BEACON PROPERTIES CORPORATION
UNDERWRITING AGREEMENT
Table of Contents
UNDERWRITING AGREEMENT..................................................... 1
SECTION 1. Representations and Warranties.............................. 4
(a) Representations and Warranties by the Company
and the Operating Partnership.................................... 4
(1) Compliance with Registration Requirements................... 4
(2) Incorporated Documents...................................... 5
(3) Independent Accountants..................................... 5
(4) Financial Statements........................................ 5
(5) Pro Forma Financial Statements.............................. 6
(6) No Material Adverse Change in Business...................... 6
(7) Good Standing of the Company................................ 6
(8) Operating Partnership and Subsidiaries...................... 7
(9) Capitalization.............................................. 8
(10) Units........................................................ 8
(11) Authorization of this Underwriting Agreement
and Terms Agreement by the Company........................... 8
(12) Authorization of this Underwriting Agreement
by the Operating Partnership................................. 9
(13) Authorization of Common Stock................................ 9
(14) Authorization of Preferred Stock............................. 9
(15) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities................................. 9
(16) Authorization of the Indenture............................... 10
(17) Descriptions of the Underwritten Securities,
Underlying Securities and Indentures......................... 10
(18) Absence of Defaults and Conflicts............................ 10
(19) REIT Qualification........................................... 11
(20) Absence of Proceedings....................................... 11
(21) Accuracy of Exhibits......................................... 12
(22) Absence of Further Requirements.............................. 12
(23) Possession of Intellectual Property.......................... 12
(24) Possession of Licenses and Permits........................... 12
(25) Registration Rights Agreements............................... 12
(26) Title to Property............................................ 13
(27) Title Insurance.............................................. 14
(28) Commodity Exchange Act....................................... 14
(29) Investment Company Act....................................... 14
(30) Environmental Laws........................................... 14
(b) Officers' Certificates........................................... 15
SECTION 2. Sale and Delivery to Underwriters; Closing.................. 15
(a) Underwritten Securities.......................................... 15
(b) Option Underwritten Securities................................... 15
2
(c) Payment........................................................... 16
(d) Denominations; Registration....................................... 16
SECTION 3. Covenants of the Company...................................... 16
SECTION 4. Payment of Expenses.......................................... 19
(a) Expenses.......................................................... 19
(b) Termination of Agreement.......................................... 20
SECTION 5. Conditions of Underwriters' Obligations....................... 20
(a) Effectiveness of Registration Statement........................... 20
(b) Opinion of Counsel for the Company
and the Operating Partnership................................... 21
(c) Opinion of Special Counsel for the Company
and the Operating Partnership................................... 21
(d) Opinion of Counsel for Underwriters............................... 21
(f) Officers' Certificate............................................. 22
(g) Accountant's Comfort Letter....................................... 22
(h) Bring-down Comfort Letter......................................... 23
(i) Comfort Letter for Acquisitions................................... 23
(j) Ratings........................................................... 23
(k) Approval of Listing............................................... 23
(l) No Objection...................................................... 24
(m) Lock-up Agreements................................................ 24
(n) Over-Allotment Option............................................. 24
(o) Additional Documents.............................................. 25
(p) Termination of Terms Agreement.................................... 25
SECTION 6. Indemnification................................................. 25
(a) Indemnification of Underwriters................................... 26
(b) Indemnification of Company, Operating Partnership,
Directors and Officers.......................................... 26
(c) Actions against Parties; Notification............................. 27
(d) Settlement without Consent if Failure to Reimburse................ 27
SECTION 7. Contribution.................................................... 28
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.. 29
SECTION 9. Termination..................................................... 29
(a) Underwriting Agreement............................................ 29
(b) Terms Agreement................................................... 30
(c) Liabilities....................................................... 30
3
SECTION 10. Default by One or More of the Underwriters..................... 30
SECTION 11. Notices........................................................ 31
SECTION 12. Parties........................................................ 31
SECTION 13. GOVERNING LAW AND TIME......................................... 32
SECTION 14. Effect of Headings............................................. 32
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Draft of 6/9/97
BEACON PROPERTIES CORPORATION
(a Maryland corporation)
Common Stock,
Preferred Stock
and
Debt Securities
UNDERWRITING AGREEMENT
----------------------
_______ __, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Beacon Properties Corporation, a Maryland corporation (the "Company")
proposes to issue and sell up to $600,000,000 aggregate initial public offering
price of its shares of common stock, par value $.01 per share (the "Common
Stock") or shares of preferred stock, par value $.01 per share (the "Preferred
Stock") and Beacon Properties, L.P., a Delaware limited partnership (the
"Operating Partnership"), proposes to issue and sell senior or subordinated debt
securities (the "Debt Securities"), or any combination thereof, from time to
time, in or pursuant to one or more offerings on terms to be determined at the
time of sale.
The Preferred Stock will be issued in one or more series and each series of
Preferred Stock may vary, as applicable, as to the title, specific number of
shares, rank, stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payment dates, redemption provisions, sinking
fund requirements, conversion provisions (and terms of the related Underlying
Securities (as defined below)) and any other variable terms as set forth in the
applicable amendment to the Articles of Incorporation of the Company (each, a
"Designating Amendment") relating to such series of Preferred Stock.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of
_________, ____ (the "Senior Indenture"),
between the Company and __________________, as trustee (the "Senior Trustee"),
or as subordinated indebtedness (the "Subordinated Debt Securities") under an
indenture, dated as of ______________ (the "Subordinated Indenture", and
collectively with the Senior Indenture, the "Indentures", and each, an
"Indenture"), between the Company and _________________, as trustee (the
"Subordinated Trustee", and collectively with the Senior Trustee, the
"Trustees", and each, a "Trustee"). Each series of Debt Securities may vary, as
applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements, conversion provisions (and
terms of the related Underlying Securities) and any other variable terms
established by or pursuant to the applicable Indenture.
As used herein, "Securities" shall mean the Common Stock, Preferred Stock,
Senior Debt Securities or Subordinated Debt Securities, or any combination
thereof, initially issuable by the Company and "Underlying Securities" shall
mean the Common Stock, Preferred Stock, Senior Debt Securities or Subordinated
Debt Securities issuable upon conversion of the Preferred Stock, Senior Debt
Securities or Subordinated Debt Securities, as applicable.
