HRPT PROPERTIES TRUST 20,000,000 SHARES CONTROLLED EQUITY OFFERINGSM SALES AGREEMENT
20,000,000
SHARES
CONTROLLED
EQUITY OFFERINGSM
December
29, 2006
CANTOR
XXXXXXXXXX & CO.
000
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
XX 00000
Ladies
and Gentlemen:
HRPT
PROPERTIES TRUST, a Maryland real estate investment trust (the “Company”),
confirms its agreement (this “Agreement”)
with
Cantor Xxxxxxxxxx & Co. (“CF&Co”),
as
follows:
1. Issuance
and Sale of Shares.
The
Company agrees that, from time to time during the term of this Agreement, on
the
terms and subject to the conditions set forth herein, it may issue and sell
through CF&Co, acting as agent and/or principal, up to twenty million shares
(the “Shares”)
of the
Company’s common shares of beneficial interest, par value $0.01 per share (the
“Common
Shares”).
Notwithstanding anything to the contrary contained herein, the parties hereto
agree that compliance with the limitation set forth in this Section
1
on the
number of Shares issued and sold under this Agreement shall be the sole
responsibility of the Company, and CF&Co shall have no obligation in
connection with such compliance. The issuance and sale of Shares through
CF&Co will be effected pursuant to the Registration Statement (as defined
below) filed by the Company with the Securities and Exchange Commission (the
“Commission”),
although nothing in this Agreement shall be construed as requiring the Company
to use the Registration Statement to issue the Shares.
The
Company has filed, in accordance with the provisions of the Securities Act
of
1933, as amended, and the rules and regulations thereunder (collectively, the
“Securities
Act”),
with
the Commission a registration statement on Form S-3 (File No. 333-135110),
including a base prospectus, relating to certain securities, including the
Shares to be issued from time to time by the Company, and which incorporates
by
reference documents that the Company has filed or will file in accordance with
the provisions of the Securities Exchange Act of 1934, as amended, and the
rules
and regulations thereunder (collectively, the “Exchange
Act”).
The
Company has prepared a prospectus supplement specifically relating to the Shares
(the “Prospectus
Supplement”)
to the
base prospectus included as part of such registration statement. The Company
has
furnished to CF&Co, for use by CF&Co, copies of the prospectus included
as part of such registration statement, as supplemented by the Prospectus
Supplement, relating to the Shares. Except where the context otherwise requires,
such registration statement, as amended when it became effective, including
all
documents filed as part thereof or incorporated by reference therein, and
including any information contained in a Prospectus (as defined
below)
subsequently
filed with the Commission pursuant to Rule 424(b) under the Securities Act
or
deemed to be a part of such registration statement pursuant to Rule 430B of
the
Securities Act, is herein called the “Registration
Statement.”
The
base prospectus, including all documents incorporated therein by reference,
included in the Registration Statement, as it may be supplemented by the
Prospectus Supplement, in the form in which such prospectus and/or Prospectus
Supplement have most recently been filed by the Company with the Commission
pursuant to Rule 424(b) under the Securities Act, together with any “issuer free
writing prospectus,” as defined in Rule 433 of the Securities Act Regulations
(“Rule
433”),
relating to the Shares that (i) is required to be filed with the Commission
by
the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in
each
case in the form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g), is herein called the “Prospectus.”
Any
reference herein to the Registration Statement, the Prospectus or any amendment
or supplement thereto shall be deemed to refer to and include the documents
incorporated by reference therein, and any reference herein to the terms
“amend,” “amendment” or “supplement” with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include the filing after
the
execution hereof of any document with the Commission deemed to be incorporated
by reference therein. For purposes of this Agreement, all references to the
Registration Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering Analysis and Retrieval System (“XXXXX”).
2. Placements.
Each
time that the Company wishes to issue and sell Shares hereunder (each, a
“Placement”),
it
will notify CF&Co by email notice (or other method mutually agreed to in
writing by the parties) containing the parameters in accordance with which
it
desires the Shares to be sold, which shall at a minimum include the number
of
Shares to be issued (the “Placement
Shares”),
the
time period during which sales are requested to be made, any limitation on
the
number of Shares that may be sold in any one day and any minimum price below
which sales may not be made (a “Placement
Notice”),
a
form of which containing such minimum sales parameters necessary is attached
hereto as Schedule
1.
The
Placement Notice shall originate from any of the individuals from the Company
set forth on Schedule
2 (with
a
copy to each of the other individuals from the Company listed on such schedule),
and shall be addressed to each of the individuals from CF&Co set forth on
Schedule
2,
as such
Schedule
2
may be
amended from time to time. The Placement Notice shall be effective upon receipt
by CF&Co unless and until (i) in accordance with the notice requirements set
forth in Section
4,
CF&Co declines to accept the terms contained therein for any reason, in its
sole discretion, (ii) the entire amount of the Placement Shares have been sold,
(iii) in accordance with the notice requirements set forth in Section
4,
the
Company suspends or terminates the Placement Notice, (iv) the Company issues
a
subsequent Placement Notice with parameters superseding those on the earlier
dated Placement Notice, or (v) the Agreement has been terminated under the
provisions of Section
11.
The
amount of any discount, commission or other compensation to be paid by the
Company to CF&Co in connection with the sale of the Placement Shares shall
be calculated in accordance with the terms set forth in Schedule
3.
It is
expressly acknowledged and agreed that neither the Company nor CF&Co will
have any obligation whatsoever with respect to a Placement or any Placement
Shares unless and until the Company delivers a Placement Notice to CF&Co and
CF&Co does not decline such Placement Notice pursuant to the terms set forth
above, and then only upon the terms specified therein and herein. In the event
of
2
a
conflict between the terms of this Agreement and the terms of a Placement
Notice, the terms of the Placement Notice will control.
3. Sale
of Placement Shares by CF&Co.
Subject
to the terms and conditions herein set forth, upon the Company’s issuance of a
Placement Notice, and unless the sale of the Placement Shares described therein
has been declined, suspended, or otherwise terminated in accordance with the
terms of this Agreement, CF&Co, for the period specified in the Placement
Notice, will use its commercially reasonable efforts consistent with its normal
trading and sales practices to sell such Placement Shares up to the amount
specified, and otherwise in accordance with the terms of such Placement Notice.
CF&Co will provide written confirmation to the Company no later than the
opening of the Trading Day (as defined below) immediately following the Trading
Day on which it has made sales of Placement Shares hereunder setting forth
the
number of Placement Shares sold on such day, the compensation payable by the
Company to CF&Co pursuant to Section
2
with
respect to such sales, and the Net Proceeds (as defined below) payable to the
Company, with an itemization of the deductions made by CF&Co (as set forth
in Section
5(a))
from
the gross proceeds that it receives from such sales. After consultation with
the
Company and subject to the terms of the Placement Notice, CF&Co may sell
Placement Shares by any method permitted by law deemed to be an “at the market”
offering as defined in Rule 415 of the Securities Act, including without
limitation sales made directly on the New York Stock Exchange (the
“Exchange”),
on
any other existing trading market for the Common Shares or to or through a
market maker. After consultation with the Company and subject to the terms
of
the Placement Notice, CF&Co may also sell Placement Shares in privately
negotiated transactions. The Company acknowledges and agrees that (i) there
can
be no assurance that CF&Co will be successful in selling Placement Shares,
and (ii) CF&Co will incur no liability or obligation to the Company or any
other person or entity if it does not sell Placement Shares for any reason
other
than a failure by CF&Co to use its commercially reasonable efforts
consistent with its normal trading and sales practices to sell such Placement
Shares as required under this Section
3.
For the
purposes hereof, “Trading
Day”
means
any day on which the Common Shares are purchased and sold on the principal
market on which the Common Shares are listed or quoted.
4. Suspension
of Sales.
The
Company or CF&Co may, upon notice to the other party in writing (including
by email correspondence to each of the individuals of the other party set forth
on Schedule
2,
if
receipt of such correspondence is actually acknowledged by any of the
individuals to whom the notice is sent, other than via auto-reply) or by
telephone (confirmed immediately by verifiable facsimile transmission or email
correspondence to each of the individuals of the other party set forth on
Schedule
2),
suspend any sale of Placement Shares; provided,
however,
that
such suspension shall not affect or impair either party’s obligations with
respect to any Placement Shares sold hereunder prior to the receipt of such
notice. Each of the parties agrees that no such notice under this Section
4
shall be
effective against the other unless it is made to one of the individuals named
on
Schedule
2
hereto,
as such Schedule may be amended from time to time.
3
5. Settlement.
(a) Settlement
of Placement Shares.
Unless
otherwise specified in the applicable Placement Notice, settlement for sales
of
Placement Shares will occur on the third (3rd)
Trading
Day (or such earlier day as is industry practice for regular-way trading)
following the date on which such sales are made (each, a “Settlement
Date”).
