EXHIBIT 1.1
================================================================================
BOSTON PROPERTIES, INC.
(a Delaware corporation)
16,000,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
-----------------------
Dated: January __, 1998
================================================================================
Table of Contents
Page
----
U.S. PURCHASE AGREEMENT..................................................... 1
SECTION 1. Representations and Warranties................................... 4
-------------------------------
(a) Representations and Warranties by the Company..................... 4
(i) Compliance with Registration Requirements............... 4
-----------------------------------------
(ii) Independent Accountants................................. 5
-----------------------
(iii) Financial Statements.................................... 5
--------------------
(iv) No Material Adverse Change in Business.................. 5
--------------------------------------
(v) Good Standing of the Company............................ 6
----------------------------
(vi) Good Standing of Subsidiaries........................... 6
-----------------------------
(vii) Capitalization.......................................... 6
--------------
(viii) Authorization of Agreement.............................. 7
--------------------------
(ix) Authorization and Description of Securities............. 7
-------------------------------------------
(x) Authorization and Description of OP Units............... 7
-----------------------------------------
(xi) Absence of Defaults and Conflicts....................... 7
---------------------------------
(xii) Absence of Labor Dispute................................ 8
------------------------
(xiii) Absence of Proceedings.................................. 8
----------------------
(xiv) Qualification as a REIT................................. 8
-----------------------
(xv) Accuracy of Exhibits.................................... 9
--------------------
(xvi) New York Stock Exchange Listing......................... 9
-------------------------------
(xvii) Absence of Further Requirements......................... 9
-------------------------------
(xviii) Possession of Licenses and Permits...................... 9
----------------------------------
(xix) The Properties.......................................... 9
--------------
(xx) Insurance............................................... 10
---------
(xxi) Taxes................................................... 10
-----
(xxii) Mortgages and Deeds of Trust............................ 10
----------------------------
(xxiii) Compliance with Cuba Act................................ 10
------------------------
(xxiv) Investment Company Act.................................. 11
----------------------
(xxv) Environmental Laws...................................... 11
------------------
(xxvi) Registration Rights..................................... 12
-------------------
(b) Officer's Certificates........................................... 12
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.................. 12
-----------------------------------------------
(a) Initial Securities............................................... 12
(b) Option Securities................................................ 12
(c) Payment.......................................................... 13
(d) Denominations; Registration...................................... 13
SECTION 3. Covenants of the Company......................................... 14
------------------------
(a) Compliance with Securities Regulations and Commission Requests... 14
i
(b) Filing of Amendments............................................. 14
(c) Delivery of Registration Statements.............................. 14
(d) Delivery of Prospectuses......................................... 15
(e) Continued Compliance with Securities Laws........................ 15
(f) Blue Sky Qualifications.......................................... 15
(g) Rule 158......................................................... 16
(h) Use of Proceeds.................................................. 16
(i) Listing.......................................................... 16
(j) Restriction on Sale of Securities................................ 16
(k) Qualification as a REIT.......................................... 17
SECTION 4. Payment of Expenses............................................. 17
-------------------
(a) Expenses........................................................ 17
(b) Termination of Agreement........................................ 17
SECTION 5. Conditions of U.S. Underwriters' Obligations.................... 17
--------------------------------------------
(a) Effectiveness of Registration Statement......................... 18
(b) Opinion of Counsel for Company.................................. 18
(c) Opinion of General Counsel of Company........................... 18
(d) Opinion of Counsel for U.S. Underwriters........................ 18
(e) Officers' Certificate........................................... 19
(f) Accountant's Comfort Letter..................................... 19
(g) Bring-down Comfort Letter....................................... 19
(h) Approval of Listing............................................. 19
(i) No Objection.................................................... 20
(j) Lock-up Agreements.............................................. 20
(k) Purchase of Initial International Securities.................... 20
(l) Conditions to Purchase of U.S. Option
Securities...................................................... 20
(i) Officers' Certificate.................................... 20
---------------------
(ii) Opinion of Counsel for Company........................... 20
------------------------------
(iii) Opinion of General Counsel of Company.................... 21
-------------------------------------
(iv) Opinion of Counsel for U.S. Underwriters................. 21
----------------------------------------
(v) Bring-down Comfort Letter................................ 21
-------------------------
(m) Additional Documents............................................ 21
(n) Termination of Agreement........................................ 21
SECTION 6. Indemnification................................................. 22
---------------
(a) Indemnification of U.S. Underwriters............................ 22
(b) Indemnification of Company, Directors and Officers.............. 23
(c) Actions against Parties; Notification........................... 23
(d) Settlement without Consent if Failure to Reimburse.............. 24
SECTION 7. Contribution.................................................... 24
------------
SECTION 8. Representations, Warranties and Agreements to
---------------------------------------------
Survive Delivery................................................ 26
----------------
ii
SECTION 9. Termination of Agreement........................................ 26
------------------------
(a) Termination; General............................................ 26
(b) Liabilities..................................................... 27
SECTION 10. Default by One or More of the U.S. Underwriters............... 27
-----------------------------------------------
SECTION 11. Notices....................................................... 27
-------
SECTION 12. Parties....................................................... 28
-------
SECTION 13. GOVERNING LAW AND TIME....................................... 28
-----------------------
SECTION 14. Effect of Headings............................................ 28
------------------
EXHIBIT A.................................................................. A-1
EXHIBIT B.................................................................. B-1
iii
BOSTON PROPERTIES, INC.
