Exhibit 1.1
EXECUTION COPY
HRPT PROPERTIES TRUST
(a Maryland real estate investment trust)
6 1/4% Senior Notes due August 15, 2016
UNDERWRITING AGREEMENT
July 27, 2004
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
RBC Capital Markets Corporation
Wachovia Capital Markets, LLC
as Representatives of the several Underwriters
c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
New York, NY 10080
Ladies and Gentlemen:
HRPT Properties Trust, a Maryland real estate investment trust (the
"Company"), confirms its agreement with the underwriters named in Schedule A
hereto (collectively, the "Underwriters" which term also includes any
underwriter substituted as hereinafter provided in Section 10), for whom
Xxxxxxx Xxxxx, Pierce, Xxxxxx & Xxxxx Incorporated, RBC Capital Markets
Corporation and Wachovia Capital Markets, LLC are acting as Representatives
(the "Representatives"), with respect to the sale by the Company and the
purchase by the Underwriters, severally, of $400,000,000 aggregate principal
amount of the Company's 6 1/4% Senior Notes due August 15, 2016 (the
"Notes"). The Notes are to be issued pursuant to an indenture dated as of
July 9, 1997 and a supplemental indenture dated as of August 5, 2004
(together, the "Indenture"), each between the Company and U.S. Bank National
Association (as successor trustee to State Street Bank and Trust Company)
(the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (Nos. 333-56051 and
333-114285) for the registration of debt securities, preferred shares of
beneficial interest, depositary shares, common shares of beneficial interest and
warrants under the Securities Act of 1933, as amended (the "1933 Act"), and has
filed such amendments thereto, if any, as may have been required to the date
hereof. Such registration statements have been declared effective under the 1933
Act. Such registration statements (as amended, if applicable) and the prospectus
constituting a part thereof (the "Base Prospectus"), as supplemented by the
prospectus supplement (the "Prospectus Supplement") relating to the Notes
(including, in each case, all documents incorporated or
deemed to be incorporated by reference therein), as from time to time amended or
supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), or otherwise, are hereinafter referred to as the
"Registration Statement" and the "Prospectus", respectively. All references in
this Agreement to financial statements and schedules and other information which
is "contained", "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement or
in the Prospectus, as the case may be.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Underwriter as of the
date hereof as follows:
(i) At the respective times the Registration Statement and any
post-effective amendment thereto (including the filing of the Company's
most recent Annual Report on Form 10-K with the Commission) became
effective, the Registration Statement complied in all material respects
with the requirements of the 1933 Act and the rules and regulations under
the 1933 Act (the "1933 Act Regulations") and did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Prospectus, at the date hereof (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of the
Notes which differs from the Prospectus on file at the Commission at the
date of effectiveness of the Registration Statement, in which case at the
time it is first provided to the Underwriters for such use) and at Closing
Time referred to in Section 2 hereof, does not and will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the representations and warranties in this subsection (i)
shall not apply to statements or omissions in the Registration Statement or
the Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriters through the
Representatives expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective and at Closing Time, did not and
will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(iii) The Company is a Maryland real estate investment trust duly
organized, validly existing and in good standing under the laws of the
State of Maryland. Each of its subsidiaries has been duly organized and is
validly existing as a corporation, partnership,
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limited liability company or trust in good standing under the laws of its
jurisdiction of incorporation or organization, except where the failure to
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole. 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, partnership, limited liability company or trust, as
the case may be, and is authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(iv) The financial statements of the Company and its
subsidiaries, together with the related schedules and notes thereto,
included or incorporated by reference in the Registration Statement and in
the Prospectus, comply as to form in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations. 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 respective 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
the notes thereto) are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(v) The accountants who have certified the financial statements
of the Company and its subsidiaries included or incorporated by reference
in the Registration Statement and in the Prospectus are independent
certified public accountants as required by the 1933 Act; provided,
however, the Company makes no representation or warranty with respect to
Xxxxxx Xxxxxxxx LLP, who audited the financial statements of Hospitality
Properties Trust for the year ended December 31, 2001 and was convicted of
obstruction
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of justice in June 2002 and ceased to practice before the Commission on
August 31, 2002.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
(vii) The Indenture has been duly qualified under the Trust
Indenture Act of 1939 (the "1939 Act") and has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company enforceable in accordance with its terms, except as limited
by (a) the effect of bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws relating to or affecting the
rights or remedies of creditors or (b) the effect of general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
(viii) All of the issued and outstanding indebtedness of the
Company is duly and validly authorized and issued; the Notes have been
authorized by all necessary trust action and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered and paid for pursuant to this Agreement, will be valid and
binding obligations of the Company enforceable in accordance with their
terms, except as limited by (a) the effect of bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
relating to or affecting the rights or remedies of creditors or (b) the
effect of general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).