Whenever the Company determines to make an offering of Securities through
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), or through an underwriting syndicate managed by ▇▇▇▇▇▇▇
▇▇▇▇▇, the Company will enter into an agreement (each, a "Terms Agreement")
providing for the sale of such Securities to, and the purchase and offering
thereof by, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and such other underwriters, if any, selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Underwriters", which term shall include ▇▇▇▇▇▇▇ ▇▇▇▇▇,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Securities shall specify the number or
aggregate principal amount, as the case may be, of Securities to be initially
issued (the "Initial Underwritten Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in Section
10 hereof) and the name of any Underwriter other ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as
co-manager in connection with such offering, the number or aggregate principal
amount, as the case may be, of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, whether such offering is on a fixed or
variable price basis and, if on a fixed price basis, the initial offering price,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters, the form, time, date and place of delivery and payment of the
Initial Underwritten Securities and any other material variable terms of the
Initial Underwritten Securities, as well as the material variable terms of any
related Underlying Securities. In addition, if applicable, such Terms Agreement
shall specify whether the Company has agreed to grant to the Underwriters an
option to purchase additional Securities to cover over-allotments, if any, and
the number or aggregate principal amount, as the case may be, of Securities
subject to such option (the "Option Underwritten Securities"). As used herein,
the term "Underwritten Securities" shall include the Initial Underwritten
Securities and all or any portion of any Option Underwritten Securities. The
Terms Agreement, which shall be substantially in the form of Exhibit A hereto,
may take the
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form of an exchange of any standard form of written telecommunication between
the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting for itself and, if applicable, as
representative of any other Underwriters. Each offering of Underwritten
Securities through ▇▇▇▇▇▇▇ ▇▇▇▇▇ as sole Underwriter or through an underwriting
syndicate managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ will be governed by this Underwriting
Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-21769) and
pre-effective amendments no. 1, 2, 3 and 4 thereto for the registration of the
Securities and the Underlying Securities under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement. Such registration statement (as so amended, if
applicable) has been declared effective by the Commission and each Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"), and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations"). Such registration statement (as so amended, if
applicable), including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references in
this Underwriting Agreement to the date of the Prospectus shall mean the date of
the Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the registration statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable Terms Agreement. For purposes of this
Underwriting Agreement,
3
all references to the Registration Statement, Prospectus, Term Sheet or
preliminary prospectus or to any amendment or supplement to any of the foregoing
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Operating
Partnership. The Company and the Operating Partnership each severally represents
and warrants to ▇▇▇▇▇▇▇ ▇▇▇▇▇, as of the date hereof, and to each Underwriter
named in the applicable Terms Agreement, as of the date thereof, as of the
Closing Time (as defined below) and, if applicable, as of each Date of Delivery
(as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Registration
Statement and the Prospectus, at the time the Registration Statement became
effective and at each time thereafter on which the Company filed an Annual
Report on Form 10-K with the Commission, complied, and as of each
Representation Date will comply, in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations; the Registration
Statement, at the time the Registration Statement became effective and at
each time thereafter on which the Company filed an Annual Report on From
10-K with the Commission, did not, and at each time thereafter on which any
amendment to the Registration Statement becomes effective or the Company
files an Annual Report on Form 10-K with the Commission and as of each
Representation Date, and at the Closing Time (as defined herein), 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; and the Prospectus, as of the date hereof, does
not, and as of each Representation Date will not, include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in
4
conformity with information furnished to the Company in writing by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement or Prospectus.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Prospectus (the "Incorporated Documents"),
at the time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations"), and, when read together with the other information
in the Prospectus, at the time the Registration Statement became effective
and as of the applicable Representation Date or Closing Time (as defined
herein) or during the period specified in Section 3(f) hereof, did not and
will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(4) Financial Statements. The historical financial statements of the
Company and the historical combined financial statements of the Predecessor
(as defined in Note 1 to the Financial Statements of the Company and the
Predecessor) including the notes thereto, included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the financial position of the Company and the Predecessor, as at the dates
indicated and the results of operations for the periods specified. If
applicable, the historical financial information including the notes
thereto for properties or other assets included in or incorporated by
reference into the Registration Statement and Prospectus present fairly the
stated financial information for such specific property or asset. Except as
otherwise stated in the Registration Statement, said historical financial
statements of the Company, the Predecessor, and, if applicable, the
specific properties or other assets, have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, and all adjustments necessary for a fair
presentation of results for such periods have been made. The supporting
schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information required to be
stated therein; and the selected financial data (both historical and pro
forma) included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with the related financial statements
presented therein.
5
(5) Pro Forma Financial Statements. The unaudited pro forma condensed
consolidated financial statements included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the pro forma
financial position of the Company as of the dates indicated and the results
of its operations for the periods specified; and such unaudited pro forma
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a basis substantially consistent
with the audited financial statements of the Company and the Predecessor
included or incorporated by reference in the Registration Statement and the
Prospectus, the assumptions on which such pro forma financial statements
have been prepared are reasonable and are set forth in the notes thereto,
and such pro forma financial statements have been prepared, and the pro
forma adjustments set forth therein have been applied, in accordance with
the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations, and such pro forma adjustments have been properly applied to
the historical amounts in the compilation of such statements.
(6) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, 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 its subsidiaries considered as one enterprise, or
any of the real property or improvements thereon owned by either the
Company, the Operating Partnership or any of its subsidiaries (each
individually a "Property" and collectively the "Properties"), whether or
not arising in the ordinary course of business, (b) no material casualty
loss or material condemnation or other material adverse event with respect
to any of the Properties has occurred, (c) there have been no transactions
entered into or acquisitions by the Company, or the Operating Partnership
or any of its subsidiaries, other than those in the ordinary course of
business or disclosed in the Prospectus, which are material with respect to
the Company, the Operating Partnership and its subsidiaries considered as
one enterprise, and (d) except for regular quarterly dividends on the
Company's Common Stock, 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. As
used in this Agreement, the term subsidiary as it relates to the Operating
Partnership includes the Subsidiary Corporations (as such term is defined
in the Prospectus), Beacon Property Management, L.P. (the "Management
Partnership") and Beacon Design, L.P. (the "Design Partnership") as well as
any corporation, limited liability company, limited or general partnership,
joint venture or other entity through which the Operating Partnership owns
an interest, either directly or indirectly, in a Property.