(a Delaware corporation)
16,000,000 Shares of Common Stock
(Par Value $ .01 Per Share)
U.S. PURCHASE AGREEMENT
-----------------------
January __, 1998
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
CHASE SECURITIES INC.
as U.S. Representatives of the several U.S. Underwriters
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Boston Properties, Inc., a Delaware corporation (the "Company") and Boston
Properties Limited Partnership, a Delaware limited partnership (the "Operating
Partnership"), each confirms its agreement with ▇▇▇▇▇▇▇, Sachs & Co. ("▇▇▇▇▇▇▇,
▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other U.S. Underwriters named in Schedule A
hereto (collectively, the "U.S. Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, PaineWebber
Incorporated, Prudential Securities Incorporated, ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Chase
Securities Inc. are acting as representatives (in such capacity, the "U.S.
Representatives"), with respect to the issue and sale
by the Company and the purchase by the U.S. Underwriters, acting severally and
not jointly, of the respective numbers of shares of Common Stock, par value $.01
per share, of the Company ("Common Stock") set forth in said Schedule A, and
with respect to the grant by the Company to the U.S. Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 2,400,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 16,000,000 shares of Common Stock (the
"Initial U.S. Securities") to be purchased by the U.S. Underwriters and all or
any part of the 2,400,000 shares of Common Stock subject to the option described
in Section 2(b) hereof (the "U.S. Option Securities") are hereinafter called,
collectively, the "U.S. Securities".
It is understood that the Company and the Operating Partnership are
concurrently entering into an agreement dated the date hereof (the
"International Purchase Agreement") providing for the offering by the Company of
an aggregate of 4,000,000 shares of Common Stock (the "Initial International
Securities") through arrangements with certain underwriters outside the United
States and Canada (the "International Managers") for which ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, Bear, ▇▇▇▇▇▇▇ International Limited,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International
Limited, PaineWebber International (UK) Ltd., Prudential-Bache Securities (U.K.)
Inc., ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Chase Manhattan International Limited are acting as
lead managers (the "Lead Managers") and the grant by the Company to the
International Managers, acting severally and not jointly, of an option to
purchase all or any part of the International Managers' pro rata portion of up
to 600,000 additional shares of Common Stock solely to cover overallotments, if
any (the "International Option Securities" and, together with the U.S. Option
Securities, the "Option Securities"). The Initial International Securities and
the International Option Securities are hereinafter called the "International
Securities". It is understood that the Company is not obligated to sell and the
U.S. Underwriters are not obligated to purchase, any Initial U.S. Securities
unless all of the Initial International Securities are contemporaneously
purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters", the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities", and the U.S. Securities and the International Securities
are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of ▇▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (in such capacity, the "Global
Coordinators").
The Company and the Operating Partnership each understand that the U.S.
Underwriters propose to make a public offering of the U.S. Securities as soon as
the U.S. Representatives deem advisable after this Agreement has been executed
and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-11 (No. 333-41449) covering
the registration of the
2
Securities under the Securities Act of 1933, as amended (the "1933 Act"),
including the related preliminary prospectus or prospectuses. Promptly after
execution and delivery of this Agreement, the Company will either (i) prepare
and file a prospectus in accordance with the provisions of Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the Company has elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical
to the Form of U.S. Prospectus, except for the front cover and back cover pages
and the information under the caption "Underwriting." The information included
in any such prospectus or in any such Term Sheet, as the case may be, that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule
430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Each Form of U.S. Prospectus and Form of International
Prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations to register additional shares of Common Stock
to be sold in the public offering of the Securities is herein referred to as the
"Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final Form of U.S. Prospectus and the final Form of International Prospectus
in the forms first furnished to the Underwriters for use in connection with the
offering of the Securities are herein called the "U.S. Prospectus" and the
"International Prospectus," respectively, and collectively, the "Prospectuses."
If Rule 434 is relied on, the terms "U.S. Prospectus" and "International
Prospectus" shall refer to the preliminary U.S. Prospectus dated January 2, 1998
and preliminary International Prospectus dated January 2, 1998, respectively,
each together with the applicable Term Sheet, and all references in this
Agreement to the date of such Prospectuses shall mean the date of the applicable
Term Sheet. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the U.S. Prospectus, the International
Prospectus or any Term Sheet or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
3
SECTION 1. Representations and Warranties.
-------------------------------
(a) Representations and Warranties by the Company. The Company and the
Operating Partnership each severally represents and warrants to each U.S.
Underwriter as of the date hereof, as of the Closing Time referred to in Section
2(c) hereof, and as of each Date of Delivery (if any) referred to in Section
2(b) hereof, and agrees with each U.S. Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the
-----------------------------------------
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any U.S. Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither of the Prospectuses nor any
amendments or supplements thereto (including any prospectus wrapper), at
the time the Prospectuses or any amendments or supplements thereto were
issued and at the Closing Time (and, if any U.S. Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule 434 and the
Prospectuses shall not be "materially different", as such term is used in
Rule 434, from the prospectuses included in the Registration Statement at
the time it became effective. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the U.S. Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any U.S.
Underwriter through the U.S. Representatives expressly for use in the
Registration Statement or the U.S. Prospectus.
