EXHIBIT 99.1
UNDERWRITING AGREEMENT
CABOT INDUSTRIAL PROPERTIES, L.P.
$[ ] of [ ]% Redeemable Notes due 20[ ]
[ ], 1999
X.X. XXXXXX SECURITIES INC.
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
PNC CAPITAL MARKETS, INC.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX XXXXX BARNEY INC.
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Cabot Industrial Properties, L.P., a Delaware limited partnership (the
"Operating Partnership"), by this agreement (the "Agreement") proposes to issue
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and sell to the underwriters named in Schedule II hereto (collectively, the
"Underwriters"), the aggregate principal amount of its debt securities
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identified in Schedule I hereto (the "Securities"), to be issued under an
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indenture dated [ ], 1999 (the "Base Indenture") as supplemented by
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the first supplemental indenture thereto to be dated [ ], 1999 (the
"Supplemental Indenture" and, together with the Base Indenture, the "Indenture")
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between Cabot Industrial Trust, Inc., a Maryland real estate investment trust
and the sole general partner of the Operating Partnership (the "Company"), the
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Operating Partnership and The Bank of New York, as trustee (the "Trustee").
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The Company and the Operating Partnership have prepared and filed with
the Securities and Exchange Commission (the "Commission") in accordance with the
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provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities Act"), a
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registration statement (the file number of which is set forth in Schedule I
hereto) on
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Form S-3, relating to certain securities (the "Shelf Securities") to
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be issued from time to time by the Company or the Operating Partnership, as the
case may be. The Operating Partnership also has filed with, or proposes to file
with, the Commission pursuant to Rule 424 under the Securities Act ("Rule 424")
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a prospectus supplement specifically relating to the Securities (a "Prospectus
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Supplement"). The registration statement as amended to the date of this
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Agreement and including any registration statement filed pursuant to Rule 462(B)
under the Securities Act (a "Rule 462(B) Registration Statement") is hereinafter
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referred to as the "Registration Statement" and the related prospectus covering
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the Shelf Securities in the form first used to confirm sales of the Securities
is hereinafter referred to as the "Basic Prospectus." The Basic Prospectus as
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supplemented by any applicable Prospectus Supplement specifically relating to
the Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus." Any reference in this Agreement to
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the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "Preliminary Prospectus") previously filed with the Commission
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pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act that were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
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the date of the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Prospectus, as the case may be; and any reference to "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed under the Exchange Act after the
date of this Agreement, or the date of the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
Each of the Company and the Operating Partnership hereby severally
agrees with the Underwriters as follows:
1. The Operating Partnership hereby agrees to issue and sell the
Securities to the several Underwriters as hereinafter provided, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Operating Partnership, the respective
principal amount of Securities set forth opposite such Underwriter's name in
Schedule II hereto at the purchase price set forth in Schedule I hereto plus
accrued interest, if any, from the date specified in Schedule I hereto to the
date of payment and delivery.
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2. The Operating Partnership understands that the several
Underwriters intend (i) to make a public offering of their respective portions
of the Securities and (ii) initially to offer the Securities upon the terms set
forth in the Prospectus.
3. Payment for the Securities shall be made to the Operating
Partnership or to its order in immediately available funds on the date and at
the time and place set forth in Schedule I hereto (or at such other time and
place on the same or such other date, not later than the fifth Business Day
thereafter, as the Underwriters and the Operating Partnership may agree in
writing). The time and date of such payment for the Securities are referred to
herein as the "Closing Date." Such payment will be made upon delivery to the
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Underwriters of the Securities registered in such names and in such
denominations as the Underwriters shall request not less than two full Business
Days prior to the date of delivery, with any transfer taxes payable in
connection with transfer to the Underwriters duly paid by the Operating
Partnership. As used herein, the term "Business Day" means any day other than a
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day on which banks are permitted or required to be closed in New York City. The
Securities will be delivered through the book-entry facilities of The Depository
Trust Company ("DTC") and will be made available for inspection by the
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Underwriters at the office of Xxxxxx Xxxxxx & Xxxxxxx at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 not later than 1:00 P.M., New York City time, on the
Business Day prior to the Closing Date.
4. (a) The Company and the Operating Partnership, jointly and
severally represent and warrant to each Underwriter as of the date hereof and as
of the Closing Date that:
(i) the Company and the Operating Partnership meet the
requirements for use of Form S-3 for the sale of the Securities, and the
Registration Statement has been declared effective by the Commission;
(ii) the Registration Statement and the Prospectus, including
the financial statements, schedules and related notes included in the
Prospectus, as of the date hereof and at the time the Registration
Statement became effective, and when any post-effective amendment to the
Registration Statement or Rule -462(b) Registration Statement becomes
effective or any amendment or supplement to the Prospectus is filed with
the Commission, did or will comply in all material respects with all
applicable provisions of the Securities Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
thereunder (the "TIA") and will contain all statements required to be
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stated therein in accordance with the Securities Act and the TIA. The
Prospectus, including the financial statements, schedules and related
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notes included or incorporated by reference in the Prospectus, as of the
date hereof, at the time the Registration Statement became effective, at
the Closing Date, and when any post-effective amendment to the Registration
Statement or Rule 462(b) Registration Statement becomes effective or any
amendment or supplement to the Prospectus is filed with the Commission, did
or will comply in all material respects with all applicable provisions of
the Securities Act and the TIA and will contain all statements required to
be stated therein in accordance with the Securities Act and the TIA. On the
date the Registration Statement was declared effective, on the date hereof,
on the date of filing of any Rule 462(b) Registration Statement and on the
Closing Date, no part of the Registration Statement or any amendment did or
will contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading. On the date the Registration
Statement was declared effective, on the date hereof, as of the date of the
Prospectus, on the date of filing of any Rule 462(b) Registration Statement
and at the Closing Date, the Prospectus did not and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If a Rule 462(b) Registration
Statement is filed in connection with the offering and sale of the
Securities, the Company and the Operating Partnership will have complied or
will comply with the requirements of Rule 111 under the Securities Act
relating to the payment of filing fees therefor. The foregoing
representations and warranties in this Section 4(a)(ii) do not apply to (i)
that part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification under the TIA (the "Form T-1"), and (ii) any
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statements or omissions made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company
or the Operating Partnership by the Underwriters specifically for inclusion
in the Registration Statement or Prospectus or any amendment or supplement
thereto. Neither the Company nor the Operating Partnership has distributed
any offering material in connection with the offering or sale of the
Securities other than the Registration Statement, the Preliminary
Prospectus, the Prospectus or any other materials, if any, permitted by the
Securities Act (which were disclosed to the Underwriters and the
Underwriters' counsel);
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(iii) any Preliminary Prospectus filed pursuant to Rule 424
under the Securities Act and each 462(b) Registration Statement, if any,
(A) complied or will comply when so filed in all material respects with all
applicable provisions of the Securities Act and (B) did not contain 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
under which they were made, not misleading; each Preliminary Prospectus and
the Prospectus delivered to the Underwriters for use in connection with the
offering of Securities will, at the time of such delivery, be identical in
content to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T;
(iv) the documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the
Securities Act comply, or will comply, as the case may be, in all material
respects with the Exchange Act, and, when read together with other
information included in, and incorporated by reference in, the Prospectus,
at the time the Registration Statement became effective, as of the date of
the Prospectus and as of the Closing Date, or during the period specified
in Section 5(e) did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
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however, that this representation and warranty shall not apply to the Form
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T-1 or any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in
writing by such Underwriter specifically for inclusion in the Registration
Statement or Prospectus or any amendment or supplement thereto;
(v) (A) there are no contracts or other documents required by
the Securities Act to be filed as exhibits to the Registration Statement or
required to be described in the Registration Statement or Prospectus that
have not been so filed or described as required; (B) each contract to which
either the Company, the Operating Partnership or the Subsidiaries (as
defined below) is a party and to which reference is made in the Prospectus
or which is filed as an exhibit to the Registration Statement has been duly
