HRPT PROPERTIES TRUST
(a Maryland real estate investment trust)
8 1/2% Monthly Income Senior Notes due 2013
PURCHASE AGREEMENT
------------------
November 24, 1998
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
X.X. XXXXXXX & SONS, INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX XXXXX XXXXXX INC.
c/x XXXXXXX XXXXX & CO.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
World Financial Center - North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
HRPT Properties Trust, a Maryland real estate investment trust (the
"Company"), confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, X.X. Xxxxxxx & Sons, Inc., Xxxx Xxxxx Xxxx
Xxxxxx, Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, PaineWebber
Incorporated, Prudential Securities Incorporated and Xxxxxxx Xxxxx Xxxxxx Inc.
(collectively, the "Underwriters," which term shall include any underwriter
substituted as hereinafter provided in Section 10 hereof), with respect to the
sale by the Company and the purchase by each such Underwriter severally, of the
Company's $130,000,000 of principal amount of 8 1/2% Monthly Income Senior Notes
due 2013 (the "Notes") set forth opposite the name of each such Underwriter
listed in Schedule A hereto at a purchase price of 97% of the principal amount
of the Notes and with respect to the grant by the Company to the Underwriters of
the option described in Section 2 hereof to purchase all or any part of an
additional $19,500,000 aggregate principal amount of such Notes to cover
over-allotments. The aforesaid $130,000,000 principal amount of such Notes (the
"Initial Notes"), together with all or any part of the $19,500,000 additional
principal amount subject to the option described in Section 2 hereof (the
"Option
Notes"), are collectively hereinafter called the "Notes". The Notes are to be
issued pursuant to an indenture dated as of July 9, 1997 and a supplemental
indenture dated as of November 30, 1998 (together, the "Indenture"), each
between the Company and State Street Bank and Trust Company (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-56051) for the
registration of debt securities, preferred shares of beneficial interest,
depositary shares, common shares of beneficial interest and warrants under the
Securities Act of 1933, as amended (the "1933 Act"), and has filed such
amendments thereto, if any, as may have been required to the date hereof. Such
registration statement has been declared effective under the 1933 Act. Such
registration statement (as amended, if applicable) and the prospectus
constituting a part thereof, as supplemented by the prospectus supplement
relating to the Notes (including, in each case, all documents incorporated or
deemed to be incorporated by reference therein), as from time to time amended or
supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), or otherwise, are hereinafter referred to as the
"Registration Statement" and the "Prospectus", respectively. All references in
this Agreement to financial statements and 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
in the Prospectus, as the case may be.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as of the
date hereof as follows:
(i) At the time the Registration Statement became effective, the
Registration Statement complied in all material respects with the
requirements of the 1933 Act and the rules and regulations under the
1933 Act (the "1933 Act Regulations") and did 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, at the date hereof (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of
the Notes which differs from the Prospectus on file at the Commission
at the date of effectiveness of the Registration Statement, in which
case at the time it is first provided to the Underwriters for such
use) and at the Closing Time referred to in Section 2 hereof, does not
and 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 under which they were made,
not misleading; provided, however, that the representations and
warranties in this subsection (i) shall not apply to statements or
omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Xxxxxxx Xxxxx expressly
for use in the Registration Statement or the Prospectus.
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(ii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
under the 1934 Act (the "1934 Act Regulations"), and, when read together with
the other information in the Prospectus, at the time the Registration Statement
became effective and at Closing Time, did not and will not include 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, in the light of the
circumstances under which they were made, not misleading.
(iii) The Company is a Maryland real estate investment trust duly
organized, validly existing and in good standing under the laws of the State of
Maryland. Each of its subsidiaries has been duly organized and is validly
existing as a corporation or trust in good standing under the laws of its
jurisdiction of incorporation or organization. Each of the Company and its
subsidiaries has full power and authority (corporate and other) to carry on its
business as described in the Registration Statement and in the Prospectus and to
own, lease and operate its properties. Each of the Company and its subsidiaries
is duly qualified and is in good standing as a foreign corporation or trust, as
the case may be, and is 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 Company and its subsidiaries, taken as a whole.
(iv) The financial statements of the Company and its subsidiaries,
together with the related schedules and notes thereto, included or incorporated
by reference in the Registration Statement and in the Prospectus, comply as to
form in all material respects with the requirements of the 1933 Act. Such
financial statements of the Company, together with the related schedules and
notes thereto, present fairly the consolidated financial position, results of
operations, shareholders' equity and changes in financial position of the
Company and its subsidiaries, at the dates or for the periods therein specified
and have been prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied throughout the periods involved. The
pro forma financial statements and other pro forma financial information
(including the notes thereto) included or incorporated by reference in the
Registration Statement and in the Prospectus (i) present fairly the information
shown therein, (ii) have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and (iii) have
been properly compiled on the basis described therein and the assumptions used
in the preparation of such pro forma financial statements and other pro forma
financial information (including the
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notes thereto) are reasonable and the adjustments used therein are appropriate
to give effect to the transactions or circumstances referred to therein.
(v) The accountants who have certified the financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement and in the Prospectus are independent certified public
accountants as required by the 1933 Act.
(vi) The Indenture has been duly qualified under the Trust Indenture
Act of 1939 (the "1939 Act") and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company
enforceable in accordance with its terms, except as limited by (a) the effect of
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws relating to or affecting the rights or remedies of creditors or (b)
the effect of general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
(vii) All of the issued and outstanding indebtedness of the Company is
duly and validly authorized and issued; the Notes have been authorized by all
necessary trust action and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered and paid for pursuant to this
Agreement, will be valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by (a) the effect of bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws relating to or affecting the rights or remedies of creditors or (b) the
effect of general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
(viii) The Notes and the Indenture conform to the descriptions thereof
in the Registration Statement and in the Prospectus.