Each preliminary prospectus and the prospectuses filed as
part of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses delivered
to the Underwriters for use in connection with this offering was
4
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified
-----------------------
the financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iii) Financial Statements. The consolidated and combined
--------------------
financial statements included in the Registration Statement and the
Prospectuses, together with the related schedules and notes, present fairly the
financial position of the Company and Boston Properties Predecessor Group (as
defined in the Registration Statement) at the dates indicated, and the
consolidated and combined statements of operations, owners' equity and cash
flows of the Company and Boston Properties Predecessor Group for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules included in the
Registration Statement present fairly in accordance with GAAP the information
required to be stated therein. The unaudited pro forma condensed consolidated
financial statements and the related notes thereto included in the Registration
Statement and the Prospectuses present fairly the information shown therein,
have been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein. The selected financial
data and the summary financial information included in the Prospectuses present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement. Other than the historical and pro forma financial
statements (and schedules) included in the Registration Statement and
Prospectuses, no other historical or pro forma financial statements (or
schedules) are required by the 1933 Act or the 1933 Act Regulations to be
included therein.
(iv) No Material Adverse Change in Business. Since the
--------------------------------------
respective dates as of which information is given in the Registration Statement
and the Prospectuses, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company, the Operating
Partnership and the Subsidiaries (as hereinafter defined) considered as one
enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) no material casualty loss or material
condemnation or other material adverse event with respect to any of the
properties set forth in Schedule C hereto has occurred, (C) there have been no
transactions entered into by the Company, the Operating Partnership or any of
the Subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company, the
5
Operating Partnership and the Subsidiaries considered as one enterprise, and (D)
there has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock or by the Operating Partnership or
any of its Subsidiaries with respect to its partnership interests or any class
of its capital stock.
(v) Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each of the subsidiaries of
-----------------------------
the Company, including without limitation the Operating Partnership, (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly organized and
is validly existing as a general or limited partnership or corporation, as the
case may be, in good standing (in the case of corporations and limited
partnerships) under the laws of the jurisdiction of its organization, has
partnership or corporate power and authority, as the case may be, to own, lease
and operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign partnership or corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect; all of the
issued and outstanding capital stock of each of the Subsidiaries that is a
corporation has been duly authorized and validly issued, is fully paid and non-
assessable, and all of the partnership interests in each Subsidiary that is a
partnership are validly issued and fully paid; except as otherwise disclosed in
the Registration Statement, all such shares and interests, as the case may be,
are owned by the Company, directly or through Subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock or partnership interests of any
Subsidiary was issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary.
(vii) Capitalization. The authorized capital stock of the
--------------
Company is as set forth in the Prospectuses under the caption "Description of
Capital Stock" and the issued and outstanding capital stock of the Company, as
of the Closing Time, will be as set forth in the Prospectuses under the caption
"Capitalization." The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and non-
assessable; none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
6
(viii) Authorization of Agreement. This Agreement and the
--------------------------
International Purchase Agreement have been duly authorized, executed and
delivered by the Company and the Operating Partnership.
(ix) Authorization and Description of Securities. The
-------------------------------------------
Securities to be purchased by the U.S. Underwriters and the International
Managers from the Company have been duly authorized for issuance and sale to the
U.S. Underwriters pursuant to this Agreement and the International Managers
pursuant to the International Purchase Agreement, respectively, and, when issued
and delivered by the Company pursuant to this Agreement and the International
Purchase Agreement, respectively, against payment of the consideration set forth
herein and the International Purchase Agreement, respectively, will be, as of
the Closing Time, validly issued, fully paid and non-assessable; the Common
Stock conforms, in all material respects, to all statements relating thereto
contained in the Prospectuses and such description conforms, in all material
respects, to the rights set forth in the instruments defining the same; no
holder of the Securities will be subject to personal liability by reason of
being such a holder; and the issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the Company; the
Company has duly reserved a sufficient number of shares of Common Stock for
issuance upon exchange of outstanding units of limited partnership of the
Operating Partnership ("OP Units") in accordance with the Amended and Restated
Limited Partnership Agreement of the Operating Partnership ("Operating
Partnership Agreement").
(x) Authorization and Description of OP Units. The issued and
-----------------------------------------
outstanding OP Units have been duly authorized and validly issued and are fully
paid. OP Units issued and sold in connection with the acquisition of the
Acquisition Properties (as defined in the Registration Statement) have been and
will be offered, issued and sold in compliance with all applicable laws
(including, without limitation, federal and state securities laws).
(xi) Absence of Defaults and Conflicts. Neither the Company
---------------------------------
nor any of its Subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or any
Subsidiary is subject (collectively, "Agreements and Instruments") except for
such defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the International
Purchase Agreement and the consummation of the transactions contemplated in this
Agreement, the International Purchase Agreement and the Registration Statement
(including the acquisition of the Acquisition Properties, issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectuses under the caption "Use of Proceeds") and
compliance by the Company and
7
the Operating Partnership with their obligations under this Agreement and the
International Purchase Agreement have been duly authorized by all necessary
corporate or partnership action, as the case may be, and (except as contemplated
by the Prospectuses) do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the Properties (as
defined in the Registration Statement) or any other property or assets of the
Company or any Subsidiary pursuant to, the Agreements and Instruments or
violations of any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any Subsidiary or any of
their assets, properties or operations (except for such conflicts, breaches or
defaults or liens, charges, encumbrances or violations that would not result in
a Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any Subsidiary. As used
herein, a "Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any
Subsidiary.