The
amount of proceeds to be delivered to the Company on a Settlement Date against
receipt of the Placement Shares sold (the “Net
Proceeds”)
will
be equal to the aggregate sales price received by CF&Co at which such
Placement Shares were sold, after deduction for (i) CF&Co’s commission,
discount or other compensation for such sales payable by the Company pursuant
to
Section
2
hereof,
(ii) any other amounts due and payable by the Company to CF&Co hereunder
pursuant to Section
7(h)
(Expenses) hereof, and (iii) any transaction fees imposed by any governmental
or
self-regulatory organization in respect of such sales.
(b) Delivery
of Placement Shares.
On or
before each Settlement Date, the Company will, or will cause its transfer agent
to, electronically transfer the Placement Shares being sold by crediting
CF&Co’s or its designee’s account (provided CF&Co shall have given the
Company written notice of such designee prior to the Settlement Date) at The
Depository Trust Company through its Deposit and Withdrawal at Custodian System
or by such other means of delivery as may be mutually agreed upon by the parties
hereto which in all cases shall be freely tradeable, transferable, registered
shares in good deliverable form. On each Settlement Date, CF&Co will deliver
the related Net Proceeds 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, or its transfer agent (if applicable), defaults in its obligation
to
deliver Placement Shares on a Settlement Date, 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 CF&Co
harmless against any loss, claim, damage, or expense (including reasonable
legal
fees and expenses), as incurred, arising out of or in connection with such
default by the Company and (ii) pay to CF&Co any commission, discount, or
other compensation to which it would otherwise have been entitled absent such
default.
6. Representations
and Warranties of the Company.
The
Company represents and warrants to, and agrees with, CF&Co that as of the
date of this Agreement and as of each Representation Date (as defined in
Section
7(n)
below)
on which a certificate is required to be delivered pursuant to Section
7(n)
of this
Agreement and as of each Applicable Time, as
the
case may be:
(a) The
Company satisfies all of the requirements of the Securities Act for use of
Form
S-3 for the offering of the Shares contemplated hereby. At the time of the
initial filing of the Registration Statement, at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act
or
form of prospectus), at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) of the Securities
Act)
made any offer relating to the Shares in reliance on the exemption of Rule
163
of the Securities Act and at the date hereof, the Company was and is a
“well-known seasoned issuer” as defined in Rule 405 of the Securities Act,
including not having been and not being an “ineligible issuer,” as defined in
Rule 405 of the
4
Securities
Act. The Registration Statement is an “automatic shelf registration statement,”
as defined in Rule 405 of the Securities Act, and the Shares, since their
registration on the Registration Statement, have been and remain eligible for
registration by the Company on a Rule 405 “automatic shelf registration
statement.” The Company has not received from the Commission any notice pursuant
to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic
shelf registration statement form. The Company has paid the required Commission
filing fees relating to the Shares within the time required by Rule 456(b)(1)(i)
of the Securities Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the Securities Act (including, if
applicable, by updating the “Calculation of Registration Fee” table in
accordance with Rule 456(b)(1)(ii) of the Securities Act either in a
post-effective amendment to the Registration Statement or on the cover page
of
the Prospectus).
(b) The
Registration Statement became effective upon filing under Rule 462(e) of the
Securities Act on June 19, 2006, and any post-effective amendment thereto also
became effective upon filing under Rule 462(e). No stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act and no proceedings for that purpose have been instituted or are pending
or,
to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
(c) At
the
respective times the Registration Statement and each amendment thereto became
effective, at each deemed effective date with respect to CF&Co pursuant to
Rule 430B(f)(2) of the Securities Act, as the case may be, the Registration
Statement complied and will comply in all material respects with the
requirements of the Securities Act, and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(d) Neither
any issuer free writing prospectus (as defined in Rule 433) relating to the
Shares, nor the Prospectus nor any amendments or supplements thereto, considered
together, at the time the Prospectus or any such amendment or supplement was
issued, as of the date hereof, each Applicable Time and
at
each Representation Date, as the case may be, included or will include an untrue
statement of a material fact or omitted or will 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.
(e) Each
document incorporated by reference in the Registration Statement or the
Prospectus heretofore filed, when it was filed (or, if any amendment with
respect to any such document was filed, when such amendment was filed),
conformed in all material respects with the requirements of the Exchange Act
and
the rules and regulations thereunder, and any further documents so filed and
incorporated after the date of this Agreement will, when they are filed, conform
in all material respects with the requirements of the Exchange Act and the
rules
and regulations thereunder; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such amendment
was
filed), contained an untrue statement of a material fact or omitted to state
a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made
not misleading; and no such document, when it is filed, will contain an untrue
statement of a material fact or will omit to state a material fact required
to
be stated therein or necessary in
5
order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading.
(f) Each
of
the Company and its subsidiaries is duly organized and validly existing in
good
standing under the laws of the state of its incorporation or organization with
full corporate, partnership or entity power and authority, as the case may
be,
to own, lease and operate its properties and to conduct its business as
presently conducted and as described in the Prospectus and is duly registered
and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of
its
business requires such registration or qualification, except where the failure
to so register or qualify would not have a material adverse effect on the
condition (financial or other), business, properties, results of operations
or
prospects of the Company and its subsidiaries, taken as a whole (a “Material
Adverse Effect”).
(g) 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, except as to subsidiaries that are partnerships, non-assessable, and,
except as disclosed in the Prospectus, are or will be owned, directly or
indirectly, by the Company free and clear of any security interest, claim,
lien,
encumbrance or adverse interest of any nature. The Company does not own or
control, directly or through subsidiaries, any corporation, association or
other
entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s
Annual Report on Form 10-K for the most recently ended fiscal year and
other than (i) those subsidiaries not required to be listed on
Exhibit 21.1 by Item 601 of Regulation S-K under the Exchange Act and
(ii) those subsidiaries formed since the last day of the most recently
ended fiscal year.
(h) Except
as
described in the Prospectus, there is no litigation, action, suit, or proceeding
by or before any court or governmental or other regulatory or administrative
agency or commission pending or, to the Company’s knowledge, threatened, to
which the Company or any of its subsidiaries is a party before any court or
governmental agency or body, which might individually or in the aggregate
prevent or adversely affect the consummation of this Agreement or the issuance,
purchase and sale of the Shares or result in a Material Adverse Effect, nor
to
the Company's knowledge, is there any basis for any such litigation, action,
suit, or proceeding.
(i) There
are
no agreements, contracts, indentures, leases or other instruments that are
required to be described in the Prospectus or to be filed as an exhibit to
the
Registration Statement that are not described, filed or incorporated by
reference in the Registration Statement and the Prospectus as required by the
Securities Act. All such contracts to which the Company or any of its
subsidiaries is a party have been duly authorized, executed and delivered by
the
Company or the applicable subsidiary, constitute valid and binding agreements
of
the Company or the applicable subsidiary and are enforceable against the Company
or the applicable subsidiary in accordance with the terms thereof, except as
enforceability thereof may be limited by (i) the application of bankruptcy,
reorganization, insolvency and other laws affecting creditors' rights generally
and (ii) equitable principles being applied at the discretion of a court before
which any proceeding may be brought (regardless of whether enforcement is sought
in a proceeding in equity or at law). Neither the Company nor the applicable
subsidiary has received
6
notice
that any other party is in breach of or default to the Company or its
subsidiaries under any of such contracts.
(j) Neither
the Company nor any of its subsidiaries is (i) in violation of (A) its
Organizational Documents, (B) to the Company's knowledge any law, ordinance,
administrative or governmental rule or regulation applicable to the Company
or
any of its subsidiaries, the violation of which would have a Material Adverse
Effect or (C) any decree of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries; or (ii) except as
disclosed in the Prospectus, in default in any material respect in the
performance of any obligation, agreement or condition contained in (A) any
bond,
debenture, note or any other evidence of indebtedness or (B) any agreement,
indenture, lease or other instrument (each of (A) and (B), an “Existing
Instrument”)
to
which the Company or any of its subsidiaries is a party or by which any of
their
properties may be bound, which default would have a Material Adverse Effect;
and
there does not exist any state of facts that constitutes a default or an event
of default on the part of the Company or any of its subsidiaries as defined
in
such documents or that, with notice or lapse of time or both, would constitute
such a default or event of default which would have a Material Adverse
Effect.
(k) The
Company has full legal right, power and authority to enter into and perform
this
Agreement and to consummate the transactions contemplated herein, including
the
issuance, sale and delivery of the Shares as provided herein. This Agreement
has
been duly authorized, executed and delivered by the Company and constitutes
a
valid and legally binding agreement of the Company and is enforceable against
the Company in accordance with its terms, except to the extent enforceability
may be limited by (i) the application of bankruptcy, reorganization, insolvency
and other laws affecting creditors' rights generally and (ii) equitable
principles being applied at the discretion of a court before which any
proceeding may be brought (regardless of whether enforcement is sought in a
proceeding in equity or at law), and except as rights to indemnity and
contribution hereunder may be limited by federal or state securities
laws.
