a certificate of good standing or like
certificate issued by the appropriate state official;
(v) this Agreement has been duly authorized, executed and delivered by
the Company and TRG;
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(vi) the Shares have been duly authorized and, when delivered to and
paid for by the Underwriters in accordance with this Agreement, will be validly
issued, fully paid and non-assessable;
(vii) each of the amendment to the partnership agreement of TRG
authorizingestablishing the Parallel TRG Interest and the Parallel TRG Interest
itself has been duly authorized by all necessary partnership action of TRG and
is a valid and binding obligation of TRG enforceable against TRG in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, or similar laws affecting creditors' rights
generally from time to time in effect. The enforceability of such amendment
and the Parallel TRG Interest are also subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or in equity);
(viii) the execution by each of the Company and TRG of, and the
performance by the Company of its obligations under, this Agreement and the
consummation of the transactions contemplated hereby by the Company and TRG
(including, without limitation, the issuance of the Parallel TRG Interest) will
not contravene any provision of applicable law, the organizational documents of
the Company, the partnership agreement of TRG or any agreement or other
instrument that, to the knowledge of such counsel, is binding upon and is
material to the Company or TRG or any Subsidiary, or any judgment, order, or
decree of any governmental body, agency, or court having jurisdiction over the
Company or TRG that, to the knowledge of such counsel, is applicable to the
Company, TRG, or any Subsidiary;
(ix) no consent, approval, authorization, or order of, or
qualification with, any governmental body or agency and no consent, approval,
or authorization of any person other than the Company and TRG is required for
the performance by the Company and TRG of their respective obligations under
this Agreement, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Shares;
(x) to the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened to which the Company, TRG, or
any Subsidiary is a party or to which any of their properties is subject, other
than proceedings accurately described in the Registration Statement or the
Prospectus, or proceedings that would not have a material adverse effect on the
Company, TRG, and the Subsidiaries taken as a whole or on the power or ability
of the Company or TRG to perform theirits respective obligations under this
Agreement or to consummate the transactions contemplated by the Registration
Statement and Prospectus or any statutes, regulations, contracts, or other
documents that are required to be described in the Prospectus or to be filed
(by incorporation by reference or otherwise) as exhibits to the Registration
Statement that are not described or filed as required;
(xi) except as described in the Registration Statement or the
Prospectus, there is no matter known to such counsel relating to the protection
of human health and safety or the environment (a) that pertains to the Company,
TRG, or any
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Subsidiary, (b) that individually (or in the aggregate with other similar
matters) is material to the business and operations of the Company, TRG, and
the Subsidiaries taken as a whole, other than as described in the Registration
Statement or the Prospectus, and (c) that is not so described;
(xii) to the knowledge of such counsel, the Company, TRG, and each
Subsidiary has consents, authorizations, approvals, orders, certificates, and
permits of and from, and has made all declarations and filings with, all
federal, state, local, and other governmental authorities, all self-regulatory
organizations, and all courts, and other tribunals, necessary to own, lease,
license, and use its properties and assets and to conduct its business in the
manner described in the Registration Statement and the Prospectus, except to
the extent that the failure to obtain or file would not have a material adverse
effect on the Company, TRG, and the Subsidiaries taken as a whole;
(xiii) neither the Company nor TRG is an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in the
1940 Act;
(xiv) the statements (1) set forth in the Prospectus under the
captions "Description of the Series A Preferred Stock" and "Description of
Preferred Stock," insofar as they constitute a summary of the terms of the
Shares, or under "Underwriters," "Certain Provisions of the Articles of
Incorporation and Bylaws," "Restrictions on Transfer," "Plan of Distribution,"
and "Federal Income Tax Considerations," insofar as they purport to describe
factual matters or relate to matters of law or regulation or constitute
summaries of documents described therein, and (2) in the Registration Statement
under Item 15 ("Indemnification of Directors and Officers"), are accurate and
complete in all material respects;