(ix) The authorized capital of the Company, including the Notes,
conforms as to legal matters to the description thereof contained in the
Prospectus (or the documents incorporated therein by reference).
(x) Since the respective dates as of which information is given in the
Prospectus, and except as otherwise disclosed therein, (i) there has been no
material adverse change in the business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole, whether or not arising in the ordinary course of
business, (ii) there have been no material transactions entered into by the
Company and its subsidiaries, on a consolidated basis, other than transactions
in the ordinary course of business, (iii) neither the Company nor its
subsidiaries has incurred any material liabilities or obligations, direct or
contingent, (iv) the Company and its subsidiaries, on a consolidated basis, have
not, (A) other than regular quarterly dividends, declared, paid or made a
dividend or distribution of any kind on any class of its shares of beneficial
interest (other than dividends or distributions from wholly owned subsidiaries
to the Company), issued any shares of beneficial interest of the Company or
any of its
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subsidiaries or any options, warrants, convertible securities or
other rights to purchase the shares of beneficial interest of the Company or any
of its subsidiaries (other than the issuance of common shares of beneficial
interest ("Common Shares") upon conversion of certain convertible debentures of
the Company or (C) repurchased or redeemed shares of beneficial interest, and
(v) there has not been (A) any material decrease in the Company's net worth or
(B) any material increase in the short-term or long-term debt (including
capitalized lease obligations but excluding borrowings under existing bank lines
of credit) of the Company and its subsidiaries, on a consolidated basis.
(xi) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(xii) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or other organizational documents or in
default in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party or by which any of their respective properties or assets
may be bound or affected, except for any such violation that would not have a
material adverse effect on the condition, financial or otherwise or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries, taken as a whole. The Company is not in violation of any law,
ordinance, governmental rule or regulation or court decree to which it is
subject, except for any such violations that would not, individually or in the
aggregate, have a material adverse effect on the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of any of the
Company and its subsidiaries, taken as a whole.
(xiii) Except as disclosed in the Registration Statement or in the
Prospectus, there is not now pending or, to the knowledge of the Company,
threatened, any litigation, action, suit or proceeding to which the Company is
or will be a party before or by any court or governmental agency or body, which
(A) might result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company or (B) might materially and adversely affect the property or assets of
the Company or (C) concerns the Company and is required to be disclosed in the
Registration Statement or the Prospectus, or (D) could adversely affect the
consummation of this Agreement and the issuance, purchase and sale of the Notes.
No contract or other document is required to be described in the Registration
Statement or in the Prospectus or to be filed as an exhibit to the Registration
Statement that is not described therein or filed as required.
(xiv) The execution, delivery and performance by the Company of this
Agreement, the issuance, offering and sale by the Company of the Notes as
contemplated by the Registration Statement and by the Prospectus and the
consummation of the
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transactions contemplated hereby and compliance with the terms and provisions
hereof, will not violate or conflict with or constitute a breach of any of the
terms or provisions of, or a default under, (i) the Amended and Restated
Declaration of Trust (the "Declaration of Trust") or the By-laws of the Company
or the charter or by-laws or other organizational documents of any subsidiaries
of the Company, (ii) any agreement, indenture or other instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective properties or assets is bound, or (iii) any
laws, administrative regulations or rulings or decrees to which the Company or
any of its subsidiaries or their respective properties or assets may be subject.
(xv) No consent, approval, authorization or order of, or registration,
filing or qualification with, any governmental body or regulatory agency having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets is required for the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, including, without limitation, the issuance, sale and
delivery of the Notes pursuant to this Agreement, except such as have been
obtained and such as may be required under foreign and state securities or "Blue
Sky" or real estate syndication laws.
(xvi) Except as otherwise disclosed in the Registration Statement or in
the Prospectus, the Company and each of its subsidiaries has good and marketable
title or ground leases, free and clear of all liens, claims, encumbrances and
restrictions, except liens for taxes not yet due and payable and other liens and
encumbrances which do not, either individually or in the aggregate, materially
and adversely affect the current use or value thereof, to all property and
assets described in the Registration Statement or in the Prospectus as being
owned by them. Except as otherwise set forth in the Registration Statement or in
the Prospectus, all leases to which the Company and each of its subsidiaries is
a party relating to real property, and all other leases which are material to
the business of the Company and its subsidiaries, taken as a whole, are valid
and binding, and no default (to the Company's knowledge, in the case of leases
to which the Company is a party as lessor, that would, individually or in the
aggregate, have a material adverse effect on the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Company and
its subsidiaries, taken as a whole) has occurred and is continuing thereunder,
and the Company and each of its subsidiaries enjoys peaceful and undisturbed
possession under all such leases to which it is a party as lessee. With respect
to all properties owned or leased by the Company and each of its subsidiaries,
the Company or such subsidiary has such documents, instruments, certificates,
opinions and assurances, including without limitation, fee, leasehold owners or
mortgage title insurance policies (disclosing no encumbrances or title
exceptions which are material to the Company and its subsidiaries considered as
a whole, except as otherwise set forth in the Registration Statement and in the
Prospectus), legal opinions and property insurance policies in each case in form
and substance as are usual and customary in transactions involving the purchase
of similar real estate and are appropriate for the Company or such subsidiary to
have obtained.