and validly executed by the Company, the Operating Partnership, or the
Subsidiaries, as the case
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may be, and, to the knowledge of the Company and the Operating Partnership
is in full force and effect in all material respects in accordance with its
terms, and no such contracts have been assigned by the Company, the
Operating Partnership, or the Subsidiaries except as contemplated in the
Prospectus; and (C) the Company and the Operating Partnership know of no
present situation or condition or fact that would prevent compliance by the
Company, the Operating Partnership or the Subsidiaries in all material
respects with the terms of any such contract;
(vi) other than the subsidiaries listed on Exhibit A hereto
(the "Subsidiaries"), the Company does not own, beneficially or of record,
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any material interest in, or control, any partnership, joint venture,
limited liability company, unincorporated association, corporation or other
entity;
(vii) each of Xxxxxx Xxxxxxxx LLP, KPMG LLP,
PricewaterhouseCoopers LLP, which are the accounting firms that certified
the financial statements and supporting schedules included in or
incorporated by reference in the Registration Statement, is an independent
public accountant as required by the Securities Act;
(viii) the financial statements, supporting schedules and related
notes included in, or incorporated by reference in, the Registration
Statement and Prospectus comply in all material respects with the
requirements of the Securities Act and the Exchange Act, as applicable, and
present fairly the consolidated financial condition of the entity or
entities or group presented or included therein, as of the respective dates
thereof, and its or their consolidated results of operations and cash flows
for the respective periods covered thereby, in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as otherwise disclosed in the Prospectus and
except as the unaudited quarterly financial statements may not contain
certain footnote disclosure that would be required under generally accepted
accounting principles. The financial information and data included in or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the information included or incorporated by reference
therein and have been prepared on a basis consistent, except as may be
noted therein, with that of the financial statements, schedules and notes
included or incorporated by reference in the Registration Statement and the
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Prospectus and the books and records of the respective entity or entities
or group presented or included therein. Except as otherwise noted in the
Prospectus, pro forma financial information included or incorporated by
reference in the Registration Statement and the Prospectus has been
prepared in accordance with the applicable requirements of the Securities
Act and the American Institute of Certified Public Accountants ("AICPA")
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guidelines with respect to pro forma financial information, and includes
all adjustments necessary to present fairly the pro forma financial
condition of the entities or group presented or included therein at the
respective dates indicated and the results of operations and cash flows for
the respective periods specified. The Company's and the Operating
Partnership's ratio of earnings to fixed charges included in the Prospectus
and in Exhibit 12 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission. No other
financial statements (or schedules) of the Company, the Operating
Partnership, any predecessor of the Company and/or the Operating
Partnership or any other entity are required by the Act or the Exchange Act
to be included in the Registration Statement or the Prospectus;
(ix) since the respective dates as of which information is
given in the Registration Statement and the Prospectus and except as set
forth or contemplated therein (A) there has not been any material adverse
change in or affecting the business, management, condition (financial or
otherwise), results of operations or business prospects of the Operating
Partnership, the Company or any of the Subsidiaries, taken as a whole
(each, a "Material Adverse Change," and any event or state of facts that
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could reasonably be expected to result in a Material Adverse Change being
herein referred to as a "Prospective Material Adverse Change"); (B) no
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casualty loss, condemnation or other adverse event with respect to any
property owned by the Company, the Operating Partnership or any of the
Subsidiaries (collectively, the "Properties") that is material to the
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Operating Partnership, the Company and the Subsidiaries, taken as a whole,
has occurred; (C) neither the Operating Partnership, the Company nor any of
the Subsidiaries has entered into any transaction or agreement (whether or
not in the ordinary course of business) that is material to the Operating
Partnership, the Company and the Subsidiaries, taken as a whole; and (D)
there has been no change in the capital shares of the Company or the
partnership interests of the Operating Partnership, or any increase
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in the indebtedness of the Company or the Operating Partnership or the
indebtedness encumbering the Properties;
(x) the Company (A) has been duly organized and is validly
existing as a real estate investment trust in good standing under the laws
of the State of Maryland, with the trust power and authority to own, lease
and operate its properties, to conduct the business in which it is engaged
and proposes to engage as described in the Registration Statement and the
Prospectus and to enter into and perform its obligations under this
Agreement and (B) is duly qualified as a foreign trust and is in good
standing under the laws of each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to be so
qualified or in good standing would not reasonably be expected to have a
material adverse effect on the business, management, condition (financial
or otherwise), results of operations or business prospects of the Operating
Partnership, the Company and the Subsidiaries, taken as a whole (a
"Material Adverse Effect");
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(xi) (A) the Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under the laws
of the State of Delaware, with partnership power and authority to own,
lease and operate its properties, to conduct the business in which it is
engaged and proposes to engage as described in the Registration Statement
and the Prospectus and to enter into and perform its obligations under this
Agreement; (B) the Operating Partnership is duly qualified or registered as
a limited partnership and is in good standing under the laws of each other
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to be so qualified or registered or in
good standing would not have a Material Adverse Effect; (C) the Company is
the sole general partner of the Operating Partnership and is the holder of
a general partnership interest in the Operating Partnership constituting as
of the date hereof approximately 92.9% of all general and limited
partnership interests (the "Units") and (D) the Second Amended and Restated
Agreement of Limited Partnership, dated February 4, 1998, substantially in
the form filed as an exhibit to the Registration Statement (the "Operating
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Partnership Agreement") has been duly and validly authorized, is in full
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force and effect and is a valid and binding agreement of the parties
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thereto, enforceable in accordance with its terms;
(xii) (A) each of the Subsidiaries has been duly organized and
is validly existing under the laws of its jurisdiction of organization,
with power and authority (corporate, partnership or other) to own, lease
and operate its properties, to conduct the business in which it is engaged
and proposes to engage as described in the Registration Statement and the
Prospectus (B) and has been duly qualified to do business and is in good
standing under the laws of each other jurisdiction in which it owns, leases
or operates properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing, singly or in the aggregate with all other such failures, would
not have a Material Adverse Effect; and all the outstanding shares of
capital stock and Units of each Subsidiary of the Operating Partnership
have been duly authorized and validly issued, are fully paid, and are owned
by the Operating partnership, directly or indirectly, free and clear of all
Liens except as otherwise described in the Registration Statement and the
Prospectus;
(xiii) this Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership and, assuming due
authorization, execution and delivery by the Underwriters, constitutes
valid and binding agreements of the Company and the Operating Partnership,
enforceable against the Company and the Operating Partnership in accordance
with their terms, subject to (a) the effect of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now
or hereafter in effect relating to or affecting the rights and remedies of
creditors and (b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and in the
discretion of the court before which any proceeding therefor may be
brought;
(xiv) the Securities have been approved for listing on the New
York Stock Exchange ("NYSE"), subject only to official notice of issuance;
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(xv) (A) the Securities have been duly authorized by the
Company, as general partner of the Operating Partnership, and, when
authenticated and delivered by the Trustee in accordance with the terms of
the Indenture, and paid for by the Underwriters pursuant to this Agreement,
such Securities will be valid and legally binding unsecured obligations of
the Operating Partnership entitled to the benefit of the Indenture and
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enforceable against the Operating Partnership in accordance with their
respective terms, subject to (i) the effect of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now
or hereafter in effect relating to or affecting the rights and remedies of
creditors and (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought; (B) the Indenture has been duly qualified under the Trust
Indenture Act and prior to the issuance of the Securities will be duly
authorized, executed and delivered by the Company and the Operating
Partnership, and assuming due authorization, execution and delivery thereof
by the Trustee, will constitute a valid and legally binding obligation of
the Company and the Operating Partnership, enforceable in accordance with
its terms subject to (i) the effect of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors and (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought; (C) the Securities will conform, and the Indenture will conform,
to the statements relating thereto contained in the Prospectus; and (D) the
Securities are in the form contemplated by the Indenture;
(xvi) (A) neither the Operating Partnership, the Company, nor
any of the Subsidiaries is in violation of its partnership agreement,
declaration of trust, certificate of incorporation or by-laws, as the case
may be, and, except as disclosed in the Registration Statement and the
Prospectus, neither the Operating Partnership, the Company, nor any of the
Subsidiaries is, or with the giving of notice or lapse of time or both
would be, in violation of, or in default under, any contract, indenture,
mortgage, deed of trust, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it or any of its respective
properties or assets is bound or affected, except for violations and
defaults that, individually or in the aggregate, will not have a Material