(ix) The Notes and the Indenture conform to the descriptions
thereof in the Registration Statement and in the Prospectus.
(x) The authorized capital of the Company, including the Notes,
conforms as to legal matters to the description thereof contained in the
Prospectus.
(xi) Since the respective dates as of which information is given
in the Prospectus, and except as otherwise disclosed therein, (i) there has
been no material adverse change in the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Company
and its subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, (ii) there have been no material transactions
entered into by the Company and its subsidiaries, on a consolidated basis,
other than transactions in the ordinary course of business, (iii) neither
the Company nor its subsidiaries has incurred any material liabilities or
obligations, direct or contingent, (iv) the Company and its subsidiaries,
on a consolidated basis, have not, (A) other than regular quarterly
dividends, declared, paid or made a dividend or distribution of any kind on
any class of its shares of beneficial interest (other than dividends or
distributions from wholly owned subsidiaries to the Company), (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") pursuant to the Company's incentive share award
plans) or (C) repurchased or redeemed shares of beneficial interest, and
(v) there has not been (A) any material
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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 and under the term
loan agreement) of the Company and its subsidiaries, on a consolidated
basis.
(xii) 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.
(xiii) 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
violation 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 the Company and its subsidiaries,
taken as a whole.
(xiv) 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 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
and is required to be disclosed in the Registration Statement or the
Prospectus, or (D) could adversely affect the consummation of this
Agreement and the issuance, purchase and sale of the Notes. No contract or
other document is required to be described in the Registration Statement or
in the Prospectus or to be filed as an exhibit to the Registration
Statement that is not described therein or filed as required.
(xv) The execution, delivery and performance by the Company of
this Agreement, the issuance, offering and sale by the Company of the Notes
as contemplated by the Registration Statement and by the Prospectus and the
consummation of the 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,
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or a default under, (i) the Third Amendment and Restatement of Declaration
of Trust, as amended and supplemented (the "Declaration of Trust") or the
Amended and Restated By-laws, as amended, of the Company or the charter or
by-laws or other organizational documents of any subsidiary 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.
(xvi) No consent, approval, authorization or order of, or
registration, filing or qualification with, any governmental body or
regulatory agency having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets is required
for the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, including, without
limitation, the issuance, sale and delivery of the Notes pursuant to this
Agreement, except such as have been obtained or made and such as may be
required under foreign and state securities or "Blue Sky" or real estate
syndication laws.
(xvii) Except as otherwise set forth in the Registration Statement
or in the Prospectus, the Company and each of its subsidiaries have good
and marketable title or ground leases to all real properties described in
Registration Statement or in the Prospectus as being owned or leased by
them, free and clear of all liens, claims, encumbrances and restrictions,
except liens for taxes not yet due and payable and other liens, claims,
encumbrances and restrictions which do not, either individually or in the
aggregate, materially and adversely affect the current use or value
thereof. 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 which are material to the business of the Company
and its subsidiaries, taken as a whole, are valid and binding. Except as
otherwise set forth in the Registration Statement or in the Prospectus, no
default under any such lease by the Company or any subsidiary of the
Company or, to the Company's knowledge, any tenant has occurred and is
continuing which default would, individually or in the aggregate, have a
material adverse effect on the business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole. 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.
(xviii) 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
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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.
(xix) 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.
