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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
MAY 25, 1999
BOSTON PROPERTIES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 1-13087 04-2473675
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
800 BOYLSTON STREET, SUITE 400
BOSTON, MASSACHUSETTS 02199
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code:
617-236-3300
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ITEM 5. OTHER EVENTS.
On May 25, 1999, Boston Properties, Inc. (the "Company") completed the
offering of 4,000,000 shares (the "Shares") of common stock, par value $.01 per
share, resulting in net proceeds to the Company, after anticipated issuance
costs, of approximately $141.0 million. The offering of the Shares was made
pursuant to a Prospectus Supplement dated May 20, 1999 relating to the
Prospectus dated January 29, 1999 filed with the Company's shelf registration
statement on Form S-3 (File No. 333-69375). Goldman, Sachs & Co. acted as sole
underwriter.
The net proceeds of the offering will be used to reduce indebtedness
under the Company's line of credit to provide additional capacity to fund its
current and anticipated development activities.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED:
Not Applicable
(b) PRO FORMA FINANCIAL INFORMATION:
Not Applicable
(c) EXHIBITS:
EXHIBIT NO.
1. Underwriting Agreement dated as of May 20, 1999.
5. Opinion as to the legality of the Shares.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: May 25, 1999 BOSTON PROPERTIES, INC.
/s/ David G. Gaw
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By: David G. Gaw
Chief Financial Officer
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Exhibit 1
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BOSTON PROPERTIES, INC.
(a Delaware corporation)
4,000,000 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: May 20, 1999
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BOSTON PROPERTIES, INC.
(a Delaware corporation)
4,000,000 Shares of Common Stock
(Par Value $ .01 Per Share)
UNDERWRITING AGREEMENT
May 20, 1999
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Boston Properties, Inc., a Delaware corporation (the "Company"), and
Boston Properties Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), each confirms its agreement with Goldman, Sachs & Co.
(the "Under writer"), with respect to the issue and sale by the Company and the
purchase by the Underwriter of 4,000,000 shares of Common Stock, par value $.01
per share, of the Company ("Common Stock"). The aforesaid 4,000,000 shares of
Common Stock to be purchased by the Underwriter are hereinafter called the
"Securities".
The Company and the Operating Partnership each understand that the
Underwriter proposes to make a public offering of the Securities as soon as the
Underwriter deems advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-69375) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including a related prospectus, which has become effective. The
registration statement as amended at the time it became effective, or, if a
post-effective amendment has been filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness (including in each
case the information (if any) deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430A under the 1933 Act), is
hereinafter referred to as the "Registration Statement"; the
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prospectus as supplemented by the prospectus supplement relating to the sale of
the Securities by the Underwriter in the form first used to confirm sales of
Securities is hereinafter referred to as the "Prospectus." Any reference in this
Agreement to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, as of the
effective date of the Registration Statement or the date of such preliminary
prospectus or the Prospectus, as the case may be (it being understood that the
several specific references in this Agreement to documents incorporated by
reference in the Registration Statement or the Prospectus are for clarifying
purposes only and are not meant to limit the inclusiveness of any other
definition herein), and any reference to "amend," "amendment" or "supplement"
with respect to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed after
such date under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the rules and regulations of the Commission thereunder that are
deemed to be incorporated by reference therein. For purposes of this Agreement,
all references to the Registration Statement, any preliminary prospectus, or the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company and the
Operating Partnership each severally represents and warrants to the Underwriter
as of the date hereof, and as of the Closing Time referred to in Section 2(b)
hereof, and agrees with the Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Registration Statement has become effective under the 1933 Act and no
stop order suspend ing the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with.
At the respective times the Registration Statement
and any post-effective amendments thereto became effective and at the
Closing Time, the Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act
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and the 1933 Act Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendment or supplement
thereto, at the time the Prospectus or any amendment or supplement
thereto was issued and at the Closing Time, included or will include an
untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriter expressly for
use in the Registration Statement or the Prospectus.