Adverse Effect; (B) the issuance and sale of the Securities by the
Operating Partnership and the performance by the Operating Partnership of
its obligations under this Agreement and the consummation of the
transactions contemplated herein will not conflict with or result in a
breach of any of the terms or provisions of, or
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constitute a default under, any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or instrument to
which the Operating Partnership, the Company or any of the Subsidiaries is
a party or by which the Operating Partnership, the Company or any of the
Subsidiaries is bound or affected or to which any of the property or assets
of the Operating Partnership, the Company or any of the Subsidiaries is
subject, except for any such violation, conflict, breach or default that,
individually or in the aggregate, would not have a Material Adverse Effect,
or result in the creation or imposition of any material Lien upon any of
the Properties, nor will any such action result in any violation of the
provisions of its partnership agreement, declaration of trust, certificate
of incorporation or by-laws, as the case may be, of the Operating
Partnership, the Company or any of the Subsidiaries or any applicable law
or statute or, except for such matters as would not result in a Material
Adverse Effect, any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Operating Partnership, the
Company or any of the Subsidiaries or any of their respective properties;
(C) and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company and the Operating Partnership of the transactions contemplated
by this Agreement, except such consents, approvals, authorizations,
registrations and qualifications as have been obtained under the Securities
Act and as may be required under applicable state securities, real estate
syndication or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(xvii) no material consent, approval, authorization or order of,
or any filing or declaration with, any court or governmental agency or body
or any other entity is required in connection with the offering, issuance
or sale of the Securities hereunder except such as have been obtained under
the Securities Act, the Exchange Act and the TIA and such as may be
required under state securities, Blue Sky or real estate syndication laws
or the by-laws, the corporate financing rule or the conflict of interests
rule of the National Association of Securities Dealers, Inc. (the "NASD")
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in connection with the purchase and distribution by the Underwriters of the
Securities or such as have been received prior to the date of this
Agreement, and except for the filing of this Agreement and the
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Indenture with the Commission as exhibits to a Form 8-K, which the Company
and the Operating Partnership agree to make in a timely manner;
(xviii) other than as set forth or contemplated in the
Registration Statement and the Prospectus, there are no legal or
governmental actions, suits or proceedings pending or, to the knowledge of
the Company or the Operating Partnership, threatened to which the Operating
Partnership, the Company or any of the Subsidiaries is or may be a party or
of which any property of the Operating Partnership, the Company or any of
the Subsidiaries or any Property is or may be the subject, that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, and, to the knowledge of the Company and the
Operating Partnership, no such proceedings are threatened or contemplated
by governmental authorities or others;
(xix) (A) no labor dispute with the employees of the Company,
the Operating Partnership or any of the Subsidiaries exists or, to the
knowledge of the Company or the Operating Partnership, is threatened that
could reasonably be expected to have a Material Adverse Effect;
(xx) (A) the Company is organized and operates in a manner so
as to qualify as a real estate investment trust ("REIT") under Sections 856
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through 860 of the Internal Revenue Code of 1986, as amended (the "Code"),
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and will timely and effectively elect to be taxed as a REIT under the Code
commencing with the taxable year ending December 31, 1998 and (B) the
Company, the Operating Partnership and the Subsidiaries intend to continue
to qualify as a REIT for the foreseeable future;
(xxi) the Operating Partnership, the Company, and each of the
Subsidiaries possess such certificates, authorizations or permits issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies as are necessary to conduct the business now operated or proposed to
be operated by each of them, except where the failure to obtain any such
certificate, authorization or permit, individually or in the aggregate,
would not have a Material Adverse Effect, and neither the Company, the
Operating Partnership, nor any of the Subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, individually or in the aggregate, if
the subject of an adverse decision, ruling or finding, would
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have a Material Adverse Effect;
(xxii) (A) the Operating Partnership and the Subsidiaries hold
good and marketable title to each of the Properties free and clear of all
Liens, other than those which the Registration Statement and the Prospectus
indicate affect the Properties and subject, however, to (1) utility
easements serving such Properties, (2) Liens for taxes not due and payable,
(3) zoning and similar governmental land use matters affecting such
Properties that are consistent with the current uses of such Properties,
(4) matters of title not adversely affecting the use, value or
marketability of title to such Properties, (5) other statutory liens not
due and payable and (6) liens that are not material in character, amount or
extent and do not materially detract from the value or interfere with the
use of the Properties or otherwise materially impair the business
operations being conducted or proposed to be conducted thereon; (B) all
Liens that are required to be disclosed in the Registration Statement and
the Prospectus are disclosed therein; (C) none of the Company, the
Operating Partnership, nor any of the Subsidiaries or, to the knowledge of
the Company and the Operating Partnership, any other party to any lease
relating to any Property is in default under any such lease and neither the
Company nor the Operating Partnership is aware of any event that, with the
giving of notice or the passage of time, or both, would constitute a
default under any such lease, except in each case such defaults that,
individually or in the aggregate, would not have a Material Adverse Effect;
(D) each of the leases pursuant to which all or any portion of the
Properties are demised is in full force and effect in all material respects
and, except as set forth in the Registration Statement or the Prospectus,
no tenant thereunder has a right of first refusal to purchase the premises
demised thereunder; (E) neither the Company, the Operating Partnership nor
any of the Subsidiaries party to any mortgages or other security documents
or other agreements encumbering or otherwise recorded against the
Properties is in default thereunder and neither the Company nor the
Operating Partnership is aware of any event that, with the giving of notice
or the passage of time, or both, would constitute a default under any such
mortgage, document or agreement, except in each case such defaults that,
individually or in the aggregate, would not have a Material Adverse Effect;
(F) each of the Properties is in compliance with all applicable codes, laws
and regulations (including, without limitation, building and zoning codes,
laws and regulations), except for such
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failures to comply that, individually or in the aggregate, would not have a
Material Adverse Effect; (G) neither the Company nor the Operating
Partnership has knowledge of any pending or threatened condemnation, zoning
change or other proceeding or action that will in any manner affect the
size of, use of, improvements on, construction on or access to the
Properties, except such proceedings or actions that, individually or in the
aggregate, would not have a Material Adverse Effect; and (H) any real
property and buildings held under lease by the Operating Partnership, the
Company or the Subsidiaries and described in the Prospectus are held by
them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere in any material respect with the use
made and proposed to be made of such property and buildings by the
Operating Partnership, the Company or the Subsidiaries, as the case may be;
(xxiii) (A) except as disclosed in the Registration Statement and
the Prospectus and except for activities, conditions, circumstances or
other matters that, individually or in the aggregate, would not have a
Material Adverse Effect, the Operating Partnership, the Company and the
Subsidiaries have complied and are in compliance with all Environmental
Laws (as hereinafter defined); (B) the Operating Partnership, the Company,
and the Subsidiaries have not used, and have not permitted the use of, the
Properties or any other real property owned or operated by any of them for
activities or operations that involve the handling, use, processing,
manufacturing, generating, producing, storing, refining, recycling,
transporting, spilling, pumping, pouring, emitting, emptying, discharging,
injecting, burying, leaching, dumping, disposing of or releasing into the
environment or otherwise dealing with Hazardous Materials (as hereinafter
defined), except for Hazardous Materials utilized in the ordinary course of
maintaining such Properties or property, provided such use would not, in
the ordinary course of business, give rise to liability under any
Environmental Law; (C) except as disclosed in the Registration Statement
and the Prospectus, neither the Company nor the Operating Partnership has
knowledge of any seepage, leaking, escaping, leaching, discharging,
injection, release, emission, spill, pumping, pouring, emptying, dumping or
other release of Hazardous Materials into the environment relating to
activities or operations at or from the Properties or any other real
property owned or occupied by the Company including, without
-15-
limitation any land or water on, at, under or adjacent to such Properties
or property owned or operated by the Operating Partnership, the Company or
the Subsidiaries or on, at, under or from land or water from which
Hazardous Materials might seep, flow or drain into such land or water,
except such as, individually or in the aggregate, would not have a Material
Adverse Effect; (D) except as disclosed in the Registration Statement and
the Prospectus, neither the Company, the Operating Partnership nor any of
the Subsidiaries has received any notice of, and neither the Company nor
the Operating Partnership has any knowledge of, any occurrence or
circumstance that, with notice or passage of time or both, would give rise
to a claim or liability under or pursuant to any Environmental Law except
such as, individually or in the aggregate, would not have a Material
Adverse Effect; and (E) none of the Properties are included or, to the
knowledge of the Company or the Operating Partnership, proposed for
inclusion on the National Priorities List issued by the United States
Environmental Protection Agency (the "EPA") pursuant to CERCLA (as
---
hereinafter defined) or on the Comprehensive Environmental Response,
Compensation and Liability Information System list, and no such Property
has otherwise been publicly identified by the EPA as a potential CERCLA
site or to the knowledge of the Company included, or proposed for
inclusion, on any list or inventory issued pursuant to any other
Environmental Law or issued by any other governmental authority having or
claiming jurisdiction under Environmental Laws or with respect to such
Property.