(xx) Except as otherwise set forth in the Registration Statement
or the Prospectus, to the Company's knowledge, after due investigation (i)
the Company and its subsidiaries have been and are in compliance in all
material respects with, and neither the Company nor its subsidiaries have
any liability under, applicable Environmental Laws (as hereinafter defined)
which is material to the Company and its subsidiaries, taken as a whole;
(ii) neither the Company nor its subsidiaries has at any time released (as
such term is defined in Section 101 (22) of CERCLA (as hereinafter
defined)), or otherwise disposed of or handled, Hazardous Materials (as
hereinafter defined) on, to or from the real properties or other assets
owned by the Company or its subsidiaries, except for such releases,
disposals and handlings as would not be reasonably likely to cause the
Company or its subsidiaries to incur liability which is material to the
Company and its subsidiaries, taken as a whole; (iii) neither the Company
nor its subsidiaries intend to use the real properties or other assets
owned by them other than in compliance in all material respects with
applicable Environmental Laws, (iv) neither the Company nor any of its
subsidiaries know of any seepage, leak, discharge, release, emission,
spill, or dumping of Hazardous Materials into waters (including, but not
limited to, groundwater and surface water) on, beneath or adjacent to the
real properties or other assets owned by them, other than such matters as
would not be reasonably likely to cause the Company or its subsidiaries to
incur liability which is material to the Company and its subsidiaries,
taken as a whole; (v) neither the Company nor any of its subsidiaries has
received any written notice of, or has any knowledge of any occurrence or
circumstance which, with notice or passage of time or both, would give rise
to a claim under or pursuant to any Environmental Law by any governmental
or quasi-governmental body or any third party with respect to the real
properties or the assets of the Company or its subsidiaries or arising out
of their conduct, except for such claims that would not be reasonably
likely to cause the Company or its subsidiaries to incur liability which is
material to the Company and its subsidiaries, taken as a whole and that
would not be required to be disclosed in the Registration Statement or the
Prospectus; (vi) none of the real properties owned by the Company or its
subsidiaries is included or proposed for inclusion on the National
Priorities List issued pursuant to CERCLA by the United States
Environmental Protection Agency (the "EPA") or on any similar list or
inventory issued by any other federal, state or local governmental
authority
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having or claiming jurisdiction over such properties pursuant to any other
Environmental Law other than such inclusions or proposed inclusions as
would not be reasonably likely to cause the Company or its subsidiaries to
incur liability which is material to the Company and its subsidiaries taken
as a whole. As used herein, "Hazardous Material" shall include, without
limitation, any flammable explosives, radioactive materials, chemicals,
hazardous materials, hazardous wastes, toxic substances, petroleum or
petroleum products, asbestos-containing materials, mold or any hazardous
material as defined by any federal, state or local law, ordinance, rule or
regulation relating to the protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Secs. 9601-9675 ("CERCLA"),
the Hazardous Materials Transportation Act, as amended, 49 U.S.C. Secs.
1801-1819, the Resource Conservation and Recovery Act, as amended, 42
U.S.C. Secs. 6901-6992K, the Emergency Planning and Community Right-to-Know
Act of 1986, 42 U.S.C. Secs. 11001-11050, the Toxic Substances Control Act,
15 U.S.C. Secs. 2601-2671, the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. Secs. 136-136y, the Clean Air Act, 42 U.S.C.
Secs. 7401-7642, the Clean Water Act (Federal Water Pollution Control Act),
33 U.S.C. Secs. 1251-1387, and the Safe Drinking Water Act, 42 U.S.C. Secs.
300f-300j-26, as any of the above statutes may be amended from time to
time, and the regulations promulgated pursuant to any of the foregoing
(individually, an "Environmental Law" and collectively "Environmental
Laws").
(xxi) Each of the Company and its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities (together, "permits"), including, without limitation, under any
applicable Environmental Law, as are necessary to own, lease and operate
its properties and to engage in the business currently conducted by it,
except such permits as to which the failure to own or possess will not in
the aggregate have a material adverse effect on the business, operations,
earnings, prospects, properties or condition (financial or otherwise) of
the Company and its subsidiaries, taken as a whole. All such permits are in
full force and effect and each of the Company and its subsidiaries are in
compliance with the terms and conditions of all such permits, except where
the invalidity of such permits or the failure of such permits to be in full
force and effect or the failure to comply with such permits will not 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. Neither the Company nor
any of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Company
and its subsidiaries, taken as a whole.
(xxii) 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.
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(xxiii) 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.
(xxiv) 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 and, except for the
equity interests in Hallwood 95, L.P., are or will be owned by the Company
free and clear of any security interest, claim, lien, encumbrance or
adverse interest of any nature.
(xxv) 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 or interests in its subsidiaries,
and the Company does not own, directly or indirectly, any shares of stock
or any other securities of any corporation or have any equity interest in
any firm, partnership, association or other entity other than the issued
capital shares of or interests in its subsidiaries, except in each case for
non-controlling positions acquired in the ordinary course of business.
(xxvi) 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.
(xxvii) 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.
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(xxviii) 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.
(xxix) 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.
(xxx) 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 2004 and subsequent years. The Company qualified as a real estate
investment trust under the Code for each of its taxable years from 1987
through 2003.
(xxxi) 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.