(xvii) The Company and each of its subsidiaries owns, or possesses
adequate rights to use, all patents, trademarks, trade names, service marks,
copyrights, licenses and
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other rights necessary for the conduct of their respective businesses as
described in the Registration Statement and in the Prospectus, and neither the
Company nor any of its subsidiaries has received any notice of conflict with, or
infringement of, the asserted rights of others with respect to any such patents,
trademarks, trade names, service marks, copyrights, licenses and other such
rights (other than conflicts or infringements that, if proven, would not have a
material adverse effect on the business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole), and neither the Company nor any of its
subsidiaries knows of any basis therefor.
(xviii) All material tax returns required to be filed by the Company
and each of its subsidiaries in any jurisdiction have been timely filed, other
than those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and other
charges due pursuant to such returns or pursuant to any assessment received by
the Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(xix) Except for those matters which in the aggregate do not have a
material adverse effect on the business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company and its
subsidiaries taken as a whole, and except for Hazardous Materials (as defined
below) or substances which are handled and/or disposed of in compliance with all
applicable federal, state and local requirements, to the Company's knowledge,
after due investigation, the real property owned, leased or otherwise operated
by the Company and each of its subsidiaries in connection with the operation of
their respective businesses, including, without limitation, any subsurface soils
and ground water (the "Realty"), is free of contamination from any Hazardous
Materials. To the Company's knowledge, after due investigation, the Realty does
not contain any underground storage or treatment tanks, active or abandoned
water, gas or oil xxxxx, or any other underground improvements or structures,
other than the foundations, footings, or other supports for the improvements
located thereon which, based on present knowledge, could, in their present
condition, reasonably be expected to presently cause a material detriment to or
materially impair the beneficial use thereof by the Company or constitute or
cause a significant health, safety or other environmental hazard to occupants or
users thereof without regard to any special conditions of such occupants or
users. The Company represents that, after due investigation, it has no knowledge
of any material violation, with respect to the Realty, of any Environmental Law,
or of any material liability on the part of the Company with respect to the
Realty, resulting from the presence, use, release, threatened release, emission,
disposal, pumping, discharge, generation or processing of any Hazardous
Materials. As used herein, "Environmental Law" means any federal, state or local
statute, regulation, judgment, order or authorization relating to emissions,
discharges, releases or threatened releases of Hazardous Materials into ambient
air, surface water, ground water, publicly-owned treatment works, septic systems
or land, or otherwise relating to the pollution or protection of public health
or the environment, and "Hazardous Materials" means any substance, material or
waste which is regulated, defined, or listed as a "hazardous waste", "hazardous
substance", "toxic substance", "medical waste", "infectious waste" or other
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similar terms in any Environmental Law or by any federal, state or local
government or quasi-government authority, or any petroleum products, asbestos,
lead-based paint, polychlorinated biphenyls, flammable explosives or radioactive
materials.
(xx) Each of the Company and its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities (together, "permits"), including, without limitation, under any
applicable Environmental Law, as are necessary to own, lease and operate its
properties and to engage in the business currently conducted by it, except such
licenses and permits as to which the failure to own or possess will not in the
aggregate have a material adverse effect on the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Company, and
the Company does not have any reason to believe that any governmental body or
agency is considering limiting, suspending or revoking any such license,
certificate, permit, authorization, approval, franchise or right; each of the
Company and its subsidiaries has fulfilled and performed all of its material
obligations with respect to such permits, and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of the holder
of any such permit; and, except as described in the Registration Statement and
in the Prospectus, such permits contain no restrictions that are materially
burdensome to the Company or any of its subsidiaries.
(xxi) To the knowledge of the Company, no labor problem exists or is
imminent with employees of the Company or any of its subsidiaries that could
have a material adverse effect on the business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole. (xxii) Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any officer, trustee or
director purporting to act on behalf of the Company or any of its subsidiaries,
has at any time: (i) made any contributions to any candidate for political
office, or failed to disclose fully any such contributions, in violation of law;
(ii) made any payment of funds to, or received or retained any funds from, any
state, federal or foreign governmental officer or official, or other person
charged with similar public or quasi-public duties, other than payments required
or allowed by applicable law; or (iii) engaged in any transactions, maintained
any bank accounts or used any corporate funds except for transactions, bank
accounts and funds, which have been and are reflected in the normally maintained
books and records of the Company and its subsidiaries.
(xxiii) All of the outstanding shares of beneficial interest of, or
other ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and, except as to subsidiaries
that are partnerships, nonassessable, and, except as disclosed in the
Registration Statement or in the Prospectus, are or will be owned by the Company
free and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature.
(xxiv) Except as referred to or described in the Registration Statement
and in the Prospectus, none of the subsidiaries of the Company owns any shares
of stock or any other securities of any corporation or has any equity interest
in any firm, partnership,
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association or other entity other than the issued capital shares of its
subsidiaries, and the Company does not own, directly or indirectly, any shares
of stock or any other securities of any corporation or have any equity interest
in any firm, partnership, association or other entity other than the issued
capital shares of its subsidiaries, except in each case for non-controlling
positions acquired in the ordinary course of business.
(xxv) Except as disclosed in the Registration Statement and in the
Prospectus, there are no material outstanding loans or advances or material
guarantees of indebtedness by the Company or any of its subsidiaries to or for
the benefit of any of the officers, trustees or directors of the Company or any
of its subsidiaries or any of the members of the families of any of them.
(xxvi) The Company and each of its subsidiaries maintains insurance,
duly in force, with insurers of recognized financial responsibility; such
insurance insures against such losses and risks as are adequate in accordance
with customary industry practice to protect the Company and its subsidiaries and
their respective businesses; and neither the Company nor any such subsidiary has
any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Company and
its subsidiaries, taken as a whole, except as disclosed in or contemplated by
the Registration Statement and by the Prospectus.