(7) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of
6
Maryland, with corporate power and authority to own, lease and operate its
Properties and to conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement and the
Terms Agreement and the Company is duly qualified as a foreign 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 to
so qualify or to be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company, the Operating Partnership and
its subsidiaries considered as one enterprise or the Properties,
collectively; and, except with respect to the Operating Partnership, and
with respect to BCN Management, LLC, BCN Center Plaza, LLC, BCN Crystal,
LLC, BCN Acquisition, LLC, Beacon Properties Acquisition, LLC and ▇▇▇▇▇
Street, LLC, each a limited liability company in which the Company and the
Operating Partnership hold a 1% and a 99% membership interest,
respectively, with respect to Boston Holdings, LLC, a limited liability
company in which the Operating Partnership and BCN Management, LLC hold a
99% and a 1% membership interest, respectively, each with respect to
Wellesley Holding, L.P., Wellesley Holding II, L.P., Wellesley Holding III,
L.P., Crystal Holdings, L.P., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇ ▇▇▇▇▇
Associates, L.P., Burlington Holding, L.P., 1333 H Street, L.P., ▇▇▇▇▇
Street, L.P., BeaMetFed, Inc., the Subsidiary Corporations, the Management
Partnership and the Design Partnership (collectively, the "Subsidiary
Entities"), the Company owns no material amounts of stock or other
beneficial interest in any corporation, limited liability company,
partnership, joint ventures or other business entity.
(8) Operating Partnership and Subsidiaries. The Agreement of Limited
Partnership of the Operating Partnership (the "Partnership Agreement") has
been duly and validly authorized, executed and delivered by the Company and
is a valid and binding agreement, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by general principles of equity. The
Partnership Agreement has been duly executed and delivered by the other
parties thereto and, to the Company's knowledge, is a valid and binding
agreement, enforceable against such parties in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally
and by general principles of equity. The Operating Partnership and each of
the Subsidiary Entities has been duly formed and is validly existing as a
limited partnership, limited liability company or corporation, as the case
may be, in good standing under the laws of its state of organization with
partnership, limited liability company or corporate power and authority, as
the case may be, to own, lease and operate its properties, to conduct the
business in which it is engaged or proposes to engage as described in the
Prospectus and to enter into and perform its obligations under this
Agreement. The Operating Partnership and each of the Subsidiary Entities is
duly qualified or
7
registered as a foreign partnership, limited liability company or
corporation, as the case may be, and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register would not have
a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company, the
Operating Partnership and the Subsidiary Entities considered as one
enterprise or the Properties, collectively. The Company is the sole general
partner of the Operating Partnership. The Operating Partnership has no
subsidiaries other than the Subsidiary Entities. Except as otherwise stated
in the Prospectus, all of the issued and outstanding capital stock or other
ownership interests in each Subsidiary Entity have been duly authorized and
validly issued, are fully paid and non-assessable and, except for a 90%
limited partner interest in Crystal Holdings, L.P., a 24% limited partner
interest in Center Plaza Associates, L.P., 19% of the voting stock and 49%
of the nonvoting stock of BeaMetFed, Inc. and 99% of the voting stock of
each of the Subsidiary Corporations, are owned by the Company or the
Operating Partnership, directly or indirectly, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity,
except for security interests granted in respect of indebtedness of the
Company or the Operating Partnership or any of its subsidiaries as
described in the Prospectus and except for security interests which would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company, the Operating Partnership, or any of the Subsidiary Entities
considered as one enterprise or the Properties, collectively.
(9) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements, employee benefit plans, dividend reinvestment
plans, employee and director stock option plans or upon the exercise of
options or convertible securities referred to in the Prospectus); and such
shares of capital stock have been duly authorized and validly issued and
are fully paid and non-assessable and are not subject to preemptive or
other similar rights. The Company has duly reserved a sufficient number of
shares of Common Stock for issuance upon exchange of outstanding units of
limited partner interest in the Operating Partnership (the "Units").
(10) Units. The issued and outstanding Units have been duly authorized
and validly issued by the Operating Partnership and are fully paid and
non-assessable. The Units have been sold in compliance with all applicable
laws (including, without limitation, federal and state securities laws).
(11) Authorization of this Underwriting Agreement and Terms Agreement
by the Company. The Company has full right, power and authority to enter
into this Agreement, the applicable Terms Agreement and the Delayed
Delivery Contracts (as defined below), if any, and this Agreement has been,
and as of each Representation
8
Date, the applicable Terms Agreement and the Delayed Delivery Contracts, if
any, will have been, duly authorized, executed and delivered by the
Company.
(12) Authorization of this Underwriting Agreement by the Operating
Partnership. The Operating Partnership has full right, power and authority
to enter into this Agreement and this Agreement has been duly authorized,
executed and delivered by the Operating Partnership.
(13) Authorization of Common Stock. If the Underwritten Securities
being sold pursuant to this Agreement and the applicable Terms Agreement
include Common Stock, such Underwritten Securities have been, or as of the
date of such Terms Agreement will have been duly authorized for issuance
and sale pursuant to this Agreement and such Terms Agreement and such
Underwritten Securities, when issued and delivered by the Company pursuant
to this Agreement against payment of the consideration set forth in such
Terms Agreement or any Delayed Delivery Contract (as hereinafter defined),
will be validly issued, fully paid and non-assessable, and the issuance of
such Underwritten Securities will not be subject to preemptive or other
similar rights; and the Underwritten Securities being sold pursuant to the
applicable Terms Agreement conform in all material respects to all
statements relating thereto contained in the Prospectus. The form of stock
certificate used to evidence the Underwritten Securities is in due and
proper form and complies with all applicable legal requirements.