(xxxii) The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15 and 15d-15
under the 1934 Act) that (a) are designed to ensure that material
information relating to the Company, including its consolidated
subsidiaries, is made known to the Company's Chief Executive Officer and
its Chief Financial Officer (or persons performing similar functions) by
others within those entities, particularly during the periods in which the
filings made by the Company with the Commission which it may make under
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act are being prepared, (b)
have been evaluated for effectiveness as of the end of the period covered
by the Company's most recent Annual Report on Form 10-K filed with the
Commission and (c) are effective to perform the functions for which they
were established. The Company's accountants and the audit committee of the
board of trustees of the Company have been advised of (x) any significant
deficiencies in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the Company's
ability to record, process, summarize, and report
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financial data and (y) any fraud, whether or not material, that involves
management or other employees who have a role in the Company's internal
control over financial reporting. Since the date of the most recent
evaluation of such disclosure controls and procedures, there have been no
significant changes in the Company's internal control over financial
reporting or in other factors that have materially affected or are
reasonably likely to materially affect the Company's internal control over
financial reporting.
(xxxiii) 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 LLC (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 thereto, dated
as of October 12, 1999, and Amendment No. 2 thereto, dated as of March 10,
2004 (the "Advisory Agreement"), between the Company and the Advisor, each
has been duly authorized, executed and delivered by the parties thereto and
constitutes the valid agreement of the parties thereto, enforceable in
accordance with its terms, except as limited by (a) the effect of
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws relating to or affecting the rights or remedies of
creditors or (b) the effect of general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(b) Any certificate signed by any officer of the Company or any of its
subsidiaries and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to each Underwriter, severally, and each Underwriter, severally, agrees to
purchase from the Company $400,000,000 aggregate principal amount of the Notes
at a purchase price of 98.184% of the principal amount of the Notes, plus such
additional principal amount of Notes which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment of the purchase price for and delivery of the Notes shall be
made, subject to Section 9, at the offices of Xxxxxxxx & Worcester LLP, Xxx Xxxx
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other place as shall be
agreed upon by the Representatives and the Company, at 9:00 A.M. on the seventh
business day (unless postponed in accordance with the provisions of Section 10)
following the date of this Agreement, or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives and
the Company (such time and date of payment and delivery being herein called
"Closing Time"). Payment shall be made by wire transfer of immediately available
funds payable to the order of the Company against delivery to the
Representatives of the Notes to be purchased by the Underwriters. It is
understood that each Underwriter has authorized the Representatives, for its
11
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Notes which it has severally agreed to purchase. The
Representatives, individually, and not as representatives of the Underwriters
may (but shall not be obligated to) make payment of the purchase price for the
Notes to be purchased by any Underwriter whose funds have not been received by
Closing Time, but such payment shall not relieve such Underwriter from its
obligations hereunder. The Notes shall be in such authorized denominations and
registered in such names as the Representatives may request in writing at least
one business day before Closing Time.
Section 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) Immediately following the execution of this Agreement, the Company
will prepare the Prospectus Supplement setting forth the aggregate principal
amount of Notes covered thereby and their terms not otherwise specified in the
Prospectus, the names of the Underwriters, the price at which the Notes are to
be purchased by the Underwriters from the Company, and such other information as
the Representatives and the Company deem appropriate in connection with the
offering of the Notes; and the Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of
the 1933 Act Regulations and will furnish to the Underwriters as many copies of
the Prospectus (including the Prospectus Supplement) as the Underwriters shall
reasonably request.
(b) Until the termination of the initial offering of the Notes, the
Company will notify the Representatives immediately, and confirm the notice in
writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the Commission for filing of any
supplement or amendment to the Prospectus or any document to be filed pursuant
to the 1934 Act, (iii) of the receipt of any comments from the Commission with
respect to the Notes, (iv) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus with
respect to the Notes or for additional information relating thereto, and (v) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the issuance
of any such stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(c) Until the termination of the initial offering of the Notes, the
Company will give the Representatives notice of its intention to file or prepare
any post-effective amendment to the Registration Statement or any amendment or
supplement (including any document to be filed pursuant to the 1934 Act) to the
Prospectus (including any revised prospectus which the Company proposes for use
by the Underwriters in connection with the offering of the Notes which differs
from the prospectus on file at the Commission at the time that the Registration
Statement becomes effective, whether or not such revised prospectus is required
to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish
each of the Representatives with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file any such amendment or supplement or use any such
prospectus to which counsel for the Underwriters shall reasonably object.
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(d) The Company will deliver to each of the Representatives a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto filed prior to the termination of the initial offering of the Notes
(including exhibits filed therewith or incorporated by reference therein and the
documents incorporated by reference into the Prospectus pursuant to Item 12 of
Form S-3).
(e) The Company will furnish to the Underwriters, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as the Underwriters may reasonably request for the purposes
contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934
Act Regulations.