Each preliminary prospectus and the Prospectus filed
as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the 1933 Act
Regulations and the Prospectus delivered to the Underwriter for use in
connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commis sion pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(ii) INDEPENDENT ACCOUNTANTS. The accountants who certified
the financial statements and supporting schedules included or
incorporated by reference in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iii) FINANCIAL STATEMENTS. The consolidated and combined
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the
Company and its Predecessor Group (as defined in the Registration
Statement) at the dates indicated, and the consolidated and combined
statements of operations, owners' equity and cash flows of the Company
and the Predecessor Group for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The unaudited pro forma
condensed consolidated financial statements and the related notes
thereto included or incorporated by reference in the
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Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. The
selected financial data and the summary financial information included
in the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included or incorporated by reference in the Registration
Statement. Other than the historical and pro forma financial statements
(and schedules) included or incorporated by reference in the
Registration Statement and Prospectus, no other historical or pro forma
financial statements (or schedules) are required by the 1933 Act or the
1933 Act Regulations to be included therein.
(iv) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein or in
documents incorporated by reference therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company,
the Operating Partnership and the Subsidiaries (as hereinafter defined)
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B) no material
casualty loss or material condemnation or other material adverse event
with respect to any of the properties set forth in Schedule B hereto
has occurred, (C) there have been no transactions entered into by the
Company, the Operating Partnership or any of the Subsidiaries, other
than those in the ordinary course of business, which are material with
respect to the Company, the Operating Partnership and the Subsidiaries
considered as one enterprise, and (D) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock or by the Operating Partnership or any of
its Subsidiaries with respect to its partnership interests or any class
of its capital stock.
(v) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business
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and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(vi) GOOD STANDING OF SUBSIDIARIES. Each of the subsidiaries
of the Company, including without limitation the Operating Partnership
(each a "Subsidiary" and, collectively, the "Subsidiaries"), has been
duly organized and is validly existing as a general or limited
partnership or corporation, as the case may be, in good standing (in
the case of corporations and limited partnerships) under the laws of
the jurisdiction of its organization, has partnership or corporate
power and authority, as the case may be, to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign partnership or corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; all of the issued and outstanding capital
stock of each of the Subsidiaries that is a corporation has been duly
authorized and validly issued, is fully paid and non-assessable, and
all of the partnership interests in each Subsidiary that is a
partnership are validly issued and fully paid; except as otherwise
disclosed in the Registration Statement, all such shares and interests,
as the case may be, are owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock or partnership interests of any Subsidiary was
issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary.
(vii) CAPITALIZATION. The authorized capital stock of the
Company is, and the issued and outstanding capital stock of the
Company, as of the Closing Time, will be, as set forth in Schedule A
annexed hereto, which Schedule A has been prepared from the books and
records of the Company. The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable; none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company.
(viii) AUTHORIZATION OF AGREEMENT. This Agreement has been
duly authorized, executed and delivered by the Company and the
Operating Partnership.
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(ix) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The
Securities to be purchased by the Underwriter from the Company have
been duly authorized for issuance and sale to the Underwriter pursuant
to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration set
forth herein will be, as of the Closing Time, validly issued, fully
paid and non-assessable; the Common Stock conforms, in all material
respects, to all statements relating thereto contained in the
Prospectus or in documents incorporated therein by reference and such
description conforms, in all material respects, to the rights set forth
in the instruments defining the same; no holder of the Securities will
be subject to personal liability by reason of being such a holder; and
the issuance of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company; the Company
has duly reserved a sufficient number of shares of Common Stock for
issuance upon exchange of outstanding units of limited partnership of
the Operating Partnership ("OP Units") in accordance with the Second
Amended and Restated Limited Partnership Agreement of the Operating
Partnership as amended to date ("Operating Partnership Agreement").
(x) AUTHORIZATION AND DESCRIPTION OF OP UNITS. The issued and
outstanding OP Units have been duly authorized and validly issued and
are fully paid. OP Units issued and sold in connection with the
acquisition of properties currently under contract to be acquired have
been and will be offered, issued and sold in compliance with all
applicable laws (including, without limitation, federal and state
securities laws).
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any of its Subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any Subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated in this Agreement and the Registration
Statement (including the issuance and sale of the Securities and the
use of the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use of Proceeds") and compliance by the
Company and the Operating Partnership with
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their obligations under this Agreement have been duly authorized by all
necessary corporate or partnership action, as the case may be, and
(except as contemplated by the Prospectus) do not and will not, whether
with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event
(as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the Properties (as defined
in the Registration Statement) or any other property or assets of the
Company or any Subsidiary pursuant to, the Agreements and Instruments
or violations of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any Subsidiary or any of their assets, properties or
operations (except for such conflicts, breaches or defaults or liens,
charges, encumbrances or violations that would not result in a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any Subsidiary.