(xxvii) Neither the Company nor any of its officers and directors (as
defined in the 1933 Act Regulations) has taken or will take, directly or
indirectly, prior to the termination of the offering contemplated by this
Agreement, any action designed to stabilize or manipulate the price of any
security of the Company, or which has caused or resulted in, or which might in
the future reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Notes.
(xxviii) Neither the Company nor any of its subsidiaries is an
"investment company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act"), or an "investment
adviser" as such term is defined in the Investment Advisers Act of 1940, as
amended.
(xxix) The Company is organized in conformity with the requirements for
qualification, and, as of the date hereof the Company operates, and as of
Closing Time the Company will operate, in a manner that qualifies the Company as
a "real estate investment trust" under the Internal Revenue Code of 1986, as
amended (the "Code"), and the rules and regulations thereunder, for 1998 and
subsequent years. The Company qualified as a real estate investment trust under
the Code for each of its taxable years from 1987 through 1997.
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(xxx) No default exists, and no event has occurred which, with notice
or lapse of time or both, would constitute a default in the due performance and
observance of any term, covenant or condition of any indenture, mortgage, deed
of trust, lease 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
or any of their respective properties is bound or may be affected, except such
defaults which, singly or in the aggregate, would not have a material adverse
effect on the business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its subsidiaries, considered as a
whole, except as disclosed in the Registration Statement and in the Prospectus.
(xxxi) Except as otherwise disclosed in the Prospectus, since the
respective dates as of which information is given in the Prospectus, there has
been no material adverse change in the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of REIT Management &
Research, Inc. (the "Advisor"), whether or not arising in the ordinary course of
business, that would have a material adverse effect on the Company and its
subsidiaries, taken as a whole. The Advisory Agreement, dated as of January 1,
1998 (the "Advisory Agreement"), between the Company and the Advisor, has been
duly authorized, executed and delivered by the parties thereto and constitutes
the valid agreement of the parties thereto, enforceable in accordance with its
terms, except as limited by (a) the effect of bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws relating
to or affecting the rights or remedies of creditors or (b) the effect of general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(b) Any certificate signed by any officer of the Company or any of its
subsidiaries and delivered to the Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to the Underwriters; Closing.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, the Notes as set
forth in Schedule A.
(b) In addition, on the basis of the representations and warranties
herein included and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the Underwriters, severally and not jointly,
to purchase up to an additional $19,500,000 principal amount of Notes at the
purchase price set forth on the first page of this Agreement. The option hereby
granted will expire 30 days after the date of this Agreement and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Notes upon notice by Xxxxxxx Xxxxx to the Company
setting forth the principal amount of Option Notes as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Notes. Any such time and date of delivery
(a "Date of Delivery") shall
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be determined by Xxxxxxx Xxxxx but shall not be later than seven full business
days, nor earlier than two full business days, after the exercise of said
option, nor in any event prior to Closing Time, unless otherwise agreed upon by
the Underwriters and the Company. If the option is exercised as to all or any
portion of the Option Notes, such Option Notes shall be purchased by the
Underwriters, severally and not jointly, in proportion to their respective
Initial Note underwriting obligations as set forth in Schedule A.
(c) Payment of the purchase price for and delivery of the Initial Notes
shall be made, subject to Section 9, at the offices of Xxxxxxxx & Worcester LLP,
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other place as
shall be agreed upon by the Underwriters and the Company, at 9:00 A.M. on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day (unless postponed in accordance with the provisions of Section
10 hereof) following the date of this Agreement, or such other time not later
than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called "Closing Time"). In addition, in the event that the over-allotment
option described in (b) above is exercised by the Underwriters, payment of the
purchase price for and delivery of the Option Notes shall be made at the
above-mentioned office of Xxxxxxxx & Worcester LLP, or at such other place as
shall be agreed upon by Xxxxxxx Xxxxx and the Company on each Date of Delivery
as specified in the notice to the Company. Payment shall be made by wire
transfer of immediately available funds payable to the order of the Company
against delivery to the Underwriters of the Notes to be purchased by them. It is
understood that each Underwriter has authorized Xxxxxxx Xxxxx, for its account,
to accept delivery of, receipt for, and make payment of the purchase price for,
the Notes which it has severally agreed to purchase. Xxxxxxx Xxxxx, individually
and not as representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Notes to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the Date
of Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder. The Notes shall be in such
authorized denominations and registered in such names as the Underwriters may
request in writing at least one business day before Closing Time or the Date of
Delivery, as the case may be.
Section 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Immediately following the execution of this Agreement, the Company
will prepare a Prospectus Supplement setting forth the aggregate principal
amount of Notes covered thereby and their terms not otherwise specified in the
Prospectus, the Underwriters' names, the price at which the Notes are to be
purchased by the Underwriters from the Company, and such other information as
the Underwriters and the Company deem appropriate in connection with the
offering of the Notes; and the Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of
the 1933 Act Regulations and will furnish to the Underwriters as many copies of
the Prospectus (including such Prospectus Supplement) as they shall reasonably
request.
(b) Until the termination of the initial offering of the Notes, the
Company will notify the Underwriters immediately, and confirm the notice in
writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the Commission for filing of
11
any supplement or amendment to the Prospectus or any document to be filed
pursuant to the 1934 Act, (iii) of the receipt of any comments from the
Commission with respect to the Notes, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus with respect to the Notes or for additional information relating
thereto, and (v) of 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.