(f) If, at any time when a prospectus is required by the 1933 Act to be
delivered in connection with the sale of the Notes, any event shall occur as a
result of which it is necessary, in the opinion of counsel for the Underwriters,
to amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered, the Company will either (i) forthwith prepare and furnish to the
Underwriters an amendment of or supplement to the Prospectus or (ii) make an
appropriate filing pursuant to Section 13, 14 or 15 of the 1934 Act, in form and
substance reasonably satisfactory to counsel for the Underwriters, which will
amend or supplement the Prospectus so that it will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at
the time it is delivered, not misleading.
(g) The Company will endeavor in good faith, in cooperation with the
Representatives, to qualify the Notes for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as the Representatives may designate;
PROVIDED that, in connection therewith, the Company shall not be required to
qualify as a foreign corporation or trust or to file any general consent to
service of process. In each jurisdiction in which the Notes have been so
qualified the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for so
long as required for the distribution of the Notes.
(h) The Company will make generally available to its security holders as
soon as reasonably practicable, but not later than 30 days after the close of
the period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations) covering
a period of at least twelve months beginning not later than the first day of the
Company's fiscal quarter next following the effective date of the Registration
Statement. "Earnings statement", "make generally available" and "effective date"
will have the meanings contained in Rule 158 of the 1933 Act Regulations.
(i) The Company will use the net proceeds received by it from the sale
of the Notes in the manner specified in the Prospectus under the caption "Use of
Proceeds" in all material respects.
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(j) The Company currently intends to continue to qualify as a "real
estate investment trust" under the Code, and use its best efforts to continue to
meet the requirements to qualify as a "real estate investment trust" under the
Code.
(k) The Company will timely file any document which it is required to
file pursuant to the 1934 Act prior to the termination of the offering of the
Notes.
(l) The Company will not, between the date of this Agreement and the
termination of any trading restrictions or Closing Time, whichever is later,
with respect to the Notes, without your prior written consent, offer or sell,
grant any option for the sale of, or enter into any agreement to sell, any debt
securities of the Company with a maturity of more than one year (other than the
Notes which are to be sold pursuant to this Agreement and additional or expanded
commitments to participate in the Company's revolving line of credit or
increases in the amount of the term loan) except as may otherwise be provided in
this Agreement and as otherwise set forth in and contemplated by the Prospectus.
Section 4. PAYMENT OF EXPENSES. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
preparation and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the preparation and filing of this Agreement, (iii)
the preparation, issuance and delivery of the Notes to the Underwriters, (iv)
the fees and disbursements of counsel for the Company, referred to in Section
5(b) hereof, and the Company's accountants, (v) the qualification of the Notes
under securities laws and real estate syndication laws in accordance with the
provisions of Section 3(g) hereof, including filing fees and the fee and
disbursements of counsel for the Company in connection therewith and in
connection with the preparation of any Blue Sky Survey, (vi) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, and of the Prospectus and any
amendments or supplements thereto, (vii) any fees charged by nationally
recognized statistical rating organizations for the rating of the Notes, (viii)
the cost of printing or reproducing and delivering to the Underwriters copies of
any Blue Sky Survey, (ix) the cost of providing any CUSIP or other
identification numbers for the Notes, (x) the fees and expenses of any
depositary in connection with the Notes, and (xi) any transfer taxes imposed on
the sale of the Notes to the Underwriters.
If this Agreement is terminated by the Representatives in accordance with
the provisions of Section 5 or Section 9(a)(i), the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
Section 5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company herein contained, to the performance by the
Company of its obligations hereunder, and to the following further conditions:
(a) At Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission. The price of the Notes and
any other information previously omitted from the effective Registration
Statement pursuant to Rule 415 of the 1933 Act
14
Regulations shall have been transmitted to the Commission for filing pursuant to
Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and
prior to Closing Time the Company shall have provided evidence satisfactory to
the Representatives of such timely filing, or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of the 1933 Act Regulations.
(b) At Closing Time the Underwriters shall have received the favorable
opinion, dated as of Closing Time, of Xxxxxxxx & Worcester LLP, counsel for the
Company, in form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The Company has been duly organized and is a Maryland real
estate investment trust in good standing under the laws of the State of
Maryland and has the trust power and authority to carry on its business and
to own and lease its properties as described in the Registration Statement
and the Prospectus; each Significant Subsidiary (as defined in Rule 1-02 of
Regulation S-X under the 1933 Act) of the Company has been duly organized
and is validly existing as a corporation, partnership, limited liability
company, trust or real estate investment trust, as the case may be, in good
standing under the laws of its jurisdiction of incorporation or
organization; each Significant Subsidiary has the corporate, partnership,
limited liability company or trust (as applicable) power and authority to
carry on its business and to own and lease its properties as described in
the Registration Statement and in the Prospectus; each of the Company and
its Significant Subsidiaries is duly qualified and is in good standing as a
foreign corporation, partnership, limited liability company 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
material subsidiaries have been duly authorized and validly issued and are
fully paid and, except as to subsidiaries that are partnerships or limited
liability companies, non-assessable, and, to such counsel's knowledge,
except for the equity interests in Hallwood 95, L.P., are owned by the
Company free and clear of any security interest or other adverse claim
(within the meaning of Article 8 of the Massachusetts Uniform Commercial
Code).