(xv) the Registration Statement has been declared effective under the
1933 Act, and to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission.
(xvi) such counsel (1) is of the opinion that the Registration
Statement and Prospectus (except for financial statements and schedules
included therein, as to which such counsel need not express any opinion) comply
as to form in all material respects with the 1933 Act and the rules and
regulations of the Commission thereunder, (2) each document heretofore filed
pursuant to the 1934 Act and incorporated or deemed incorporated by reference
in the Prospectus (except for financial statements and schedules included
therein, as to which such counsel need not express any opinion) complied as to
form in all material respects with the requirements of the 1934 Act and the
rules and regulations promulgated thereunder in effect at the date of their
respective filings, (3) believes that (except for financial statements and
schedules as to which such counsel need not express any belief) the
Registration Statement and the prospectus included therein at the time the
Registration Statement became effective did not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary
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to make the statements therein not misleading, and (4) believes that (except
for financial statements and schedules as to which such counsel need not
express any belief) the Prospectus as of the Closing Time does not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
With respect to clause (xvi) above, such counsel may state that their
opinions and beliefs are based upon their participation in the preparation of
the Registration Statement and Prospectus and any amendments and supplements
thereto and review and discussion of the contents thereof, but are without
independent check or verification except as specified.
(2) Miro Weiner & Kramer's confirmation, in its capacity as tax
counsel for the Company and TRG, that the Underwriters and their counsel may
rely on such tax counsel's opinion filed as Exhibit 8 to the Registration
Statement as if such opinion were addressed to them and dated as of Closing
Time.
(3) The favorable opinion, dated as of Closing Time, of Hogan &
Hartson L.L.P., counsel for the Underwriters, with respect to the matters set
forth above in Section (5)(c)(1)(i), (ii), (v), (vi), (xiv) (insofar as it
relates to the statements under the captions "Description of the Series A
Preferred Stock" and "Underwriters"), (xv), and (xvi)(1) and (2), and a
statement (in such counsel's customary form) to the effect of the statements
set forth in (xvi)(3) and (4). In giving its opinion, Hogan & Hartson L.L.P.
may rely, (A) as to all matters of fact, upon certificates and written
statements of officers and employees of and accountants for each of the
Company, TRG, and the Subsidiaries, (B) as to the qualification and good
standing of each of the Company and TRG to do business in any state or
jurisdiction, upon certificates of appropriate government officials or opinions
of counsel in such jurisdictions, which opinions shall be in form and substance
satisfactory to counsel for the Underwriters, and (C) as to certain matters of
law, upon the opinion of Miro Weiner & Kramer given pursuant to Section 5(c)(1)
above.
(d) At Closing Time (i) the Registration Statement and the Prospectus
shall include all statements which are required to be stated therein in
accordance with the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations, and neither the Registration Statement nor the Prospectus shall
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and no action, suit or proceeding at law or in equity shall be
pending or, to the knowledge of the Company or TRG, threatened against the
Company, TRG, or any Subsidiary which would be required to be set forth in the
Prospectus other than as set forth therein, (ii) there shall not have been,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or the earnings, assets, business, or operations of the
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Company, TRG, and the Subsidiaries, considered as a single enterprise, from
that set forth in the Registration Statement, (iii) no proceedings shall be
pending or, to the knowledge of the Company or TRG, threatened against the
Company, TRG, or any Subsidiary before or by any Federal, state, or other
commission, board, or administrative agency wherein an unfavorable decision,
ruling, or finding might result in any material adverse change in the
condition, financial or otherwise, or the earnings, assets, business, or
operations of the Company, TRG, and the Subsidiaries, considered as a single
enterprise, other than as set forth in the Prospectus, (iv) no stop order
suspending the effectiveness of the Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been instituted or, to
the knowledge of the Company or TRG, threatened by the Commission or by the
state securities authority of any jurisdiction, and (v) the Underwriters shall
have received, at Closing Time, a certificate of an executive officer of the
Company dated as of Closing Time, evidencing compliance with the provisions of
this subsection (d) and stating (Y) that the representations and warranties set
forth in Section 1(a) hereof are accurate as though expressly made at and as of
Closing Time; and (Z) that the conditions precedent set forth in this Section 5
have been satisfied or waived.