(c) The Company will give the Underwriters notice of its intention to
file or prepare any post-effective amendment to the Registration Statement or
any amendment or supplement (including any document to be filed pursuant to the
1934 Act prior to the termination of the initial offering of the Notes) to the
Prospectus (including any revised prospectus which the Company proposes for use
by the Underwriters in connection with the offering of the Notes which differs
from the prospectus on file at the Commission at the time that the Registration
Statement becomes effective, whether or not such revised prospectus is required
to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish
the Underwriters 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 each of the Underwriters a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto filed prior to the termination of the initial offering of the Notes
(including exhibits filed therewith or incorporated by reference therein and the
documents incorporated by reference into the Prospectus pursuant to Item 12 of
Form S-3).
(e) The Company will furnish to the Underwriters, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as the Underwriters may reasonably request for the purposes
contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or 1934 Act
Regulations.
(f) If any event shall occur as a result of which it is necessary, in
the 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, the Company will either (i)
forthwith prepare and furnish to the Underwriters an amendment of or supplement
to the Prospectus or (ii) make an appropriate filing pursuant to Section 13, 14
or 15 of the 1934 Act, in form and substance reasonably satisfactory to counsel
for the Underwriters, 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, not misleading.
(g) The Company will endeavor in good faith, in cooperation with the
Underwriters, to qualify the Notes for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as the Underwriters
12
may designate; provided that, in connection therewith, the Company shall not be
required to qualify as a foreign corporation or trust or to file any general
consent to service of process. In each jurisdiction in which the Notes 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 Notes.
(h) 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 twelve 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"
will have the meanings contained in Rule 158 of the 1933 Act Regulations.
(i) The Company will use the net proceeds received by it from the sale
of the Notes in the manner specified in the Prospectus under the caption "Use of
Proceeds" in all material respects.
(j) The Company currently intends to continue to elect to qualify as a
"real estate investment trust" under the Code, and use its best efforts to
continue to meet the requirements to qualify as a "real estate investment
trust".
(k) The Company will timely file any document which it is required to
file pursuant to the 1934 Act prior to the termination of the offering of the
Notes.
(l) The Company will not, between the date of this Agreement and the
termination of any trading restrictions or Closing Time, whichever is later,
with respect to the Notes, without your prior written consent, offer or sell,
grant any option for the sale of, or enter into any agreement to sell, any debt
securities of the Company with a maturity of more than one year (other than the
Notes which are to be sold pursuant to this Agreement and additional or expanded
commitments to participate in the Company's revolving line of credit) except as
may otherwise be provided in this Agreement.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the preparation and filing of this
Agreement, (iii) the preparation, issuance and delivery of the Notes to the
Underwriters, (iv) the fees and disbursements of counsel for the Company,
referred to in Section 5(b) hereof, and the Company's accountants, (v) the
qualification of the Notes under securities laws and real estate syndication
laws in accordance with the provisions of Section 3(g) hereof, including filing
fees and the fee and disbursements of counsel for the Company in connection
therewith and in connection with the preparation of any Blue Sky Survey, (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, (vii) any fees charged by
nationally recognized statistical rating organizations for the rating of the
Notes, (viii) the cost of printing or reproducing and delivering to the
Underwriters copies of
13
any Blue Sky Survey, (ix) the cost of providing any CUSIP or other
identification numbers for the Notes, and (x) the fees and expenses of any
depositary in connection with the Notes.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 5 or Section 9(a)(i), the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
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 contained, to the performance by the
Company of its obligations hereunder, and to the following further conditions:
(a) At Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission. The price of the Notes and
any other information previously omitted from the effective Registration
Statement pursuant to Rule 415 of the 1933 Act Regulations shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period, and prior to Closing Time the
Company shall have provided evidence satisfactory to the Underwriters of such
timely filing, or a post-effective amendment providing such information shall
have been filed and declared effective in accordance with the requirements of
the 1933 Act Regulations.
(b) At Closing Time the Underwriters shall have received the favorable
opinion, dated as of Closing Time, of Xxxxxxxx & Worcester LLP, counsel for the
Company, in form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The Company is a Maryland real estate investment trust duly
organized, validly existing and in good standing under the laws of the
State of Maryland; each of its Significant Subsidiaries (as defined in
Rule 1-02 of Regulation S-X under the 1933 Act) has been duly
organized, is validly existing as a corporation or trust in good
standing under the laws of its jurisdiction of incorporation or
organization; each of the Company and its subsidiaries has the trust
or corporate (as applicable) power and authority to carry on its
business as described in the Registration Statement and in the
Prospectus and to own, lease and operate its properties; each of the
Company and its subsidiaries is duly qualified and is in good standing
as a foreign corporation or trust, as the case may be, authorized to
do business in each jurisdiction in which 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 Company
and its subsidiaries, taken as a whole.
(ii) All of the issued and outstanding shares of beneficial
interest of, or other ownership interests in, each of the Company's
subsidiaries have been duly authorized and validly issued and are
fully paid and, except as to subsidiaries that are partnerships,
non-assessable, and are owned by the Company free and clear of any
security interest or other adverse interest (within the meaning of
Article 8 of the Massachusetts Uniform Commercial Code).
14
(iii) The Company has the requisite trust power and authority to
enter into and perform this Agreement and to issue and deliver the
Notes.
(iv) This Agreement and the Indenture have been duly authorized,
executed and delivered by the Company.
(v) The Indenture is a valid and binding obligation of the
Company enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights generally and equitable
principles; and the Indenture has been duly qualified under the 1939
Act.