(xii) Absence of Labor Dispute. No material labor dispute with
------------------------
the employees of the Company or any Subsidiary exists or, to the knowledge of
the Company, is imminent.
(xiii) Absence of Proceedings. There is no action, suit,
----------------------
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company or any
Subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the Properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
International Purchase Agreement or the performance by the parties of their
obligations hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any Subsidiary is a party or of
which any of their respective property or assets, including without limitation
the Properties, is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse Effect.
(xiv) Qualification as a REIT. Commencing with the taxable year
-----------------------
ended December 31, 1997, the Company is organized in conformity with the
requirements for qualification as a real estate investment trust (a "REIT")
under the Internal Revenue Code of 1986, as amended (the "Code"), and its method
of operation enables it to meet the requirements for taxation as a REIT under
the Code.
8
(xv) Accuracy of Exhibits. There are no contracts or
--------------------
documents which are required to be described in the Registration Statement or
the Prospectuses or to be filed as exhibits thereto which have not been so
described and filed as required.
(xvi) New York Stock Exchange Listing. The Securities have
-------------------------------
been approved for listing on the New York Stock Exchange, subject to official
notice of issuance.
(xvii) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company and the Operating Partnership of
their obligations hereunder, in connection with the offering, issuance or sale
of the Securities under this Agreement and the International Purchase Agreement
or the consummation of the transactions contemplated by this Agreement and the
International Purchase Agreement, except such as have been already obtained or
as may be required under the 1933 Act or the 1933 Act Regulations and foreign or
state securities or blue sky laws.
(xviii) Possession of Licenses and Permits. The Company and its
----------------------------------
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them; the Company and its Subsidiaries are
in compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the Company nor any
of its Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xix) The Properties. (a) The Operating Partnership and the
--------------
Subsidiaries have good and marketable title in fee simple to all of the
Properties (excluding any Acquisition Property not yet acquired) and good and
marketable title to all other real properties owned by them, in each case, free
and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (i) are described in the
Prospectuses or (ii) do not, singly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its Subsidiaries; (b) all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances on or affecting the properties and assets of the Company or any of
the Subsidiaries that are required to be disclosed in the Prospectuses are
disclosed therein; (c) neither the Company nor the
9
Operating Partnership knows of any violation of any municipal, state or
federal law, rule or regulation (including those pertaining to
environmental matters) concerning the Properties or any part thereof which
would have a Material Adverse Effect; (d) each of the Properties complies
with all applicable zoning laws, ordinances, regulations and deed
restrictions or other covenants in all material respects and, if and to the
extent there is a failure to comply, such failure does not result in a
Material Adverse Effect and will not result in a forfeiture or reversion of
title; (e) none of the Company nor any Subsidiary has received from any
governmental authority any written notice of any condemnation of or zoning
change affecting the Properties or any part thereof, and none of the
Company nor any Subsidiary knows of any such condemnation or zoning change
which is threatened and which if consummated would have a Material Adverse
Effect; and (f) no lessee of any portion of any of the Properties is in
default under any of the leases governing such Properties and there is no
event which, but for the passage of time or the giving of notice or both,
would constitute a default under any of such leases, except such defaults
that would not have a Material Adverse Effect.
(xx) Insurance. The Company and each of the Subsidiaries is
---------
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the
businesses in which they will be engaged; and neither the Company nor any
of the Subsidiaries has any reason to believe that any of them 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.
(xxi) Taxes. The Company and each of the Subsidiaries has filed
-----
all material foreign, federal, state and local tax returns that are
required to be filed or have requested extensions thereof (except in any
case in which the failure so to file would not have a Material Adverse
Effect) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as described in
or contemplated by the Prospectuses.
(xxii) Mortgages and Deeds of Trust. Except as set forth in the
----------------------------
Registration Statement and the Prospectuses, the mortgages and deeds of
trust encumbering the properties and assets described in the Prospectus are
not convertible and neither the Company, any of its Subsidiaries, nor any
person affiliated therewith holds a participating interest therein, and
such mortgages and deeds of trust are not cross-defaulted or cross-
collateralized to any property not owned directly or indirectly by the
Company or any of its Subsidiaries.
(xxiii) Compliance with Cuba Act. The Company has complied
------------------------
with, and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba, codified as
Section 517.075 of the Florida
10
statutes, and the rules and regulations thereunder (collectively, the "Cuba
Act") or is exempt therefrom.