As used herein, the term "Repayment Event" means any event or condition
which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any Subsidiary.
(xii) ABSENCE OF LABOR DISPUTE. No material labor dispute with
the employees of the Company or any Subsidiary exists or, to the
knowledge of the Company, is imminent.
(xiii) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any Subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the Properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the
parties of their obligations hereunder; the aggregate of all pending
legal or governmen tal proceedings to which the Company or any
Subsidiary is a party or of which any of their respective property or
assets, including without limitation the Properties, is the subject
which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
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(xiv) QUALIFICATION AS A REIT. Commencing with the taxable
year ended December 31, 1997, the Company is organized in conformity
with the requirements for qualification as a real estate investment
trust (a "REIT") under the Internal Revenue Code of 1986, as amended
(the "Code"), and its method of operation enables it to meet the
requirements for taxation as a REIT under the Code.
(xv) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto or to documents
incorporated by reference therein which have not been so described and
filed as required.
(xvi) NEW YORK STOCK EXCHANGE LISTING. The Company's Common
Stock is listed on the New York Stock Exchange ("NYSE"). Application
has been made to list the Securities on the NYSE, and as of the Closing
Time the Securities shall have been approved for listing on the NYSE,
subject to official notice of issuance.
(xvii) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authoriza tion, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company and
the Operating Partnership of their obligations hereunder, in connection
with the offering, issuance or sale of the Securities under this
Agreement or the consummation of the transactions contemplated by this
Agreement, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations and foreign or
state securities or blue sky laws.
(xviii) POSSESSION OF LICENSES AND PERMITS. The Company and
its Subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them; the
Company and its Subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither
the Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or
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modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xix) THE PROPERTIES. (a) The Operating Partnership and the
Subsidiar ies have good and marketable title in fee simple to all of
the Properties and good and marketable title to all other real
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (i) are described in the
Prospectus or in documents incorporated by reference therein or (ii) do
not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its Subsidiaries; (b) all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances on or affecting the properties and assets of the Company
or any of the Subsidiaries that are required to be disclosed in the
Prospectus are disclosed therein or in documents incorporated by
reference therein; (c) neither the Company nor the Operating
Partnership knows of any violation of any municipal, state or federal
law, rule or regulation (including those pertaining to environmental
matters) concerning the Properties or any part thereof which would have
a Material Adverse Effect; (d) each of the Properties complies with all
applicable zoning laws, ordinances, regulations and deed restrictions
or other covenants in all material respects and, if and to the extent
there is a failure to comply, such failure does not result in a
Material Adverse Effect and will not result in a forfeiture or
reversion of title; (e) none of the Company nor any Subsidiary has
received from any governmental authority any written notice of any
condemnation of or zoning change affecting the Properties or any part
thereof, and none of the Company nor any Subsidiary knows of any such
condemnation or zoning change which is threatened and which if
consummated would have a Material Adverse Effect; and (f) no lessee of
any portion of any of the Properties is in default under any of the
leases governing such Properties and there is no event which, but for
the passage of time or the giving of notice or both, would constitute a
default under any of such leases, except such defaults that would not
have a Material Adverse Effect.
(xx) INSURANCE. The Company and each of the Subsidiaries is
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in
the businesses in which they will be engaged; and neither the Company
nor any of the Subsidiaries has any reason to believe that any of them
will not be able to renew its existing
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insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its business.
(xxi) TAXES. The Company and each of the Subsidiaries has
filed all material foreign, federal, state and local tax returns that
are required to be filed or have requested extensions thereof (except
in any case in which the failure so to file would not have a Material
Adverse Effect) and has paid all taxes required to be paid by it and
any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith or as described in or contemplated by the Prospectus.
(xxii) MORTGAGES AND DEEDS OF TRUST. Except as set forth in
the Registration Statement and the Prospectus, the mortgages and deeds
of trust encumbering the properties and assets described in the
Prospectus are not convertible and neither the Company, any of its
Subsidiaries, nor any person affiliated therewith holds a participating
interest therein, and such mortgages and deeds of trust are not
cross-defaulted or cross-collateralized to any property not owned
directly or indirectly by the Company or any of its Subsidiaries.
(xxiii) COMPLIANCE WITH CUBA ACT. The Company has complied
with, and is and will be in compliance with, the provisions of that
certain Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder (collectively, the "Cuba Act") or is exempt
therefrom.
