$200,000,000
HRPT Properties Trust
6.95% Senior Notes due 2012
PURCHASE AGREEMENT
April 4, 2002
First Union Securities, Inc.
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
HRPT Properties Trust, a Maryland real estate investment trust (the
"Company"), proposes to issue and sell $200,000,000 principal amount of its
6.95% Senior Notes due 2012 (the "Securities"), to First Union Securities, Inc.,
acting under its trade name Wachovia Securities (the "Underwriter"). The
Securities are to be issued pursuant to the provisions of an Indenture dated as
of July 9, 1997 between the Company and State Street Bank and Trust Company, as
Trustee (the "Trustee") and a Supplemental Indenture dated as of April 10, 2002
between the Company and the Trustee (collectively, the "Indenture").
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively called the
"Act"), a registration statement on Form S-3 (File No. 333-56051) relating to
the registration of the Securities and such other securities which may be
offered from time to time by the Company, in accordance with Rule 415 under the
Act. Such registration statement (as amended, if applicable) was declared
effective by the Commission on June 15, 1998. Such registration statement (as
amended as of the date hereof) on the one hand, and the prospectus constituting
a part thereof and the prospectus supplement relating to the offering of the
Securities provided to the Underwriter by the Company in the form first used to
confirm sales of Securities (the "Prospectus Supplement"), on the other hand,
including, in each case, all documents incorporated therein by reference
pursuant to Item 12 of Form S-3 under the Act, as from time to time amended or
supplemented pursuant to the Act and the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively called the "Exchange Act"), are referred to herein as the
"Registration Statement" and the "Prospectus," respectively. All references in
this Agreement to financial statements and schedules and other information which
is "contained," "included," "described" or "stated" in the Registration
Statement or the Prospectus (and all other similar references) shall be deemed
to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement or
the Prospectus shall be deemed to mean and include, without limitation, even
though not specifically stated, any document filed under the Exchange Act which
is or is deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be. Capitalized terms used but not otherwise
defined herein shall have the meanings given to those terms in the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the representations
and warranties contained in this Agreement, and subject to its terms and
conditions, the Company agrees to issue and sell, and the Underwriter agrees to
purchase from the Company, $200,000,000 aggregate principal amount of Securities
at 98.384% of the principal amount thereof (the "Purchase Price").
3. Terms of Public Offering. The Company is advised by the Underwriter
that the Underwriter proposes (i) to make a public offering of the Securities as
soon after execution and delivery of this Agreement as in the Underwriter's
judgment is advisable and (ii) to offer the Securities at varying prices from
time to time upon the terms set forth in the Prospectus.
4. Delivery and Payment. The Securities shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as the Underwriter shall request not later than two
business days prior to the Closing Date (as defined below). The Company shall
deliver the Securities to the Underwriter through the facilities of The
Depository Trust Company ("DTC"), for the account of the Underwriter, against
payment to the Company of the Purchase Price therefor by wire transfer of
Federal or other funds immediately available in New York City. The certificates
representing the Securities shall be made available for inspection not later
than 9:30 A.M., New York City time, on the business day prior to the Closing
Date at the office of DTC or its designated custodian (the "Designated Office").
The time and date of delivery and payment for the Securities shall be 9:00 A.M.,
New York City time, on April 10, 2002 or such other time on the same or such
other date as the Underwriter and the Company shall agree in writing. The time
and date of such delivery and payment are hereinafter referred to as the
"Closing Date."
The documents to be delivered on the Closing Date on behalf of the
parties hereto pursuant to Section 8 of this Agreement shall be delivered at
such place as the Underwriter shall designate and the Securities shall be
delivered at the Designated Office, all on the Closing Date.
5. Agreements of the Company. The Company agrees with you:
(a) In respect of the offering of the Securities contemplated
hereby, to (i) prepare a Prospectus Supplement setting forth the
principal amount and terms of the Securities covered thereby and the
name of the Underwriter participating in the offering of the Securities
and such other information as the Underwriter and the Company deem
appropriate in connection with the offering of the Securities, (ii)
file the Prospectus (as defined herein to include such Prospectus
Supplement) in a form approved by you pursuant to Rule 424 under the
Act no later than the Commission's close of business on the second
business day following the date hereof and (iii) furnish copies of the
Prospectus to the Underwriter and to such dealers as you shall specify
as soon as
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practicable after the date of this Agreement in such quantities as you
may reasonably request.
(b) At any time when the Prospectus is required to be
delivered under the Act or the Exchange Act in connection with sales of
Securities, to advise you promptly and, if requested by you, to confirm
such advice in writing, of (i) the effectiveness of any amendment to
the Registration Statement, (ii) the transmittal to the Commission for
filing of the Prospectus or any other supplement or amendment to the
Prospectus required to be filed pursuant to the Act, (iii) the receipt
of any comments from the Commission relating to the Registration
Statement, the Prospectus, any preliminary prospectus supplement
relating to the Securities, the Prospectus Supplement or any of the
transactions contemplated by this Agreement, (iv) any request by the
Commission for post-effective amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional
information, (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Securities for offering or sale in
any jurisdiction, or the initiation of any proceeding for such
purposes, and (vi) the happening of any event during the period
referred to in paragraph (e) below which makes any statement of a
material fact made in the Registration Statement or the Prospectus
untrue or which requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order to make the
statements therein not misleading. The Company will make every
reasonable effort to prevent the issuance of any stop order and if at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make
every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
(c) To furnish to you, without charge, one copy of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits and documents incorporated
therein by reference, and to furnish to you such additional number of
conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits but including documents incorporated
therein by reference, as you may reasonably request. If applicable, the
copies of the Registration Statement and each amendment thereto
furnished to the Underwriter will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T, as promulgated by the
Commission.
(d) At any time when the Prospectus is required to be
delivered under the 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 you shall not previously have
been advised or to which you or Hunton & Xxxxxxxx shall reasonably
object; and to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement, any
Rule 462(b) Registration Statement or any amendment or supplement to
the Prospectus which may be necessary or advisable in connection with
the distribution of the Securities by you, and to use its best efforts
to cause the same to become promptly effective. If applicable, the
Prospectus and any amendments or
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supplements thereto furnished to the Underwriter will be identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T, as
promulgated by the Commission.