(xxiv) Investment Company Act. The Company and the Operating
----------------------
Partnership are not, and upon the issuance and sale of the Securities as
herein contemplated and the application of the net proceeds therefrom as
described in the Prospectuses will not be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
(xxv) Environmental Laws. Except as otherwise disclosed in the
------------------
Prospectuses or in the Phase I Environmental Site Assessments and Asbestos
Survey Reports previously delivered to the U.S. Representatives and
International Managers or their counsel (the "Environmental Reports"), or
except as would not, singly or in the aggregate, have a Material Adverse
Effect, (i) to the best knowledge of the Company, the Company and its
Subsidiaries have been and are in compliance with applicable Environmental
Statutes; (ii) to the best knowledge of the Company, neither the Company,
any of the Subsidiaries, nor any other owners of the property at any time
or any other party has at any time released (as such term is defined in
Section 101(22) of CERCLA (as hereinafter defined)) or otherwise disposed
of Hazardous Materials (as hereinafter defined) on, to or from the
Properties; (iii) the Company does not intend to use the Properties or any
subsequently acquired properties, other than in compliance with applicable
Environmental Statutes (as hereinafter defined); (iv) neither the Company
nor any of the Subsidiaries knows 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 Properties or onto lands from which Hazardous Materials might seep,
flow or drain into such waters; (v) neither the Company nor any of the
Subsidiaries has received any 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 Statute
with respect to the Properties or the assets described in the Prospectus or
arising out of the conduct of the Company or its Subsidiaries; (vi) neither
the Properties nor any other land owned by the Company or any of the
Subsidiaries is included or, to the best of the Company's knowledge,
proposed for inclusion on the National Priorities List issued pursuant to
CERCLA by the United States Environmental Protection Agency (the "EPA") or
to the best of the Company's knowledge, proposed for inclusion on any
similar list or inventory issued pursuant to any other Environmental
Statute or issued by any other Governmental Authority (as hereinafter
defined).
As used herein, "Hazardous Material" shall include, without
limitation any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, toxic substances, or related materials,
asbestos or any hazardous material as defined by any federal, state or
local environmental law, ordinance, rule or regulation including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. (S)(S) 9601-9675
11
("CERCLA"), the Hazardous Materials Transportation Act, as amended, 49
U.S.C. (S)(S) 1801-1819, the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. (S)(S) 6901-K, the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. (S)(S) 11001-11050, the Toxic
Substances Control Act, 15 U.S.C. (S)(S) 2601-2671, the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. (S)(S) 136-136y, the
Clean Air Act, 42 U.S.C. (S)(S) 7401-7642, the Clean Water Act (Federal
Water Pollution Control Act), 33 U.S.C. (S)(S) 1251-1387, the Safe Drinking
Water Act, 42 U.S.C. (S)(S) 300f-300j-26, and the Occupational Safety and
Health Act, 29 U.S.C. (S)(S) 651-678, as any of the above statutes may be
amended from time to time, and in the regulations promulgated pursuant to
each of the foregoing (including environmental statues not specifically
defined herein) (individually, an "Environmental Statute" and collectively
"Environmental Statutes") or by any federal, state or local governmental
authority having or claiming jurisdiction over the properties and assets
described in the Prospectus (a "Governmental Authority").
(xxvi) Registration Rights. Except as described in the
-------------------
Registration Statement, there are no registration rights or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global Coordinators, the
U.S. Representatives or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty solely by the Company to each U.S. Underwriter as to
the matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
-----------------------------------------------
(a) Initial Securities. 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 U.S. Underwriter, severally and not jointly, and
each U.S. Underwriter, severally and not jointly, agrees to purchase from the
Company, at the price per share set forth in Schedule B, the number of Initial
U.S. Securities set forth in Schedule A opposite the name of such U.S.
Underwriter, plus any additional number of Initial U.S. Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the U.S. Underwriters,
severally and not jointly, to purchase up to an additional 2,400,000 shares of
Common Stock at the price per share set forth in Schedule B, less an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial U.S. Securities but not payable on the U.S. Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial U.S. Securities upon notice by the
12
Global Coordinators to the Company setting forth the number of U.S. Option
Securities as to which the several U.S. Underwriters are then exercising the
option and the time and date of payment and delivery for such U.S. Option
Securities. Any such time and date of delivery for the U.S. Option Securities
(a "Date of Delivery") shall be determined by the Global Coordinators, but shall
not be earlier than two nor later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the
U.S. Option Securities, each of the U.S. Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of U.S. Option
Securities then being purchased which the number of Initial U.S. Securities set
forth in Schedule A opposite the name of such U.S. Underwriter bears to the
total number of Initial U.S. Securities, subject in each case to such
adjustments as the Global Coordinators in their discretion shall make to
eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, Exchange Place, Boston, Massachusetts, or at such
other place as shall be agreed upon by the Global Coordinators and the Company,
at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after
4:30 P.M. (Eastern time) on any given day) business day after the date hereof
(unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed
upon by the Global Coordinators and the Company (such time and date of payment
and delivery being herein called "Closing Time").
In addition, in the event that any or all of the U.S. Option Securities are
purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinators and the Company, on each Date of Delivery as specified in
the notice from the Global Coordinators to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the U.S. Representatives for the respective accounts of the U.S. Underwriters of
certificates for the U.S. Securities to be purchased by them. It is understood
that each U.S. Underwriter has authorized the U.S. Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial U.S. Securities and the U.S. Option Securities, if any,
which it has agreed to purchase. ▇▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
and not as representatives of the U.S. Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the Initial U.S. Securities
or the U.S. Option Securities, if any, to be purchased by any U.S. Underwriter
whose funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such U.S.
Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least two full business days before the
13
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Initial U.S. Securities and the U.S. Option Securities, if
any, will be made available for examination and packaging by the U.S.
Representative(s) in The City of New York not later than 10:00 A.M. (Eastern
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. Covenants of the Company. Each of the Company and the
------------------------
Operating Partnership covenants with each U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Global Coordinators promptly, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectuses or any amended
Prospectuses shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectuses or for additional information, and (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinators notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any
Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectuses, will furnish the Global Coordinators with
copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any
such document to which the Global Coordinators or counsel for the U.S.