(vi) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered and paid for in accordance with the terms of this Agreement,
will be valid and binding obligations of the Company enforceable in
accordance with their terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting
creditors' rights generally and equitable principles; and the holders
of the Notes are entitled to the benefit of the Indenture.
(vii) The execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will not
conflict with or constitute a breach or violation of any of the terms
or provisions of, or constitute a default under, (A) the Declaration
of Trust or the By-laws of the Company or the charter or by-laws or
other organizational documents of any Significant Subsidiary of the
Company, (B) except as disclosed in the Prospectus, any material
agreement, indenture or other instrument to which the Company, or any
of its Significant Subsidiaries or their respective material
properties or assets is bound, or (C) any laws, administrative
regulations or rulings or decrees known to such counsel to which the
Company, any of its Significant Subsidiaries or their respective
material properties or assets may be subject.
(viii) No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any federal,
Massachusetts or Maryland court or public, governmental or regulatory
agency or body having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their respective material
properties or assets is required for the Company's execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby, including, without limitation, the
issuance, sale and delivery of the Notes pursuant to this Agreement,
except such as have been obtained and such as may be required under
foreign and state securities or "Blue Sky" laws.
(ix) The Registration Statement has become effective under the
1933 Act, and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission; and any required filing of the
Prospectus pursuant to Rule 424 under the 1933 Act has been made in
accordance with said Rule 424.
15
(x) To such counsel's knowledge, except as disclosed in the
Registration Statement or in the Prospectus, there is not now pending
or threatened, any litigation, action, suit or proceeding to which the
Company or any of its subsidiaries is or will be a party before or by
any court or governmental agency or body, which (A) might result in
any material adverse change in the condition, financial or otherwise,
or in the business, operations, earnings, prospects or properties of
the Company and its subsidiaries, taken as a whole, or (B) might
materially and adversely affect the property or assets of the Company
and its subsidiaries, taken as a whole, or (C) concerns the Company or
any of its subsidiaries and is required to be disclosed in the
Prospectus, or (D) could adversely affect the consummation of this
Agreement and the issuance of the Notes; to such counsel's knowledge,
no contract or other document is required to be described in the
Registration Statement or in the Prospectus or to be filed as an
exhibit to the Registration Statement that is not described therein or
filed as required.
(xi) Except as otherwise disclosed in the Prospectus, to such
counsel's knowledge, neither the Company nor any of its subsidiaries
is in violation of its respective charter or by-laws or other
organizational documents or in default in the performance of any
obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any other material
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party or by which any of their respective properties
or assets may be bound or affected, except for any such violation that
would not have a material adverse effect on the business, operations,
earnings, business prospects, properties or condition (financial or
otherwise) of the Company and its subsidiaries taken as a whole.
(xii) To such counsel's knowledge, each of the Company and its
subsidiaries has such permits, licenses, franchises and authorizations
of governmental or regulatory authorities (together, "permits"),
including, without limitation, under any applicable Environmental Law,
as are necessary to own, lease and operate its properties and to
engage in the business currently conducted by it, except such licenses
and permits as to which the failure to own or possess will not in the
aggregate have a material adverse effect on the business, operations,
earnings, business prospects, properties or condition (financial or
otherwise) of the Company and its subsidiaries, taken as a whole.
(xiii) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements
and the notes thereto and the schedules and other financial and
statistical data included therein, the Excluded Proceedings (as
defined in paragraph (xx) below) and the part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) of
the Trustee under the 1939 Act, as to which such counsel need not
express any opinion) comply as to form in all material respects with
the requirements of the 1933 Act.
(xiv) Each document incorporated by reference in the Registration
Statement and in the Prospectus (except for the financial statements
and the notes thereto and the schedules and other financial and
statistical data included therein and the Excluded Proceedings, as to
which such counsel need not express any opinion) complied as to form
16
when filed with the Commission in all material respects with the
requirements of the 1934 Act.
(xv) To the extent required to be described therein, the Notes
conform in all material respects to the descriptions in the
Registration Statement and the Prospectus.
(xvi) The statements (a) in the Prospectus under the captions
"Description of Debt Securities", "Description of the Notes",
"Description of Shares", "Redemption; Business Combinations and
Control Share Acquisitions," "Limitation of Liability; Shareholder
Liability" and "Federal Income Tax and ERISA Considerations" and (b)
in Item 1 of the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 under the captions "Regulation and
Reimbursement," "Federal Income Tax Considerations" and "ERISA Plans,
Xxxxx Plans and Individual Retirement Accounts" in each case insofar
as they purport to summarize matters arising under Massachusetts or
Maryland law or the federal law of the United States, or provisions of
documents to which the Company is a party specifically referred to
therein, are accurate summaries of such legal matters or provisions.
(xvii) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856-860 of the Code for each of
the fiscal years ended December 31, 1987 through December 31, 1997,
and the Company's current anticipated investments and its current plan
of operation will enable it to continue to meet the requirements for
qualification and taxation as a real estate investment trust under the
Code; actual qualification of the Company as a real estate investment
trust, however, will depend upon the Company's continued ability to
meet, and its meeting, through actual annual operating results and
distributions, the various qualification tests imposed under the Code.
(xviii) The Company is not required to register as an "investment
company" within the meaning of the 1940 Act.
(xix) The Advisor (A) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and (B) has the requisite corporate power and authority to conduct its
business as described in the Prospectus and to own and operate its
material properties.
(xx) The Advisory Agreement has been duly authorized, executed
and delivered by the parties thereto and constitutes the valid
agreement of the parties thereto, enforceable in accordance with its
terms, except (a) as limited by the effect of bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws
relating to or affecting the rights or remedies of creditors, (b) as
limited by the effect of general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and
(c) insofar as the enforceability of the indemnity and contribution
provisions contained in such agreement may be limited by federal or
state securities laws and the public policy underlying such laws.