(l) No
consent, approval, authorization, order, license, certificate, permit,
registration, designation or filing by, with or from any governmental agency
or
body 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 by the Company of its obligations under this Agreement and
the
consummation by the Company of the transactions contemplated hereby, including
the valid authorization, issuance, sale and delivery of the Shares pursuant
to
the Agreement, except such as have been obtained or made and such as may be
required by the Exchange and the securities or Blue Sky or real estate
syndication laws of the various states in connection with the offer and sale
of
the Shares, all of which will be, or have been effected, in accordance with
this
Agreement.
(m) Neither
the issuance and sale of the Shares by the Company, the execution, delivery
or
performance of this Agreement by the Company nor the consummation by the Company
of the transactions contemplated hereby (i) conflicts with or will conflict
with
or constitutes or will constitute a breach of, or a default under, the
declaration of trust, as amended and supplemented, or the by-laws, as amended,
of the Company or the Organizational
7
Documents
of any subsidiary of the Company, or any Existing Instrument to which the
Company or any of its subsidiaries is a party or by which any of its or their
properties may be bound, (ii) violates any statute, law, regulation, ruling,
filing, judgment, injunction, order or decree applicable to the Company or
any
of its subsidiaries or any of their properties, or (iii)
results
in a Debt Repayment Triggering Event (as defined below) under, or results in
the
creation or imposition of any lien, charge or encumbrance upon any property
or
assets of the Company or any of its subsidiaries pursuant to, or requires the
consent of any other party to, any Existing Instrument, except for such
conflicts, breaches, defaults, violations, liens, charges or encumbrances that
will not, individually or in the aggregate, result in a Material Adverse Effect.
As used herein, a “Debt
Repayment Triggering Event”
means
any event or condition that gives, or with the giving of notice or lapse of
time
would give, the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness
by
the Company or any of its subsidiaries prior to the stated maturity date
thereof.
(n) All
of the outstanding shares of beneficial interest of the Company have been duly
authorized and are validly issued, fully paid, non-assessable (except as
otherwise described in the Prospectus) and free of preemptive or similar rights
or other rights to subscribe for or to purchase securities provided for by
law
or by the declaration
of trust, as amended and supplemented or the by-laws, as amended, of the
Company;
the Shares to be issued and sold pursuant to this Agreement have been duly
authorized and, when issued and delivered against payment therefor as provided
hereunder, will have been validly issued and will be fully paid, non-assessable
(except as otherwise described in the Prospectus) and free of preemptive or
similar rights; all outstanding Common Shares, except for shares issued pursuant
to the Company’s incentive share award plans and shares issued to the Company’s
external manager, Reit Management & Research LLC (the “Manager”)
and its affiliates, are listed on the Exchange and the Company knows of no
reason or set of facts which is likely to result in the delisting of such Common
Shares or the inability to list the Shares; and there are no rights of holders
of securities of the Company to the registration of Common Shares or other
securities that would require inclusion of such Common Shares or other
securities in the offering of the Shares.
(o) Ernst
& Young LLP, the accounting firm that has certified the audited financial
statements (including the related notes thereto and supporting schedules) of
the
Company and its subsidiaries incorporated by reference in the Registration
Statement and the Prospectus, is and was, during the periods covered by its
reports incorporated by reference in the Registration Statement and the
Prospectus, an independent registered public accounting firm as required by
the
Securities Act, the Exchange Act and the Public Company Accounting Oversight
Board in the United States (“PCAOB”).
(p) 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 the Prospectus, comply as to form in all material
respects with the requirements of the Securities 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
8
dates
or
for the respective periods therein specified and have been prepared in
accordance with GAAP consistently applied throughout the periods involved.
(q) Except
as disclosed in the Prospectus, subsequent to the respective dates as of which
such information is given in the Registration Statement and the Prospectus,
(i)
there has been no Material Adverse Effect or any development that may reasonably
be expected to result in a Material Adverse Effect, (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 have incurred any material
liabilities or obligations, direct or contingent, (iv) the Company and its
subsidiaries, on a consolidated basis, have not, other than regular quarterly
dividends, declared, paid or made a material 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), (v) the Company
is
not in default under the terms of any class of capital shares of the Company
or
any outstanding debt obligations, if any, which would result in a Material
Adverse Effect, (vi) there has not been any change in the authorized or
outstanding capital stock of the Company (other than the issuance of Common
Shares to the trustees and officers of the Company and the directors, officers
and employees of the Manager, pursuant to the Company’s incentive share award
plans, and the issuance of Common Shares to the Manager in payment of its
incentive fee) and (vii) there has no been any material increase in the
short-term or long-term debt (including capitalized lease obligations but
excluding borrowings under existing or future bank lines of credit) of the
Company and its subsidiaries, on a consolidated basis.
(r) The
Company has not distributed and will not distribute any offering material in
connection with the offering and sale of the Shares to be sold hereunder by
CF&Co as principal or agent for the Company, other than the Prospectus and
the Registration Statement.
(s) The
Company has not taken and will not take prior to the later of the termination
of
this Agreement or the Settlement Date of the last sale of any Placement Shares
hereunder, directly or indirectly, any action that is not permitted under
Section 7(q) hereof.
(t) The
Company and each of its subsidiaries have filed all material tax returns
required to be filed other than those being contested in good faith (and other
than certain state or local tax returns, as to which the failure to file,
individually or in the aggregate, would not have a Material Adverse Effect),
and
neither the Company nor any subsidiary is in default in the payment of any
material taxes that were payable pursuant to said returns or any assessments
with respect thereto other than those being contested in good faith and for
which adequate reserves have been provided.
(u) Except
as
set forth in the Prospectus, there are no transactions with “affiliates” (as
defined in Rule 405 promulgated under the Securities Act) or any officer,
director, trustee or security holder of the Company (whether or not an
affiliate) that are required by the Securities Act to be disclosed in the
Prospectus that have not been disclosed as required. Additionally, no
relationship, direct or indirect, exists between the Company or any of its
subsidiaries on the one
9
hand,
and
the directors, trustees, officers, stockholders, customers or suppliers of
the
Company or any subsidiary on the other hand that is required by the Securities
Act to be disclosed in the Prospectus that is not so disclosed. Except as
disclosed 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.
(v) None
of
the Company nor any of its subsidiaries is an “investment company”, a company
“controlled” by an “investment company” or an “affiliated person” of, or
“promoter” or “principal underwriter” for, an investment company within the
meaning of the Investment Company Act of 1940, as amended, or an “investment
advisor” as such term is defined in the Investment Advisers Xxx 0000, as
amended.
(w) Except
as
otherwise disclosed in the Prospectus, the Company and each of its subsidiaries
have good and marketable fee or leasehold title to all real properties described
in the Prospectus as being owned or leased by them, free and clear of all liens,
claims, encumbrances and restrictions, except liens for taxes not yet due and
payable and other liens, claims, encumbrances and restrictions which do not,
either individually or in the aggregate, have a Material Adverse Effect. Except
as otherwise set forth in the Prospectus, all leases to which the Company and
each of its subsidiaries is a party which are material to the business of the
Company and its subsidiaries, taken as a whole, are valid and binding. Except
as
otherwise set forth in the Prospectus, no default under any such lease by the
Company or any subsidiary of the Company or, to the Company's knowledge, any
tenant has occurred and is continuing which default would, individually or
in
the aggregate, have a Material Adverse Effect. 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 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.
(x)
The
Company has established and maintains disclosure controls and other procedures
(as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act)
that
(a) are designed to ensure that material information relating to the Company,
including its consolidated subsidiaries, is made known to the Company’s Chief
Executive Officer and Chief Financial Officer (or persons performing similar
functions) by others within those entities particularly during the periods
in
which the filings made by the Company with the Commission which it may make
under Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act are being prepared,
(b)
have been evaluated for effectiveness as of the end of the period covered by
the
Company’s most recent Annual Report on Form 10-K filed with the Commission, (c)
are effective to perform the functions for which they were established and
(d)
the principal executive officers (or their equivalents) and principal financial
officers (or their equivalents) of the Company have made all certifications
required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 and any
related rules and regulations promulgated by the Commission, and the statements
contained in
10
any
such
certification were correct when made. The Company’s accountants and the audit
committee of the board of trustees of the Company have been advised of (x)
any
significant deficiencies in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the
Company’s ability to record, process, summarize, and report financial data and
(y) any fraud, whether or not material, that involves management or other
employees who have a role in the Company’s internal control over financial
reporting. Since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in the Company’s
internal control over financial reporting or in other factors that have
materially affected or are reasonably likely to materially affect the Company’s
internal control over financial reporting.
(y)
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.