As used herein, "Hazardous Material" shall include, without
------------------
limitation, any and all substances, materials and wastes including, without
limitation, asbestos, and petroleum products, constituents and wastes,
regulated, pursuant to the common law or any federal, state or local
environmental or worker health or safety law, ordinance, rule or regulation
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. (S)(S) 9601 et seq.
-------
("CERCLA"), the Hazardous Materials Transportation Act, 49 U.S.C. (S)(S)
------
1801 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. (S)(S)
-------
9601 et seq., the Emergency Planning and Community Right-to-Know Act of
-------
1986, 42 U.S.C. (S)(S) 11001 et seq., the Toxic Substances Control Act, 15
-------
U.S.C. (S)(S) 2601 et seq., the Federal Insecticide, Fungicide and
-------
Rodenticide Act, 7 U.S.C. (S)(S) 136 et seq., the Clean Air Act, 42 U.S.C.
-------
(S)(S) 7401 et seq., the Clean Water Act (Federal Water Pollution Control
Act), 33
-16-
U.S.C. (S)(S) 1251 et seq., the Safe Drinking Water Act, 42 U.S.C. (S)(S)
-------
300f-300j-11, and the Occupational Safety and Health Act, 29 U.S.C. (S)(S)
651 et seq., as any of the above statutes may have been amended from time
-------
to time, and in the regulations adopted and publications promulgated
pursuant to each of the foregoing (the foregoing, collectively,
"Environmental Laws");
------------- ----
(xxiv) neither the Company, the Operating Partnership, any of
the Subsidiaries nor any of their respective affiliates or related persons
has taken or will take, directly or indirectly, any action designed to, or
that might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities;
(xxv) neither the Company, the Operating Partnership nor any of
the Subsidiaries is, or will after the Closing Date be, subject to
registration as an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended;
(xxvi) no relationship, direct or indirect, exists between or
among the Company, the Operating Partnership or any of the Subsidiaries on
the one hand, and the trustees, officers, shareholders, customers, clients,
tenants or suppliers of the Company, the Operating Partnership or any of
the Subsidiaries on the other hand, that is required by the Securities Act
to be described in the Registration Statement and the Prospectus that is
not so described;
(xxvii) the statements set forth in the Prospectus under the
captions "Description of the Notes" and "Description of Debt Securities,"
insofar as they purport to constitute a summary of the terms of the
Securities, and under the captions and "Selected Provisions of Maryland Law
and of Cabot Trust's Declaration of Trust and Bylaws" and "Federal Income
Tax Consequences," to the extent such statements purport to describe
matters of law or regulation or constitute summaries of documents described
therein, are accurate and complete in all material respects ;
(xxviii)(A) the Company and/or the Operating Partnership has and
will maintain property and casualty insurance in favor of the Company, the
Operating Partnership and the Subsidiaries (as the case may be) with
respect to each of the Properties, in an amount and on such terms as is
reasonable and customary for businesses of the type conducted and
-17-
proposed to be conducted by the Company, the Operating Partnership and
the Subsidiaries; neither the Company, the Operating Partnership nor the
Subsidiaries has received from any insurance company written notice of any
material defects or deficiencies affecting the insurability of any such
Properties;
(xxix) each of the Company, the Operating Partnership and the
Subsidiaries, as the case may be, has filed all material foreign, federal,
state and local tax returns that are required to be filed or have requested
extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect) and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except for
any such assessment, fine or penalty that is currently being contested in
good faith or as described in or contemplated by the Prospectus;
(xxx) the Operating Partnership is properly treated as a
partnership for federal income tax purposes and not as a "publicly traded
partnership";
(xxxi) the Company and the Operating Partnership maintain
systems of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets, financial and corporate
books and records is permitted only in accordance with management's general
or specific authorization; and (D) the recorded accountability for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(xxxii) the Securities will have an investment grade rating from
one or more nationally recognized statistical rating organizations as of
the date hereof and as of the Closing Date as specified in Schedule I
hereto;
(xxxiii) (A) each employee benefit plan, within the meaning of
Section 3(3) of ERISA, that is maintained, administered or contributed to
by the Company or any of its affiliates for employees or former employees
of the Company and its affiliates has been maintained in compliance with
-18-
its terms and the requirements of any applicable statutes, orders, rules
and regulations, including but not limited to ERISA and the Code, except
where such noncompliance would not, individually or in the aggregate, have
a Material Adverse Effect; (B) no prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code has occurred
with respect to any such plan; (C) for each such plan that is subject to
the funding rules of Section 412 of the Code or Section 302 of ERISA, no
"accumulated funding deficiency" as defined in Section 412 of the Code has
been incurred, whether or not waived, and the fair market value of the
assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeded the present value of all benefits accrued under
such plan determined using reasonable actuarial assumptions;
(xxxiv) except as set forth in the Prospectus, each of the
Company, the Operating Partnership and the Subsidiaries own or possess all
patents, patent rights, licenses, inventions, trademarks, service marks,
trade names, copyrights and know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures (collectively, the "Intellectual Property"))
---------------------
necessary to conduct the business in which it is engaged and proposes to
engage as described in the Prospectus and the Registration Statement,
except to the extent that the failure to own or possess such Intellectual
Property would not have a Material Adverse Effect and, except as described
in the Registration Statement and the Prospectus, neither the Company, the
Operating Partnership, nor any of the Subsidiaries has received any notice
of infringement of or conflict with asserted rights of others with respect
to any Intellectual Property, except for notices the content of which, if
accurate, would not have a Material Adverse Effect;
(xxxv) each Property is served by all utilities necessary for
its use and operation as currently used or proposed to be used and is
accessible from a public road or right of way;
(xxxvi) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company or the Operating
Partnership threatened by the Commission; and
(xxxvii) The Company and the Operating Partnership will execute a
-19-
Supplemental Indenture designating the series of debt securities to be
offered and its related terms and provisions in accordance with the
provisions of the Base Indenture.
(b) Any certificate signed by or on behalf of the Company or
the Operating Partnership and delivered to the Underwriters or to counsel for
the Underwriters shall be deemed a representation and warranty by the Company or
the Operating Partnership, as applicable, to each Underwriter as to matters
covered therein .