(e) Prior to 10:00 A.M., New York City time, on the first
business day after the date hereof and from time to time thereafter for
such period as in the opinion of Hunton & Xxxxxxxx a prospectus is
required by law to be delivered in connection with sales by the
Underwriter or a dealer, to furnish to the Underwriter and any dealer
as many copies of the Prospectus (and of any amendment or supplement to
the Prospectus) and any documents incorporated therein by reference as
the Underwriter or such dealer may reasonably request.
(f) If, during the period specified in paragraph (e) above,
any event shall occur as a result of which, in the opinion of Hunton &
Xxxxxxxx, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus
to comply with any law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented,
will not, in the light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with applicable law,
and to furnish to the Underwriter and to such dealers as you shall
specify, such number of copies thereof as the Underwriter or such
dealers may reasonably request.
(g) Prior to any public offering of the Securities, (i) to
cooperate with you and Hunton & Xxxxxxxx (or such other local counsel
as may be designated by you) in connection with the registration or
qualification of the Securities for offer and sale by the Underwriter
and by dealers under the state securities, Blue Sky or real estate
syndication laws of such jurisdictions as you may request, (ii) to
continue such qualification in effect so long as required for
distribution of the Securities, (iii) to file such consents to service
of process or other documents as may be necessary in order to effect
such registration or qualification and (iv) to cooperate with you and
Hunton & Xxxxxxxx in connection with the review of the offering of the
Securities contemplated hereby by the National Association of
Securities Dealers, Inc. ("NASD").
(h) To make generally available to the Company's security
holders as soon as reasonably practicable but not later than sixty (60)
days after the close of the period covered thereby (or ninety (90) days
in the event the close of such period is the close of the Company's
fiscal year), an earnings statement (in form complying with the
provisions of Rule 158 under the Act) covering a period of at least
twelve (12) months after the effective date of the Registration
Statement (but in no event commencing later than ninety (90) days after
such date) which shall satisfy the provisions of Section 11(a) of the
Act, and, if required by Rule 158 of the Act, to file such statement as
an exhibit to the next periodic report required to be filed by the
Company under the Exchange Act covering the period when such earnings
statement is released.
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(i) During the period of five years after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the end
of each fiscal year to the record holders of the Securities a financial
report of the Company and its subsidiaries, if any, on a consolidated
basis (and a similar financial report of all unconsolidated
subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year,
together with comparable information as of the end of and for the
preceding year, certified by independent certified public accountants,
and (ii) to make generally available as soon as practicable after the
end of each quarterly period (except for the last quarterly period of
each fiscal year) to such holders, a consolidated balance sheet, a
consolidated statement of operations and a consolidated statement of
cash flows (and similar financial reports of all unconsolidated
subsidiaries, if any) as of the end of and for such period, and for the
period from the beginning of such year to the close of such quarterly
period, together with comparable information for the corresponding
periods of the preceding year.
(j) During the period when the Prospectus is required to be
delivered under the 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) To pay (i) all costs, expenses, fees and taxes incident to
the preparation, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits),
if any, all documents incorporated or to be incorporated by reference
therein, and all amendments and supplements to any of them prior to or
during the period specified in paragraph (e), (ii) all costs and
expenses in connection with the printing and delivery of the
Prospectus, and all amendments or supplements thereto during the period
specified in paragraph (e), (iii) all costs and expenses related to the
transfer and delivery of the Securities to the Underwriter, including
any transfer or other taxes payable thereon, (iv) all expenses in
connection with the registration or qualification of the Securities for
offer and sale under the securities, Blue Sky or real estate
syndication laws of the several states (including in each case the fees
and disbursements of counsel for the Company or counsel for the
Underwriter relating to such registration or qualification and
memoranda relating thereto), (v) all filing fees paid to the NASD in
connection with the review and clearance of the offering of the
Securities contemplated hereby, (vi) the cost of furnishing such copies
of the Registration Statement, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with the
offering or sale of the Securities by the Underwriter or by dealers to
whom Securities may be sold, (vii) the costs and charges of any
transfer agent, registrar and or depositary, including DTC, (viii) any
fees charged by rating agencies for the rating of the Securities and
(ix) the fees and expenses of the Trustee and the Trustee's counsel in
connection with the Indenture and the Securities.
(l) To use its best efforts to qualify for the year ending
December 31, 2002, and to continue to meet the requirements to qualify,
as a real estate investment trust ("REIT") under the Internal Revenue
Code of 1986, as amended (the "Code").
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(m) To apply the net proceeds of the offering of Securities
contemplated hereby substantially in accordance with the description
set forth under the caption "Use of Proceeds" in the Prospectus.
(n) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by
the Company prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Securities.
(o) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise transfer or dispose of any debt
securities of the Company or any warrants, rights or options to
purchase or otherwise acquire debt securities of the Company
substantially similar to the Securities (other than (i) the Securities
and (ii) commercial paper issued in the ordinary course of business),
without the prior written consent of the Underwriter.
(p) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of
the Securities.
6. Representations and Warranties. The Company represents and warrants
to the Underwriter that:
(a) The Company meets the requirement for use of Form S-3 and
the Registration Statement has been prepared by the Company under the
provisions of the Act and has been filed with and declared effective by
the Commission.
(b) The Registration Statement has become effective (other
than any Rule 462(b) Registration Statement to be filed by the Company
after the effectiveness of this Agreement); and no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(c) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus,
complied or will comply when so filed in all material respects with the
Exchange Act, (ii) the Registration Statement, when it initially became
effective and as of the date hereof, respectively, did 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 statement
therein not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and (iv) the Prospectus
does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
paragraph (c) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use therein.