17
(xxi) Although counsel has not undertaken, except as otherwise
indicated in their opinion, to determine independently, and does not
assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement, such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof
(including review and discussion of the contents of all documents
incorporated by reference in the Registration Statement and the
Prospectus), and nothing has come to the attention of such counsel
that has caused them to believe that the Registration Statement
(including the documents incorporated by reference therein) at the
time the Registration Statement became effective, or the Prospectus,
as of its date and as of Closing Time, as the case may be, contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that any amendment or supplement to the
Prospectus, as of its respective date, and as of Closing Time, as the
case may be, 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 (it being understood that such counsel need
express no view with respect to (a) the financial statements and the
notes thereto and the schedules and other financial and statistical
data included or incorporated by reference in the Registration
Statement or in the Prospectus or (b) the proceedings referred to in
Item 3 of the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 under the caption "Legal Proceedings" and
any claims related thereto (collectively, the "Excluded Proceedings"),
or (c) the part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) of the Trustee under the 1939 Act.
In rendering their opinion as aforesaid, Xxxxxxxx & Worcester LLP may
rely upon an opinion, dated as of Closing Time, of Piper & Marbury L.L.P. as to
matters governed by Maryland law, provided that such reliance is expressly
authorized by such opinion and a copy of such opinion is delivered to the
Underwriters and is, in form and substance, satisfactory to the Underwriters and
counsel for the Underwriters. In addition, in rendering such opinion, such
counsel may state that their opinion as to laws of the State of Delaware is
limited to the Delaware General Corporation Law and that their opinion with
respect to the qualification of the Company and its subsidiaries to do business
in jurisdictions other than their respective jurisdictions of organization is
based solely upon certificates to such effect issued by an appropriate official
of the applicable jurisdictions.
The opinion of Xxxxx & Xxxxxxx L.L.P. described in the paragraph above
shall be rendered to the Underwriters at the request of the Company and shall so
state therein.
In addition, the Underwriters shall have received at Closing Time an
opinion (satisfactory to the Underwriters and counsel for the Underwriters) of
Sherin & Lodgen LLP, special counsel for the Company, dated as of Closing Time,
to the effect that the statements describing the proceedings in Item 3 of the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997
under the caption "Legal Proceedings", insofar as they purport to summarize
legal proceedings, constitute a fair summary of such legal proceedings.
18
(c) The Underwriters shall have received at Closing Time an opinion,
dated as of Closing Time, of Xxxxx & Wood LLP, counsel for the Underwriters, as
to the matters referred to in clauses (iv), (v), (vi), (ix), (xiii), (xv) and
(xxi) of the foregoing paragraph (b). In giving such opinion with respect to the
matters covered by clause (xxi), such counsel may state that their opinion and
belief are based upon their participation in the preparation of the Registration
Statement and the Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without independent check
or verification except as specified.
In rendering their opinion as aforesaid, Xxxxx & Wood LLP may rely upon
an opinion, dated as of Closing Time, of Piper & Marbury L.L P. as to matters
governed by Maryland law, and the opinion of Xxxxxxxx & Worcester LLP referred
to above as to matters governed by Massachusetts law. In addition, in rendering
such opinion, such counsel may state that their opinion as to laws of the State
of Delaware is limited to the Delaware General Corporation Law.
(d) At Closing Time (i) the Registration Statement and the Prospectus
shall contain 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
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and no action, suit or proceeding at law or in equity shall be
pending or to the knowledge of the Company threatened against the Company 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 in the condition, financial or otherwise, of the Company
or in its earnings, business affairs or business prospects, whether or not
arising in the ordinary course of business from that set forth in the
Registration Statement, and (iii) no proceedings shall be pending or, to the
knowledge of the Company, threatened against the Company before or by any
federal, state or other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding would materially and adversely affect
the business, property, financial condition or income of the Company other than
as set forth in the Prospectus; and the Underwriters shall have received, at
Closing Time, a certificate of the President and Chief Operating Officer and the
chief financial officer of the Company, dated as of Closing Time, evidencing
compliance with the provisions of this subsection (d) and stating that the
representations and warranties set forth in Section 1(a) hereof are accurate as
though expressly made at and as of Closing Time.
(e) At Closing Time, 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 in the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Advisor,
whether or not arising in the ordinary course of business; and the Underwriters
shall have received, at Closing Time, a certificate of the President of the
Advisor evidencing compliance with this subsection (e).
(f) Concurrently with the execution and delivery of this Agreement, and
at Closing Time prior to payment and delivery of the Notes, Xxxxx & Young LLP
shall have furnished to the Underwriters a letter, dated the date of its
delivery, addressed to the Underwriters and in form
19
and substance satisfactory to the Underwriters, confirming that they are
independent accountants with respect to the Company as required by the 1933 Act
and the 1933 Act Regulations and with respect to the financial and other
statistical and numerical information contained in the Registration Statement
and the Prospectus or incorporated by reference therein. Each such letter shall
contain information of the type customarily included in accountants' comfort
letters to underwriters.
(g) At 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 Notes 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 contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Notes as herein contemplated shall
be reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters.
(h) In the event the Underwriters exercise the option described in
Section 2 hereof to purchase all or any portion of the Option Notes, the
representations and warranties of the Company included herein and the statements
in any certificates furnished by the Company hereunder shall be true and correct
as of the Date of Delivery, and the Underwriters shall have received:
(i) A certificate of the President and Chief Executive Officer
and the chief financial officer or chief accounting officer of the
Company, dated such Date of Delivery, confirming that their
certificate delivered at Closing Time pursuant to Section 5(d) hereof
remains true as of such Date of Delivery.