(iii) The Company has the requisite trust power and authority to
execute, deliver and perform its obligations under this Agreement and to
issue and deliver the Notes.
(iv) This Agreement and the Indenture have been duly authorized,
executed and delivered by the Company.
(v) The Indenture is a valid and binding obligation of the
Company enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights generally and equitable principles; and the
Indenture has been duly qualified under the 1939 Act.
15
(vi) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered and paid for in accordance with the terms of this Agreement, will
be valid and binding obligations of the Company enforceable in accordance
with their terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
generally and equitable principles; and the holders of the Notes are
entitled to the benefit of the Indenture.
(vii) The execution, delivery and performance by the Company 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 as in effect at Closing Time, (B) except as disclosed in the
Prospectus, any material agreement, indenture or other instrument known to
such counsel to which the Company, or any Significant Subsidiary of the
Company is a party or by which any of their respective material properties
is bound, or (C) any laws, administrative regulations or rulings or decrees
known to such counsel to which the Company, any Significant Subsidiary of
the Company or any of their material properties is subject.
(viii) No consent, approval, authorization or order of, or
qualification with any United States federal, Massachusetts or Maryland
court or public, governmental or regulatory agency or body having
jurisdiction over the Company, any of its Significant Subsidiaries or any
of their respective material properties is required for the Company's
execution, delivery and performance of it obligations under this Agreement
and the consummation of the transactions contemplated hereby, including the
issuance, sale and delivery of the Notes, except such as have been obtained
and such as may be required under foreign and state securities or "Blue
Sky" laws.
(ix) The Registration Statement has become effective under the
1933 Act, and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission; and any required filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act has been made in accordance with said Rule
424(b).
(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 the transactions contemplated by this Agreement and the
issuance of the Notes; to such counsel's knowledge, no contract or other
document is
16
required to be described in the Registration Statement or in the Prospectus
that is not described therein or is required to be filed as an exhibit to
the Registration Statement that is not so filed.
(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, as in effect at Closing Time, 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 is bound, except for any such violations or defaults that would not
in the aggregate result in 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
Significant Subsidiaries has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities (together,
"permits"), including, without limitation, under any applicable
Environmental Law, as are necessary to own, lease and operate its
properties and to engage in the business currently conducted by it, except
such permits as to which the failure to own or possess will not in the
aggregate have a material adverse effect 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 or
incorporated by reference therein and the part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) of the
Trustee under the 1939 Act, as to which such counsel need not express any
opinion) comply as to form in all material respects with the requirements
of the 1933 Act.
(xiv) Each document incorporated by reference in the Registration
Statement and in the Prospectus (except for the financial statements and
the notes thereto and the schedules and other financial data included or
incorporated by reference therein, 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 1934 Act.
(xv) To the extent required to be described therein, the Notes
conform in all material respects to the descriptions in the Registration
Statement and the Prospectus.
(xvi) The statements (a) in the Base Prospectus under the captions
"Description of Debt Securities", "Description of Common Shares",
"Description of Certain Provisions of Maryland Law and of our Declaration
of Trust and Bylaws" and (b) in the Prospectus Supplement under the
captions "Description of the Notes" and "Material Federal Income Tax
Considerations" and (c) in Item 1 of the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 2003 under the captions
"Federal
17
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, 2003, 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 under the
Code, 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" under the 1940 Act.
(xix) The Advisor (A) is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and (B) has the requisite limited liability company
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 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
18
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 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 the part
of the Registration Statement that constitutes the Statement of Eligibility
(Form T-1) of the Trustee under the 1939 Act.)
In rendering their opinion as aforesaid, Xxxxxxxx & Worcester LLP may rely
upon an opinion, dated as of Closing Time, of Xxxxxxx 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 Representatives 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, the Delaware Revised Uniform Limited
Partnership Act and the Delaware Limited Liability Company Act 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 LLP described in the paragraph above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(c) The Underwriters shall have received at Closing Time an opinion,
dated as of Closing Time, of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Underwriters, as to the matters referred to in clauses (iv), (v), (vi), (ix),
(xiii), (xv) and (xxi) of the foregoing paragraph (b). In giving such opinion
with respect to the matters covered by clause (xxi), such counsel may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and the Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof, but are
without independent check or verification except as specified.