(d) The Company is a Maryland real estate investment trust
duly organized, validly existing and in good standing under the laws of
the State of Maryland. Each of its
6
subsidiaries has been duly organized and is validly existing as a
corporation or trust in good standing under the laws of its
jurisdiction of incorporation or organization. Each of the Company and
its subsidiaries has full power and authority (corporate and other) to
carry on its business as described in the Registration Statement and in
the Prospectus and to own, lease and operate its properties. Each of
the Company and its subsidiaries is duly qualified and is in good
standing as a foreign corporation or trust, as the case may be, and is
authorized to do business in each jurisdiction in which the nature of
its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(e) The financial statements of the Company and its
subsidiaries, together with the related schedules and notes thereto,
included or incorporated by reference in the Registration Statement and
in the Prospectus, comply as to form in all material respects with the
requirements of the Act. Such financial statements of the Company,
together with the related schedules and notes thereto, present fairly
the consolidated financial position, results of operations,
shareholders' equity and changes in financial position of the Company
and its subsidiaries, at the dates or for the periods therein specified
and have been prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied throughout the periods
involved. The pro forma financial statements and other pro forma
financial information (including the notes thereto) included or
incorporated by reference in the Registration Statement and in the
Prospectus (i) present fairly the information shown therein, (ii) have
been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and (iii) have been
properly compiled on the basis described therein and the assumptions
used in the preparation of such pro forma financial statements and
other pro forma financial information (including the notes thereto) are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein. The
adjusted pro forma financial statements and other adjusted pro forma
financial information (including the notes thereto) included or
incorporated by reference in the Registration Statement and in the
Prospectus (i) present fairly the information shown therein and (ii)
have been properly compiled on the basis described therein and the
assumptions used in the preparation of such adjusted pro forma
financial statements and other adjusted pro forma financial information
(including notes thereto) are reasonable and the adjustments used
therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(f) The accountants who have certified the financial
statements of the Company and its subsidiaries included or incorporated
by reference in the Registration Statement and in the Prospectus are
independent certified public accountants as required by the Act.
(g) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and has
been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and
7
(ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability.
(h) All of the issued and outstanding indebtedness of the
Company is duly and validly authorized and issued; the Securities have
been duly authorized and, on the Closing Date, will have been validly
executed and delivered by the Company. When the Securities have been
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriter in
accordance with the terms of this Agreement, the Securities will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability.
(i) The authorized capital of the Company, including the
Securities, conforms as to legal matters to the description thereof
contained in the Prospectus (or the documents incorporated therein by
reference).
(j) Since the respective dates as of which information is
given in the Prospectus, and except as otherwise disclosed therein, (i)
there has been no material adverse change in the business, operations,
earnings, prospects, properties or condition (financial or otherwise)
of the Company and its subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business, (ii) there have been no
material transactions entered into by the Company and its subsidiaries,
on a consolidated basis, other than transactions in the ordinary course
of business, (iii) neither the Company nor any of its subsidiaries has
incurred any material liabilities or obligations, direct or contingent,
(iv) the Company and its subsidiaries, on a consolidated basis, have
not, (A) other than regular quarterly dividends, declared, paid or made
a dividend or distribution of any kind on any class of its shares of
beneficial interest (other than dividends or distributions from wholly
owned subsidiaries to the Company), (B) issued any shares of beneficial
interest of the Company or any of its subsidiaries or any options,
warrants, convertible securities or other rights to purchase the shares
of beneficial interest of the Company or any of its subsidiaries (other
than the issuance of common shares of beneficial interest ("Common
Shares") upon conversion of certain convertible debentures of the
Company or the issuance of Common Shares to the trustees and officers
of the Company pursuant to the Company's Incentive Share Award Plan) or
(C) repurchased or redeemed shares of beneficial interest, and (v)
there has not been (A) any material decrease in the Company's net worth
or (B) any material increase in the short-term or long-term debt
(including capitalized lease obligations) of the Company and its
subsidiaries, on a consolidated basis.
(k) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (iii) access
to assets is
8
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(l) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or bylaws or other organizational
documents or in default in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any other agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party
or by which any of their respective properties or assets may be bound
or affected, except for any such violation that would not have a
material adverse effect on the condition, financial or otherwise or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries, taken as a whole. The Company is not in violation of
any law, ordinance, governmental rule or regulation or court decree to
which it is subject, except for any such violations that would not,
individually or in the aggregate, have a material adverse effect on the
business, operations, earnings, prospects, properties or condition
(financial or otherwise) of any of the Company and its subsidiaries,
taken as a whole.
(m) Except as disclosed in the Registration Statement or in
the Prospectus, there is not now pending or, to the knowledge of the
Company, threatened, any litigation, action, suit or proceeding to
which the Company is or will be a party before or by any court or
governmental agency or body, which (A) might result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company or (B)
might materially and adversely affect the property or assets of the
Company or (C) concerns the Company and is required to be disclosed in
the Registration Statement or the Prospectus, or (D) could adversely
affect the consummation of this Agreement and the issuance, purchase
and sale of the Securities. No contract or other document is required
to be described in the Registration Statement or in the Prospectus or
to be filed as an exhibit to the Registration Statement that is not
described therein or filed as required.
(n) The execution, delivery and performance by the Company of
this Agreement, the issuance, offering and sale by the Company of the
Securities as contemplated by the Registration Statement and by the
Prospectus and the consummation of the transactions contemplated hereby
and compliance with the terms and provisions hereof, will not violate
or conflict with or constitute a breach of any of the terms or
provisions of, or a default under, (i) the Amended and Restated
Declaration of Trust (the "Declaration of Trust") or the Bylaws of the
Company or the charter or bylaws or other organizational documents of
any subsidiaries of the Company, (ii) any agreement, indenture or other
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or their respective
properties or assets is bound, or (iii) any laws, administrative
regulations or rulings or decrees to which the Company or any of its
subsidiaries or their respective properties or assets may be subject.
(o) No consent, approval, authorization or order of, or
registration, filing or qualification with, any governmental body or
regulatory agency having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets is
9
required for the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby,
including, without limitation, the issuance, sale and delivery of the
Securities pursuant to this Agreement, except such as have been
obtained and such as may be required under foreign and state securities
or "Blue Sky" or real estate syndication laws.