(z) Except
as
otherwise set forth in the Prospectus, to the Company’s knowledge, after due
investigation (i) the Company and its subsidiaries have been and are in
compliance in all material respects with, and neither the Company nor its
subsidiaries have any liability under, applicable Environmental Laws (as
hereinafter defined) except for such non-compliance or liability which would
not
have a Material Adverse Effect; (ii) neither the Company nor any of its
subsidiaries has received any written notice of, or has any knowledge of any
occurrence or circumstance which, with notice or passage of time or both, would
give rise to a claim under or pursuant to any Environmental Law by any
governmental or quasi-governmental body or any third party with respect to
the
real properties or the assets of the Company or its subsidiaries or arising
out
of their conduct, except for such claims that would not be reasonably likely
to
cause the Company or its subsidiaries to incur liability which is material
to
the Company and its subsidiaries, taken as a whole and that would not be
required to be disclosed in the Prospectus; (iii) none of the real properties
owned by the Company or its subsidiaries is included or proposed for inclusion
on the National Priorities List issued pursuant to CERCLA (as defined below)
by
the United States Environmental Protection Agency (the “EPA”) or on any similar
list or inventory issued by any other federal, state or local governmental
authority having or claiming jurisdiction over such properties pursuant to
any
other Environmental Law other than such inclusions or proposed inclusions as
would not be reasonably likely to cause the Company or its subsidiaries to
incur
liability which is material to the Company and its subsidiaries taken as a
whole. As used herein, “Hazardous Material” shall include, without limitation,
any flammable explosives, radioactive materials, chemicals, hazardous wastes,
toxic substances, petroleum or petroleum products, asbestos-containing
materials, mold or any hazardous material as defined by any federal, state
or
local law, ordinance, rule or regulation relating to the protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater,
11
land
surface or subsurface strata) or wildlife, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as
amended, 42 U.S.C. Secs. 9601-9675 (“CERCLA”), the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Secs. 5101-5127, the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Secs. 6901-6992k, the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Secs.
11001-11050, the Toxic Substances Control Act, 15 U.S.C. Secs. 2601-2671, the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Secs. 136-136y,
the
Clean Air Act, 42 U.S.C. Secs. 7401-7642, the Clean Water Act (Federal Water
Pollution Control Act), 33 U.S.C. Secs. 1251-1387, and the Safe Drinking Water
Act, 42 U.S.C. Secs. 300f-300j-26, as any of the above statutes may be amended
from time to time, and the regulations promulgated pursuant to any of the
foregoing (individually, an “Environmental Law” and collectively “Environmental
Laws”).
(aa) 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 permits as to which the failure to own
or
possess will not in the aggregate have a Material Adverse Effect. All such
permits are in full force and effect and each of the Company and its
subsidiaries is in compliance with the terms and conditions of all such permits,
except where the invalidity of such permits or the failure of such permits
to be
in full force and effect or the failure to comply with such permits will not
have a Material Adverse Effect. Neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any permit which, singly or in the aggregate, if the subject
of
an unfavorable decision, ruling or finding, would have a Material Adverse
Effect.
(bb) The
Company has been organized and has operated in conformity with the requirements
for qualification and taxation as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the “Code”)
for its
taxable years ended December 31, 1987 through December 31, 2005, and the
Company's current and proposed method of operation will enable it to continue
to
meet the requirements for taxation as a real estate investment trust under
the
Code for its taxable year ending December 31, 2006 and in the future. The
subsidiaries of the Company that are partnerships have been and will continue
to
be treated as partnerships or disregarded entities for federal income tax
purposes and not as corporations, associations taxable as corporations or as
publicly traded partnerships.
(cc) The
Company and its subsidiaries own, or possess adequate rights to use each
material trade name, trademark, service xxxx, patent, copyright, approval,
trade
secret and other similar rights (collectively “Intellectual
Property”)
necessary for the Company and its subsidiaries to conduct their respective
businesses as described in the Registration Statement and 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 Intellectual Property (other than conflicts or infringements that, if
proven, would not have a Material Adverse Effect), and neither the Company
nor
any of its subsidiaries knows of any basis therefor.
12
(dd) The
Company and its subsidiaries maintain insurance with insurers of recognized
financial responsibility against such losses and risks and in such amounts
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 of its subsidiaries has 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 have a Material Adverse Effect,
except as disclosed in the Prospectus.
(ee) Except
as
referred to or described 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, association or other entity
other than the issued capital shares of or interests in 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
or interests in its subsidiaries, except in each case for non-controlling
positions acquired in the ordinary course of business.
(ff) Except
as
otherwise disclosed in the Prospectus, subsequent to 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 the Manager, whether or not arising in the ordinary
course of business, that would have a Material Adverse Effect. The Advisory
Agreement, dated as of January 1, 1998 as amended by Amendment No. 1 thereto,
dated as of October 12, 1999, and Amendment No. 2 thereto, dated as of March
10,
2004 (the “Advisory Agreement”), between the Company and the Manager, each 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).
(gg)
Other
than this Agreement, there are no contracts, agreements or understandings
between the Company or any of its subsidiaries and any person that would give
rise to a valid claim against the Company or any of its subsidiaries or
CF&Co for a brokerage commission, finder’s fee or other like payment with
respect to the consummation of the transactions contemplated by this
Agreement.
(hh) The
Company does not have any material liabilities under the Employee Retirement
Income Security Act of 1974, as amended, or Section 4975 of the
Code.
(ii) The
Company acknowledges and agrees that CF&Co has informed the Company that
CF&Co may, to the extent permitted under the
Securities Act
and the
Exchange Act, purchase and sell Common Shares for its own account while this
Agreement is in effect and (ii) the Company shall not be deemed to have
authorized or consented to any such purchases or sales by
CF&Co.
13
(jj) Any
certificate signed by an officer of the Company and delivered to CF&Co or to
counsel for CF&Co shall be deemed to be a representation and warranty by the
Company to CF&Co as to the matters set forth therein.
(kk) The
Company acknowledges that CF&Co and, for purposes of the opinions to be
delivered pursuant to Section
7
hereof,
counsel to the Company and counsel to CF&Co, will rely upon the accuracy and
truthfulness of the foregoing representations and hereby consents to such
reliance.
7. Covenants
of the Company.
The
Company covenants and agrees with CF&Co that:
(a) Registration
Statement Amendments; Payment of Fees.
After
the date of this Agreement and during any period in which the Prospectus
relating to any Placement Shares is required to be delivered by CF&Co under
the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act), (i) the
Company will notify CF&Co promptly of the time when any subsequent amendment
to the Registration Statement, other than documents incorporated by reference,
has been filed with the Commission and/or has become effective or any subsequent
supplement to the Prospectus has been filed and of any comment letter from
the
Commission or any request by the Commission for any amendment or supplement
to
the Registration Statement or Prospectus or for additional information, (ii)
the
Company will prepare and file with the Commission, promptly upon CF&Co’s
request, any amendments or supplements to the Registration Statement or
Prospectus that, in CF&Co’s reasonable opinion, may be necessary or
advisable in connection with the distribution of the Placement Shares by
CF&Co (provided,
however,
that
the failure of CF&Co to make such request shall not relieve the Company of
any obligation or liability hereunder, or affect CF&Co’s right to rely on
the representations and warranties made by the Company in this Agreement);
(iii)
the Company will not file any amendment or supplement to the Registration
Statement or Prospectus, other than documents incorporated by reference,
relating to the Placement Shares or a security convertible into the Placement
Shares unless a copy thereof has been submitted to CF&Co within a reasonable
period of time before the filing and CF&Co has not reasonably objected
thereto (provided,
however,
that
the failure of CF&Co to make such objection shall not relieve the Company of
any obligation or liability hereunder, or affect CF&Co’s right to rely on
the representations and warranties made by the Company in this Agreement) and
the Company will furnish to CF&Co at the time of filing thereof a copy of
any document that upon filing is deemed to be incorporated by reference into
the
Registration Statement or Prospectus, except for those documents available
via
XXXXX; and (iv) the Company will cause each amendment or supplement to the
Prospectus, other than documents incorporated by reference, to be filed with
the
Commission as required pursuant to the applicable paragraph of Rule 424(b)
of
the Securities Act (without reliance on Rule 424(b)(8) of the Securities
Act).
(b) Notice
of Commission Stop Orders.
The
Company will advise CF&Co, promptly after it receives notice or obtains
knowledge thereof, of the issuance or threatened issuance by the Commission
of
any stop order suspending the effectiveness of the Registration Statement or
any
other order preventing or suspending the use of the Prospectus, of the
suspension of the qualification of the Placement Shares for offering or sale
in
any jurisdiction, or of the initiation
14
or
threatening of any proceeding for any such purpose or any examination pursuant
to Section 8(e) of the Securities Act, or if the Company becomes the subject
of
a proceeding under Section 8A of the Securities Act in connection with the
offering of the Shares; and it will promptly use its commercially reasonable
efforts to prevent the issuance of any stop or other order or to obtain its
withdrawal if such a stop or other order should be issued.