(14) Authorization of Preferred Stock. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Preferred
Stock, such Underwritten Securities have been, or as of the date of such
Terms Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Underwriting Agreement and such Terms Agreement.
The applicable Preferred Stock, when issued and delivered by the Company
pursuant to this Underwriting Agreement and such Terms Agreement against
payment of the consideration therefor specified in such Terms Agreement,
will be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any securityholder of the
Company. No holder of such Preferred Stock is or will be subject to
personal liability by reason of being such a holder. The applicable
Certificate of Designations will be in full force and effect prior to the
Closing Time.
(15) Authorization of Senior Debt Securities and/or Subordinated Debt
Securities. If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underwritten Securities have been, or as
of the date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in such
Terms
9
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign or composite currency (or a foreign or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. Such Underwritten Securities will be in the form
contemplated by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture.
(16) Authorization of the Indenture. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities or if Preferred Stock is
convertible into Debt Securities, each applicable Indenture has been, or
prior to the issuance of the Debt Securities thereunder will have been,
duly authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(17) Descriptions of the Underwritten Securities, Underlying
Securities and Indentures. The Underwritten Securities being sold pursuant
to the applicable Terms Agreement and each applicable Indenture, as of each
Representation Date, and any Underlying Securities, when issued and
delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be in substantially
the form filed or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement.
(18) Absence of Defaults and Conflicts. None of the Company, the
Operating Partnership or any of the Subsidiary Entities is in violation of
its charter, by-laws, agreement of limited liability company, agreement of
limited partnership or other organizational documents or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company, the
Operating Partnership or any of the Subsidiary Entities is a party or by
10
which it or any of them may be bound, or to which any of the property or
assets of the Company, the Operating Partnership or any of the Subsidiary
Entities is subject, except for any such violation or default that would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company, the Operating Partnership or the Subsidiary Entities considered as
one enterprise and the execution, delivery and performance of this
Agreement, the applicable Terms Agreement, if any, and the consummation of
the transactions contemplated herein and therein and compliance by the
Company and the Operating Partnership (with respect to this Agreement),
each severally, with obligations hereunder and thereunder have been duly
authorized by all necessary action, and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company, the Operating Partnership or any of the Subsidiary Entities
pursuant to, any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company, the Operating Partnership or any
of the Subsidiary Entities is a party or by which any of them may be bound,
or to which any of the property or assets of the Company, the Operating
Partnership or any of the Subsidiary Entities is subject, except for any
such violation or default that would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company, the Operating Partnership or the
Subsidiary Entities considered as one enterprise, nor will such action
result in any violation of the charter, by-laws, the agreement of limited
partnership or other organizational documents of the Company, the Operating
Partnership or any of the Subsidiaries Entities or any applicable law,
administrative regulation or administrative or court decree, except for any
such violation or default that would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company, the Operating Partnership or the
Subsidiary Entities considered as one enterprise.
(19) REIT Qualification. Commencing with the Company's first taxable
year ended December 31, 1994, the Company has been organized in conformity
with the requirements for qualification as a real estate investment trust
("REIT") under the Internal Revenue Code of 1986, as amended (the "Code"),
and the Company's method of operation will enable it to meet the
requirements for taxation as a REIT under the Code.
(20) Absence of Proceedings. Other than as disclosed or incorporated
by reference into the Prospectus, there is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company or the Operating
Partnership threatened against or affecting the Company, the Operating
Partnership or any of the Subsidiary Entities which is required to be
disclosed in the Prospectus (other than as disclosed therein), or which
might result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company,
11
the Operating Partnership and the Subsidiary Entities considered as one
enterprise, or which might materially and adversely affect the property or
assets thereof and the Properties, collectively, or which might materially
and adversely affect the consummation of this Agreement or the applicable
Terms Agreement, or the transactions contemplated herein or therein; all
pending legal or governmental proceedings to which the Company, the
Operating Partnership or any of the Subsidiary Entities is a party or of
which any property or assets of the Company, the Operating Partnership or
any of the Subsidiary Entities or the Properties is subject which are not
described in or incorporated by reference into the Prospectus, including
ordinary routine litigation incidental to the business, are, considered in
the aggregate, not material; and there are no contracts or documents of the
Company, the Operating Partnership or any of the Subsidiary Entities which
are required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
(21) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(22) Absence of Further Requirements. No authorization, approval or
consent of any court or governmental authority or agency is required that
has not been obtained in connection with the consummation by the Company or
the Operating Partnership of the transactions contemplated by this
Agreement or the applicable Terms Agreement, except such as may be required
under the 1933 Act or the 1933 Act Regulations, state securities laws, real
estate syndication laws or under the rules and regulations of the National
Association of Securities Dealers, Inc.
(23) Possession of Intellectual Property. Each of the Company, the
Operating Partnership and the Subsidiary Entities are not required to own
or possess any trademarks, service marks, trade names or copyrights in
order to conduct the business to be operated by them.
(24) Possession of Licenses and Permits. Each of the Company, the
Operating Partnership and the Subsidiary Entities possess such
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
businesses to be conducted by it, and neither the Company, nor the
Operating Partnership or any of its subsidiaries has received any written
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company, the
Operating Partnership and its subsidiaries considered as one enterprise.
12
(25) Registration Rights Agreements. (A) The following is a complete
list of registration rights agreements entered into by the Company and
currently in effect: (1) agreement dated May 26, 1994 with ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇ ▇▇; (2) agreement dated May 26, 1994 with certain
holders of Units; (3) agreement dated October 27, 1994 with Wellesley
Office Realty Corp. and Federal 175 Realty Corp.; (4) agreement dated
February 15, 1996 with TMPC, L.P.; (5) agreement dated September 5, 1996
with the Contributors of the Fairfax County Portfolio; (6) agreement dated
December 27, 1996 with Metropolitan Life Insurance Company; and (7)
agreement dated May 22, 1997 with contributors of ▇▇▇▇▇▇▇▇▇ Corporate
Center; (B) No person has exercised registration or other similar rights to
have any securities registered pursuant to the Registration Statement.