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has
furnished or, upon request, will deliver to the U.S. Representatives and
counsel for the U.S. Underwriters, without charge, signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein)
and signed copies of all consents and certificates of experts, and will
also deliver to the U.S. Representatives, without charge, a conformed copy
of the
14
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the U.S. Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the U.S.
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted or required by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each U.S. Underwriter, without charge, as many copies of each preliminary
prospectus as such U.S. Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act in connection with the offering of the Securities. The Company
will furnish to each U.S. Underwriter, without charge, during the period
when the U.S. Prospectus is required to be delivered under the 1933 Act or
the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies
of the U.S. Prospectus (as amended or supplemented) as such U.S.
Underwriter may reasonably request. The U.S. Prospectus and any amendments
or supplements thereto furnished to the U.S. Underwriters will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted or required by Regulation
S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations so as to permit
the completion of the distribution of the Securities as contemplated in
this Agreement, the International Purchase Agreement and in the
Prospectuses. If at any time when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the U.S. Underwriters or for the Company,
to amend the Registration Statement or amend or supplement any Prospectus
in order that the Prospectuses will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement any Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectuses comply with such requirements, and the
Company will furnish to the U.S. Underwriters such number of copies of such
amendment or supplement as the U.S. Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the U.S. Underwriters, to qualify, if
necessary, the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or
foreign) as the Global Coordinators may designate and to maintain such
qualifications in effect for a period of not more than one year from the
later of the
15
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities 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 a period of not more than one year from the effective date of
the Registration Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in
the Prospectuses under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect
the listing of the Securities on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of one
year from June 17, 1997, the Company and the Operating Partnership will
not, without the prior written consent of the Global Coordinators, (i)
directly or indirectly, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise transfer or
dispose of any share of Common Stock or OP Units or any securities
convertible into or exercisable or exchangeable for Common Stock or OP
Units, or file any registration statement under the 1933 Act with respect
to any of the foregoing or (ii) enter into any swap or any other agreement
or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the
Securities to be sold hereunder or under the International Purchase
Agreement or (B) any shares of Common Stock issued or options to purchase
Common Stock granted pursuant to existing employee benefit plans of the
Company referred to in the Prospectuses, or any employee benefit plans of
the Company which have been approved by the requisite vote of the
stockholders of the Company at a duly called meeting of stockholders or any
employee benefit plans of the Company in which all full-time employees of
the Company are eligible to participate on substantially similar terms.
16
(k) Qualification as a REIT. The Company will use its best
efforts to meet the requirements to qualify, commencing with the taxable
year ended December 31, 1997, as a REIT under the Code, subject to the
fiduciary duties of the Board of Directors of the Company to manage the
business of the Company in the best interest of its stockholders.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
-------------------
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters and the transfer of
the Securities between the U.S. Underwriters and the International Managers,
(iv) the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification or registration (or exemption therefrom) of the
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheets and of the Prospectuses and any amendments or supplements thereto,
(vii) the preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of
any transfer agent or registrar for the Securities, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the NASD of the terms of the sale
of the Securities, and (x) the fees and expenses incurred in connection with the
listing of the Securities on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the U.S.
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the U.S. Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the U.S. Underwriters, unless such termination was pursuant to the
conditions set forth in Section 5(i) or Section 5(k) and the failure to satisfy
such conditions was solely attributable to the U.S. Underwriters or the
International Managers.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The obligations
--------------------------------------------
of the several U.S. Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
17
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the 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, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the U.S. Underwriters. A prospectus containing the Rule 430A
Information shall have been filed with the Commission in accordance with
Rule 424(b) (or a post-effective amendment providing such information shall
have been filed and declared effective in accordance with the requirements
of Rule 430A) or, if the Company has elected to rely upon Rule 434, a Term
Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of
Closing Time, of ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, counsel for the Company and
the Operating Partnership, in form and substance satisfactory to counsel
for the U.S. Underwriters, together with signed or reproduced copies of
such letter for each of the other U.S. Underwriters to the effect set forth
in Exhibit A hereto with such qualifications and explanatory notes thereto
as counsel to the U.S. Underwriters may reasonably accept.
(c) Opinion of General Counsel of Company. At Closing Time,
the U.S. Representatives shall have received the favorable opinion, dated
as of Closing Time, of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel of the
Company, in form and substance satisfactory to counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter for
each of the other U.S. Underwriters, to the effect set forth in Exhibit B
hereto with such qualifications and explanatory notes thereto as counsel to
the U.S. Underwriters may reasonably accept.
(d) Opinion of Counsel for U.S. Underwriters. At Closing Time,
the U.S. Representatives shall have received the favorable opinion, dated
as of Closing Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel
for the U.S. Underwriters, together with signed or reproduced copies of
such letter for each of the other U.S. Underwriters with respect to the
matters set forth in clauses (i), (ix), (x), (solely as to preemptive or
other similar rights arising by operation of law or under the charter or
by-laws of the Company), (xiii) through (xv), inclusive, and the
penultimate paragraph of Exhibit A hereto.