(p) Except as otherwise disclosed in the Registration
Statement or in the Prospectus, the Company and each of its
subsidiaries has good and marketable title or ground leases, free and
clear of all liens, claims, encumbrances and restrictions, except liens
for taxes not yet due and payable and other liens and encumbrances
which do not, either individually or in the aggregate, materially and
adversely affect the current use or value thereof, to all property and
assets described in the Registration Statement or in the Prospectus as
being owned by them. Except as otherwise set forth in the Registration
Statement or in the Prospectus, all leases to which the Company and
each of its subsidiaries is a party relating to real property, and all
other leases which are material to the business of the Company and its
subsidiaries, taken as a whole, are valid and binding, and no default
(to the Company's knowledge, in the case of leases to which the Company
is a party as lessor, that would, individually or in the aggregate,
have a material adverse effect on the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole) has occurred and is
continuing thereunder, and the Company and each of its subsidiaries
enjoys peaceful and undisturbed possession under all such leases to
which it is a party as lessee. With respect to all properties owned or
leased by the Company and each of its subsidiaries, the Company or such
subsidiary has such documents, instruments, certificates, opinions and
assurances, including without limitation, fee, leasehold owners or
mortgage title insurance policies (disclosing no encumbrances or title
exceptions which are material to the Company and its subsidiaries
considered as a whole, except as otherwise set forth in the
Registration Statement and in the Prospectus), legal opinions and
property insurance policies in each case in form and substance as are
usual and customary in transactions involving the purchase of similar
real estate and are appropriate for the Company or such subsidiary to
have obtained.
(q) The Company and each of its subsidiaries owns, or
possesses adequate rights to use, all patents, trademarks, trade names,
service marks, copyrights, licenses and other rights necessary for the
conduct of their respective businesses as described in the Registration
Statement and in the Prospectus, and neither the Company nor any of its
subsidiaries has received any notice of conflict with, or infringement
of, the asserted rights of others with respect to any such patents,
trademarks, trade names, service marks, copyrights, licenses and other
such rights (other than conflicts or infringements that, if proven,
would not have a material adverse effect on the business, operations,
earnings, prospects, properties or condition (financial or otherwise)
of the Company and its subsidiaries, taken as a whole), and neither the
Company nor any of its subsidiaries knows of any basis therefor.
(r) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
timely filed, other than those filings being contested in good faith,
and all material taxes, including withholding taxes, penalties and
10
interest, assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the Company or any of
its subsidiaries have been paid, other than those being contested in
good faith and for which adequate reserves have been provided.
(s) Except for those matters which in the aggregate do not
have a material adverse effect on the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the
Company and its subsidiaries taken as a whole, and except for Hazardous
Materials (as defined below) or substances which are handled and/or
disposed of in compliance with all applicable federal, state and local
requirements, to the Company's knowledge, after due investigation, the
real property owned, leased or otherwise operated by the Company and
each of its subsidiaries in connection with the operation of their
respective businesses, including, without limitation, any subsurface
soils and ground water (the "Realty"), is free of contamination from
any Hazardous Materials. To the Company's knowledge, after due
investigation, the Realty does not contain any underground storage or
treatment tanks, active or abandoned water, gas or oil xxxxx, or any
other underground improvements or structures, other than the
foundations, footings, or other supports for the improvements located
thereon which, based on present knowledge, could, in their present
condition, reasonably be expected to presently cause a material
detriment to or materially impair the beneficial use thereof by the
Company or constitute or cause a significant health, safety or other
environmental hazard to occupants or users thereof without regard to
any special conditions of such occupants or users. The Company
represents that, after due investigation, it has no knowledge of any
material violation, with respect to the Realty, of any Environmental
Law, or of any material liability on the part of the Company with
respect to the Realty, resulting from the presence, use, release,
threatened release, emission, disposal, pumping, discharge, generation
or processing of any Hazardous Materials. As used herein,
"Environmental Law" means any federal, state or local statute,
regulation, judgment, order or authorization relating to emissions,
discharges, releases or threatened releases of Hazardous Materials into
ambient air, surface water, ground water, publicly-owned treatment
works, septic systems or land, or otherwise relating to the pollution
or protection of public health or the environment, and "Hazardous
Materials" means any substance, material or waste which is regulated,
defined, or listed as a "hazardous waste", "hazardous substance",
"toxic substance", "medical waste", "infectious waste" or other similar
terms in any Environmental Law or by any federal, state or local
government or quasi-government authority, or any petroleum products,
asbestos, lead-based paint, polychlorinated biphenyls, flammable
explosives or radioactive materials.
(t) Each of the Company and its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities (together, "permits"), including, without limitation, under
any applicable Environmental Law, as are necessary to own, lease and
operate its properties and to engage in the business currently
conducted by it, except such licenses and permits as to which the
failure to own or possess will not in the aggregate have a material
adverse effect on the business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company, and
the Company does not have any reason to believe that any governmental
body or agency is considering limiting, suspending or revoking any such
license,
11
certificate, permit, authorization, approval, franchise or right; each
of the Company and its subsidiaries has fulfilled and performed all of
its material obligations with respect to such permits, and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit; and, except
as described in the Registration Statement and in the Prospectus, such
permits contain no restrictions that are materially burdensome to the
Company or any of its subsidiaries.
(u) To the knowledge of the Company, no labor problem exists
or is imminent with employees of the Company or any of its subsidiaries
that could have a material adverse effect on the business, operations,
earnings, prospects, properties or condition (financial or otherwise)
of the Company and its subsidiaries, taken as a whole.
(v) Neither the Company nor any of its subsidiaries nor, to
the knowledge of the Company, any officer, trustee or director
purporting to act on behalf of the Company or any of its subsidiaries,
has at any time: (i) made any contributions to any candidate for
political office, or failed to disclose fully any such contributions,
in violation of law; (ii) made any payment of funds to, or received or
retained any funds from, any state, federal or foreign governmental
officer or official, or other person charged with similar public or
quasi-public duties, other than payments required or allowed by
applicable law; or (iii) engaged in any transactions, maintained any
bank accounts or used any corporate funds except for transactions, bank
accounts and funds, which have been and are reflected in the normally
maintained books and records of the Company and its subsidiaries.
