IN SAME DAY FUNDS TO AN ACCOUNT DESIGNATED BY THE COMPANY
ON, OR PRIOR TO, THE SETTLEMENT DATE. THE COMPANY AGREES THAT IF THE COMPANY
DEFAULTS IN ITS OBLIGATION TO DELIVER PLACEMENT SHARES ON A SETTLEMENT DATE, THE
COMPANY AGREES THAT IN ADDITION TO AND IN NO WAY LIMITING THE RIGHTS AND
OBLIGATIONS SET FORTH IN SECTION 9(A) (INDEMNIFICATION AND CONTRIBUTION) HERETO,
IT WILL (I) HOLD ML&CO HARMLESS AGAINST ANY LOSS, CLAIM, DAMAGE, OR EXPENSE
(INCLUDING REASONABLE OUT-OF-POCKET FEES AND EXPENSES OF EXTERNAL COUNSEL), AS
INCURRED, ARISING OUT OF OR IN CONNECTION WITH SUCH DEFAULT BY THE COMPANY AND
(II) PAY TO ML&CO ANY COMMISSION, DISCOUNT, OR OTHER COMPENSATION TO WHICH IT
WOULD OTHERWISE HAVE BEEN ENTITLED ABSENT SUCH DEFAULT.
6. REPRESENTATIONS AND WARRANTIES.
(A) THE COMPANY AND THE OPERATING PARTNERSHIP EACH SEVERALLY REPRESENTS AND
WARRANTS TO, AND AGREES WITH, ML&CO THAT AS OF THE DATE OF THIS AGREEMENT, AS OF
EACH REPRESENTATION DATE (AS DEFINED IN SECTION 7(M) BELOW) ON WHICH A
CERTIFICATE IS REQUIRED TO BE DELIVERED PURSUANT TO SECTION 7(M) OF THIS
AGREEMENT AND AS OF EACH APPLICABLE TIME, AS THE CASE MAY BE:
(1)
REGISTRATION STATEMENT AND PROSPECTUS. THE COMPANY MEETS THE
REQUIREMENTS FOR USE OF FORM S-3 UNDER THE SECURITIES ACT. THE REGISTRATION
STATEMENT HAS BEEN FILED WITH THE COMMISSION AND HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT. THE REGISTRATION STATEMENT OR PROSPECTUS HAS NAMED
ML&CO AS AN UNDERWRITER, ACTING AS PRINCIPAL AND/OR AGENT THAT THE COMPANY MIGHT
ENGAGE IN THE SECTION ENTITLED "PLAN OF DISTRIBUTION."
THE COMPANY HAS NOT
RECEIVED, AND HAS NO NOTICE OF, ANY ORDER OF
4
THE COMMISSION PREVENTING OR SUSPENDING THE USE OF THE REGISTRATION STATEMENT,
OR THREATENING OR INSTITUTING PROCEEDINGS FOR THAT PURPOSE. COPIES OF THE
REGISTRATION STATEMENT, THE PROSPECTUS, AND ANY SUCH AMENDMENTS OR SUPPLEMENTS
AND ALL DOCUMENTS INCORPORATED BY REFERENCE THEREIN THAT WERE FILED WITH THE
COMMISSION ON OR PRIOR TO THE DATE OF THIS AGREEMENT HAVE BEEN DELIVERED, OR
MADE AVAILABLE THROUGH EDGAR, TO ML&CO AND THEIR COUNSEL. THE COMPANY HAS NOT
DISTRIBUTED AND WILL NOT DISTRIBUTE ANY OFFERING MATERIAL IN CONNECTION WITH THE
OFFERING OR SALE OF THE PLACEMENT SHARES OTHER THAN THE REGISTRATION STATEMENT
OR THE PROSPECTUS. THE COMMON STOCK IS CURRENTLY LISTED ON THE EXCHANGE UNDER
THE TRADING SYMBOL "GKK."
(2)
NO MISSTATEMENT OR OMISSION. THE REGISTRATION STATEMENT, AT EACH
DEEMED EFFECTIVE DATE WITH RESPECT TO ML&CO PURSUANT TO RULE 430B(F)(2) OF THE
SECURITIES ACT WILL COMPLY IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE
SECURITIES ACT AND DID NOT, OR WILL NOT, CONTAIN AN UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR
NECESSARY TO MAKE THE STATEMENTS THEREIN NOT MISLEADING. THE PROSPECTUS AND ANY
AMENDMENT OR SUPPLEMENT THERETO, ON THE DATE THEREOF AND AT EACH APPLICABLE TIME
AND EACH SETTLEMENT DATE, DID NOT OR WILL NOT INCLUDE AN UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS
THEREIN, IN