(xxiv) INVESTMENT COMPANY ACT. The Company and the Operating
Partnership are not, and upon the issuance and sale of the Securities
as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended (the "1940 Act").
(xxv) ENVIRONMENTAL LAWS. Except as otherwise disclosed in the
Prospectus or in the Phase I Environmental Site Assessments and
Asbestos Survey Reports previously delivered to the Underwriter or its
counsel (the "Environmental Reports"), or except as would not, singly
or in the aggregate, have a Material Adverse Effect, (i) to the best
knowledge of the Company, the Company and its Subsidiaries have been
and are in compliance with applicable Environmental Statutes; (ii) to
the best knowledge of the Company, neither the Company, any of the
Subsidiaries, nor any other owners of the property at any
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time or any other party has at any time released (as such term is
defined in Section 101(22) of CERCLA (as hereinafter defined)) or
otherwise disposed of Hazardous Materials (as hereinafter defined) on,
to or from the Properties; (iii) the Company does not intend to use the
Properties or any subsequently acquired properties, other than in
compliance with applicable Environmental Statutes (as hereinafter
defined); (iv) neither the Company nor any of the Subsidiaries knows of
any seepage, leak, discharge, release, emission, spill, or dumping of
Hazardous Materials into waters (including, but not limited, to
groundwater and surface water) on, beneath or adjacent to the
Properties or onto lands from which Hazardous Materials might seep,
flow or drain into such waters; (v) neither the Company nor any of the
Subsidiaries has received any notice of, or has any knowledge of any
occurrence or circumstance which, with notice or passage of time or
both, would give rise to a claim under or pursuant to any Environmental
Statute with respect to the Properties or the assets described in the
Prospectus or arising out of the conduct of the Company or its
Subsidiaries; (vi) neither the Properties nor any other land owned by
the Company or any of the Subsidiaries is included or, to the best of
the Company's knowledge, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA by the United States
Environmental Protection Agency (the "EPA") or to the best of the
Company's knowledge, proposed for inclusion on any similar list or
inventory issued pursuant to any other Environmental Statute or issued
by any other Governmental Authority (as hereinafter defined).
As used herein, "Hazardous Material" shall include,
without limitation any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, toxic substances, or related
materials, asbestos or any hazardous material as defined by any
federal, state or local environmental law, ordinance, rule or
regulation including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. ss.ss. 9601-9675 ("CERCLA"), the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. ss.ss. 1801-1819, the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. ss.ss.
6901-K, the Emergency Planning and Community Right-to-Know Act of 1986,
42 U.S.C. ss.ss. 11001-11050, the Toxic Substances Control Act, 15
U.S.C. ss.ss. 2601-2671, the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. ss.ss. 136-136y, the Clean Air Act, 42 U.S.C.
ss.ss. 7401-7642, the Clean Water Act (Federal Water Pollution Control
Act), 33 U.S.C. ss.ss. 1251-1387, the Safe Drinking Water Act, 42
U.S.C. ss.ss. 300f- 300j-26, and the Occupational Safety and Health
Act, 29 U.S.C. ss.ss. 651-678, as any of the above statutes may be
amended from time to time, and in the regulations promulgated pursuant
to each of the foregoing (including environ-
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mental statues not specifically defined herein) (individually, an
"Environmental Statute" and collectively "Environmental Statutes") or
by any federal, state or local governmental authority having or
claiming jurisdiction over the properties and assets described in the
Prospectus (a "Governmental Authority").
(xxvi) REGISTRATION RIGHTS. Except as described in the
Registration Statement, there are no registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement. Except as described in the Registration
Statement or as otherwise disclosed to the Underwriter by the Company
in a writing identified to this Agreement, there are no registration
rights or other similar rights to have any securities otherwise
registered by the Company under the 1933 Act.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Underwriter or to
counsel for the Underwriter shall be deemed a representation and warranty solely
by the Company to the Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITER; CLOSING.
(a) SALE OF SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriter, and the Underwriter agrees
to purchase from the Company, at a price of $35.294375 per share, an aggregate
of 4,000,000 shares of Common Stock, for an aggregate purchase price of
$141,177,500.
(b) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Skadden, Arps,
Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York, or at such
other place as shall be agreed upon by the Underwriter and the Company, at 9:00
A.M. (Eastern time) on May 25, 1999, or such other time not later than ten
business days after such date as shall be agreed upon by the Underwriter and the
Company (such time and date of payment and delivery being herein called "Closing
Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriter of certificates for the Securities to be purchased by them.