(c) Delivery
of Prospectus; Subsequent Changes.
During
any period in which the Prospectus relating to the Placement Shares is required
to be delivered by CF&Co under the Securities Act with respect to a pending
sale of the Placement Shares (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), the Company
will comply with all requirements imposed upon it by the Securities Act, as
from
time to time in force, and to file on or before their respective due dates
all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d)
or any other provision of or under the Exchange Act. If during such period
any
event occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is necessary to
amend
or supplement the Registration Statement or the Prospectus to comply with the
Securities Act, the Company will promptly notify CF&Co to suspend the
offering of Placement Shares during such period and the Company will promptly
amend or supplement, or file a free writing prospectus applicable to, the
Registration Statement or the Prospectus (at the expense of the Company) so
as
to correct such statement or omission or effect such compliance.
(d) Listing
of Placement Shares.
During
any period in which the Prospectus relating to the Placement Shares is required
to be delivered by CF&Co under the Securities Act with respect to a pending
sale of the Placement Shares (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), the Company
will use its commercially reasonable efforts to cause the Placement Shares
to be
listed on the Exchange and will cooperate with CF&Co to qualify the
Placement Shares for sale under the securities laws of such jurisdictions in
the
United States as CF&Co reasonably designates and to continue such
qualifications in effect so long as required for the distribution of the
Placement Shares; provided,
however,
that the
Company shall not be required in connection therewith to qualify as a foreign
entity or dealer in securities or file a general consent to service of process
in any jurisdiction.
(e) Filings
with the Exchange.
The
Company will timely file with the Exchange all documents and notices required
by
the Exchange of companies that have or will issue securities that are traded
on
the Exchange.
(f) Delivery
of Registration Statement and Prospectus.
The
Company will furnish to CF&Co and its counsel (at the expense of the
Company) copies of the Registration Statement, the Prospectus (including all
documents incorporated by reference therein) and all amendments and supplements
to the Registration Statement or the Prospectus that are filed with the
Commission during any period in which the Prospectus relating to the Placement
Shares is required to be delivered under the Securities Act (including all
documents filed with the Commission during such period that are deemed to be
incorporated by reference therein), in each
15
case
as
soon as reasonably practicable and in such quantities as CF&Co may from time
to time reasonably request and, at CF&Co’s request, will also furnish copies
of the Prospectus to each exchange or market on which sales of the Placement
Shares may be made, provided however, that the Company shall not be required
to
furnish any document (other than the Prospectus) to CF&Co to the extent such
document is available on XXXXX. The copies of the Registration Statement and
the
Prospectus and any supplements or amendments thereto furnished to CF&Co will
be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(g) Earnings
Statement.
The
Company will make generally available to its security holders as soon as
reasonably practicable, but in any event not later than 15 months after the
end
of the Company’s current fiscal quarter, an earnings statement covering a
12-month period that satisfies the provisions of Section 11(a) and Rule 158
of
the Securities Act. “Earnings statement” and “make generally available” will
have the meanings contained in Rule 158 under the Securities Act.
(h) Expenses.
The
Company, whether or not the transactions contemplated hereunder are consummated
or this Agreement is terminated, in accordance with the provisions of Section
11
hereunder, will pay all expenses incident to the performance of its obligations
hereunder, including, but not limited to, expenses relating to (i) the
preparation, printing and filing of the Registration Statement and each
amendment and supplement thereto, of the Prospectus and of each amendment and
supplement thereto, (ii) the preparation, issuance and delivery of the Placement
Shares, (iii) the qualification of the Placement Shares under securities laws
in
accordance with the provisions of Section
7(d)
of this
Agreement, including filing fees, (iv) the printing and delivery to CF&Co of
copies of the Prospectus and any amendments or supplements thereto, and of
this
Agreement, (v) the fees and expenses incurred in connection with the listing
or
qualification of the Placement Shares for trading on the Exchange, and (vi)
filing fees and expenses, if any, of the Commission and the NASD Corporate
Financing Department.
(i) Use
of
Proceeds.
The
Company will apply the net proceeds from the sale of the Shares to be sold
by it
hereunder in accordance in all material respects with the statements under
the
caption “Use of Proceeds” in the Prospectus.
(j) Notice
of Other Sales.
During
the pendency of any Placement Notice given hereunder, the Company shall provide
CF&Co notice as promptly as reasonably possible before it offers to sell,
contracts to sell, sells, grants any option to sell or otherwise disposes of
any
Common Shares (other than Placement Shares offered pursuant to the provisions
of
this Agreement) or securities convertible into or exchangeable for Common
Shares, warrants or any rights to purchase or acquire Common Shares;
provided,
that
such notice shall not be required in connection with the (i) issuance, grant
or
sale of Common Shares, options to purchase Common Shares or Common Shares upon
the exercise of options or other equity awards pursuant to the any stock option,
stock bonus or other stock plan or arrangement then in effect or which the
Company may from time to time adopt provided the implementation of such is
disclosed to CF&Co in advance,
(ii)
the
issuance of securities in connection with an acquisition, merger or sale or
purchase of assets described in the Prospectus, (iii) any Common Shares issuable
upon the exchange, conversion, exercise or redemption of or with respect to
securities of the Company or rights now or hereafter in effect or outstanding;
or (iv) the issuance or sale of Common Shares
16
pursuant
to any dividend reinvestment plan that the Company may adopt from time to time
provided the implementation of such is disclosed to CF&Co in
advance.
(k) Change
of Circumstances.
The
Company will, at any time during a fiscal quarter in which the Company tenders
a
Placement Notice or sells Placement Shares, advise CF&Co as promptly as
reasonably possible prior to the delivery of such Placement Notice, of any
information or fact that would alter or affect in any material respect any
opinion, certificate, letter or other document provided to CF&Co pursuant to
this Agreement.
(l) Due
Diligence Cooperation.
The
Company and the Manager will cooperate with any reasonable due diligence review
conducted by CF&Co or its agents in connection with the transactions
contemplated hereby, including, without limitation, providing information and
making available documents and senior officers, upon reasonable notice during
regular business hours and at the Company’s principal offices, as CF&Co may
reasonably request.
(m) Required
Filings Relating to Placement of Placement Shares.
The
Company agrees that on such dates as the Securities Act shall require, the
Company will (i) file a prospectus supplement with the Commission under the
applicable paragraph of Rule 424(b) under the Securities Act, which prospectus
supplement will set forth, within the relevant period, the amount of Placement
Shares sold through CF&Co, the Net Proceeds to the Company and the
compensation payable by the Company to CF&Co with respect to such Placement
Shares, and (ii) deliver such number of copies of each such prospectus
supplement to each exchange or market on which such sales were effected as
may
be required by the rules or regulations of such exchange or market.
(n) Representation
Dates; Certificate.
On or
prior to the date that the first Shares are sold pursuant to the terms of this
Agreement and each time the Company (i) files the Prospectus relating to the
Placement Shares or amends or supplements the Registration Statement or the
Prospectus relating to the Placement Shares (other than a prospectus supplement
filed in accordance with Section
7(m)
of this
Agreement) by means of a post-effective amendment, sticker, or supplement but
not by means of incorporation of documents by reference to the Registration
Statement or the Prospectus relating to the Placement Shares; (ii) files an
annual report on Form 10-K under the Exchange Act; (iii) files its quarterly
reports on Form 10-Q under the Exchange Act; or (iv) files a report on Form
8-K
containing amended financial information (other than an earnings release, to
“furnish” information pursuant to Items 2.02 or 7.01 of Form 8-K or to provide
disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassifications
of certain properties as discontinued operations in accordance with Statement
of
Financial Accounting Standards No. 144) under the Exchange Act (each date of
filing of one or more of the documents referred to in clauses (i) through (iv)
shall be a "Representation
Date");
the
Company shall furnish CF&Co with a certificate, in the form attached hereto
as Exhibit
7(n)
within
three (3) Trading Days of any Representation Date if requested by CF&Co. The
requirement to provide a certificate under this Section
7(n)
is
hereby waived for any Representation Date occurring at a time at which no
Placement Notice is pending, which waiver shall continue until the earlier
to
occur of the date the Company delivers a Placement Notice hereunder (which
for
such calendar quarter shall be considered a Representation Date) and the next
occurring Representation Date; provided,
however,
that
such waiver shall not apply for any Representation Date on which the Company
files its annual report on Form 10-K.
17
Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares
following a Representation Date when the Company relied on such waiver and
did
not provide CF&Co with a certificate under this Section
7(n),
then
before the Company delivers the Placement Notice or CF&Co sells any
Placement Shares, the Company shall provide CF&Co with a certificate, in the
form attached hereto as Exhibit
7(n),
dated
the date of the Placement Notice.
(o) Legal
Opinion.