(26) Title to Property. (a) The Operating Partnership or the
Subsidiary Entities, as the case may be, has good and marketable title to
all items of real property owned by them, in each case free and clear of
all liens, encumbrances, claims, security interests and defects, other than
those referred to in the Prospectus or which are not material in amount;
(b) all liens, charges, encumbrances, claims, or restrictions on or
affecting the properties and assets owned by the Operating Partnership or
any of the Subsidiary Entities which are required to be disclosed in the
Prospectus are disclosed therein; (c) except as disclosed in the
Prospectus, none of the Company, the Operating Partnership or any of the
Subsidiary Entities, or, to the best of the knowledge of the Company and
the Operating Partnership, any lessee under a lease relating to any of the
Properties, is in default under any of the leases relating to the
Properties and neither the Company nor the Operating Partnership knows of
any 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 on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company, the Operating Partnership and the Subsidiary
Entities considered as one enterprise; (d) no tenant under any of the
leases pursuant to which the Company, the Operating Partnership or any of
the Subsidiary Entities leases any of its real property or improvements has
an option to purchase the premises demised under such lease; (e) each of
the Properties is in compliance with all applicable codes and zoning laws
and regulations, except for such failures to comply which would not
individually or in the aggregate have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs or
business prospects of the Company, the Operating Partnership and the
Subsidiary Entities considered as one enterprise; and (f) neither the
Company nor the Operating Partnership has knowledge of any pending or
threatened condemnation, zoning change, or other proceeding or action that
will in any manner affect the size of, use of, improvements on,
construction on, or access to the Properties, except such proceedings or
actions that would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company, the Operating Partnership and the Subsidiary
Entities considered as one enterprise.
13
(27) Title Insurance. The Operating Partnership or its subsidiaries
have obtained title insurance on all the Properties described in the
Prospectus as owned by the Operating Partnership or the Subsidiary Entities
in an amount at least equal to the greater of (a) the cost of acquisition
of such Property and (b) the cost of construction of the improvements
located on such Properties.
(28) Investment Company Act. Neither the Company, the Operating
Partnership nor any of its subsidiaries is required to be registered under
the Investment Company Act of 1940, as amended (the "1940 Act").
(29) Environmental Laws. Except as disclosed in the Prospectus, or the
Incorporated Documents, each of the Company and the Operating Partnership
has no knowledge of (a) the unlawful presence of any substance, material or
waste which is regulated by any federal, state or local governmental or
quasi-governmental authority, including, without limitation, (i) any
substance, material or waste defined, used or listed as a "hazardous
waste", "extremely hazardous waste", "restricted hazardous waste",
"hazardous substance", "hazardous material", "toxic substance" or other
similar terms as defined or used in any Environmental Law (as defined
below), (ii) any petroleum products, asbestos, polychlorinated biphenyls,
lead-based paint, flammable explosives or radioactive materials and (iii)
any additional substances or materials which are hazardous or toxic
substances under any Environmental Law relating to the Properties
(collectively, "Hazardous Materials") on any of the Properties or of (b)
any spill, release, discharge or disposal of Hazardous Materials that have
occurred or are presently occurring at, from or onto any of the Properties
or any properties near or adjacent to the Properties, which presence or
occurrence would materially adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company, the Operating Partnership and the Subsidiary Entities considered
as one enterprise. Except as disclosed in the Prospectus, in connection
with the construction on or operation and use of the Properties, the
Company and the Operating Partnership represent that, as of the date of
this Agreement, each of the Company and the Operating Partnership has no
knowledge of any material failure to comply with all applicable local,
state and federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the use, generation,
recycling, reuse, sale, storage, handling, transport and disposal of any
Hazardous Materials (collectively, "Environmental Laws") that would have a
material adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company, the
Operating Partnership and the Subsidiary Entities considered as one
enterprise.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company in such capacity or as general partner of the Operating Partnership or
any of the Subsidiary Entities and delivered to any Underwriter or to counsel
for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company or the
Operating Partnership to each Underwriter as to the matters
14
covered thereby on the date of such certificate and, unless subsequently amended
or supplemented, at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) Option Underwritten Securities. In addition, subject to the terms and
conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the number or aggregate principal amount, as the case
may be, of the Option Underwritten Securities set forth therein at a price per
Option Underwritten Security equal to the price per Initial Underwritten
Security, less an amount equal to any dividends or distributions declared by the
Company and paid or payable on the Initial Underwritten Securities but not
payable on the Option Underwritten Securities. Such option, if granted, will
expire 30 days after the date of such Terms Agreement, 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 Underwritten Securities upon notice by ▇▇▇▇▇▇▇ ▇▇▇▇▇
to the Company setting forth the number or aggregate principal amount, as the
case may be, of Option Underwritten Securities as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Underwritten Securities. Any such time and
date of payment and delivery (each, a "Date of Delivery") shall be determined by
▇▇▇▇▇▇▇ ▇▇▇▇▇, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, unless
otherwise agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company. If the option is
exercised as to all or any portion of the Option Underwritten Securities, each
of the Underwriters, severally and not jointly, will purchase that proportion of
the total number or aggregate principal amount, as the case may be, of Option
Underwritten Securities then being purchased which the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities each
such Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number or aggregate principal amount, as the case
may be, of Initial Underwritten Securities, subject to such adjustments as
▇▇▇▇▇▇▇ ▇▇▇▇▇ in its discretion shall make to eliminate any sales or purchases
of a fractional number or aggregate principal amount, as the case may be, of
Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of ▇▇▇▇▇ & Wood
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at such other place as
shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 of the applicable Terms Agreement
(unless postponed in accordance with the provisions of
15
Section 10 hereof), or such other time not later than ten business days after
such date as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company (such time
and date of payment and delivery being herein called "Closing Time"). In
addition, in the event that the Underwriters have exercised their option, if
any, to purchase any or all of the Option Underwritten Securities, payment of
the purchase price for, and delivery of such Option Underwritten Securities,
shall be made at the above-mentioned offices of ▇▇▇▇▇ & Wood LLP or at such
other place as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company, on the
relevant Date of Delivery as specified in the notice from ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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
▇▇▇▇▇▇▇ ▇▇▇▇▇ for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any 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 Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
denominations and registered in such names as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may request in
writing at least one full business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, will be made
available for examination and packaging by ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ and with each Underwriter participating
in the offering of Underwritten Securities, as follows:
(a) Immediately following the execution of the applicable Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth the number of
Underwritten Securities covered thereby and their terms not otherwise specified
in the Prospectus pursuant to which the Underwritten Securities are being
issued, the names of the Underwriters participating in the offering and the
number of Underwritten Securities which each severally has agreed to purchase,
the names of the Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are to be purchased by
the Underwriters from the Company, the initial public offering price, if any,
the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company deem
appropriate in connection with the
16
offering of the Underwritten Securities; and the Company will, by the close of
business in New York on the business day immediately succeeding the date of the
applicable Terms Agreement, transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and
will furnish to the Underwriters named therein as many copies of the Prospectus
(including such Prospectus Supplement) as ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall reasonably
request. If the Company elects to rely on Rule 434 under the 1933 Act
Regulations, the Company will prepare an abbreviated term sheet that complies
with the requirements of Rule 434 under the 1933 Act Regulations and will
provide the Underwriters with copies of the form of Rule 434 Prospectus, in such
number as the Underwriters may reasonably request, and file or transmit for
filing with the Commission the form of Prospectus complying with Rule 434(c)(2)
of the 1933 Act Regulations in accordance with Rule 424(b) of the 1933 Act
Regulations by the close of business in New York on the business day immediately
succeeding the date of the applicable Terms Agreement.