(c) DENOMINATIONS; REGISTRATION. Certificates for the Securities shall
be in such denominations and registered in such names as the Underwriter may
request in
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writing at least two full business days before the Closing Time. The
certificates for the Securities will be made available for examination and
packaging by the Underwriter in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE COMPANY. Each of the Company and the
Operating Partnership covenants with the Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Underwriter promptly, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) FILING OF AMENDMENTS. The Company will give the Underwriter notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, will furnish the
Underwriter with copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file or use any
such document to which the Underwriter or counsel for the Underwriter shall
reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or,
upon request, will deliver to the Underwriter and counsel for the Underwriter,
without charge, signed copies of the Registration Statement as originally filed
and of each
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amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Underwriter, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits). The copies of the Registration Statement and each
amendment thereto furnished to the Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted or required by Regulation S-T.
(d) DELIVERY OF PROSPECTUS. The Company will furnish to the
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as the Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted or required by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the reasonable
opinion of counsel for the Underwriter or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of such counsel, at any such time to amend the Registration Statement or amend
or supplement the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriter such number of copies of such amendment
or supplement as the Underwriter may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify, if necessary, the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Underwriter may designate and to
maintain such qualifications in
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effect for a period of not more than one year from the later of the effective
date of the Registration Statement; provided, however, that the Company shall
not be obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not more
than one year from the effective date of the Registration Statement.
(g) RULE 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(i) LISTING. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
(j) RESTRICTION ON SALE OF SECURITIES. During a period of 90 days from
May 20, 1999, the Company and the Operating Partnership will not, without the
prior written consent of the Underwriter, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any share of Common Stock or OP
Units or any securities convertible into or exercisable or exchangeable for
Common Stock or OP Units, or file any registration statement under the 1933 Act
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be
sold hereunder, (B) any shares of Common Stock issued or options to purchase
Common Stock granted under the current employee benefit plans of the Company
referred to in the Prospectus, or any employee benefit plans of the Company
which have been approved by the requisite vote of the stockholders of the
Company at a duly called meeting of stockholders or any employee benefit plans
of the Company in which all non-officer full-time employees of the Company are
eligible to
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participate on substantially similar terms, (C) the issuance by the Company of
shares of Common Stock in exchange for outstanding partnership units of the
Operating Partnership in accordance with terms of the partnership agreement of
the Operating Partnership or (D) the issuance of shares of capital stock of the
Company or partnership units of the Operating Partnership in connection with the
acquisition of properties in the ordinary course of business.
(k) QUALIFICATION AS A REIT. The Company will use its best efforts to
meet the requirements to qualify, commencing with the taxable year ended
December 31, 1997, as a REIT under the Code, subject to the fiduciary duties of
the Board of Directors of the Company to manage the business of the Company in
the best interest of its stockholders.
SECTION 4. PAYMENT OF EXPENSES. (a) EXPENSES. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the printing and delivery to the Underwriter of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriter, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Securities to the Underwriter, (iv) the fees and disbursements
of the Company's counsel, accountants and other advisors, (v) the qualification
or registration (or exemption therefrom) of the Securities under securities laws
in accordance with the provisions of Section 3(f) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriter in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriter of copies of each preliminary prospectus, any Term Sheets and of the
Prospectus and any amendments or supplements thereto, (vii) the preparation,
printing and delivery to the Underwriter of copies of the Blue Sky Survey and
any supplement thereto, (viii) the fees and expenses of any transfer agent or
registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriter in connection
with, the review by the NASD of the terms of the sale of the Securities, and (x)
the fees and expenses incurred in connection with the listing of the Securities
on the New York Stock Exchange.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the
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Company shall reimburse the Underwriter for all of its out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriter,
unless such termination was pursuant to the condition set forth in Section 5(i)
and the failure to satisfy such condition was solely attributable to the
Underwriter.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of
the Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Company contained in Section 1 hereof or in certificates of
any officer of the Company or any subsidiary of the Company delivered pursuant
to the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT; FILING OF PROSPECTUS
SUPPLE MENT. The Registration Statement has become effective and at the Closing
Time no stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriter. The Prospectus, as supplemented by
the prospectus supplement relating to the offering of the Securities, shall have
been filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the regulations promulgated under the
1933 Act and in accordance with Section 3(a) hereof.
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of Goodwin,
Procter & Hoar LLP, counsel for the Company and the Operating Partnership, in
form and substance satisfactory to counsel for the Underwriter, to the effect
set forth in Exhibit A hereto with such qualifications and explanatory notes
thereto as counsel to the Underwriter may reasonably accept.