(e) At the time of execution of this Agreement, the Representatives
shall have received from Deloitte & Touche LLP, independent public accountants
for the Company and TRG, a letter dated such date, in form and substance
satisfactory to the Representatives, to the effect that: (i) they are
independent public accountants with respect to the Company, TRG, and the
Subsidiaries as required by the 1933 Act and the applicable published rules and
regulations thereunder; (ii) it is their opinion that the financial statements
and supporting schedules included in the Registration Statement and covered by
their opinions therein (and any other financial statements audited by them from
which information included in the Registration Statement has been derived)
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations; (iii) based upon
limited procedures set forth in detail in such letter, nothing has come to
their attention which causes them to believe that (A) the unaudited financial
statements and supporting schedules of the Company, TRG, and the Subsidiaries
included in the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations or are not presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that of
the audited financial statements included in the Registration Statement, (B)
any unaudited financial statements from which information in the Prospectus is
derived are not presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements included in the Registration Statement, or (C) at a
specified date not more than five days prior to the date of this Agreement,
there have been any changes in the capital stock, equity interests, or debt of
the Company, TRG, or the Subsidiaries as compared with amounts disclosed in the
June 30, 1997 financial statements included in the Registration Statement or,
during the period from June 30, 1997 to a specified date not more than five
days prior to the date of this Agreement, or there were any decreases, as
compared with the corresponding period in the preceding year, of the sum of
TRG's Consolidated Business' (as such term is defined in the Registration
Statement) and
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Joint Ventures' (as such term is defined in TRG's consolidated financial
statements) contribution to EBITDA (as defined in the Registration Statement)
or any increases in interest expense of TRG or the Joint Ventures, except in
all instances for changes, increases, or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur, and for
normal debt payments or amortization; and (iv) in addition to the examination
referred to in their opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages, and
financial information which are included in the Registration Statement and the
Prospectus and which are specified by the Representatives, and have found such
amounts, percentages, and financial information to be in agreement with the
audited financial statements, unaudited financial statements, or other relevant
accounting, financial, and other records of the Company, TRG, and the
Subsidiaries as requested by the Representatives and as identified in such
letter.
(f) At the Closing Time, the Representatives shall have received from
Deloitte & Touche LLP a letter, dated as of the Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date referred to
shall be a date not more than five days prior to the Closing Time.
(g) Prior to the Closing Time, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Shares as herein contemplated and related proceedings, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein included; and all proceedings taken by the
Company or TRG in connection with the issuance and sale of the Shares shall be
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company at any time at or
prior to Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof.
SECTION 6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the 1934 Act, from and
against any and all losses, claims, damages, or liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in either the Registration
Statement or any amendment thereto, any preliminary prospectus supplement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements
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thereto, including pursuant to Section 3(e) hereof), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, or liabilities are caused by any such
untrue statement or omission or alleged omission based upon information
relating to any Underwriter contained in the Prospectus under the caption
"Underwriters."
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information relating to the Underwriter
and contained in the Prospectus under the caption "Underwriters."
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a) or (b) of this Section 6 such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual and potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by Morgan Stanley & Co., in the case of parties indemnified pursuant to
paragraph (a) of this Section, and by the Company, in the case of parties
indemnified pursuant to paragraph (b) of this Section. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such
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indemnified party from all liability on claims that are the subject matter of
such proceeding.
SECTION 7. CONTRIBUTION.
(a) If the indemnification provided for in paragraph (a) or (b) of
Section 6 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein in connection
with the offering of the Shares, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and of the Underwriters on the other hand in
connection with the matters that resulted in such losses, claims, damages, or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Shares shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of the Shares (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriter, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Price to Public of the Shares. In the case of an untrue or alleged
untrue statement of a material fact or the omission to state a material fact,
the relative fault of the Company on the one hand and of the Underwriters on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement or the omission or alleged omission
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information, and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective number of Shares they have purchased hereunder, and not
joint.
(b) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation that does not take into
account of the equitable considerations referred to in paragraph (a) of this
Section 7. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, and liabilities referred to in paragraph (a) shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, 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 were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or
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alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 7 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified
party at law or in equity. The indemnity and contribution provisions contained
in this Section 7 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company or its officers or directors or
any person controlling the Company, and (iii) acceptance of and payment for any
of the Shares.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements included in this
Agreement, or included in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Shares.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate this Agreement, by notice to the
Company, at any time prior to or at Closing Time (i) if there has been, since
the respective dates as of which information is given in the Registration
Statement, any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, assets, business, or operations of the Company, TRG, and
the Subsidiaries, considered as a single enterprise, regardless of whether
arising in the ordinary course of business, or (ii) if there has occurred any
outbreak of hostilities or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the reasonable judgment of the
Representatives, is material and adverse, (iii) if trading of any securities of
the Company or TRG shall have been suspended involuntarily on any exchange or
in any over-the-counter market, (iv) if trading generally on the New York Stock
Exchange, the American Stock Exchange, the Nasdaq Stock Market, the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange, or the Chicago
Board of Trade has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been
required, by either of said exchange or by order of the Commission or any other
governmental authority, or (v) if a general banking moratorium has been
declared by Federal or New York authorities.
