EXHIBIT 1.1
$30,000,000
HRPT Properties Trust
8.875% Senior Notes due 2010
FORM OF PURCHASE AGREEMENT
July 25, 2000
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
HRPT Properties Trust, a Maryland real estate investment trust (the
"Company"), proposes to issue and sell $30,000,000 principal amount of its
8.875% Senior Notes due 2010 (the "Securities"), to Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation (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 to be dated as of July 31, 2000 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, $30,000,000 aggregate principal amount of Securities
at 99.186% 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 July 31, 2000 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
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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 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 signed 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 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 Milbank, Tweed, Xxxxxx & XxXxxx LLP
shall reasonably object; and to prepare and file with the Commission,
promptly upon your reasonable
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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 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 Milbank, Tweed, Xxxxxx & XxXxxx LLP 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 Milbank,
Tweed, Xxxxxx & XxXxxx LLP, 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 Milbank, Tweed, Xxxxxx & XxXxxx LLP (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
Milbank, Tweed, Xxxxxx & XxXxxx LLP 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
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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.
(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 referred to in paragraph (i), to furnish
to you as soon as available a copy of each report or other publicly
available information of the Company mailed to its security holders or
filed with the Commission and such other publicly available information
concerning the Company and its subsidiaries, if any, as you may
reasonably request.
(k) 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.
(l) 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
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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.
(m) To use its best efforts to qualify for the year ended
December 31, 2000 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").
(n) 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.
(o) 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.
(p) 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.
(q) 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
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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 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
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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 (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
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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
but excluding borrowings under existing bank lines of credit) 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 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 by-laws or other organizational
documents or in default in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any other agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party
or by which any of their respective properties or assets may be bound
or affected, except for any such violation that would not have a
material adverse effect on the condition, financial or otherwise or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries, taken as a whole. The Company is not in violation of
any law, ordinance, governmental rule or regulation or court decree to
which it is subject, except for any such violations that would not,
individually or in the aggregate, have a material adverse effect on the
business, operations, earnings, prospects, properties or condition
(financial or otherwise) of any of the Company and its subsidiaries,
taken as a whole.
(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
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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 By-laws of the
Company or the charter or by-laws or other organizational documents of
any subsidiaries of the Company, (ii) any agreement, indenture or other
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or their respective
properties or assets is bound, or (iii) any laws, administrative
regulations or rulings or decrees to which the Company or any of its
subsidiaries or their respective properties or assets may be subject.
(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
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
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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
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
11
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, 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
12
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.
(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.
13
(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 2000 and subsequent years. The
Company qualified as a real estate investment trust under the Code for
each of its taxable years from 1987 through 1999.
(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 change in the business,
operations, earnings, prospects, properties or condition (financial or
otherwise) of REIT Management & Research, Inc. (the "Advisor"), whether
or not arising in the ordinary course of business, that would have a
material adverse effect on the Company and its subsidiaries, taken as a
whole. The Advisory Agreement, dated as of [January 1, 1998] (the
"Advisory Agreement"), between the Company and the Advisor, has been
duly authorized, executed and delivered by the parties thereto and
constitutes the valid agreement of the parties thereto, enforceable in
accordance with its terms, except as limited by (a) the effect of
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws relating to or affecting the rights or remedies
of creditors or (b) the effect of general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law).
(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 applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and other laws affecting the enforceability of creditor's
rights and general principles of equity.
(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
14
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 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 Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation 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
15
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.
(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 reference
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
16
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 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) (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
17
(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, 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 counsel for the Underwriter), 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
duly qualified and is in good standing as a foreign corporation or
trust, as the case may be, authorized to do business in each
jurisdiction in which its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(ii) All of the issued and outstanding shares of beneficial
interest of, or other ownership interests in, each of the Company's
subsidiaries have been duly authorized and validly issued and are fully
paid and, except as to subsidiaries that are partnerships,
non-assessable, and are owned by the Company free and clear of any
security interest or other adverse interest (within the meaning of
Article 8 of the Massachusetts Uniform Commercial Code).
(iii) The Company has the requisite trust power and authority
to enter into and perform this Agreement and to issue and deliver the
Securities.
18
(iv) This Agreement and the Indenture have been duly
authorized, executed and delivered by the Company.
(v) The Indenture is a valid and binding obligation of the
Company enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights generally and equitable principles; and the
Indenture has been duly qualified under the Trust Indenture Act.
(vi) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered and paid for in accordance with the terms of
this Agreement, will be valid and binding obligations of the Company
enforceable in accordance with their terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights generally and equitable principles; and the
holders of the 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 By-laws of the Company or the charter or
by-laws or other organizational documents of any Significant Subsidiary
of the Company, (B) except as disclosed in the Prospectus, any material
agreement, indenture or other instrument to which the Company, or any
of its Significant Subsidiaries or their respective material properties
or assets is bound, or (C) any laws, administrative regulations or
rulings or decrees known to such counsel to which the Company, any of
its Significant Subsidiaries or their respective material properties or
assets may be subject.