5. The Company and the Operating Partnership jointly and
severally covenant and agree with the several Underwriters as follows:
(a) in respect of the offering of the Securities, the
Operating Partnership will (i) prepare a Prospectus Supplement setting
forth the aggregate principal amount of Securities covered thereby and
their terms not otherwise specified in the Basic Prospectus pursuant to
which the Securities are being issued, the names of the Underwriters
participating in the offering and the aggregate principal amount of
Securities that each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the offering, the
price at which the Securities are to be purchased by the Underwriters from
the Operating Partnership, the initial public offering price, the selling
concession and reallowance, if any, and such other information as the
Underwriters and the Operating Partnership deem appropriate in connection
with the offering of the Securities, (ii) file the Prospectus in a form
approved by the Underwriters pursuant to Rule 424 under the Securities Act
no later than the Commission's close of business on the second Business Day
following the date of determination of the offering price of the Securities
and (iii) furnish copies of the Prospectus to the Underwriters and to such
dealers as the Underwriters shall specify in New York City, as soon as
practicable (but in any event in sufficient time as to allow the
Underwriters and such dealers to deliver such Prospectus prior to or
simultaneously with confirmations of sale) after the date of this Agreement
in such quantities as the Underwriters may reasonably request;
(b) to deliver, at the expense of the Operating Partnership,
to the Underwriters a total of six signed copies of the Registration
Statement (as originally filed) and each amendment thereto, in each case
including exhibits, and, during the period mentioned in paragraph (f)
-20-
below, to each of the Underwriters and to dealers effecting transactions in
the Securities as many copies of the Prospectus (including all amendments
and supplements thereto) as the Underwriters may reasonably request;
(c) the Operating Partnership will furnish to the Underwriters
without charge, as many copies of the exhibits and documents incorporated
by reference in the Registration Statement as the Underwriters may
reasonably request;
(d) (i) at any time when the Prospectus is required to be
delivered under the Securities Act or the Exchange Act in connection with
sales of Securities, not to file any amendment to the Registration
Statement or any Rule 462(B) Registration Statement or to make any
amendment or supplement to the Prospectus, of which the Underwriters shall
not previously have been advised or to which the Underwriters or counsel
for the Underwriters shall reasonably object; and to prepare and file with
the Commission, promptly upon the Underwriters' reasonable request, any
amendment to the Registration Statement, Rule 462(B) Registration
Statement, or amendment or supplement to the Prospectus that, in the
opinion of counsel for the Underwriters, may be necessary in connection
with the distribution of the Securities by the Underwriters, and to use its
best efforts to cause the same to become promptly effective and (ii) if
applicable, the Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical in content to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T;
(e) to advise the Underwriters promptly, and to confirm such
advice in writing, (i) when the Registration Statement shall have become or
becomes effective, (ii) when any amendment to the Registration Statement
shall have become effective, (iii) when any supplement to the Prospectus or
any amendment to the Prospectus has been filed and to furnish the
Underwriters with copies thereof, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information, (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or the initiation or
threatening of any
-21-
proceeding for that purpose, (vi) of the occurrence of any event, within
the period referenced in paragraph (f) below, 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 any material fact necessary
in order to make the statements therein, in light of the circumstances in
which such statements are made, not misleading, and (vii) of the receipt by
the Company or the Operating Partnership of any notification with respect
to any suspension of the qualification of the Securities for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its commercially reasonable best efforts to
prevent the issuance of any such stop order, or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, or of
any order suspending any such qualification of the Securities, or
notification of any such order thereof and, if issued, to use its
commercially reasonable best efforts to obtain as soon as possible the
withdrawal thereof;
(f) if, during such period of time after the first date of the
public offering of the Securities as in the reasonable opinion of counsel
for the Underwriters a prospectus relating to the Securities is required by
law to be delivered in connection with sales by the Underwriters or any
dealer, any event shall occur as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances in which such statements are made, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with applicable federal and state securities law, to reasonably
promptly prepare and furnish, to the Underwriters and to the dealers (whose
names and addresses the Underwriters will furnish to the Operating
Partnership) to which Securities may have been sold by the Underwriters and
to any other dealers upon request, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as
so amended or supplemented will comply with applicable federal and state
securities law; provided, however, that any amendments or supplements made
-------- -------
more than one year after the first date of the public offering of the
Securities shall be made at the expense of the Underwriters;
(g) to use its commercially reasonable best efforts to qualify
the Securities for offer and sale under the securities or Blue Sky and real
estate syndication laws of such jurisdictions as the Underwriters shall
-22-
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Securities and to pay all fees
and expenses (including commercially reasonable fees and disbursements of
counsel to the Underwriters) incurred in connection with such
qualification; provided that the Company shall not be required to file a
general consent to service of process in any jurisdiction or to qualify as
a foreign corporation in any jurisdiction, and provided, further, that all
--------
fees and expenses incurred in connection with qualifying the Securities for
offer and sale after the first anniversary of the public offering of such
Securities shall be paid by the Underwriters;
(h) to make generally available to its security holders and to
the Underwriters, as soon as practicable, an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of
the Operating Partnership occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section 11(A)
of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(i) for such period as the Securities remain outstanding, to
furnish to the Underwriters copies of all reports or other communications
(financial or other) furnished to holders of the Securities and copies of
any reports and financial statements furnished to or filed with the
Commission, the National Association of Securities Dealers, Inc. (the
"NASD") or any national securities exchange;
----
(j) during the period when the Prospectus is required to be
delivered under the Securities Act or the Exchange Act in connection with
sales of the Securities, to file all documents required to be filed by it
with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act
within the time periods required by the Exchange Act;
(k) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause
to be paid all costs and expenses incident to the performance of the
obligations of the Company and the Operating Partnership hereunder,
including without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution and delivery
of the Securities, (ii) incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Prospectus and
any Preliminary Prospectus (including in each case all
-23-
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification of the Securities under the
applicable securities laws of such jurisdictions as the Underwriters may
reasonably designate (including reasonable fees of counsel for the
Underwriters and its reasonable disbursements in connection therewith),
(iv) in connection with the listing of the Securities on any stock
exchange, (v) related to any required filing with, and review by, the NASD,
(vi) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, all other agreements
relating to underwriting and syndication arrangements and the furnishing to
the Underwriters and dealers of copies of the Registration Statement and
the Prospectus, including mailing and shipping, as herein provided, (vii)
any expenses incurred by the Company or the Operating Partnership in
connection with a "road show" presentation to potential investors and
(viii) the cost and charges of any transfer agent and any registrar;
(l) the Operating Partnership will use the net proceeds
received by it from the sale of the Securities pursuant to this Agreement
in the manner specified in the Prospectus Supplement under the caption "Use
of Proceeds";
(m) the Company and the Operating Partnership will use their
reasonable best efforts to effect the listing of the Securities on the
NYSE;
(n) the Company and the Operating Partnership will use their
best efforts to do and perform all things required to be done and performed
under this Agreement by the Company and the Operating Partnership prior to
the Closing Date and to satisfy all conditions precedent to the delivery of
the Securities;
(o) the Company will use its best efforts to continue to
qualify as a REIT under the Code unless the Company determines that it is
no longer in its best interests to be so qualified;
(p) to take all reasonable action necessary to enable Duff &
Xxxxxx Credit Rating Co., (Duff & Xxxxxx"), Xxxxx'x Investors Service, Inc.
-------------
("Moody's"), and Standard Poor's Corporation ("S&P") to provide their
------- ---
respective credit ratings of the Securities, as specified in Schedule I
hereto.