In giving the opinions described in paragraphs (b), (c) and (d) above,
each counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the Commonwealth of Massachusetts, the federal law of the
United States and the General Corporation Law and the Revised Uniform Limited
Partnership Act of the State of Delaware, upon the opinions of counsel
satisfactory to the U.S. Representatives. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they
18
deem proper, upon certificates of officers of the Company and its Subsidiaries
and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, except as contemplated by the
Prospectuses, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company, the Operating Partnership and the Subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business,
and the U.S. Representatives shall have received a certificate of the
President or a Vice President of the Company and of the chief financial or
chief accounting officer of the Company and appropriate officers of the
Company, as General Partner, on behalf of the Operating Partnership, dated
as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a)
hereof are true and correct in all material respects with the same force
and effect as though expressly made at and as of Closing Time, (iii) the
information contained in the Prospectuses under the headings "Business and
Properties--Summary Property Data," "--Location of Properties," "--
Tenants--Lease Expirations of Office and Industrial Properties," "--
Tenants--Historical Tenant Improvements and Leasing Commissions," and "--
Tenants--Historical Lease Renewals" is accurate in all material respects,
(iv) the Company has complied in all material respects with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time, and (v) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission.
(f) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the U.S. Representatives shall have received from
Coopers & ▇▇▇▇▇▇▇ L.L.P. a letter dated such date, in form and substance
satisfactory to the U.S. Representatives, together with signed or
reproduced copies of such letter for each of the other U.S. Underwriters
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectuses.
(g) Bring-down Comfort Letter. At Closing Time, the U.S.
Representatives shall have received from Coopers & ▇▇▇▇▇▇▇ L.L.P. a letter,
dated as of Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (f) of this Section,
except that the specified date referred to shall be a date not more than
three business days prior to Closing Time.
(h) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on the New York Stock Exchange, subject only
to official notice of issuance.
19
(i) No Objection. The NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(j) Lock-up Agreements. The lock-up agreement previously
executed, in connection with the Company's initial public offering of Common
Stock, by the Company, the Operating Partnership and each holder of OP Units or
Common Stock issued in connection with the Formation Transactions (as defined in
the Registration Statement) stating that such person will not, subject to
certain exceptions, sell, offer or construct to sell, grant any option for the
sale of, or otherwise dispose of any shares of Common Stock or OP Units, or any
securities convertible into or exchangeable for Common Stock or OP Units, for a
period of one year from June 17, 1997 (or, in the case of Messrs. ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ and the senior officers of the Company who received OP Units and/or shares
of Common Stock in the Formation Transactions, two years from June 17, 1997),
without the prior written consent of ▇▇▇▇▇▇▇, Sachs and ▇▇▇▇▇▇▇ ▇▇▇▇▇, shall
continue to be in effect and shall not be amended or revoked without the prior
written consent of ▇▇▇▇▇▇▇, Sachs and ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(k) Purchase of Initial International Securities.
Contemporaneously with the purchase by the U.S. Underwriters of the Initial U.S.
Securities under this Agreement, the International Managers shall have purchased
the Initial International Securities under the International Purchase Agreement.
(l) Conditions to Purchase of U.S. Option Securities. In the
event that the U.S. Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the U.S. Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any subsidiary of the
Company hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the U.S. Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
---------------------
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(e) hereof remains true and correct as of such Date of
Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of
------------------------------
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, counsel for the Company and the Operating
Partnership, in form and substance satisfactory to counsel for the
U.S. Underwriters, dated such Date of Delivery, relating to the U.S.
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(b)
hereof.
20
(iii) Opinion of General Counsel of Company. The favorable opinion
-------------------------------------
of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel of the Company, in form and
substance satisfactory to counsel for the U.S. Underwriters, dated
such Date of Delivery, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(c) hereof.
(iv) Opinion of Counsel for U.S. Underwriters. The favorable
----------------------------------------
opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
U.S. Underwriters, dated such Date of Delivery, relating to the U.S.
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(d)
hereof.
(v) Bring-down Comfort Letter. A letter from Coopers & ▇▇▇▇▇▇▇
-------------------------
L.L.P., in form and substance satisfactory to the U.S. Representatives
and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the U.S. Representatives pursuant
to Section 5(g) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
(m) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the U.S. Underwriters shall have been furnished with
such documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, 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 Securities as herein contemplated shall
be reasonably satisfactory in form and substance to the U.S.
Representatives and counsel for the U.S. Underwriters.
(n) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase
of U.S. Option Securities on a Date of Delivery which is after the Closing
Time, the obligations of the several U.S. Underwriters to purchase the
relevant Option Securities, may be terminated by the U.S. Representatives
by notice to the Company at any time at or prior to Closing Time or such
Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4
and except that Sections 1, 6, 7 and 8 shall survive any such termination
and remain in full force and effect.
21
SECTION 6. Indemnification.
---------------
(a) Indemnification of U.S. Underwriters. The Company and the Operating
Partnership jointly agree to indemnify and hold harmless each U.S. Underwriter
and each person, if any, who controls any U.S. Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) 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), including the Rule 430A Information
and the Rule 434 Information, if applicable, 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 Prospectuses (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;
(ii) 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; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇, ▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred 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 statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of (A) any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company and the
Operating Partnership by any U.S. Underwriter through the U.S. Representatives
expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the U.S. Prospectus (or any amendment or
supplement thereto) or (B) the fact that such U.S. Underwriter sold Securities
to a person as to whom it shall be established that there was not sent or given,
at or prior to the written confirmation of such sale, a copy of
22
the U.S. Prospectus or of the U.S. Prospectus as then amended or supplemented in
any case where such delivery is required by the 1933 Act if the Company has
previously furnished copies thereof in sufficient quantity to such U.S.