In rendering their opinion as aforesaid, Xxxxxx Xxxxxx Xxxxx & Xxxx LLP may
rely upon an opinion, dated as of Closing Time, of Xxxxxxx LLP as to matters
governed by Maryland law, and the opinion of Xxxxxxxx & Worcester LLP referred
to above as to matters governed by Massachusetts law.
(d) At Closing Time (i) the Registration Statement and the Prospectus
shall contain all statements which are required to be stated therein in
accordance with the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations, and neither the Registration Statement nor the Prospectus shall
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and no action, suit or proceeding at law or in equity shall be
pending or to the knowledge of the Company threatened against the Company which
would be required to be set forth in the Prospectus other than as set forth
therein, (ii) there shall not have been, since the respective dates as of which
19
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, of the Company
or in its earnings, business affairs or business prospects, whether or not
arising in the ordinary course of business from that set forth in the
Registration Statement, and (iii) no proceedings shall be pending or, to the
knowledge of the Company, threatened against the Company before or by any
federal, state or other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding would materially and adversely affect
the business, property, financial condition or income of the Company other than
as set forth in the Prospectus; and the Underwriters shall have received, at
Closing Time, a certificate of the President and Chief Operating Officer and of
the Chief Financial Officer of the Company, dated as of Closing Time, evidencing
compliance with the provisions of this subsection (d) and stating that the
representations and warranties set forth in Section 1(a) hereof are accurate as
though expressly made at and as of Closing Time.
(e) At Closing Time, there shall not have been, since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change in the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Advisor,
whether or not arising in the ordinary course of business; and the
Representatives shall have received, at Closing Time, a certificate of the
President of the Advisor evidencing compliance with this subsection (e).
(f) Concurrently with the execution and delivery of this Agreement, and
at Closing Time prior to payment and delivery of the Notes, Xxxxx & Young LLP
shall have furnished to the Representatives a letter, dated the date of its
delivery, addressed to the Underwriters and in form and substance satisfactory
to the Representatives, confirming that they are independent accountants with
respect to the Company as required by the 1933 Act and the 1933 Act Regulations
and with respect to the financial and numerical information contained in the
Registration Statement and the Prospectus or incorporated by reference therein.
Each such letter shall contain information of the type customarily included in
accountants' comfort letters to underwriters.
(g) Concurrently with the execution and delivery of this Agreement,
Deloitte & Touche LLP shall have furnished to the Representatives a letter,
dated the date of its delivery, addressed to the Underwriters and in form and
substance satisfactory to the Representatives, confirming that they are
independent accountants with respect to Hallwood Realty Partners, L.P. as
required by the 1933 Act and the 1933 Act Regulations and with respect to
certain financial and numerical information contained in the Registration
Statement and the Prospectus or incorporated by reference therein. Such letter
shall contain information of the type customarily included in accountants'
comfort letters to underwriters.
(h) At Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling it to pass upon the issuance and sale of the Notes as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Notes as herein contemplated shall
be reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
20
(i) Subsequent to the execution and delivery of this Agreement and prior
to Closing Time, there shall not have occurred any downgrading, nor shall any
notice have been given of (i) any intended or potential downgrading or (ii) any
review or possible change that indicates anything other than a stable outlook,
in the rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the 1933 Act.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
Section 6. INDEMNIFICATION. (a) The Company hereby agrees to indemnify and
hold harmless each Underwriter, each Underwriter's officers and directors and
each person, if any, who controls each Underwriter within the meaning of Section
15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto), or the
omission, or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading:
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(3) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by the Representatives), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceedings by any governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under paragraph (1) or (2) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information
21
furnished to the Company by any Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto); and PROVIDED, FURTHER,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter, or the benefit of
any person controlling any Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto and excluding documents incorporated or deemed to be
incorporated by reference therein) was not sent or given by or on behalf of such
Underwriter to such person asserting any such losses, claims, damages or
liabilities at or prior to the written confirmation of the sale of such Notes to
such person, if required by law so to have been delivered, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or expense.
(b) Each Underwriter agrees to indemnify and hold harmless the Company,
each of the Company's trustees, each of the Company's officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section 6, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
22
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriters, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Notes pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Notes
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Notes pursuant to
this Agreement (before deducting expenses) received by the Company and the total
discount received by the Underwriters, bear to the aggregate initial offering
price of the Notes.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Notwithstanding the
provisions of this Section 7, the Underwriters shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Notes purchased from the Company by the Underwriters and distributed to the
public were offered to the public exceeds the amount of any damages which the
Underwriters have otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section 7, each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as
23
such Underwriter, and each trustee of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of the Underwriters or any controlling person, or by or on behalf
of the Company, and shall survive delivery of the Notes to the Underwriters.