-24-
6. The several obligations of the Underwriters hereunder to
purchase the Securities on the Closing Date are subject to the performance by
the Company and the Operating Partnership of their respective obligations
hereunder and to the following additional conditions:
(a) (i) (A) the Registration Statement (excluding the Rule 462
Registration Statement) shall have become effective (or if a post-effective
amendment is required to be filed under the Securities Act, such post-
effective amendment shall have become effective) not later than 5:00 P.M.,
New York City time, on the date hereof, (B) if the Company has elected to
rely on Rule 462(B), the Rule 462 Registration Statement shall have become
effective not later than 10:00 P.M., New York City time, on the date
hereof, and (C) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in effect,
and no proceedings for such purpose shall be pending before or threatened
by the Commission; (ii) the Prospectus shall have been filed with the
Commission pursuant to Rule 424(B) within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act and in accordance with Section 5(A) hereof; and (iii) all
requests for additional information by the Commission shall have been
complied with to the reasonable satisfaction of the Underwriters;
(b) the representations and warranties of the Company and the
Operating Partnership contained herein shall be true and correct on and as
of the Closing Date as if made on and as of the Closing Date and the
Company and the Operating Partnership shall have complied with all
agreements and all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended or
potential downgrading or (ii) any review or possible change that does not
indicate an improvement, in the rating accorded any securities of or
guaranteed by the Company or the Operating Partnership by any "nationally
recognized statistical rating organization", as such term is defined for
purposes of Rule 436(G)(2) under the Securities Act;
(d) (i) since the respective dates as of which information is
given in the Prospectus and as of the Closing Date, there shall not have
been
-25-
any change in the capital shares or long-term debt of the Company or the
Operating Partnership and there shall not have occurred any Material
Adverse Change or any Prospective Material Adverse Change, otherwise than
as set forth or contemplated in the Registration Statement and the
Prospectus, the effect of which in the judgment of the Underwriters makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the Closing Date, on the terms and in the
manner contemplated in the Prospectus and (ii) neither the Company, the
Operating Partnership, nor any of the Subsidiaries shall have sustained
since the date of the latest audited financial statements included in or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus;
(e) the Underwriters shall have received on and as of the
Closing Date, a certificate of an executive officer of the Company with
specific knowledge about the Company's financial matters reasonably
satisfactory to the Underwriters to the effect set forth in subsections (a)
through (d) (with respect to the respective representations, warranties,
agreements and conditions of the Company and the Operating Partnership) of
this Section 6;
(f) Xxxxx, Xxxxx & Xxxxx, counsel for the Company and the
Operating Partnership, shall have furnished to the Underwriters its written
opinion addressed to the Underwriters, dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, to the effect that:
(i) the Company is a duly organized and validly existing real
estate investment trust in good standing under the laws of the
State of Maryland, with power and authority to own, lease and
operate its properties, to conduct the businesses in which it is
engaged and proposes to engage, as described in the Registration
Statement and the Prospectus, and to enter into and perform its
obligations under this Agreement and the Indenture;
(ii) the Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under
the laws of the State of Delaware, with partnership power and
authority to
-26-
own, lease and operate its properties, to conduct the business
in which it is engaged and proposes to engage, as described in the
Registration Statement and the Prospectus, and to enter into and
perform its obligations under this Agreement and the Indenture;
(iii) each Subsidiary of the Operating Partnership set forth on
Exhibit A hereto has been duly organized and is validly existing
and in good standing under the laws of its jurisdiction of
organization with power and authority (corporate, partnership or
other, as applicable) to own, lease and operate its properties and
to conduct its business as described in the Prospectus; and all of
the issued shares of capital stock, Units or other partnership
interests of each Subsidiary of the Operating Partnership have been
duly and validly authorized and issued, are fully paid and, with
respect to Subsidiaries that are corporations, nonassessable, and
(except as otherwise set forth in the Prospectus) are owned of
record directly or indirectly by the Operating Partnership, and, to
the best of such counsel's knowledge, free and clear of all Liens;
(iv) each of the Company, the Operating Partnership and the
Subsidiaries has been duly qualified for the transaction of
business and is in good standing under the laws of each
jurisdiction in which such qualification or good standing is
required, based on its ownership or leasing of property or the
conduct of its business, other than where the failure to be so
qualified or in good standing would not have a Material Adverse
Effect;
(v) other than as set forth or contemplated in the
Registration Statement and the Prospectus, to such counsel's
knowledge (but without independent investigation), there are no
legal or governmental investigations, actions, suits or proceedings
pending or threatened to which the Company, the Operating
Partnership or any of the Subsidiaries is or may be a party or to
which any property of the Company, the Operating Partnership, the
Subsidiaries, or any Property is or may be the subject that, if
determined adversely to the Company, the Operating Partnership or
any Subsidiary, individually or in the aggregate, would have a
Material Adverse Effect;
-27-
(vi) such counsel does not know of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the
Prospectus that are not so filed or described as required;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership and is a
valid, binding agreement thereof enforceable against each such
party in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting the rights
and remedies of creditors generally and general principles of
equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except as rights to
indemnity hereunder may be limited by applicable law;
(viii) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act or proceedings
therefor initiated or threatened by the Commission;
(ix) the Registration Statement at the time it became effective
and the Prospectus and any amendments or supplements thereto (in
each case, other than the Form T-1 and the financial statements,
supporting schedules and other financial data included therein, as
to which such counsel need not express any opinion) as of the date
hereof and as of the Closing Date complied as to form in all
material respects with the requirements of the Securities Act;
(x) to the best of such counsel's knowledge, neither the
Operating Partnership, the Company, nor any of the Subsidiaries is
in violation of its partnership agreement, declaration of trust,
certificate of incorporation or by-laws, as the case may be, and,
except as disclosed in the Prospectus, neither the Company, the
Operating Partnership nor any of the Subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation
of, or in default under, any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease, joint venture or partnership
-28-
agreement or other agreement or instrument known to such counsel to
which the Company, the Operating Partnership or any of the
Subsidiaries is a party or by which it or any of them is bound or
affected or to which any of the Properties or any other properties
or assets of the Company, the Operating Partnership or any of the
Subsidiaries is bound, except for any such violations and defaults
as would, individually or in the aggregate, not reasonably be
expected to have a Material Adverse Effect on the Company or the
Operating Partnership; the issuance and sale of the Securities by
the Operating Partnership and the performance by the Company and
the Operating Partnership of their obligations under this Agreement
and the consummation of the transactions contemplated herein will
not conflict with or, with the giving of notice or lapse of time or
both, result in a breach of any of the terms or provisions of, or
constitute a default under, any contract, indenture, mortgage, deed
of trust, loan agreement, note, lease or other agreement or
instrument, known to such counsel, to which the Operating
Partnership, the Company or any of its Subsidiaries is a party or
by which the Company or any of the Subsidiaries is bound or
affected to which any of the property or assets of the Company or
any of the Subsidiaries is subject, nor will such action result in
any violations of any applicable law, statute or regulation, or any
administrative or court decree or order or rule, known to such
counsel, of any court or governmental agency or body having
jurisdiction over the Company, the Operating Partnership or any of
the Subsidiaries or any of their respective properties except for
any such violation, conflict, breach or default that, individually
or in the aggregate, would not have a Material Adverse Effect, or
result in the creation or imposition of any material Lien upon any
of the Properties, nor will any such action result in any violation
of the provisions of the partnership agreement, declaration of
trust, certificate of incorporation or by-laws, as the case may be,
of the Operating Partnership, the Company or any of the
Subsidiaries;
(xi) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issuance and sale of the
Securities or the consummation by the Company and the Operating
-29-
Partnership of the transactions contemplated by this Agreement,
except such consents, approvals, authorizations, registrations and
qualifications as have been obtained under the Securities Act and
as may be required under applicable state securities, real estate
syndication or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters and such
additional steps as may be required by or with the NASD;
(xii) to the best of such counsel's knowledge, no person has any
right to require the Company to include any securities owned by
such person in the securities registered pursuant to the
Registration Statement;
(xiii) the statements in the Prospectus under the captions "Risk
Factors--Provisions of our Declaration of Trust and Bylaws, and our
Shareholder Rights Plan, may discourage acquisition proposals and
attempts to change our Board of Trustees" "--We would incur adverse
tax consequences if we fail to qualify as a REIT," "--Our business
consists primarily of acquiring and operating real estate and is
therefore subject to real estate investment and operating risks--We
may incur significant environmental remediation costs or
liabilities," "--Our business consists primarily of acquiring and
operating real estate and is therefor subject to real estate
investment and operating risks--We may be adversely affected by
changes in laws," "--There are potential conflicts of interest in
our operations--Our duties to our shareholders may conflict with
our duties to the partners of Cabot L.P.," "--There are potential
conflicts of interest in our operations--We have significant
shareholders who could control our operations," "We are subject to
real estate financing risks--Rising interest rates will generally
increase our borrowing costs" "Federal Income Tax Consequences,"
"Description Debt Securities"; and "Selected Provisions of Maryland
Law and Cabot Trust's Declaration of Trust and Bylaws," insofar as
such statements constitute a summary of the legal matters, legal
conclusions, documents or proceedings referred to therein, are
accurate in all material respects;
(xiv) neither the Company, the Operating Partnership nor any of the
Subsidiaries is, or will after giving effect to the offering of the
-30-
Securities be subject to registration as, an "investment company"
or an entity "controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended;