(b) The Company will notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus or any document to
be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any such stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company will give ▇▇▇▇▇▇▇ ▇▇▇▇▇ notice of its intention to file
or prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, (including any revised Prospectus which the Company proposes for use
by the Underwriters in connection with an offering of Underwritten Securities
which differs from the Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, whether or not such revised
Prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations) and will ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or preparation, as the case may be, and will not file or prepare any such
amendment or supplement or other documents in a form to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ or
counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents
17
incorporated or deemed to be incorporated by reference therein) as such
Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act in connection with sales of the Underwritten Securities, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for the
Company, to amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state any 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 opinion of either such counsel, at any such
time to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, then the Company will promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents pursuant to the 1933
Act, the 1934 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement and Prospectus
comply, in the opinion of Counsel to the Underwriters, with such requirements,
and the Company will furnish to the Underwriters a reasonable number of copies
of such amendment or supplement.
(g) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Underwritten Securities for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may designate; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction where it is not so qualified. In each
jurisdiction in which the Underwritten 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 so long as may be
required for the distribution of the Underwritten Securities; provided, however,
that the Company shall not be obligated to qualify as a foreign corporation in
any jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities, the Company will
make generally available to its security holders as soon as practicable, but not
later than 60 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement.
18
(i) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable year
in which sales of the Underwritten Securities are to occur.
(j) The Company will use the net proceeds received by it from the sale of
the Underwritten Securities in the manner specified in the Prospectus under the
caption "Use of Proceeds."
(k) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(l) Neither the Company nor the Operating Partnership will, during a period
of 90 days from the date of the applicable Terms Agreement, with respect to the
Underwritten Securities covered thereby, without ▇▇▇▇▇▇▇ ▇▇▇▇▇'▇ prior written
consent, directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any of the Company's or the Operating
Partnership's equity securities (other than the Underwritten Securities which
are to be sold pursuant to such Terms Agreement) or any securities convertible
into or exchangeable into or exercisable for equity securities of either the
Company or the Operating Partnership, except in accordance with this Agreement,
pursuant to a dividend reinvestment plan, pursuant to employee or director stock
option plans, or as partial or full payment for properties to be acquired by the
Operating Partnership.
(m) If applicable, the Company will use its best efforts to list the
Initial Underwritten Securities on the New York Stock Exchange or such other
national exchange on which the Company's Initial Underwritten Securities are
then listed.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Underwriting
Agreement or the applicable Terms 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 preparation, printing and delivery to the Underwriters of this Underwriting
Agreement, any Terms Agreement, any Agreement among Underwriters, the Indentures
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Underwritten Securities or any
related Underlying Securities, (iii) the preparation, issuance and delivery of
the Underwritten Securities and any related Underlying Securities, any
certificates for the Underwritten Securities or such Underlying Securities, to
the Underwriters, including any transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the Underwritten Securities to
the Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustees and their
respective counsel, (v) the qualification of the
19
Underwritten Securities and any related Underlying Securities under state
securities laws and real estate syndication 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, printing and delivery of the Blue Sky Survey,
and any amendment thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Term Sheet, and the Prospectus and
any amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities and any related Underlying Securities, if applicable, (viii) the fees
and expenses incurred with respect to the listing of the Underwritten Securities
and any related Underlying Securities, if applicable, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities and any related Underlying Securities, and (x) the fees
and expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Section 2(l) of Schedule E of the bylaws
of the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy of the representations
and warranties of the Company and the Operating Partnership contained in Section
1 hereof or in certificates of any officer of the Company or the Operating
Partnership or any of the Subsidiary Entities delivered pursuant to the
provisions hereof, to the performance by the Company and the Operating
Partnership of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act and
no proceedings for that purpose shall have been instituted or be pending 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 Underwriters. A prospectus containing
information relating to the description of the Underwritten Securities and
any related Underlying Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in accordance
with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required
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 of
20
the 1933 Act Regulations, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance with Rule
424(b)(7).
(b) Opinion of Counsel for the Company and the Operating Partnership.
At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 Underwriters, together with signed or reproduced copies
of such letter for each of the other Underwriters, to the effect set forth
in Exhibit B hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(c) Opinion of Special Counsel for the Company and the Operating
Partnership. At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received the
favorable opinion, dated as of Closing Time, of Goulston & Storrs, P.C.,
special counsel for the Company and the Operating Partnership, in form and
substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit C hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(d) Opinion of Counsel for Underwriters. The favorable opinion, dated
as of Closing Time, of ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, with
respect to the matters set forth in (i), (vii) to (xi), inclusive and
(xvii), of Exhibit B.