(viii) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
federal, Massachusetts or Maryland court or public, governmental or
regulatory agency or body having jurisdiction over the Company or any
of its Significant Subsidiaries or any of their respective material
properties or assets is required for the Company's execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby, including, without limitation, the
issuance, sale and delivery of the 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,
19
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 filed as
required.
(xi) Except as otherwise disclosed in the Prospectus, to such
counsel's knowledge, neither the Company nor any of its subsidiaries is
in violation of its respective charter or by-laws or other
organizational documents or in default in the performance of any
obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any other material
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party or by which any of their respective properties
or assets may be bound or affected, except for any such violation that
would not have a material adverse effect on the business, operations,
earnings, business prospects, properties or condition (financial or
otherwise) of the Company and its subsidiaries taken as a whole.
(xii) To such counsel's knowledge, each of the Company and its
subsidiaries has such permits, licenses, franchises and authorizations
of governmental or regulatory authorities (together, "permits"),
including, without limitation, under any applicable Environmental Law,
as are necessary to own, lease and operate its properties and to engage
in the business currently conducted by it, except such licenses and
permits as to which the failure to own or possess will not in the
aggregate have a material adverse effect on the business, operations,
earnings, business prospects, properties or condition (financial or
otherwise) of the Company and its subsidiaries, taken as a whole.
(xiii) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements
and the notes thereto and the schedules and other financial 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
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.
20
(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," "Limitation of Liability; Shareholder Liability"
and "Certain Federal Income Tax Considerations" and (b) in Item 1 of
the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 under the captions "Regulation and Reimbursement",
"Federal Income Tax Considerations" and "ERISA Plans, Xxxxx Plans and
Individual Retirement Accounts" in each case insofar as they purport to
summarize matters arising under Massachusetts or Maryland law or the
federal law of the United States, or provisions of documents to which
the Company is a party specifically referred to therein, are accurate
summaries of such legal matters or provisions.] [Update, if necessary]
(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, 1999, 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,
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including review and discussion of the contents thereof (including
review and discussion of the contents of all documents incorporated by
reference in the Registration Statement and the Prospectus), and
nothing has come to the attention of such counsel that has caused them
to believe that the Registration Statement (including the documents
incorporated by reference therein) at the time the Registration
Statement became effective, or the Prospectus, as of its date and as of
Closing Time, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that any amendment or supplement to the Prospectus, as of its
respective date, and as of Closing Time, as the case may be, contained
any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that such counsel need express no view with respect to (a)
the financial statements and the notes thereto and the schedules and
other financial data included or incorporated by reference in the
Registration Statement or in the Prospectus or (b) the proceedings
referred to in Item 3 of the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1999 under the caption "Legal
Proceedings" and any claims related thereto (collectively, the
"Excluded Proceedings"), or (c) the part of the Registration Statement
that constitutes the Statement of Eligibility (Form T-1) of the Trustee
under the 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
Underwriters and counsel for the Underwriters. In addition, in rendering such
opinion, such counsel may state that their opinion as to laws of the State of
Delaware is limited to the Delaware General Corporation Law and that their
opinion with respect to the qualification of the Company and its subsidiaries to
do business in jurisdictions other than their respective jurisdictions of
organization is based solely upon certificates to such effect issued by an
appropriate official of the applicable jurisdictions.
The opinion of 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.
In addition, the Underwriter shall have received at Closing Date an
opinion (satisfactory to the Underwriter and counsel for the Underwriter) of
Sherin & Lodgen LLP, special counsel for the Company, dated as of Closing Date,
to the effect that the statements describing the proceedings in Item 3 of the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999
under the caption "Legal Proceedings", insofar as they purport to summarize
legal proceedings, constitute a fair summary of such legal proceedings.
(e) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Milbank, Tweed, Xxxxxx & XxXxxx LLP, 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
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"Underwriting" in the Prospectus Supplement), (iv) (but only as to due
authorization, execution and delivery) 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 Registration Statement and 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 Date of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP, as to matters
governed by the laws of the State of Maryland.
(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, in substantially the form and
substance of the letter delivered to you by Xxxxxx Xxxxxxxx LLP on the date of
this Agreement.
(g) The Securities shall have been rated ["BBB"] by Standard & Poor's
Ratings Services and "[Baa3]" 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.
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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:
(i) 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 Prospectus,
(ii) 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,
(iii) 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,
(iv) the suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market,
(v) 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,
(vi) the declaration of a banking moratorium by either federal
or New York State authorities or
(vii) 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 Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department, 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
24
Company in writing by the Underwriter expressly for use in the Registration
Statement, any preliminary prospectus, 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) [in the third and fifth paragraphs and the second and third
sentences of the sixth paragraph under the caption "Underwriting" in the
Prospectus] and (iii) in the third sentence of the paragraph on the outside back
cover of 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 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.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
HRPT PROPERTIES TRUST
By ___________________________
Name:
Title:
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By ___________________________
Name:
Title:
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