On or
prior to the date that the first Shares are sold pursuant to the terms of this
Agreement and within three (3) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate in the form
attached hereto as Exhibit
7(n)
for
which no waiver is applicable, the Company shall cause to be furnished to
CF&Co a written opinion of each of Xxxxxxxx & Worcester LLP
(“Company
Counsel”)
and
Xxxxxxx LLP, special Maryland counsel for the Company (“Special
Maryland Counsel”),
or
other counsel satisfactory to CF&Co, in form and substance satisfactory to
CF&Co and its counsel, dated the date that the opinions are required to be
delivered, substantially similar to the form attached hereto as Exhibit
7(o)(1)(a)
and
Exhibit 7(o)(1)(b),
respectively, modified, as necessary, to relate to the Registration Statement
and the Prospectus as then amended or supplemented; provided,
however,
that in
lieu of such opinions for subsequent Representation Dates, counsel may furnish
CF&Co with a letter (a “Reliance
Letter”)
to the
effect that CF&Co may rely on a prior opinion delivered under this
Section
7(o)
to the
same extent as if it were dated the date of such letter (except that statements
in such prior opinion shall be deemed to relate to the Registration Statement
and the Prospectus as amended or supplemented at such Representation Date).
(p) Comfort
Letter.
On or
prior to the date that the first Shares are sold pursuant to the terms of this
Agreement and within five (5) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate in the form
attached hereto as Exhibit
7(n)
for
which no waiver is applicable, the Company shall cause its independent
accountants (and any other independent accountants whose report is included
in
the Registration Statement or the Prospectus) to furnish CF&Co letters (the
“Comfort
Letters”),
dated
the date of the Comfort Letter is delivered, in form and substance satisfactory
to CF&Co, (i) confirming that they are an independent registered public
accounting firm within the meaning of the Securities Act, the Exchange Act
and
the PCAOB, (ii) stating, as of such date, the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to underwriters in connection with
registered public offerings (the first such letter, the “Initial
Comfort Letter”)
and
(iii) updating the Initial Comfort Letter with any information that would have
been included in the Initial Comfort Letter had it been given on such date
and
modified as necessary to relate to the Registration Statement and the
Prospectus, as amended and supplemented to the date of such letter.
(q) Market
Activities.
The
Company will not, directly or indirectly, (i) take any action designed to cause
or result in, or that constitutes or might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the Company
to
facilitate the sale or resale of the Shares or (ii) sell, bid for, or purchase
the Shares to be issued and sold pursuant to this Agreement, or pay anyone
any
compensation for soliciting purchases of the Shares to be issued and sold
pursuant to this Agreement other than CF&Co; provided,
18
however,
that the Company may bid for and purchase its Common Shares and other capital
shares in accordance with Rule 10b-18 under the Exchange Act.
(r) REIT
Treatment.
The
Company currently intends to continue to elect to qualify as a real estate
investment trust under the Code and will use all reasonable efforts to continue
to meet the requirements to so qualify for subsequent tax years that include
any
portion of the term of this Agreement.
(s) Investment
Company Act.
The
Company will conduct its affairs in such a manner so as to reasonably ensure
that neither it nor its subsidiaries will be or become, at any time prior to
the
termination of this Agreement, an “investment company,” as such term is defined
in the Investment Company Act, assuming no change in the Commission’s current
interpretation as to entities that are not considered an investment
company.
(t) Securities
Act and Exchange Act.
The
Company will use its best efforts to comply with all requirements imposed upon
it by the Securities Act and the Exchange Act as from time to time in force,
so
far as necessary to permit the continuance of sales of, or dealings in, the
Placement Shares as contemplated by the provisions hereof and the
Prospectus.
(u) No
Offer to Sell.
Other
than a free writing prospectus (as defined in Rule 405 under the Securities
Act)
approved in advance by the Company and CF&Co in its capacity as principal or
agent hereunder, neither CF&Co nor the Company (including its agents and
representatives, other than CF&Co in its capacity as such) will, directly or
indirectly, make, use, prepare, authorize, approve or refer to any free writing
prospectus relating to the Shares to be sold by CF&Co as principal or agent
hereunder.
8. Conditions
to CF&Co’s Obligations.
The
obligations of CF&Co hereunder with respect to a Placement will be subject
to the continuing accuracy and completeness of the representations and
warranties made by the Company herein, to the due performance by the Company
of
obligations hereunder, to the completion by CF&Co of a due diligence review
satisfactory to CF&Co in its reasonable judgment, and to the continuing
satisfaction (or waiver by CF&Co in its sole discretion) of the following
additional conditions:
(a) Registration
Statement Effective.
The
Registration Statement shall be effective and shall be available for (i) all
sales of Placement Shares issued pursuant to all prior Placement Notices and
(ii) the sale of all Placement Shares contemplated to be issued by any Placement
Notice.
(b) No
Material Notices.
None of
the following events shall have occurred and be continuing: (i) receipt by
the
Company or any of its subsidiaries of any request for additional information
from the Commission or any other federal or state governmental authority during
the period of effectiveness of the Registration Statement, the response to
which
would require any post-effective amendments or supplements to the Registration
Statement or the Prospectus; (ii) the issuance by the Commission or any
other federal or state governmental authority of any stop order suspending
the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose; (iii) receipt by the Company of any notification with respect
to the suspension of the qualification or exemption from qualification of any
of
the Placement Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
19
(iv)
the
occurrence of any event that makes any material statement made in the
Registration Statement or the Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that
requires the making of any changes in the Registration Statement, related
Prospectus or such documents so that, in the case of the Registration Statement,
it will not contain any materially 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, that in the case of the Prospectus,
it will not contain any materially 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, in the light of the circumstances under which they
were
made, not misleading.
(c) No
Misstatement or Material Omission.
CF&Co shall not have advised the Company that the Registration Statement or
the Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact that in CF&Co’s reasonable opinion is material, or omits
to state a fact that in CF&Co’s opinion is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
(d) Material
Changes.
Except
as disclosed in the Prospectus, there shall not have been any material adverse
change, on a consolidated basis, in the authorized equity or long-term debt
of
the Company or any Material Adverse Effect, or any development that could
reasonably be expected to cause a Material Adverse Effect, or any downgrading
in
or withdrawal of the rating assigned to any of the Company’s securities (other
than asset backed securities) by any rating organization or a public
announcement by any rating organization that it has under surveillance or review
its rating of any of the Company’s securities (other than asset backed
securities), the effect of which, in the case of any such action by a rating
organization described above, in the reasonable judgment of CF&Co (without
relieving the Company of any obligation or liability it may otherwise have),
is
so material as to make it impracticable or inadvisable to proceed with the
offering of the Placement Shares on the terms and in the manner contemplated
in
the Prospectus.
(e) Legal
Opinion.
CF&Co shall have received the opinions of Company Counsel and Special
Maryland Counsel required to be delivered pursuant Section
7(o)
on or
before the date on which such delivery of such opinion is required pursuant
to
Section
7(o).
(f) Comfort
Letter.
CF&Co shall have received the Comfort Letter required to be delivered
pursuant Section
7(p)
on or
before the date on which such delivery of such Comfort Letter is required
pursuant to Section
7(p).
(g) Representation
Certificate.
CF&Co shall have received the certificate required to be delivered pursuant
to Section 7(n)
on or
before the date on which delivery of such certificate is required pursuant
to
Section
7(n).
(h) No
Suspension.
Trading
in the Common Shares shall not have been suspended on the Exchange.
(i) Other
Materials.
On each
date on which the Company is required to deliver a certificate pursuant to
Section
7(n),
the
Company shall have furnished to CF&Co such appropriate further information,
certificates and documents as CF&Co may have reasonably
20
requested.
All such opinions, certificates, letters and other documents shall have been
in
compliance with the provisions hereof. The Company shall have furnished
CF&Co with such conformed copies of such opinions, certificates, letters and
other documents as CF&Co shall have reasonably requested.
(j) Securities
Act Filings Made.
All
filings with the Commission required by Rule 424 under the Securities Act to
have been filed prior to the issuance of any Placement Notice hereunder shall
have been made within the applicable time period prescribed for such filing
by
Rule 424.
(k) Approval
for Listing.
The
Placement Shares shall either have been (i) approved for listing on the
Exchange, subject only to notice of issuance, or (ii) the Company shall have
filed an application for listing of the Placement Shares on the Exchange at,
or
prior to, the issuance of any Placement Notice.
(l) No
Termination Event.
There
shall not have occurred any event that would permit CF&Co to terminate this
Agreement pursuant to Section
11(a).
9. Indemnification
and Contribution.
(a) Company
Indemnification.