(w) All of the outstanding shares of beneficial interest of,
or other ownership interests in, each of the Company's subsidiaries
have been duly authorized and validly issued and are fully paid and,
except as to subsidiaries that are partnerships, nonassessable, and,
except as disclosed in the Registration Statement or in the Prospectus,
are or will be owned by the Company free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature.
(x) Except as referred to or described in the Registration
Statement and in the Prospectus, none of the subsidiaries of the
Company owns any shares of stock or any other securities of any
corporation or has any equity interest in any firm, partnership,
association or other entity other than the issued capital shares of its
subsidiaries, and the Company does not own, directly or indirectly, any
shares of stock or any other securities of any corporation or have any
equity interest in any firm, partnership, association or other entity
other than the issued capital shares of its subsidiaries, except in
each case for non-controlling positions acquired in the ordinary course
of business.
(y) Except as disclosed in the Registration Statement and in
the Prospectus, there are no material outstanding loans or advances or
material guarantees of indebtedness by the Company or any of its
subsidiaries to or for the benefit of any of the officers, trustees or
directors of the Company or any of its subsidiaries or any of the
members of the families of any of them.
12
(z) The Company and each of its subsidiaries maintains
insurance, duly in force, with insurers of recognized financial
responsibility; such insurance insures against such losses and risks as
are adequate in accordance with customary industry practice to protect
the Company and its subsidiaries and their respective businesses; and
neither the Company nor any such subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not materially and adversely affect the business,
operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its subsidiaries, taken as a whole,
except as disclosed in or contemplated by the Registration Statement
and by the Prospectus.
(aa) Neither the Company nor any of its officers and directors
(as defined in the 1933 Act Regulations) has taken or will take,
directly or indirectly, prior to the termination of the offering
contemplated by this Agreement, any action designed to stabilize or
manipulate the price of any security of the Company, or which has
caused or resulted in, or which might in the future reasonably be
expected to cause or result in, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Notes.
(bb) Neither the Company nor any of its subsidiaries is an
"investment company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940
Act"), or an "investment adviser" as such term is defined in the
Investment Advisers Act of 1940, as amended.
(cc) The Company is organized in conformity with the
requirements for qualification, and, as of the date hereof the Company
operates, and as of Closing Time the Company will operate, in a manner
that qualifies the Company as a "real estate investment trust" under
the Internal Revenue Code of 1986, as amended (the "Code"), and the
rules and regulations thereunder, for 2002 and subsequent years. The
Company qualified as a real estate investment trust under the Code for
each of its taxable years from 1987 through 2001.
(dd) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties is bound or may be affected, except such defaults
which, singly or in the aggregate, would not have a material adverse
effect on the business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its subsidiaries,
considered as a whole, except as disclosed in the Registration
Statement and in the Prospectus.
(ee) Except as otherwise disclosed in the Prospectus, since
the respective dates as of which information is given in the
Prospectus, there has been no material adverse
13
change in the business, operations, earnings, prospects, properties or
condition (financial or otherwise) of REIT Management & Research, Inc.
(the "Advisor"), whether or not arising in the ordinary course of
business, that would have a material adverse effect on the Company and
its subsidiaries, taken as a whole. The Advisory Agreement, dated as of
January 1, 1998, as amended by Amendment No. 1 dated as of October 12,
1999 (together, the "Advisory Agreement"), between the Company and the
Advisor, has been duly authorized, executed and delivered by the
parties thereto and constitutes the valid agreement of the parties
thereto, enforceable in accordance with its terms, except as limited by
(a) the effect of bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws relating to or affecting the
rights or remedies of creditors or (b) the effect of general principles
of equity (regardless of whether enforcement is sought in a proceeding
in equity or at law).
(ff) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
of the Company, enforceable against it in accordance with its terms,
except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency or similar laws affecting the enforceability of creditors'
rights generally and (ii) equitable principles of general
applicability.
(gg) Except as otherwise disclosed in the Prospectus, no
"nationally recognized statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the Act has indicated to
the Company that it is considering (i) the downgrading, suspension or
withdrawal of, or any review for a possible change that does not
indicate the direction of the possible change in, any rating assigned
to the Company or any securities of the Company or (ii) any change in
the outlook for any rating of the Company or any securities of the
Company.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments 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
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, liabilities or judgments are caused by
any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Underwriter furnished
in writing to the Company by or on behalf of the Underwriter expressly
for use therein; provided that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of the
Underwriter (or to the benefit of any person controlling the
Underwriter) from whom the person asserting any such losses, claims,
damages, liabilities or judgments purchased the Securities if such
untrue statement or omission or alleged untrue statement or omission
made in such preliminary prospectus is eliminated or remedied in the
Prospectus and a copy of the Prospectus shall not have
14
been furnished to such person at or prior to the written confirmation
of the sale of such Securities to such person.
(b) In case any action shall be brought against the
Underwriter or any person controlling the Underwriter, based upon any
preliminary prospectus, the Registration Statement or the Prospectus or
any amendment or supplement thereto and with respect to which indemnity
may be sought against the Company, the Underwriter shall promptly
notify the Company in writing and the Company shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to
such indemnified party and payment of all fees and expenses. The
Underwriter or any such controlling person shall have the right to
employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at
the expense of the Underwriter or such controlling person unless (i)
the employment of such counsel shall have been specifically authorized
in writing by the Company, (ii) the Company shall have failed to assume
the defense and employ counsel or (iii) the named parties to any such
action (including any impleaded parties) include both the Underwriter
or such controlling person and the Company and the Underwriter or such
controlling person shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different
from or additional to those available to the Company (in which case the
Company shall not have the right to assume the defense of such action
on behalf of the Underwriter or such controlling person, it being
understood, however, that the Company shall not, in connection with any
one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local
counsel) for the Underwriter and controlling persons, which firm shall
be designated in writing by First Union Securities, Inc. and that all
such fees and expenses shall be reimbursed as they are incurred). The
Company shall not be liable for any settlement of any such action
effected without its written consent but if settled with the written
consent of the Company, the Company agrees to indemnify and hold
harmless the Underwriter and any such controlling person from and
against any loss or liability by reason of such settlement.
