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Exhibit 4A
WASHINGTON REAL ESTATE INVESTMENT TRUST
Medium-Term Notes, Series B
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
August 14, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
BANC ONE CAPITAL MARKETS, INC.
1 Bank One Plaza
Chicago, Illinois 60670
DEUTSCHE BANK SECURITIES INC.
31 West 52nd Street
New York, New York 10019
A.G. EDWARDS & SONS, INC.
One North Jefferson Avenue
St. Louis, Missouri 63103
LEGG MASON WOOD WALKER, INCORPORATED
100 Light Street, 31st Floor Baltimore,
Maryland 21202
SALOMON SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
Washington Real Estate Investment Trust, a Maryland real estate
investment trust (the "Company"), confirms its agreement with Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Banc One Capital
Markets, Inc., Deutsche Bank Securities Inc., A.G. Edwards & Sons, Inc., Legg
Mason Wood Walker, Incorporated and Salomon Smith Barney Inc.
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(each, an "Agent," and collectively, the "Agents") with respect to the issue and
sale by the Company of its Medium-Term Notes, Series B, Due Nine Months or More
From Date of Issue (the "Notes"). The Notes are to be issued pursuant to an
Indenture, dated as of August 1, 1996, as amended or modified from time to time
(the "Indenture"), between the Company and Bank One Trust Company, N.A. (as
successor in interest to The First National Bank of Chicago), as trustee (the
"Trustee"). As of the date hereof, the Company has authorized the issuance and
sale of up to U.S. $125,000,000 aggregate initial offering price of Notes (or
its equivalent, based upon the applicable exchange rate on the applicable trade
date, in such foreign or composite currencies as the Company shall designate at
the time of issuance) to or through the Agents pursuant to the terms of this
Agreement. It is understood, however, that the Company may from time to time
authorize the issuance of additional Notes and that such additional Notes may be
sold to or through the Agents pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors (as may from time to
time be agreed to by the Company and the applicable Agent), in which case the
applicable Agent will act as an agent of the Company in soliciting offers for
the purchase of Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-81913) for the
registration of its common shares of beneficial interest, preferred shares of
beneficial interest, warrants to purchase common shares of beneficial interest
and debt securities, including the Notes, 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 any acceptance by the
Company of an offer for the purchase of Notes. Such registration statement (as
so amended, if applicable) has been declared effective by the Commission and the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statement (as so amended, if
applicable) is referred to herein as the "Registration Statement"; and the final
prospectus and all applicable amendments or supplements thereto (including the
final prospectus supplement and pricing supplement relating to the offering of
Notes), in the form first furnished to the applicable Agent(s), 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 any
acceptance by the Company of an offer for the purchase of Notes; 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 the
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. A "preliminary prospectus" shall be deemed to refer to
any prospectus used before the Registration Statement became effective and any
prospectus furnished by the Company after the Registration Statement became
effective and
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before any acceptance by the Company of an offer for the purchase of Notes that
omitted 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. For
purposes of this Agreement, all references to the Registration Statement,
Prospectus or preliminary prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information that is "disclosed," "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to include all such financial
statements and schedules and other information that is incorporated by reference
in the Registration Statement, Prospectus or preliminary prospectus, as the case
may be; and all references in this Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
include the filing of any document under the 1934 Act that is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
SECTION I. Appointment as Agent.
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(a) Appointment. Subject to the terms and conditions stated herein and
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subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees that Notes will be sold exclusively to
or through the Agents. The Company agrees that it will not appoint any other
agents to act on its behalf, or to assist it, in the placement of the Notes.
(b) Sale of Notes. The Company shall not sell or approve the
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solicitation of offers for the purchase of Notes in excess of the amount that
shall be authorized by the Company from time to time or in excess of the
aggregate initial offering price of Notes registered pursuant to the
Registration Statement. The Agents shall have no responsibility for maintaining
records with respect to the aggregate initial offering price of Notes sold, or
of otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
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purchase Notes from the Company as principal. However, absent an agreement
between an Agent and the Company that such Agent shall be acting solely as an
agent for the Company, such Agent shall be deemed to be acting as principal in
connection with any offering of Notes by the Company through such Agent.
Accordingly, the Agents, individually or in a syndicate, may agree from time to
time to purchase Notes from the Company as principal for resale to investors and
other purchasers determined by such Agents. Any purchase of Notes from the
Company by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and the
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Company, such Agent, acting solely as agent for the Company and not as
principal, will solicit offers for the
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purchase of Notes. Such Agent will communicate to the Company, orally, each
offer for the purchase of Notes solicited by it on an agency basis other than
those offers rejected by such Agent. Such Agent shall have the right, in its
discretion reasonably exercised, to reject any offer for the purchase of Notes,
in whole or in part, and any such rejection shall not be deemed a breach of its
agreement contained herein. The Company may accept or reject any offer for
purchase of the Notes, in whole or in part. Such Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer for the purchase of Notes has been solicited by it on an agency basis and
accepted by the Company. Such Agent shall not have any liability to the Company
in the event that any such purchase is not consummated for any reason. If the
Company shall default on its obligation to deliver Notes to a purchaser whose
offer has been solicited by such Agent on an agency basis and accepted by the
Company, the Company shall (i) hold such Agent harmless against any loss, claim
or damage arising from or as a result of such default by the Company and (ii)
pay to such Agent any commission to which it would otherwise be entitled absent
such default.