The
Company agrees to indemnify and hold harmless CF&Co, the directors,
officers, partners, employees and agents of CF&Co and each person, if any,
who (i) controls CF&Co within the meaning of Section 15 of the
Securities Act
or
Section 20 of the Exchange Act, or (ii) is controlled by or is under common
control with CF&Co (a “CF&Co
Affiliate”)
from
and against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all reasonable investigative expenses
by
any governmental agency or body, legal and other expenses incurred in connection
with, and any and all amounts paid in settlement (in accordance with
Section
9(c))
of, any
action, suit or proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and any third party,
or
otherwise, or any claim asserted), as and when incurred, to which CF&Co, or
any such person, may become subject under the
Securities
Act, the Exchange Act or other federal or state statutory law or regulation,
at
common law or otherwise, insofar as such losses, claims, liabilities, expenses
or damages arise out of or are based, directly or indirectly, on (x) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any amendment or supplement to
the
Registration Statement or the Prospectus or in any free writing prospectus
or in
any application or other document executed by or on behalf of the Company or
based on written information furnished by or on behalf of the Company filed
in
any jurisdiction in order to qualify the Shares under the securities laws
thereof or filed with the Commission, or (y) the omission or alleged omission
to
state in any such Registration Statement or amendment or supplement thereto
a
material fact required to be stated in it or necessary to make the statements
in
it not misleading, or (z) the omission or alleged omission to state in any
such
Prospectus or amendment or supplement thereto a material fact required to be
stated in it or necessary to make the statements in it, in the light of the
circumstances under which they were made, not misleading; provided,
however,
that
this indemnity agreement shall not apply to the extent that such loss, claim,
liability, expense or damage arises from the sale of Shares under this Agreement
and is caused directly or indirectly by an untrue statement or omission made
in
reliance upon and in
21
conformity
with written information relating to CF&Co and furnished to the Company by
CF&Co expressly for inclusion in any document as described in clause (x) of
this Section
9(a).
This
indemnity agreement will be in addition to any liability that the Company might
otherwise have.
(b) CF&Co
Indemnification.
CF&Co agrees to indemnify and hold harmless the Company, its trustees, each
officer of the Company that signed the Registration Statement, the and each
person, if any, who (i) controls the Company or the within the meaning of
Section 15 of the
Securities Act
or
Section 20 of the Exchange Act or (ii) is controlled by or is under common
control with the Company or the (a “Company
Affiliate”)
against any and all loss, liability, claim, damage and expense described in
the
indemnity contained in Section
9(a),
as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendments thereto) or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information relating to
CF&Co and furnished to the Company by CF&Co expressly for inclusion in
any document as described in clause (x) of Section
9(a).
This
indemnity agreement will be in addition to any liability that CF&Co might
otherwise have.
(c) Procedure.
Any
party that proposes to assert the right to be indemnified under this
Section
9 will,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim is to be made against an indemnifying party
or
parties under this Section
9,
notify
each such indemnifying party of the commencement of such action, enclosing
a
copy of all papers served, but the omission so to notify such indemnifying
party
will not relieve the indemnifying party from (i) any liability that it might
have to any indemnified party otherwise than under this Section
9
and (ii)
any liability that it may have to any indemnified party under the foregoing
provision of this Section
9
unless,
and only to the extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party. If any such action
is
brought against any indemnified party and it notifies the indemnifying party
of
its commencement, the indemnifying party will be entitled to participate in
and,
to the extent that it elects by delivering written notice to the indemnified
party promptly after receiving notice of the commencement of the action from
the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel reasonably satisfactory to
the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party
will not be liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel in any
such
action, but the fees, expenses and other charges of such counsel will be at
the
expense of such indemnified party unless (i) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party,
(ii)
the indemnified party has reasonably concluded (based on advice of counsel)
that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(iii) a conflict or potential conflict exists (based on advice of counsel to
the
indemnified party) between the indemnified party and the indemnifying party
(in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (iv) the indemnifying
party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement
of
22
the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm admitted to practice in such jurisdiction at any one time for
all
such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not, in any event, be liable for any
settlement of any action or claim effected without its written consent. No
indemnifying party shall, without the prior written consent of each indemnified
party, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section
9
(whether
or not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising or that may arise out of such claim, action
or
proceeding.
(d) Contribution.
In
order to provide for just and equitable contribution in circumstances in which
the indemnification provided for in the foregoing paragraphs of this
Section
9
is
applicable in accordance with its terms but for any reason is held to be
unavailable from the Company or CF&Co, the Company and CF&Co will
contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred
in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, but after deducting any contribution received
by the Company from persons other than CF&Co, if any), to which the Company
and CF&Co may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, on the one hand, and
CF&Co, on the other. The relative benefits received by the Company on the
one hand and CF&Co on the other hand shall be deemed to be in the same
proportion as the total net proceeds from the sale of the Placement Shares
(before deducting expenses) received by the Company bear to the total
compensation received by CF&Co from the sale of Placement Shares on behalf
of the Company. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the
relative benefits referred to in the foregoing sentence but also the relative
fault of the Company, on the one hand, and CF&Co, on the other, with respect
to the statements or omission that resulted in such loss, claim, liability,
expense or damage, or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. Such relative fault
shall be determined by reference to, among other things, whether the untrue
or
alleged untrue statement of a material fact or omission or alleged omission
to
state a material fact relates to information supplied by the Company, on the
one
hand, or CF&Co, on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and CF&Co agree that it would not be just
and equitable if contributions pursuant to this Section
9(d)
were to
be determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to herein.
The
amount paid or payable by an indemnified party as a result of the loss, claim,
liability, expense, or damage, or action in respect thereof, referred to above
in this Section
9(d)
shall be
deemed to include, for the purpose of this Section
9(d),
any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim to the
extent consistent with Section
9(c)
hereof.
Notwithstanding the foregoing provisions of this Section
9(d),
CF&Co shall
23
not
be
required to contribute any amount in excess of the commissions received by
it
under this Agreement and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the
Securities Act)
will be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section
9(d),
any
person who controls a party to this Agreement within the meaning of the
Securities Act,
and any
officers, directors, partners, employees or agents of CF&Co, will have the
same rights to contribution as that party, and each trustee of the Company
and
each officer of the Company who signed the Registration Statement will have
the
same rights to contribution as the Company, subject in each case to the
provisions hereof. Any party entitled to contribution, promptly after receipt
of
notice of commencement of any action against such party in respect of which
a
claim for contribution may be made under this Section
9(d),
will
notify any such party or parties from whom contribution may be sought, but
the
omission to so notify will not relieve that party or parties from whom
contribution may be sought from any other obligation it or they may have under
this Section
9(d)
except
to the extent that the failure to so notify such other party materially
prejudiced the substantive rights or defenses of the party from whom
contribution is sought. Except for a settlement entered into pursuant to the
last sentence of Section
9(c)
hereof,
no party will be liable for contribution with respect to any action or claim
settled without its written consent if such consent is required pursuant to
Section
9(c)
hereof.
10. Representations
and Agreements to Survive Delivery.
The
indemnity and contribution agreements contained in Section
9
of this
Agreement and all representations and warranties of the Company herein or in
certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of CF&Co,
any controlling persons, or the Company (or any of their respective officers,
trustees, directors or controlling persons), (ii) delivery and acceptance of
the
Placement Shares and payment therefor or (iii) any termination of this
Agreement.
11. Termination.
(a) CF&Co
shall have the right by giving notice as hereinafter specified at any time
to
terminate this Agreement if (i) any Material Adverse Effect, or any development
that could reasonably be expected to cause a Material Adverse Effect has
occurred, that, in the reasonable judgment of CF&Co, may materially impair
the ability of CF&Co to sell the Placement Shares hereunder; (ii) the
Company shall have failed, refused or been unable to perform any agreement
on
its part to be performed hereunder; provided,
however,
in the
case of any failure of the Company to deliver (or cause another person to
deliver) any certification, opinion, or letter required under Sections 7(n),
7(o),
or
7(p),
CF&Co’s right to terminate shall not arise unless such failure to deliver
(or cause to be delivered) continues for more than thirty (30) days from the
date such delivery was required; or (iii) any other material condition of
CF&Co’s obligations hereunder is not fulfilled; or (iv) any suspension or
limitation of trading in the Placement Shares or in securities generally on
the
Exchange shall have occurred. Any such termination shall be without liability
of
any party to any other party except that the provisions of Section
7(h)
(Expenses), Section
9
(Indemnification), Section
10
(Survival of Representations), Section
16
(Applicable Law; Consent to Jurisdiction) and Section
17
(Waiver
of Jury Trial) hereof shall remain in full force and effect notwithstanding
such
termination.
24
(b) The
Company shall have the right, by giving ten (10) days notice as hereinafter
specified to terminate this Agreement in its sole discretion at
any
time after the date of this Agreement.
Any
such termination shall be without liability of any party to any other party
except that the provisions of Section
7(h),
Section
9,
Section
10,
Section
16
and
Section
17
hereof
shall remain in full force and effect notwithstanding such
termination.
(c) CF&Co
shall have the right, by giving ten (10) days notice as hereinafter specified
to
terminate this Agreement in its sole discretion
at any
time after the date of this Agreement.