(e) In giving their opinions required by subsections (b), (c) and (d),
respectively, of this Section, ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇ &
Storrs, P.C. and ▇▇▇▇▇ & ▇▇▇▇ LLP shall each additionally state that
nothing has come to their attention that would lead them to believe that
the Registration Statement or any amendment thereto, (except for financial
statements, supporting schedules and other financial data, as to which
counsel need make no statement) at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on Form 10-K
has been filed by the Company with the Commission, subsequent to the
effectiveness of the Registration Statement, then at the time such
amendment becomes effective or at the time of the most recent filing of
such Annual Report, as the case may be) or at the Representation Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, (except for financial statements,
supporting schedules and other financial data, as to which such counsel
need make no statement) at the Representation Date or at Closing Time,
included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. In giving their opinions required by subsections (b), (c) and
(d), respectively, of this Section, ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇ &
Storrs, P.C. and ▇▇▇▇▇ & ▇▇▇▇ LLP may rely, (1) as to all matters of fact,
upon
21
certificates and written statements of officers and employees of and
accountants for the Company and Operating Partnership, (2) with respect to
certain other matters, upon certificates of appropriate government
officials in such jurisdiction, and (3) ▇▇▇▇▇ & Wood LLP may additionally
rely, as to matters involving the laws of the State of Maryland, upon the
opinion of ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP (or other counsel reasonably
satisfactory to counsel for the Underwriters) in form and substance
satisfactory to counsel for the Underwriters.
(f) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material
adverse change in the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company, the Operating
Partnership and its subsidiaries considered as one enterprise, or the
Properties, collectively, whether or not arising in the ordinary course of
business, from that set forth in the Prospectus; no proceedings shall be
pending or, to the knowledge of the Company or Operating Partnership,
threatened against the Company, the Operating Partnership or any of the
Subsidiary Entities or any of the Properties before or by any Federal,
state or other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding would materially and adversely
affect the business, property, financial condition or income of the
Company, the Operating Partnership and the Subsidiary Entities considered
as one enterprise or the Properties, collectively, other than as set forth
in the Prospectus or incorporated therein by reference; and ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall have received a certificate of the President and Chief Executive
Officer and of the Chief Financial Officer of the Company in such capacity,
and of the general partner of the Operating Partnership, dated as of such
Closing Time, to the effect that (i) there has been no such material
adverse change and (ii) the representations and warranties in Section 1 are
true and correct with the same force and effect as though such Closing Time
were a Representation Date. As used in this Section 5(f), the term
"Prospectus" means the Prospectus in the form first used to confirm sales
of the Underwritten Securities.
(g) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received from Coopers
& ▇▇▇▇▇▇▇ L.L.P. a letter dated such date, in form and substance
satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, together with signed or reproduced copies of
such letter for each of the other Underwriters, containing statements and
information as set forth in Exhibit D.
(h) Bring-down Comfort Letter. At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 (g) of this Section 5, except that the
specified date referred to shall be a date not more than three business
days prior to the Closing Time.
22
(i) Comfort Letter for Acquisitions. At the time of the execution of
the applicable Terms Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received a letter
dated such date from such independent accountants that have prepared
historical financial statements included in or incorporated by reference
into the Registration Statement and Prospectus which financial statements
relate to properties or assets acquired or to be acquired by the Company,
in form and substance satisfactory to the Underwriters, to the effect that
(i) they are independent accountants with respect to the Company and such
properties or assets within the meaning of the 1933 Act and the 1933 Act
Regulations; and (ii) it is their opinion that the historical financial
statements for such properties or assets that have been audited by them and
covered by their opinions included or incorporated by reference into the
Registration Statement and the Prospectus comply in form in all material
respects with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations.
(j) Ratings. At Closing Time and at any relevant Date of Delivery,
unless the Underwritten Securities being sold pursuant to the applicable
Terms Agreement relate solely to Common Stock, the Underwritten Securities
shall have the ratings accorded by any "nationally recognized statistical
rating organization", as defined by the Commission for purposes of Rule
436(g)(2) of the 1933 Act Regulations, if and as specified in the
applicable Terms Agreement, and the Company shall have delivered to ▇▇▇▇▇▇▇
▇▇▇▇▇ a letter, dated as of such date, from each such rating organization,
or other evidence satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, confirming that the
Underwritten Securities have such ratings. Since the time of execution of
such Terms Agreement, there shall not have occurred a downgrading in, or
withdrawal of, the rating assigned to the Underwritten Securities or any of
the Company's or Operating Partnership's other securities by any such
rating organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Underwritten Securities or any of the Company's or Operating Partnership's
other securities.
(k) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(l) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(m) Lock-up Agreements. On the date of the applicable Terms Agreement,
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received, in form and substance satisfactory to
it, each lockup agreement, if any, specified in such Terms Agreement as
being required to be delivered by the persons listed therein.
23
(n) Over-Allotment Option. In the event that the Underwriters are
granted an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any of its subsidiaries hereunder
shall be true and correct as of each Date of Delivery, and, at the relevant
Date of Delivery, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received:
(1) A certificate, dated such Date of Delivery, of the President
and Chief Executive Officer or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company on
behalf of the Company and on behalf of the Company in its capacity as
general partner of the Operating Partnership confirming that the
certificate delivered at the Closing Time pursuant to Section 5(f)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, counsel
for the Company and the Operating Partnership, in form and substance
reasonably satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Underwritten Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Sections 5(b) and 5(e) hereof.
(3) The favorable opinion of Goulston & Storrs, P.C., special
counsel for the Company and the Operating Partnership in form and
substance reasonably satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Underwritten
Securities and otherwise to the same extent as the opinion required by
Sections 5(c) and 5(e) hereof.
(4) The favorable opinion of ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Sections 5(d)
and 5(e) hereof.
(5) A letter from Coopers & ▇▇▇▇▇▇▇ L.L.P., in form and substance
satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to Section 5(g) hereof, except that the
"specified date" in the letter furnished pursuant to this Section 5(n)
(5) shall be a date not more than three days prior to such Date of
Delivery.