Underwriter and the loss, claim, damage or liability of such U.S. Underwriter
results from an untrue statement or omission of a material fact contained in any
preliminary prospectus or U.S. Prospectus (or any amendment or supplement
thereto), which was corrected in the U.S. Prospectus or in the U.S. Prospectus
as then amended or supplemented, and delivery would have cured the defect giving
rise to such loss, claim, damage or liability.
(b) Indemnification of Company, Directors and Officers. Each U.S.
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its 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 or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, 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), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary U.S. prospectus or
the U.S. Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company by such U.S.
Underwriter through the U.S. Representatives expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the U.S. Prospectus (or any amendment or supplement thereto). The Company
and the Operating Partnership acknowledge that the statements set forth in the
last paragraph of the cover page and in the second, fifth and eleventh through
fourteenth paragraphs under the caption "Underwriting" in the Prospectus
constitute the only information furnished in writing by or on behalf of any
Underwriter expressly for use in the Registration Statement relating to the
Securities as originally filed or in any amendment thereof, related preliminary
prospectus or the Prospectuses or in any amendment thereof or supplement
thereto, as the case may be.
(c) Actions against Parties; Notification. 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 hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇, Sachs and
▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. Notwithstanding the foregoing, if it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and approved by the indemnified
parties defendant in
23
such action (which approval shall not be unreasonably withheld), unless such
indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying
party assumes the defense of such action, the indemnifying party shall not be
liable for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action, except that the indemnifying party
shall be liable for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. 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. No indemnifying party shall, without the prior
written consent of the indemnified parties, which consent shall not be
unreasonably withheld, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement; provided, however, if at any time an indemnified
-------- -------
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, an indemnifying party shall not be
liable for any settlement of the nature contemplated by this Section 6(d)
effected without its written consent if (x) such indemnifying party reimburses
such indemnified party in accordance with such request to the extent it
considers such request to be reasonable; and (y) such indemnifying party
provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate
24
to reflect the relative benefits received by the Company and the Operating
Partnership on the one hand and the U.S. Underwriters on the other hand from the
offering of the Securities 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 and the Operating
Partnership on the one hand and of the U.S. 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 and the Operating Partnership
on the one hand and the U.S. Underwriters on the other hand in connection with
the offering of the U.S. Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the U.S. Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the total underwriting discount received
by the U.S. Underwriters, in each case as set forth on the cover of the U.S.
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the U.S.
Securities as set forth on such cover.
The relative fault of the Company and the Operating Partnership on the one
hand and the U.S. 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, the Operating Partnership
or by the U.S. Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership and the U.S. Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the U.S. Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of 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.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the U.S. Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
U.S. Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
25
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director 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 or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
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, the Operating Partnership or any of the
Subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any U.S.
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The U.S. 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 time of execution of this Agreement or since the
respective dates as of which information is given in the U.S. Prospectus, 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 considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis 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 judgment of the U.S.
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the NASD or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
26
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one or
-----------------------------------------------
more of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the U.S. Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the U.S.
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of U.S. Securities to be purchased on such date, each of the
non-defaulting U.S. Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of U.S. Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing Time,
the obligation of the U.S. Underwriters to purchase and of the Company to
sell the Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any non-
defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting U.S.
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 or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the U.S.
Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either the U.S. Representatives or the Company
shall have the right to postpone Closing Time or the relevant Date of Delivery,
as the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "U.S. Underwriter" includes
any person substituted for a U.S. Underwriter under this Section 10.
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 U.S.
Underwriters shall be directed to the U.S. Representatives c/o Goldman, ▇▇▇▇▇ &
Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
27
attention of Registration Department; and notices to the Company and the
Operating Partnership shall be directed to it at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq. Notices given
by telex or telephone shall be confirmed in writing.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the U.S. 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 the U.S.
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors 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 U.S. Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any U.S.
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
28
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the U.S. Underwriters and the Company in accordance with its terms.
Very truly yours,
BOSTON PROPERTIES, INC.
By
---------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer
BOSTON PROPERTIES LIMITED PARTNERSHIP
By: Boston Properties, Inc., its general partner
By
---------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
CHASE SECURITIES INC.
By: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By
-------------------------------------
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
-------------------------------------
Authorized Signatory
For themselves and as U.S. Representatives of the
other U.S. Underwriters named in Schedule A hereto.
29
SCHEDULE A
Number of
U.S.
Name of Underwriter Securities
------------------- ----------
▇▇▇▇▇▇▇, Sachs & Co. .....................................................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated .......................
Bear, ▇▇▇▇▇▇▇ & Co. Inc. .................................................
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation ......................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ........................................
PaineWebber Incorporated .................................................
Prudential Securities Incorporated .......................................
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ........................................................
Chase Securities Inc. ....................................................
----------
Total ........................................................ 16,000,000
==========
Sch A
SCHEDULE B
BOSTON PROPERTIES, INC.
16,000,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The public offering price per share for the Securities,
determined as provided in said Section 2, shall be $____.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $____, being an amount equal to the initial public
offering price set forth above less $___ per share; provided that the purchase
price per share for any Option Securities purchased upon the exercise of the
over-allotment option described in Section 2(b) shall be reduced by an amount
per share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option Securities.
Sch B
SCHEDULE C
Certain Properties
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
One Independence Square
Two Independence Square
Democracy Center
Capital Gallery
▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Center Marriott
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Plaza
The ▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ Portfolio
Sch C