(xv) the Securities have been approved for listing on the NYSE,
subject only to official notice of issuance;
(xvi) each of the Underwriters will receive valid title to the
Securities, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities created by the
Company, the Operating Partnership and any Subsidiary if the
Underwriters acquire such Securities in good faith and without
notice of any such security interests, mortgages, pledges, liens,
encumbrances, claims or equities;
(xvii) the partnership agreement of each of the Operating
Partnership and of each Subsidiary that is a partnership has been
duly authorized, validly executed and delivered by each of the
Company, the Operating Partnership and the respective Subsidiaries,
to the extent they are parties thereto, and is valid, legally
binding and enforceable in accordance with its terms;
(xviii) the issuance of the Securities has been duly authorized by
the Company on behalf of the Operating Partnership, and when
executed and authenticated by the Trustee in accordance with the
terms of the Indenture, and delivered to, and paid for by, the
Underwriters in accordance with the terms of this Agreement, such
Securities will constitute valid and legally binding obligations of
the Operating Partnership entitled to the benefits provided for in
the Indenture, enforceable against the Operating Partnership in
accordance with their terms, subject to (a) the effect of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors and
(b) the effect of general principles of equity, whether enforcement
is considered in a proceeding in equity or at law, and in the
discretion of the court before which any proceeding therefor may be
brought;
(xix) (A) the Base Indenture and the Supplemental Indenture have
-31-
each been duly and validly authorized, executed and delivered by
the Company and the Operating Partnership and, assuming due
authorization, execution and delivery thereof by the Trustee, will
constitute a valid and legally binding agreement of the Company and
the Operating Partnership, enforceable against the Company and the
Operating Partnership in accordance with its terms, subject to (a)
the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to or affecting the rights and remedies of
creditors and (b) the effect of general principles of equity,
whether enforcement is considered in a proceeding in equity or at
law, and in the discretion of the court before which any proceeding
therefor may be brought, and (B) the Indenture has been duly
qualified under the TIA;
(xx) the Indenture and the Securities conform in all material
respects to the descriptions thereof in the Registration Statement
and the Prospectus under the captions "Description of Debt
Securities" and "Description of the Notes," respectively;
(xxi) the Registration Statement has been declared effective under
the Securities Act and the Indenture has been qualified under the
TIA, the Prospectus was filed with the Commission pursuant to Rule
424 within the applicable time period prescribed by Rule 424 and,
to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or the Prospectus has
been issued and no proceeding for that purpose is pending or
threatened by the Commission;
(xxii) the documents filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (other than the
financial statements and supporting schedules therein and other
financial data, as to which no opinion need be rendered), when they
were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder; and
(xxiii) the Company and the Operating Partnership satisfy all
conditions and requirements for filing the Registration Statement
on Form S-3 under the Act.
-32-
Such opinion shall also contain a statement that no information
has come to the attention of such counsel that causes such counsel to
believe that the Registration Statement (other than the financial
statements, supporting schedules and other financial data included
therein, as to which such counsel need not express any belief),
including the documents incorporated therein by reference, at the time
the Registration Statement became effective, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as amended and
supplemented, if applicable, as of the date hereof and as of the
Closing Date, contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In addition, Xxxxx, Xxxxx & Xxxxx shall reconfirm the opinion
filed as Exhibit 8 to the Registration Statement as of the date hereof
and permit the Underwriters to rely on such opinion as if it were
addressed to the Underwriters.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws of the state of Maryland on
an opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, to the extent such
counsel deems proper and to the extent specified in such opinion, if
at all, upon an opinion or opinions (in form and substance reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters, familiar with the applicable laws; (B)
as to matters of fact, to the extent such counsel deems proper, on
certificates or statements of responsible officers of the Company and
certificates or other written statements of officials of jurisdictions
having custody of documents respecting corporate existence or good
standing. The opinion of such counsel for the Company shall state
that the opinion of any such other counsel is in form satisfactory to
such counsel and, in such counsel's opinion, the Underwriters and they
are reasonably justified in relying thereon;
(g) on the effective date of the Registration Statement and the
effective date of the most recently filed post-effective amendment, if
any, to the Registration Statement, and also on the Closing Date, each
of Xxxxxx Xxxxxxxx LLP, KPMG LLP and PricewaterhouseCoopers
-33-
shall have furnished to the Underwriters letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to the
Representatives, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus, including statements with respect to a review in
accordance with SAS 71 of any interim financial information contained
in the Registration Statement and the Prospectus;
(h) the Underwriters shall have received on and as of the Closing
Date an opinion addressed to the Underwriters of Xxxxxx Xxxxxx &
Xxxxxxx, counsel to the Underwriters, with respect to the due
authorization and valid issuance of the Securities, the Registration
Statement, the Prospectus and such other related matters as the
Underwriters may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters; in rendering such opinion, such
counsel may rely as to matters involving the application of the laws
of the state of Maryland on an opinion of Xxxxxxx Xxxxx Xxxxxxx &
Ingersoll;
(i) the Securities shall have been approved for listing on the
NYSE, subject only to official notice of issuance;
(j) on or prior to the Closing Date, the Company shall have
furnished to the Underwriters such further certificates and documents
as the Underwriters shall reasonably request; and
(k) at the Closing Date, the Securities shall have the ratings
accorded by any "nationally recognized statistical organization," as
defined by the Commission for purposes of Rule 436(G)(2) under the Act
as specified in Schedule I hereto, and the Operating Partnership shall
have delivered to X.X. Xxxxxx Securities Inc. a letter, dated as of
such date, from each such rating organization, or other evidence
satisfactory X.X. Xxxxxx Securities Inc., confirming that the
Securities have such ratings. Since the date hereof, there shall not
have occurred a downgrading in the rating assigned to the Securities
or any of the Company's securities or the Operating Partnership's
other securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under
surveillance or review, with
-34-
possible negative implications, its rating of the Securities or any of
the Company's securities or the Operating Partnership's other
securities.
7. The Company and the Operating Partnership agree, jointly and
severally, to indemnify and hold harmless each Underwriter, its officers and
directors, and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company or the Operating Partnership shall have
furnished any amendments or supplements thereto) or any Preliminary Prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company or the Operating Partnership in writing
by such Underwriter through the Underwrite rs expressly for use therein;
provided, however, that neither the Company nor the Operating Partnership shall
-------- -------
be liable to any Underwriter under this paragraph of Section 7 to the extent
that any such loss, claim, damage or liability results solely from an untrue
statement of a material fact contained in, or the omission of a material fact
from, a Preliminary Prospectus if (i) such untrue statement or omission was
completely corrected in the Prospectus prior to the written confirmation of the
sale of the Securities giving rise to such liability, (ii) such Underwriter sold
Securities to the person alleging such loss, claim, damage or liability without
sending or giving the Prospectus at or prior to the written confirmation of the
sale of the Securities giving rise to such liability, (iii) the Company or the
Operating Partnership had furnished copies of the Prospectus to such Underwriter
prior to the written confirmation of the sale of the Securities giving rise to
such liability and (iv) such Underwriter would not have been subject to such
liability if it had delivered the Prospectus to such person at or prior to the
written confirmation of such sale.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its trustees, its officers who sign the Registration
Statement, the Operating Partnership and each person who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
and
-35-
the Operating Partnership to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company in writing by
such Underwriter through the Underwriters expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
Preliminary Prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceeding paragraphs, such person (the "Indemnified Person") shall promptly
------------------
notify the person or persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing, and such Indemnifying Person, upon request of
-------------------
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 7 that the Indemnifying Person may
designate in such proceeding and shall pay the reasonable fees and expenses of
such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) such Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) such Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to such Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include an Indemnifying Person and an Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that an
Indemnifying Person shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Underwriters and such control
persons of Underwriters shall be designated in writing by X.X. Xxxxxx Securities
Inc., and any such separate firm for the Company, its directors, its officers
who sign the Registration Statement, the Operating Partnership and such control
persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, such Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the preceding sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this
-36-
paragraph, such Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 90 days after receipt by such Indemnifying
Person of the aforesaid request, (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement and (iii) such Indemnified Person shall not have
received actual notice in writing that such Indemnifying Person is contesting
such request. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Operating Partnership on the one hand
and the Underwriters on the other hand from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Operating Partnership on the one hand and the Underwriters
on the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Operating Partnership on the one hand and the Underwriters on the other shall be
deemed to be in the same respective proportions as the net proceeds from the
offering and sale of the Securities (before deducting expenses) received by the
Company and the Operating Partnership and the total underwriting discounts
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus. The relative fault of the Company and the Operating
Partnership on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the Operating
Partnership, on the one hand, or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and
-37-
opportunity to correct or prevent such statement or omission.