(ii) The favorable opinion of Xxxxxxxx & Worcester LLP, counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Notes and otherwise to the same effect as the opinion required by
Section 5(b) hereof.
(iii) Certificate of the President of the Advisor confirming that
his certificate delivered at Closing Time pursuant to Section 5(e)
hereof remains true as of such Date of Delivery.
(iv) The favorable opinion of Xxxxx & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
shares and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(v) A letter from Xxxxx & Young LLP, dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to the Underwriters pursuant to Section 5(f) hereof.
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 Underwriters 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.
20
Section 6. Indemnification. (a) The Company hereby agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission, or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading:
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(3) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements
of counsel chosen by Xxxxxxx Xxxxx), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceedings by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
paragraph (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto); and provided, further, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter, or the benefit of any person controlling any
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto and excluding
documents incorporated or deemed to be incorporated by reference therein) was
not sent or given by or on behalf of such Underwriter to such person asserting
any such losses, claims, damages or liabilities at or prior to the written
confirmation of the sale of such Notes to such person, if required by law so to
have been delivered, and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage or expense.
21
(b) Each Underwriter agrees to indemnify and hold harmless the Company,
each of the Company's trustees, each of the Company's officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section 6, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Xxxxxxx Xxxxx expressly for
use in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriters, as incurred, (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 Notes pursuant to this Agreement or (ii) if the allocation provided by
clause (i) 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 statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, 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 Notes
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Notes pursuant to
this Agreement (before deducting expenses) received by the Company and the total
discount received by the Underwriters, bear to the aggregate initial offering
price of the Notes.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
22
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Notwithstanding the
provisions of this Section 7, the Underwriters shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Notes purchased from the Company by the Underwriters and distributed to the
public were offered to the public exceeds the amount of any damages which the
Underwriters have otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section 7, each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Underwriter, and
each trustee of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or 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 the Underwriters or any controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Notes to the Underwriters.
Section 9. Termination of Agreement. (a) The Underwriters may terminate
this Agreement, by notice to the Company, at any time at or prior to 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 in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company or the Advisor, whether or not arising in the
ordinary course of business, which would make it, in the Underwriters'
reasonable judgment, impracticable or inadvisable to market the Notes or enforce
contracts for the sale of the Notes, (ii) if there has occurred any material
adverse change in the financial markets in the United States or any outbreak of
hostilities or escalation of existing hostilities or other calamity or crisis
the effect of which on the financial markets of the United States is such as to
make it, in the Underwriters' reasonable judgment, impracticable or inadvisable
to market the Notes or enforce contracts for the sale of the Notes, or (iii) if
trading in the Company's Common Shares has been suspended by the Commission, or
if trading generally on either the New York Stock Exchange or the American Stock
Exchange has been suspended, or minimum or maximum prices for trading
23
have been fixed, or maximum ranges for prices for securities have been required,
by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by Federal
or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 9, 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. Default. If one or more of the Underwriters shall fail at
Closing Time to purchase the Notes which it or they are obligated to purchase
under this Agreement (the "Defaulted Notes"), the Underwriters shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Notes in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Underwriters shall not have
completed such arrangements within such 24-hour period, then:
(i) if the total principal amount of Defaulted Notes does not
exceed 10% of the Initial Notes to be purchased pursuant to this
Agreement, the non-defaulting Underwriters shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(ii) if the total principal amount of Defaulted Notes exceeds 10%
of the Initial Notes to be purchased pursuant to this Agreement, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter and the Company.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Underwriters or the Company shall have the right
to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Prospectus or in any other documents or
arrangements.
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 the Underwriters in c/x Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated at World Financial Center, North Tower, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Tjarda van X. Xxxxxxx, Director; and
notices to the Company shall be directed to it at 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, President.
Section 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company 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 contained. This Agreement and all conditions and
provisions
24
hereof 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
Notes 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.
THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING THE COMPANY,
DATED JULY 1, 1994, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE
"DECLARATION"), IS DULY FILED IN THE OFFICE OF THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT THE NAME "HRPT PROPERTIES
TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES,
BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL LIABILITY,
JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE COMPANY. ALL
PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF
THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
25
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
the Underwriters and the Company in accordance with its terms.
Very truly yours,
HRPT PROPERTIES TRUST
By /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Treasurer and Chief
Financial Officer
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
X.X. XXXXXXX & SONS, INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX XXXXX XXXXXX INC.
By: XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By /s/ Xxxxxxxxx Xxxx Xxxxx
----------------------------------
Name: Xxxxxxxxx Xxxx Xxxxx
Title: Vice President
Acting on behalf of themselves and
the other named Underwriters in Schedule A
26
SCHEDULE A
Aggregate Principal
Underwriter Amount of Initial Notes
----------- -----------------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated................................... $ 16,250,000
Xxxxxxxxx, Xxxxxx and Xxxxxxxx Securities Corporation...... 16,250,000
X.X. Xxxxxxx & Sons, Inc................................... 16,250,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated....................... 16,250,000
Xxxxxx Xxxxxxx & Co. Incorporated.......................... 16,250,000
PaineWebber Incorporated................................... 16,250,000
Prudential Securities Incorporated......................... 16,250,000
Xxxxxxx Xxxxx Xxxxxx Inc................................... 16,250,000
-----------
Total.......................................... $130,000,000
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