Notwithstanding the immediately preceding sentence, if in any case
where the fees and expenses of counsel are at the expense of the
indemnifying party and an indemnified party shall have requested the
indemnifying party to reimburse the indemnified party for such fees and
expenses of counsel as incurred, such indemnifying party agrees that it
shall be liable for any settlement of any action effected without its
written consent if (i) such settlement is entered into more than ten
business days after the receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall have failed to
reimburse the indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding.
15
(c) The Underwriter agrees to indemnify and hold harmless the
Company and its trustees or officers who sign the Registration
Statement (or any person named in the Registration Statement as having
agreed to become a trustee of the Company) and any person controlling
the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, to the same extent as the foregoing indemnity from
the Company to the Underwriter but only with respect to information
relating to the Underwriter furnished in writing by or on behalf of the
Underwriter expressly for use in the Registration Statement, the
Prospectus or any preliminary prospectus. In case any action shall be
brought against the Company, its trustees (or a named proposed trustee)
or officers or persons controlling the Company based on the
Registration Statement, the Prospectus or any preliminary prospectus
and in respect of which indemnity may be sought against the
Underwriter, the Underwriter shall have the rights and duties given to
the Company (except that if the Company shall have assumed the defense
thereof, the Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of the
Underwriter), and the Company, its trustees (or a named proposed
trustee) or officers and persons controlling the Company shall have the
rights and duties given to the Underwriter, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities and
judgments (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriter 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 Underwriter in connection with
the statements or omissions which resulted in such losses, claims,
damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Underwriter shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses)
received by the Company, and the total underwriting discounts and
commissions received by the Underwriter, bear to the total price to the
public of the Securities, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and the
Underwriter shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission to state a material fact relates to information supplied
by the Company or the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately
16
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, the
Underwriter shall not 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 which the 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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
8. Conditions of Underwriter's Obligations. The obligation of the
Underwriter to purchase the Securities under this Agreement is subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties set forth in
Section 6 of this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the Closing
Date.
(b) At the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been commenced or shall be
pending before or contemplated by the Commission; and the Prospectus
and any amendment or supplement thereto shall have been filed with the
Commission in the manner and within the time period required by Rule
424(b) under the Act.
(c) Except as otherwise disclosed in the Prospectus, (i) since
the date of the latest balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus, there shall
not have been any material adverse change, or any development involving
a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, affairs or business prospects, whether
or not arising in the ordinary course of business, of the Company; (ii)
since the date of the latest balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of this
Agreement), there shall not have been any change, or any development
involving a prospective material adverse change, in the capital or in
the long-term debt of the Company from that set forth in the
Registration Statement and Prospectus; (iii) the Company and its
subsidiaries shall have no liability or obligation, direct or
contingent, which is material to the Company and its subsidiaries,
taken as a whole, other than those reflected in the Registration
Statement and the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement); (iv)
since the date of the latest balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus, none of the
properties owned by the Company as of the Closing Date shall have
sustained any material loss or casualty due to fire, flood, earthquake,
hurricane, tornado, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree; and (v) on the Closing Date you shall have
received a certificate dated the Closing Date,
17
signed by the President and Chief Operating Officer and the Chief
Financial Officer of the Company, confirming the matters set forth in
paragraphs (a), (b), (c) and (j) of this Section 8 and that the Company
has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or
satisfied by the Company on or prior to the Closing Date.
(d) You shall have received on the Closing Date an opinion
(satisfactory to you and your counsel), dated the Closing Date, of
Xxxxxxxx & Worcester LLP, counsel for the Company, to the effect that:
(i) The Company is a Maryland real estate investment
trust duly organized, validly existing and in good standing
under the laws of the State of Maryland; each of its
Significant Subsidiaries (as defined in Rule 1-02 of
Regulation S-X under the Act) has been duly organized, is
validly existing as a corporation or trust in good standing
under the laws of its jurisdiction of incorporation or
organization; each of the Company and its subsidiaries has the
trust or corporate (as applicable) power and authority to
carry on its business as described in the Registration
Statement and in the Prospectus and to own, lease and operate
its properties; each of the Company and its subsidiaries is
qualified to transact business and is in good standing as a
foreign corporation or trust in the jurisdictions listed
beside its name on a schedule attached to such opinion.
(ii) All of the issued and outstanding shares of
beneficial interest of, or other ownership interests in, each
of the Company's subsidiaries have been duly authorized and
validly issued and are fully paid and, except as to
subsidiaries that are partnerships, non-assessable, and are
owned by the Company free and clear of any security interest
or other adverse interest (within the meaning of Article 8 of
the Massachusetts Uniform Commercial Code).
(iii) The Company has the requisite trust power and
authority to enter into and perform this Agreement and to
issue and deliver the Securities.
(iv) This Agreement and the Indenture have been duly
authorized, executed and delivered by the Company.
(v) The Indenture is a valid and binding obligation
of the Company enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights
generally and general equitable principles; and the Indenture
has been duly qualified under the Trust Indenture Act.
(vi) The Securities have been duly authorized by all
necessary trust action and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered
and paid for in accordance with the terms of this Agreement,
will be valid and binding obligations of the Company
enforceable in accordance with their terms subject to
applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights generally
18
and general equitable principles; and the holders of the
Securities are entitled to the benefit of the Indenture.
(vii) The execution, delivery and performance of this
Agreement, and the consummation of the transactions herein
contemplated will not conflict with or constitute a breach or
violation of any of the terms or provisions of, or constitute
a default under, (A) the Declaration of Trust or the Bylaws of
the Company or the charter or bylaws or other organizational
documents of any Significant Subsidiary of the Company, (B)
except as disclosed in the Prospectus, any material agreement,
indenture or other instrument to which the Company, or any of
its Significant Subsidiaries or their respective material
properties or assets is bound, or (C) any laws, administrative
regulations or rulings or decrees known to such counsel to
which the Company, any of its Significant Subsidiaries or
their respective material properties or assets may be subject.