Each of the Company, the Operating Partnership and the Underwriters
agrees that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the Underwriters were
--------
treated as one entity for such purposes) or by any other method of allocation
that does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in
the immediately proceeding paragraph shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses incurred by
such Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(F) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective number of Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and the Operating
Partnership set forth in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors,
the Operating Partnership or any other person controlling the Company or the
Operating Partnership and (iii) acceptance of and payment for any of the
Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriters, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on
-38-
or by the New York Stock Exchange, the American Stock Exchange or the NASDAQ
National Market, (ii) trading of any securities of or guaranteed by the Company
or the Operating Partnership shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Underwriters, is material and adverse and that, in
the judgment of the Underwriters, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities that it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities that
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of
Securities to be purchased on such date by all Underwriters, the other
Underwriters shall be obligated severally in the proportions that the principal
amount of Securities set forth opposite their respective names in Schedule II
hereto bears to the aggregate principal amount of Securities set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions
as the Underwriters may specify, to purchase the Securities that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Securities that
--------
any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-ninth of the principal
amount of Securities that such Underwriter is obligated to purchase on such date
hereunder without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities that it or they have agreed to purchase hereunder on such date, and
the aggregate principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Securities to
be purchased on such date, and arrangements reasonably satisfactory to the
Underwriters, the Company and the Operating Partnership for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Operating
-39-
Partnership. In any such case either the Underwriters or the Operating
Partnership shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company or the
Operating Partnership to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company or the Operating
Partnership shall be unable to perform their respective obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
each of the Company and the Operating Partnership agrees, jointly and severally,
to reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all reasonable out-of-
pocket expenses (including the reasonable fees and expenses of their counsel)
incurred by the Underwriters in connection with this Agreement or the offering
contemplated hereunder.
11. Any action by the Underwriters hereunder may be taken by the
Underwriters jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of the
Underwriters, and any such action taken by the Underwriters jointly or by X.X.
Xxxxxx Securities Inc. alone shall be binding upon the Underwriters. All notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given, c/o X.X. Xxxxxx
Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Facsimile: (212) 648-
5705), Attention: Syndicate Department, with a copy to Xxxxxx Xxxxxx & Xxxxxxx,
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention Xxxxxx X. Xxxxxxxxx, Esq.
Notices to the Company or the Operating Partnership shall be given c/o the
Company at Xxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000 (Facsimile:
(000) 000-0000); Attention: Xxxxxx X. Xxxxxxxxx, President, with a copy to
Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000-
1503, Attention: Xxxxx X. Xxxxxxx, Esq.
12. This Agreement shall inure to the benefit of and be binding upon
the Underwriters, the Company, the Operating Partnership and any controlling
person referred to herein and their respective successors, heirs and legal
representatives. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by
-40-
reason merely of such purchase.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. Any obligation or liability whatsoever of the Company or of the
Operating Partnership that may arise at any time under this Agreement or any
obligation or liability that may be incurred by either of them pursuant to any
other instrument, transaction or undertaking contemplated hereby, shall be
satisfied, if at all, out of the Company's or the Operating Partnership's assets
only. No such obligation or liability shall be personally binding upon, nor
shall resort for the enforcement thereof be had to, the property of any
shareholder, partner, trustee, officer, employee or agent of either of the
Company or the Operating Partnership, regardless of whether such obligation or
liability is in the nature of contract, tort, or otherwise.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
-S1-
If the foregoing is in accordance with your understanding, please sign
and return ten counterparts hereof.
Very truly yours,
CABOT INDUSTRIAL TRUST
By:
----------------------------------
Name:
Title:
CABOT INDUSTRIAL PROPERTIES, L.P.
By: Cabot Industrial Trust,
General Partner
By:
----------------------------------
Name:
Title:
Accepted:
X.X. XXXXXX SECURITIES INC.
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
PNC CAPITAL MARKETS, INC.
PRUDENTIAL SECURITIES
INCORPORATED
XXXXXXX XXXXX BARNEY INC.
By: X.X. XXXXXX SECURITIES INC.
By:
--------------------------------
Name:
Title:
SCHEDULE I
Underwriters: X.X. Xxxxxx Securities Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
PNC Capital Markets, Inc.
Prudential Securities Incorporated
Xxxxxxx Xxxxx Xxxxxx Inc.
Underwriting Agreement dated: [ ], 1999
Registration Statement No.: 333-71585
Title of Securities: [ ]% Reedemable Notes due
20[ ] (the "Notes")
Aggregate principal amount: $
Price to Public: [ ]%
Purchase Price: [ ]%
Underwriting Discount: [ ]%
Indenture: Indenture to be dated as of [ ]
1999, as supplemented, by supplemental
indenture No. 1 to be dated
[ ], 1999, each between the
Company and the Operating Partnership
and the Trustee.
Maturity: [ ], 20[ ]
Interest Rate: [ ]%
Interest Payment Dates: Payable semi-annually on [ ] and
[ ] of each year, commencing
[ ], 1999.
Optional Redemption The Notes are redeemable at any time at
Provisions: the option of the Operating Partnership,
in whole or in part, at the redemption
prices set forth in the Prospectus
Supplement.
Sinking Fund Provisions: None
Defeasance Provisions: Standard defeasance and covenant defeasance
provisions.
Ratings: Duff & Xxxxxx: BBB
Xxxxx'x: (P)Baa2
S&P: BBB-
Lockup Provisions: None
Other Provisions: [ ]
Closing Date and
Time of Delivery: [ ], 1999, [ ] A.M.
Closing Location: Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
SCHEDULE II
Principal Amount of Notes
Underwriters To Be Purchased
X.X. Xxxxxx Securities Inc. ..................... $
Xxxxxxx, Xxxxx & Co .............................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated .........................
PNC Capital Markets, Inc ........................
Prudential Securities Incorporated ..............
Xxxxxxx Xxxxx Barney Inc ........................ ----------------------------
Total $
============================
EXHIBIT A
---------
Subsidiaries
------------
[To be updated by Xxxxx Xxxxx & Xxxxx]
Cabot Advisors, Inc.
Bristol Property LLC
Guilford Property LLC
Fontana Property 6 LLC
Fontana Property 7 LLC
Xxxxxxxxx Property LLC
The Xxxxxxx Business Center LLC
Xxxxxxx Street Holdings, LLC
San Xxxxxxxx Road Holdings, LLC
Cabot Industrial Members LLC
Annapolis Junction Land Limited Partnership
BWI Warehouse #4 Limited Partnership
GR-6 Limited Partnership
GR-7 Limited Partnership
Port Capital Center LLP
West Nursery Land Holding Limited Partnership