(c) OPINION OF GENERAL COUNSEL OF COMPANY. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of Closing Time,
of Frederick J. DeAngelis, General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit
B hereto with such qualifications and explanatory notes thereto as counsel to
the Underwriter may reasonably accept.
(d) OPINION OF COUNSEL FOR UNDERWRITER. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of Closing Time,
of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriter, with
respect to the matters
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set forth in clauses (i), (ix), (x), (solely as to preemptive or other similar
rights arising by operation of law or under the charter or by-laws of the
Company), (xii) through (xiv), inclusive, and the penultimate paragraph of
Exhibit A hereto; PROVIDED, that such counsel's opinion may state that such
counsel is expressing no opinion or belief as to the compliance as to form of
the documents incorporated by reference into the Registration Statement and
Prospectus pursuant to Item 12 of Form S-3.
In giving the opinions described in paragraphs (b), (c) and
(d) above, each counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the Commonwealth of Massachusetts, the
federal law of the United States and the General Corporation Law and the Revised
Uniform Limited Partnership Act of the State of Delaware, upon the opinions of
counsel satisfactory to the Underwriter. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
Subsidiaries and certificates of public officials.
(e) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, except as contemplated by 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 Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriter shall have received a
certificate of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company and appropriate officers of
the Company, as General Partner, on behalf of the Operating Partnership, dated
as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a) hereof
are true and correct in all material respects with the same force and effect as
though expressly made at and as of Closing Time, (iii) the information
incorporated by reference into the Prospectus consisting of Exhibit 99.1 to the
Company's Form 8-K Current Report dated April 27, 1999 is accurate in all
material respects, (iv) the Company has complied in all material respects with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (v) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or are contemplated by the
Commission.
(f) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the Underwriter shall have received from PriceWaterhouseCoopers LLP a
letter dated such date, in form and substance satisfactory to the Underwriter,
containing
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statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(g) BRING-DOWN COMFORT LETTER. At Closing Time, the Underwriter shall
have received from PriceWaterhouseCoopers LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(h) APPROVAL OF LISTING. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(i) NO OBJECTION. The NASD shall have confirmed that it has not raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(j) LOCK-UP AGREEMENTS. Messrs. Mortimer Zuckerman, Chairman, and
Edward H. Linde, President and Chief Executive Officer, shall have executed and
delivered to the Underwriter lock-up agreements containing substantially the
same terms and conditions as are set forth in the first sentence of Section 3(j)
hereof; such agreements shall not have been amended or revoked; and such
agreements shall be in full force and effect.
(k) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the Underwriter
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Underwriter and
counsel for the Underwriter.
(l) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriter by notice to the Company at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
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SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITER. The Company and the Operating
Partnership jointly agree to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the 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;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriter), 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 and the
Operating Partnership by the
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Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. The Underwriter
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), 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 the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto). The Company and the
Operating Partnership acknowledge that the statements set forth in the last
paragraph of the cover page and in the fifth and sixth paragraphs under the
caption "Underwriting" in the Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriter expressly for use in the
Registration Statement relating to the Securities as originally filed or in any
amendment thereof, related preliminary prospectus or the Prospectus or in any
amendment thereof or supplement thereto, as the case may be.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriter, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party.
Notwithstanding the foregoing, if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the
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indemnified parties defendant in such action (which approval shall not be
unreasonably withheld), unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to them
which are different from or in addition to those available to such indemnifying
party. If an indemnifying party assumes the defense of such action, the
indemnifying party shall not be liable for any fees and expenses of counsel for
the indemnified parties incurred thereafter in connection with such action,
except that the indemnifying party shall be liable for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with
the defense. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties, which
consent shall not be unreasonably withheld, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement; PROVIDED, HOWEVER, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, an indemnifying party shall not be
liable for any settlement of the nature contemplated by this Section 6(d)
effected without its written consent if (x) such indemnifying party reimburses
such indemnified party in accordance with such request to the extent it
considers such request to be reasonable; and (y) such indemnifying party
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provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Operating Partnership on the one hand and the Underwriter on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Operating Partnership on the one hand and of the Underwriter on the other hand
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriter on the other hand in connection
with the offering of the Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the total underwriting discount received
by the Underwriter, in each case as set forth on the cover of the Prospectus,
bear to the aggregate initial public offering price of the Securities as set
forth on such cover.