Section 9. TERMINATION OF AGREEMENT. (a) The Representatives may terminate
this Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the respective dates as of which information
is given in the Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries, taken as a whole, or the
Advisor, whether or not arising in the ordinary course of business, which would
make it, in the Representatives' reasonable judgment, impracticable or
inadvisable to market the Notes or enforce contracts for the sale of the Notes,
(ii) if there has occurred any material adverse change in the financial markets
in the United States or any outbreak of hostilities or escalation of existing
hostilities or other calamity or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
Representatives' reasonable judgment, impracticable or inadvisable to market the
Notes or enforce contracts for the sale of the Notes, or (iii) if trading in the
Company's Common Shares has been suspended by the Commission, or if trading
generally on either the New York Stock Exchange or the American Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, or
a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, or (iv) if a banking
moratorium has been declared by Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except as
provided in Section 4, and PROVIDED, FURTHER, that Sections 6 and 7 hereof shall
survive such termination.
Section 10. DEFAULT. If one or more of the Underwriters shall fail at
Closing Time to purchase the Notes which it or they are obligated to purchase
under this Agreement (the "Defaulted Notes"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Notes in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(i) if the principal amount of Defaulted Notes does not exceed
10% of the aggregate principal amount of the Notes, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting
24
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(ii) if the principal amount of Defaulted Notes exceeds 10% of
the aggregate principal amount of the Notes, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter and the
Company.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representatives or the Company shall have the right
to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Prospectus or in any other documents or
arrangements.
Section 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters c/x Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated at 4 World Financial Center, New York, New York
10080, Attention: Xxxx Xxxxxxxxxx, Managing Director; and notices to the Company
shall be directed to it at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxx X. Xxxxx, Treasurer, Chief Financial Officer and Secretary.
Section 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than those referred to
in Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and thereto and their respective successors and said controlling persons
and officers, trustees and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Notes from any Underwriter shall be deemed to be a successor by reason merely of
such purchase.
Section 13. GOVERNING LAW AND TIME; MISCELLANEOUS. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Specified times
of day refer to New York City time.
THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING THE COMPANY,
DATED JULY 1, 1994, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS AND
SUPPLEMENTS THERETO (THE "DECLARATION"), IS XXXX 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
25
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.
26
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between the
Underwriters and the Company in accordance with its terms.
Very truly yours,
HRPT PROPERTIES TRUST
By /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Treasurer, Chief Financial Officer and
Secretary
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX
INCORPORATED
RBC CAPITAL MARKETS CORPORATION
WACHOVIA CAPITAL MARKETS, LLC
By: Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx
Incorporated
By /s/ Xxxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President, Investment Banking
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
27
SCHEDULE A
NAME OF UNDERWRITER AMOUNT
------------------- ------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated ...................................... $ 120,000,000
RBC Capital Markets Corporation................................ 60,000,000
Wachovia Capital Markets, LLC.................................. 60,000,000
Advest, Inc.................................................... 8,889,000
BB&T Capital Markets,
a division of Xxxxx & Xxxxxxxxxxxx, Inc..................... 8,889,000
BNY Capital Markets, Inc....................................... 8,889,000
Banc of America Securities LLC................................. 8,889,000
Comerica Securities, Inc....................................... 8,889,000
Commerzbank Capital Markets Corp............................... 8,889,000
Xxxxxx, Xxxxx Xxxxx, Incorporated.............................. 8,889,000
Xxxxxx Xxxxxxx Corp............................................ 8,889,000
KeyBanc Capital Markets,
a division of McDonald Investments Inc....................... 8,889,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated........................... 8,889,000
Xxxxxx Xxxxxx & Company, Inc................................... 8,889,000
PNC Capital Markets, Inc....................................... 8,889,000
Xxxxx Xxxxxxx & Co. ........................................... 8,889,000
Xxxxxxx Xxxxx & Associates, Inc................................ 8,889,000
Xxxxxx, Xxxxxxxx & Company, Incorporated....................... 8,889,000
SunTrust Capital Markets, Inc.................................. 8,889,000
Wedbush Xxxxxx Securities Inc.................................. 8,888,000
Xxxxx Fargo Brokerage Services, LLC............................ 8,888,000
Total....................................................... $ 400,000,000
=============
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