24
(6) Since the time of execution of such Terms Agreement, there
shall not have occurred a downgrading in, or withdrawal of, the rating
assigned to the Underwritten Securities or any of the Company's or
Operating Partnership's other securities by any such rating
organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Underwritten Securities or any of the Company's or the Operating
Partnership's other securities.
(o) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them
to pass upon the issuance and sale of the Underwritten 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 or the Operating
Partnership in connection with the issuance and sale of the Underwritten
Securities as herein contemplated shall be satisfactory in form and
substance to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the Underwriters.
(p) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriters to purchase the Option
Underwritten Securities on such Date of Delivery) may be terminated by
▇▇▇▇▇▇▇ ▇▇▇▇▇ by notice to the Company at any time at or prior to the
Closing Time (or such Date of Delivery, as applicable), 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.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Operating
Partnership, jointly and severally, hereby agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements
25
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or 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
indemnifying party; and
(3) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), 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 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 by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification of Company, Operating Partnership, Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless the
Company, the Operating Partnership, the directors, each of the officers who
signed the Registration Statement, and each person, if any, who controls the
Company or the Operating Partnership 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 deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly
26
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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. 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, 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 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.
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,
27
claims, damages and expenses incurred by such indemnified party, as incurred,
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company or the Operating Partnership, on the one hand, and the
Underwriters, on the other hand, from the offering of the Underwritten
Securities pursuant to the applicable Terms 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 or the Operating
Partnership, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company or the Operating Partnership,
on the one hand, and the Underwriters, on the other hand, in connection with the
offering of the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Underwritten Securities (before deducting
expenses) received by the Company or the Operating Partnership and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, or, if Rule 434 is used, the corresponding location
on the Term Sheet bear to the aggregate initial public offering price of such
Underwritten Securities as set forth on such cover.
The relative fault of the Company or the Operating Partnership, on the one
hand, and the Underwriters, on the other hand, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Operating Partnership or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the 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 Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been
28
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) 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 an
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 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 or the
Operating Partnership 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 or the Operating Partnership. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in proportion to the number
or aggregate principal amount, as the case may be, of Initial Underwritten
Securities set forth opposite their respective names in the applicable Terms
Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company and the Operating Partnership or any of its subsidiaries submitted
pursuant hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company or the Operating
Partnership, and shall survive delivery of and payment for the Underwritten
Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company, the Operating Partnership or by ▇▇▇▇▇▇▇ ▇▇▇▇▇ upon the giving of 30
days' prior written notice of such termination to the other party hereto.
(b) Terms Agreement. ▇▇▇▇▇▇▇ ▇▇▇▇▇ may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, 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 Subsidiary
Entities considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) there has occurred any material adverse change in
the financial markets in the United States or, if the Underwritten Securities or
any related Underlying Securities include Debt Securities denominated or payable
in, or indexed to, one or more
29
foreign or composite currencies, in the international financial markets, or 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) 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 New York Stock Exchange
or the American 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 either of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by either
Federal or New York authorities or, if the Underwritten Securities or any
related Underlying Securities include Debt Securities denominated or payable in,
or indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 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 Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations under such Terms Agreement bear to the underwriting obligations
of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on
such date pursuant
30
to such Terms Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriters to purchase, and the
Company to sell, such Option Underwritten Securities on such Date of
Delivery) shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a termination
of the applicable Terms Agreement or (ii) in the case of a Date of Delivery
after the Closing Time, a termination of the obligations of the Underwriters and
the Company with respect to the related Option Underwritten Securities, as the
case may be, either ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Company shall have the right to
postpone the 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 the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at World Financial Center, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇ ▇. ▇▇▇▇▇, Director; and
notices to the Company shall be directed to it at Beacon Properties Corporation,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
President.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
the Operating Partnership, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and, upon execution of such Terms
Agreement, any other Underwriters and their respective successors. Nothing
expressed or mentioned in this Underwriting Agreement or such Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Operating Partnership 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
Underwriting Agreement or such Terms Agreement or any provision herein or
therein contained. This Underwriting Agreement and such Terms Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the parties hereto and thereto and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
31
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS 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.
32
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Company and the Operating Partnership in
accordance with its terms.
Very truly yours,
BEACON PROPERTIES CORPORATION
By:
-------------------------------
Name:
Title:
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation
(its general partner)
By:
---------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
-----------------------------------
Name:
Title: Authorized Signatory
33
Exhibit A
BEACON PROPERTIES CORPORATION
(a Maryland Corporation)
__________________
TERMS AGREEMENT
----------------
To: Beacon Properties Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that Beacon Properties Corporation, a Maryland corporation
(the "Company"), proposes to issue and sell [____ shares of its common stock,
par value $.01 per share (the "Common Stock")] [______ shares of its preferred
stock, par value ___________ per share (the "Preferred Stock")] [$ aggregate
principal amount of its [senior] [subordinated] debt securities (the "Debt
Securities")] ([such securities also being hereinafter referred to as] the
"[Initial] Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below (the
"Underwriters")] offer to purchase [, severally and not jointly,] the [[number]
[principal] [amount] of] Underwritten Securities [opposite their names set forth
below] at the purchase price set forth below [, and a proportionate share of
Option Underwritten Securities set forth below, to the extent any are
purchased].
[Number]
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
----------- ------------------------------------
----------------
Total [$]
================
The Underwritten Securities shall have the following terms:
A-1
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____ Purchase price per share: $___ plus accumulated dividends, if
any, from _____
Other terms and conditions:
Closing date and location:
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
A-2
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: % of
the principal amount, plus accrued interest [amortized original issue
discount], if any, from _______________________.
Purchase price per share: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "BEACON PROPERTIES CORPORATION-- Common Stock, Preferred Stock and Debt
Securities--Underwriting Agreement" are hereby incorporated by reference in
their entirety herein and shall be deemed to be a part of this Terms Agreement
to the same extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein defined.
A-3
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
--------------------------------
Name:
Title: Authorized Signatory
[Acting on behalf of itself and
the other named Underwriters.]
Accepted:
BEACON PROPERTIES CORPORATION
By:
-----------------------------
Name:
Title:
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation
(its General Partner)
By:
----------------------------
Name:
Title:
A-4