(b) The Representatives may also terminate this Agreement, by notice
to the Company, at any time prior to or at Closing Time, in the event that the
occurrence of any of the events specified in paragraph (a) of this Section 9,
either singly or together with any other such event, makes it, in the
reasonable judgment of the Representatives, impracticable to market the Shares
on the terms and in the manner contemplated in the Prospectus.
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(c) If this Agreement is terminated pursuant to Section 9(a) or (b),
such termination shall be without liability of any party to any other party
except as provided in Section 4, and provided further that Sections 6 and 7
hereof shall survive such termination.
SECTION 10. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
If, on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of the Shares to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the number of Shares set forth opposite their respective
names in Schedule I bears to the aggregate number of Shares set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions
as the Representatives may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the number of Shares that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such number
of Shares without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Shares
and the aggregate number of Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Shares to be purchased, and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Shares are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case, either the Representatives or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Morgan Stanley & Co. Incorporated, 1585
Broadway, New York, New York 10036; Attention: Legal Department, (telephone:
(212) 761-4000; telecopy: (212) 761-0783 attention of Legal Department); and
notices to the Company shall be directed to it at Taubman Centers, Inc., 200
East Long Lake Road, Bloomfield Hills, Michigan 48304; Attention: Treasurer
(telephone: (248) 258-6800; telecopy: (248) 258-7275), attention of Treasurer.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company and (to the limited extent set
forth above)
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TRG and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than those referred to in Sections 6 and 7 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein or therein included.
This Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors and said controlling persons and
officers, trustees and directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Shares from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
SECTION 13. GOVERNING LAW AND TIME; MISCELLANEOUS. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said State.
Specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be signed in two or
more counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
SECTION 15. HEADINGS. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
TAUBMAN CENTERS, INC.
By:
----------------------------------
Name:
Title:
TRG has executed this Agreement for the sole purpose of agreeing to be
bound by the provisions of Sections 3(h), 3(i), and 4 hereof.
THE TAUBMAN REALTY GROUP LIMITED
PARTNERSHIP
By: Taubman Centers, Inc., its
Managing General Partner
By:
----------------------------------
Name:
Its:
Accepted as of the date hereof:
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Acting severally on behalf of themselves
and the several Underwriters named herein.
By: Morgan Stanley & Co. Incorporated
By:
------------------------------------
Name:
Title:
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25
SCHEDULE I
Number of
Shares
Underwriter To Be Purchased
- ----------- ---------------
Morgan Stanley & Co. Incorporated 1,600,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 1,600,000
PaineWebber Incorporated 1,600,000
Prudential Securities Incorporated 1,600,000
A.G. Edwards & Sons, Inc. 80,000
BT Alex. Brown & Sons Incorporated 80,000
EVEREN Securities, Inc. 80,000
First of Michigan Corporation 80,000
Goldman, Sachs & Co. 80,000
Oppenheimer & Co., Inc. 80,000
Cowen & Company 40,000
Craigie Incorporated 40,000
Crowell, Weedon & Co. 40,000
Dain Bosworth Incorporated 40,000
First Albany Corporation 40,000
Gruntal & Co., Incorporated 40,000
H.J. Meyers & Co., Inc. 40,000
Interstate/Johnson Lane Corporation 40,000
Janney Montgomery Scott Inc. 40,000
J.J.B. Hilliard, W.L. Lyons, Inc. 40,000
Josephthal Lyon & Ross Incorporated 40,000
Legg Mason Wood Walker, Incorporated 40,000
McDonald & Company Securities, Inc. 40,000
McGinn, Smith & Co., Inc. 40,000
Morgan Keegan & Company, Inc. 40,000
The Ohio Company 40,000
Donaldson, Lufkin & Jenrette Securities Corporation 40,000
Piper Jaffray Inc. 40,000
Principal Financial Securities, Inc. 40,000
Rauscher Pierce Refsnes, Inc. 40,000
Raymond James & Associates, Inc. 40,000
The Robinsosn-Humphrey Company, Inc. 40,000
Roney & Co., LLC 40,000
Scott & Stringfellow, Inc. 40,000
Sutro & Co. Incorporated 40,000
Tucker Anthony Incorporated 40,000
U.S. Clearing Corp. 40,000
Wheat, First Securities, Inc. 40,000
-----------
Total 8,000,000
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