The relative fault of the Company and the Operating Partnership on the
one hand and the Underwriter on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Operating Partnership or by the
Underwriter 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 Underwriter agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of allocation
which does not take 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
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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, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
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 the Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company, the Operating
Partnership or any of the Subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of the Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Securities to the Underwriter.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Underwriter may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the
24
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Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Underwriter, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the NASD
or any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. 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
Underwriter shall be directed to Goldman, Sachs & Co., 85 Broad Street, New
York, New York 10004, attention of Registration Department; and notices to the
Company and the Operating Partnership shall be directed to it at 8 Arlington
Street, Boston, Massachusetts 02116, attention of Frederick J. DeAngelis, Esq.
Notices given by telex or telephone shall be confirmed in writing.
SECTION 11. PARTIES. This Agreement shall each inure to the benefit of
and be binding upon the Underwriter and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriter and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriter and the Company and their
respective successors, and said controlling persons and officers and directors
and their
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heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from the Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 13. 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.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriter and the Company in accordance with its terms.
Very truly yours,
BOSTON PROPERTIES, INC.
By /s/ David G. Gaw
-------------------------------------
Name: David G. Gaw
Title: Chief Financial Officer and Senior Vice President
BOSTON PROPERTIES LIMITED PARTNERSHIP
By: Boston Properties, Inc., its general partner
By /s/ David G. Gaw
-------------------------------------
Name: David G. Gaw
Title: Chief Financial Officer and Senior Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
---------------------------
<PAGE>
SCHEDULE A
CAPITALIZATION OF THE COMPANY
The total number of shares of all classes of capital stock which the
Company has the authority to issue is 450,000,000 shares, consisting of (a)
250,000,000 shares of common stock, par value $.01 per share, (b) 150,000,000
shares of excess stock, par value $.01 per share, and (c) 50,000,000 shares of
preferred stock, par value $.01 per share.
As of May 19, 1999, the Company had outstanding:
(i) 63,548,144 shares of common stock; and
(ii) 2,000,000 shares of Series A Convertible Redeemable Preferred
Stock.
Sch A-1
<PAGE>
SCHEDULE B
Certain Properties
599 Lexington Avenue
One Independence Square
Two Independence Square
Democracy Center
Capital Gallery
2300 N Street
Long Wharf Marriott
Cambridge Center Marriott
280 Park Avenue
100 East Pratt Street
875 Third Avenue
Riverfront Plaza
The Mulligan/Griffin Portfolio
A-1
<PAGE>
EXHIBIT 5
[LETTERHEAD]
May 25, 1999
Boston Properties, Inc.
800 Boylston Street
Boston, Massachusetts 02199
Ladies and Gentlemen:
We have acted as counsel to Boston Properties, Inc., a Delaware
corporation (the "Company"), in connection with the offer and sale by the
Company of 4,000,000 shares (the "Shares") of common stock, par value $.01 per
share, of the Company. This opinion is being delivered in connection with (i)
the Company's Registration Statement on Form S-3 (No. 333-69375) (the
"Registration Statement") relating to the registration of the offering and sale
under the Securities Act of 1933, as amended, of up to $1,500,000,000 of
securities of the Company, and (ii) a prospectus supplement dated May 20, 1999
(the "Prospectus Supplement") which supplements the prospectus included in such
Registration Statement, relating to the offering of the Shares by the Company.
The Shares will be offered by Goldman, Sachs & Co. (the "Underwriter") pursuant
to that certain Underwriting Agreement, dated as of May 20, 1999, among the
Company, Boston Properties Limited Partnership and the Underwriter (the
"Underwriting Agreement").
As the basis for the opinion hereinafter expressed, we have examined
such statutes, regulations, corporate records and documents, certificates of
public officials and other instruments as we have deemed necessary or advisable
for the purposes of this opinion. In such examination, we have assumed the
authenticity of all documents submitted to us as originals and the conformity
with the original documents of all documents submitted to us as copies.
Based on the foregoing and on such legal considerations as we deem
relevant, we are of the opinion that the Shares sold or to be sold by the
Company to the Underwriter as described in the Registration Statement and the
Prospectus Supplement have been duly authorized and have been, or upon delivery
of such Shares and payment therefor in accordance with the Underwriting
Agreement will be, validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Company's Current Report on Form 8-K dated May 25, 1999.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