(viii) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or
with any federal, Massachusetts or Maryland court or public,
governmental or regulatory agency or body having jurisdiction
over the Company or any of its Significant Subsidiaries or any
of their respective material properties or assets is required
for the Company's execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated hereby, including, without limitation, the
issuance, sale and delivery of the Securities pursuant to this
Agreement, except such as have been obtained and such as may
be required under foreign and state securities or "Blue Sky"
laws.
(ix) The Registration Statement has become effective
under the Act, and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose
are pending before or threatened by the Commission; and any
required filing of the Prospectus pursuant to Rule 424 under
the Act has been made in accordance with said Rule 424.
(x) To such counsel's knowledge, except as disclosed
in the Registration Statement or in the Prospectus, there is
not now pending or threatened, any litigation, action, suit or
proceeding to which the Company or any of its subsidiaries is
or will be a party before or by any court or governmental
agency or body, which (A) might result in any material adverse
change in the condition, financial or otherwise, or in the
business, operations, earnings, prospects or properties of the
Company and its subsidiaries, taken as a whole, or (B) might
materially and adversely affect the property or assets of the
Company and its subsidiaries, taken as a whole, or (C)
concerns the Company or any of its subsidiaries and is
required to be disclosed in the Prospectus, or (D) could
adversely affect the consummation of this Agreement and the
issuance of the Securities; to such counsel's knowledge, no
contract or other document is required to be described in the
Registration Statement or in the Prospectus or to be filed as
an exhibit to the Registration Statement that is not described
therein or
19
filed as required.
(xi) Except as otherwise disclosed in the Prospectus,
to such counsel's knowledge, neither the Company nor any of
its subsidiaries is in violation of its respective charter or
bylaws or other organizational documents or in default in the
performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence
of indebtedness or in any other material agreement, indenture
or instrument to which the Company or any of its subsidiaries
is a party or by which any of their respective properties or
assets may be bound or affected, except for any such violation
that would not have a material adverse effect on the business,
operations, earnings, business prospects, properties or
condition (financial or otherwise) of the Company and its
subsidiaries taken as a whole.
(xii) To such counsel's knowledge, each of the
Company and its subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory
authorities (together, "permits"), including, without
limitation, under any applicable Environmental Law, as are
necessary to own, lease and operate its properties and to
engage in the business currently conducted by it, except such
licenses and permits as to which the failure to own or possess
will not in the aggregate have a material adverse effect on
the business, operations, earnings, business prospects,
properties or condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole.
(xiii) The Registration Statement and the Prospectus
and any supplements or amendments thereto (except for the
financial statements and the notes thereto and the schedules
and other financial data included therein, the Excluded
Proceedings (as defined in paragraph (xxi) below) and the part
of the Registration Statement that constitutes the Statement
of Eligibility (Form T-1) of the Trustee under the Trust
Indenture Act, as to which such counsel need not express any
opinion) comply as to form in all material respects with the
requirements of the Act.
(xiv) Each document incorporated by reference in the
Registration Statement and in the Prospectus (except for the
financial statements and the notes thereto and the schedules
and other financial data included therein and the Excluded
Proceedings, as to which such counsel need not express any
opinion) complied as to form when filed with the Commission in
all material respects with the requirements of the Exchange
Act.
(xv) To the extent required to be described therein,
the Securities conform in all material respects to the
descriptions in the Registration Statement and the Prospectus.
(xvi) The statements (a) in the Prospectus under the
captions "Description of Debt Securities", "Description of the
Notes", "Description of Shares", "Redemption; Business
Combinations and Control Share Acquisitions,"
20
"Limitation of Liability; Shareholder Liability" and "Material
Federal Income Tax Considerations," (b) in Item 5 of Part II
of the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2000 and (c) in Item 1 of the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001 under the captions "Federal Income Tax
Considerations" and "ERISA Plans, Xxxxx Plans and Individual
Retirement Accounts" in each case insofar as they purport to
summarize matters arising under Massachusetts or Maryland law
or the federal law of the United States, or provisions of
documents to which the Company is a party specifically
referred to therein, are accurate summaries of such legal
matters or provisions.
(xvii) The Company has qualified to be taxed as a
real estate investment trust pursuant to Sections 856-860 of
the Code for each of the fiscal years ended December 31, 1987
through December 31, 2001, and the Company's current
anticipated investments and its current plan of operation will
enable it to continue to meet the requirements for
qualification and taxation as a real estate investment trust
under the Code; actual qualification of the Company as a real
estate investment trust, however, will depend upon the
Company's continued ability to meet, and its meeting, through
actual annual operating results and distributions, the various
qualification tests imposed under the Code.
(xviii) The Company is not required to register as an
"investment company" within the meaning of the 1940 Act.
(xix) The Advisor (A) is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Delaware, and (B) has the requisite
corporate power and authority to conduct its business as
described in the Prospectus and to own and operate its
material properties.
(xx) The Advisory Agreement has been duly authorized,
executed and delivered by the parties thereto and constitutes
the valid agreement of the parties thereto, enforceable in
accordance with its terms, except (a) as limited by the effect
of bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws relating to or
affecting the rights or remedies of creditors, (b) as limited
by the effect of general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law) and (c) insofar as the enforceability of the indemnity
and contribution provisions contained in such agreement may be
limited by federal or state securities laws and the public
policy underlying such laws.
(xxi) Although counsel has not undertaken, except as
otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the
accuracy or completeness of the statements in the Registration
Statement, such counsel has participated in the preparation of
the Registration Statement and the Prospectus, including
review and discussion of the contents thereof (including
review and discussion of the contents of all documents
incorporated by reference in the Registration Statement and
the Prospectus), and
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nothing has come to the attention of such counsel that has
caused them to believe that the Registration Statement
(including the documents incorporated by reference therein) at
the time the Registration Statement became effective, or the
Prospectus, as of its date and as of Closing Time, as the case
may be, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that any amendment or supplement to the Prospectus, as of its
respective date, and as of Closing Time, as the case may be,
contained any untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that
such counsel need express no view with respect to (a) the
financial statements and the notes thereto and the schedules
and other financial data included or incorporated by reference
in the Registration Statement or in the Prospectus or (b) the
part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) of the Trustee under the
Trust Indenture Act).