Any
such termination shall be without liability of any party to any other party
except that the provisions of Section
7(h),
Section
9,
Section
10,
Section
16
and
Section
17
hereof
shall remain in full force and effect notwithstanding such
termination.
(d) Unless
earlier terminated pursuant to this Section
11,
this
Agreement shall automatically terminate upon the issuance and sale of all of
the
Placement Shares through CF&Co on the terms and subject to the conditions
set forth herein; provided
that the
provisions of Section
7(h),
Section
9,
Section
10,
Section
16
and
Section
17
hereof
shall remain in full force and effect notwithstanding such
termination.
(e) This
Agreement shall remain in full force and effect unless terminated pursuant
to
Sections
11(a),
(b),
(c),
or
(d)
above or
otherwise by mutual agreement of the parties; provided,
however, that
any
such termination by mutual agreement shall in all cases be deemed to provide
that Section
7(h),
Section
9,
Section
10,
Section
16
and
Section
17
shall
remain in full force and effect.
(f) Any
termination of this Agreement shall be effective on the date specified in such
notice of termination; provided,
however,
that
such termination shall not be effective until the close of business on the
date
of receipt of such notice by CF&Co or the Company, as the case may be. If
such termination shall occur prior to the Settlement Date for any sale of
Placement Shares, such Placement Shares shall settle in accordance with the
provisions of this Agreement.
12. Notices.
All
notices or other communications required
or permitted to be given by any party to any other party pursuant to the terms
of this Agreement shall
be
in writing by, unless otherwise specified in this Agreement, and if sent to
CF&Co, shall be delivered to CF&Co at Cantor Xxxxxxxxxx & Co., 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax no. (000) 000-0000, Attention:
ITD-Investment Banking, with copies to Xxxxxxx Xxxxxx, General Counsel, at
the
same address, and DLA Piper US LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
XX
00000, fax no. (000) 000-0000, Attention: Xxxx X. Xxxxxxx; or if sent to the
Company, shall be delivered to HRPT Properties Trust, 000 Xxxxxx Xxxxxx, Xxxxxx,
XX 00000, Attention, Xxxx X. Xxxxx, Secretary, fax no. (000) 000-0000 with
a
copy to Xxxxxxxx & Worcester LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxxxxx, fax no. 000 000-0000. Each party to this
Agreement may change such address for notices by sending to the parties to
this
Agreement written notice of a new address for such purpose.
Each
such notice or other communication shall be deemed given (i) when delivered
personally or by verifiable facsimile transmission (with an original to follow)
on or before 4:30 p.m., New York City time, on a Business Day or, if such day
is
not a Business Day, on the next succeeding Business Day, (ii) on the next
Business Day after timely delivery to a nationally-recognized overnight courier
and (iii) on the Business Day
actually received if deposited in the U.S. mail (certified or registered mail,
return
25
receipt
requested, postage prepaid). For purposes of this Agreement, “Business
Day”
shall
mean any day on which the Exchange and commercial banks in the City of New
York
are open for business.
13. Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the Company and
CF&Co and their respective successors and the affiliates, controlling
persons, officers and directors referred to in Section
9
hereof.
References to any of the parties contained in this Agreement shall be deemed
to
include the successors and permitted assigns of such party. Nothing
in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason
of
this Agreement, except as expressly provided in this Agreement. Neither party
may assign its rights or obligations under this Agreement without the prior
written consent of the other party; provided,
however,
that
CF&Co may assign its rights and obligations hereunder to an affiliate of
CF&Co without obtaining the Company’s consent.
14. Adjustments
for Stock Splits.
The
parties acknowledge and agree that all stock-related numbers contained in this
Agreement shall be adjusted to take into account any stock split, stock dividend
or similar event effected with respect to the Shares.
15. Entire
Agreement; Amendment; Severability.
This
Agreement (including all schedules and exhibits attached hereto and Placement
Notices issued pursuant hereto) constitutes the entire agreement and supersedes
all other prior and contemporaneous agreements and undertakings, both written
and oral, among the parties hereto with regard to the subject matter
hereof.
Neither
this Agreement nor any term hereof may be amended except pursuant to a written
instrument executed by the Company and CF&Co. In the event that any one or
more of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable as written by
a
court of competent jurisdiction,
then
such
provision shall be given full force and effect to the fullest possible extent
that it is
valid,
legal and enforceable,
and the
remainder of the terms and provisions herein shall be construed as if such
invalid,
illegal or unenforceable term
or
provision was not contained herein, but only to the extent that giving effect
to
such provision and the remainder of the terms and provisions hereof shall be
in
accordance with the intent of the parties as reflected in this
Agreement.
16. Applicable
Law; Consent to Jurisdiction.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York without regard to the principles of conflicts
of
laws. Each
party hereby irrevocably submits to the non-exclusive jurisdiction of the state
and federal courts sitting in the City of New York, borough of Manhattan, for
the adjudication of any dispute hereunder or in connection with any transaction
contemplated hereby, and hereby irrevocably waives, and agrees not to assert
in
any suit, action or proceeding, any claim that it is not personally subject
to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service
of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof (certified or registered mail, return
receipt requested) to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein
shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
26
17. Waiver
of Jury Trial.
The
Company and CF&Co each hereby irrevocably waives any right it may have to a
trial by jury in respect of any claim based upon or arising out of this
Agreement or any transaction contemplated hereby.
18. Absence
of Fiduciary Relationship.
The
Company acknowledges and agrees that:
(a) CF&Co
has been retained solely to act as sales agent in connection with the sale
of
the Shares and that no fiduciary, advisory or agency relationship between the
Company and CF&Co has been created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether CF&Co has advised or
is advising the Company on other matters;
(b) the
Company is capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated by this
Agreement;
(c) the
Company has been advised that CF&Co and its affiliates are engaged in a
broad range of transactions which may involve interests that differ from those
of the Company and that CF&Co has no obligation to disclose such interests
and transactions to the Company by virtue of any fiduciary, advisory or agency
relationship; and
(d) the
Company waives, to the fullest extent permitted by law, any claims it may have
against CF&Co, for breach of fiduciary duty or alleged breach of fiduciary
duty and agrees that CF&Co shall have no liability (whether direct or
indirect) to the Company in respect of such a fiduciary claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Company,
including stockholders, partners, employees or creditors of the
Company.
19. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. Delivery of an executed Agreement by one party to the other may
be
made by facsimile transmission.
20. Definitions.
As used
in this Agreement, the following terms have the respective meanings set forth
below:
(a) “Applicable
Time”
means
the time of each sale of any Shares or any securities pursuant to this
Agreement.
(b)
“GAAP”
means
United States generally accepted accounting principles.
(c) “Organizational
Documents”
means
(a) in the case of a corporation, its charter and by-laws; (b) in the
case of a limited or general partnership, its partnership certificate,
certificate of formation or similar organizational document and its partnership
agreement; (c) in the case of a limited liability company, its articles of
organization, certificate of formation or similar organizational documents
and
its operating agreement, limited liability company agreement, membership
agreement or other similar agreement; (d) in the case of a trust, its
certificate of trust, certificate of formation or similar organizational
document and its trust agreement or other similar agreement; and (e) in the
case of any other entity, the organizational and governing documents of such
entity.
27
THE
AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING THE COMPANY, DATED JULY
1, 1994, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS AND SUPPLEMENTS 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, AS SO AMENDED AND
SUPPLEMENTED, 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.
[Remainder
of Page Intentionally Blank]
28
If
the
foregoing correctly sets forth the understanding among the Company and
CF&Co, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and CF&Co.
|
Very
truly yours,
|
|
|
By:
/s/ Xxxx X. Xxxxx
|
|
|
Name:
Xxxx X. Xxxxx
|
|
|
Title:
Treasurer
|
|
|
ACCEPTED
as of the date first-above written:
|
|
|
CANTOR
XXXXXXXXXX & CO.
|
|
|
By:
/s/ Xxxxxxx Xxxxx
|
|
|
Name:
Xxxxxxx Xxxxx
|
|
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Title:
Managing Director
|
SCHEDULE
1
FORM
OF PLACEMENT NOTICE
SCHEDULE
2
[Names
of Authorized Individuals]
SCHEDULE
3
Compensation
CF&Co
shall be paid compensation equal to two percent (2%) of the gross proceeds
from
the sales of Shares pursuant to the terms of this Agreement.
Exhibit
7(n)
[FORM
OF] OFFICER CERTIFICATE
Exhibit
7(o)(1)(a)
MATTERS
TO BE COVERED BY INITIAL OPINION
OF XXXXXXXX & WORCESTER LLP
AND
WHERE INDICATED SUBSEQUENT XXXXXXXX & WORCESTER LLP OPINION
ALSO
Exhibit 7(o)(1)(b)
MATTERS
TO BE COVERED BY INITIAL OPINION
OF
XXXXXXX
LLP