In rendering their opinion as aforesaid, Xxxxxxxx & Worcester
LLP may rely upon an opinion, dated as of Closing Time, of Xxxxxxx
Xxxxx Xxxxxxx & Ingersoll, LLP as to matters governed by Maryland law,
provided that such reliance is expressly authorized by such opinion and
a copy of such opinion is delivered to the Underwriters and is, in form
and substance, satisfactory to the Underwriter and counsel for the
Underwriter. In addition, in rendering such opinion, such counsel may
state that their opinion as to laws of the State of Delaware is limited
to the Delaware General Corporation Law and that their opinion with
respect to the qualification of the Company and its subsidiaries to do
business in jurisdictions other than their respective jurisdictions of
organization is based solely upon certificates to such effect issued by
an appropriate official of the applicable jurisdictions.
The opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
described in the paragraph above shall be rendered to the Underwriter
at the request of the Company and shall so state therein.
(e) You shall have received on the Closing Date an opinion,
dated the Closing Date, of Hunton & Xxxxxxxx, counsel for the
Underwriter, as to the matters referred to in clauses (v), (vi) and
(xvi) (but only with respect to the statements under the caption
"Underwriting" in the Prospectus Supplement) and clause (xxi) of the
foregoing paragraph (d).
In giving such opinion with respect to the matters covered by
clause (xxi), such counsel may state that their opinion and belief are
based upon their participation in the preparation of the Prospectus and
any amendments or supplements thereto (other than the documents
incorporated therein by reference) and review and discussion of the
contents thereof (including the documents incorporated therein by
reference), but are without independent check or verification except as
specified.
In rendering their opinion, such counsel may rely on an
opinion dated the Closing
22
Date of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP, as to matters governed
by the laws of the State of Maryland and Xxxxxxxx & Worcester, as to
matters governed by the laws of the Commonwealth of Massachusetts.
(f) You shall have received a letter dated on and as of the
Closing Date, in form and substance satisfactory to you, from Ernst &
Young LLP, independent public accountants, with respect to certain
financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the
Prospectus.
(g) The Securities shall have been rated "BBB" by Standard &
Poor's Ratings Services and "Baa2" by Xxxxx'x Investors Service, Inc.
(h) The Underwriter shall have received a counterpart,
conformed as executed, of the Indenture which shall have been entered
into by the Company and the Trustee.
(i) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company
at or prior to the Closing Date.
(j) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any
notice have been given of any potential or intended downgrading,
suspension or withdrawal of, or of any review (or of any potential or
intended review) for a possible change that does not indicate the
direction of the possible change in, any rating of the Company or any
securities of the Company (including, without limitation, the placing
of any of the foregoing ratings on credit watch with negative or
developing implications or under review with an uncertain direction) by
any "nationally recognized statistical rating organization" as such
term is defined for purposes of Rule 436(g)(2) under the Act, (ii)
there shall not have occurred any change, nor shall any notice have
been given of any potential or intended change, in the outlook for any
rating of the Company or any securities of the Company by any such
rating organization and (iii) no such rating organization shall have
given notice that it has assigned (or is considering assigning) a lower
rating to the Securities than that on which the Securities were
marketed.
9. Effective Date of Agreement and Termination. This Agreement shall
become effective upon the execution of this Agreement by the parties hereto.
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(a) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material
adverse change or development involving a prospective material adverse
change in the condition, financial or otherwise, of the Company or the
earnings, affairs, or business prospects of the Company, whether or not
arising in the ordinary course of business, which would, in your
judgment, make it impracticable to market the Securities on the terms
and in the manner contemplated in the
23
Prospectus,
(b) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and would, in
your judgment, make it impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus,
(c) the suspension or material limitation of trading in
securities or other instruments on the NYSE, the American Stock
Exchange, The Chicago Board of Options Exchange, the Chicago Mercantile
Exchange, the Chicago Board of Trade or the Nasdaq National Market or
limitation on prices for securities on any such exchange or the Nasdaq
National Market,
(d) the suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market,
(e) the enactment, publication, decree or other promulgation
of any federal or state statute, regulation, rule or order of any court
or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the
business or operations of the Company,
(f) the declaration of a banking moratorium by either federal,
New York State or North Carolina authorities or
(g) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which
in your opinion has a material adverse effect on the financial markets
in the United States.
10. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to HRPT
Properties Trust, 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: President, and
(b) if to the Underwriter, to First Union Securities, Inc., One First Union
Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Debt Syndicate Desk, or in any case to such other address as the person to be
notified may have requested in writing.
The parties hereto agree, for purposes of Section 6(c), Section 7 and
any other provision of this Agreement, that the only information relating to the
Underwriter furnished to the Company in writing by the Underwriter expressly for
use in the Prospectus or any amendment or supplement thereto is the information
furnished by the Underwriter included in the Prospectus, (i) listing the name of
the Underwriter under the caption "Underwriting," (ii) the first sentence of the
third paragraph and the second sentence of the fifth paragraph under the caption
"Underwriting" in the Prospectus.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, its officers and trustees and of
the Underwriter set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Securities, regardless of (i) any investigation, or
24
statement as to the results thereof, made by or on behalf of the Underwriter or
by or on behalf of the Company, or its officers or trustees, (ii) acceptance of
the Securities and payment for them hereunder and (iii) termination of this
Agreement.
If this Agreement shall be terminated by the Underwriter because of any
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the Underwriter for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by it.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriter, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Securities from the Underwriter merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING THE COMPANY,
DATED JULY 1, 1994, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE
"DECLARATION"), IS DULY FILED IN THE OFFICE OF THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT THE NAME "HRPT PROPERTIES
TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES,
BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL LIABILITY,
JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE COMPANY. ALL
PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF
THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
HRPT PROPERTIES TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer and Chief
Financial Officer
FIRST UNION SECURITIES, INC.
By: /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Managing Director