(e) Reliance. The Company and the Agents agree that any Notes purchased
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from the Company by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as agent of the Company shall be
placed by such Agent, in reliance on the representations, warranties, covenants
and agreements of the Company contained herein and on the terms and conditions
and in the manner provided herein.
SECTION II. Representations and Warranties.
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(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to such Agent as principal or through such Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to the
Agent as principal is referred to herein as a "Settlement Date"), and as of any
time that the Registration Statement or the Prospectus shall be amended or
supplemented (each of the times referenced above is referred to herein as a
"Representation Date"), as follows:
(i) Due Incorporation, Good Standing and Due Qualification of the
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Company. The Company has been duly organized and is validly existing as
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a real estate investment trust of unlimited duration with transferable
shares of beneficial interest in good standing under the laws of the
State of Maryland, with full power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into this Agreement and to consummate the
transactions contemplated in the Prospectus; the Company is duly
qualified 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 be in good standing would not
result in a material adverse change in the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material Adverse
Effect"); all of the issued and
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outstanding shares of beneficial interest of the Company have been duly
authorized and are validly issued, fully paid and non-assessable; and
none of the outstanding shares of beneficial interest of the Company
were issued in violation of preemptive or other similar rights of any
security holder of the Company.
(ii) Due Incorporation, Good Standing and Due Qualifications
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of Significant Subsidiaries. Each "significant subsidiary" of the
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Company (as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act) (each a "Subsidiary" and, collectively,
the "Subsidiaries") (which term includes corporations, limited and
general partnerships, limited liability companies, joint ventures and
other entities, and includes direct and indirect subsidiaries), if any,
has been duly organized and is validly existing as a corporation or
partnership, as the case may be, in good standing under the laws of the
jurisdiction of its organization, has power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus and is duly qualified 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 be
in good standing would not result in a Material Adverse Effect; except
as otherwise stated in the Prospectus, all of the issued and
outstanding capital stock or other ownership interests of each
Subsidiary have been duly authorized and validly issued, are fully paid
and non-assessable and are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; and none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of
preemptive or other similar rights of any security holder of such
Subsidiary.
(iii) Registration Statement and Prospectus. At the time of
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the filing of the Registration Statement and at the time of filing any
post-effective amendment thereto, the Company met the requirements for
use of Form S-3 under the 1933 Act; 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 (including any Rule 462(b) Registration
Statement) has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been complied
with; the Indenture has been duly qualified under the 1939 Act; at the
respective times that the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on
Form 10-K with the Commission (the "Annual Report on Form 10-K"))
became effective and at each Representation Date, the Registration
Statement (including any Rule 462(b) Registration Statement) and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 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
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make the statements therein not misleading; each preliminary prospectus
and 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; each preliminary prospectus and
the Prospectus delivered to the applicable Agent(s) for use in
connection with the offering of Notes will, at the time of such
delivery, be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T; and at the date hereof, at the date of the
Prospectus and at each Representation Date, the Prospectus did not
include and will not include an untrue statement of a material fact and
did not omit and will not 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 the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Agents expressly for use in
the Registration Statement or the Prospectus.
(iv) Incorporated Documents. The documents incorporated or
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deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply, in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations") and, when
read together and with the other information in the Prospectus, at the
date hereof, at the date of the Prospectus and at each Representation
Date, did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(v) Independent Accountants. The accountants who certified
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the financial statements and any supporting schedules thereto included
in the Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements of the
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Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the
financial position of the Company and its consolidated subsidiaries at
the dates indicated, and the statement of operations, shareholders'
equity and cash flows of the Company and its consolidated subsidiaries
for the periods specified. Such 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, if any, included in the Registration Statement
and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and the summary financial information included in the Registration
Statement and Prospectus present fairly the information
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shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration Statement
and the Prospectus. Any historical summaries of revenue and certain
operating expenses included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the revenue
and those operating expenses included in such summaries of the
properties related thereto for the periods specified in conformity with
GAAP. In addition, any pro forma financial statements of the Company
and its subsidiaries and the related notes thereto included in the
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.
(vii) No Material Changes. Since the respective dates as of
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which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
event or occurrence that would result in a Material Adverse Effect, (B)
there have been no transactions entered into by the Company or any of
its subsidiaries, other than those arising in the ordinary course of
business, that are material with respect to the Company and its
subsidiaries considered as one enterprise and (C) except for regular
dividends on the Company's common shares of beneficial interest, there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(viii) Authorization, etc., of this Agreement, the Indenture
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and the Notes. This Agreement has been duly authorized, executed and
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delivered by the Company; the Indenture has been duly authorized,
executed and delivered by the Company and is a valid and legally
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by (1) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally, (2) general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), (3)
requirements that a claim with respect to any debt securities issued
under the Indenture that are payable in a foreign currency 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 (4)
governmental authority to limit, delay or prohibit the making of
payments outside the United States; the Notes have been duly authorized
by the Company for offer, sale, issuance and delivery pursuant to this
Agreement and, when issued, authenticated and delivered in the manner
provided for in the Indenture and delivered against payment of the
consideration therefor, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by (1) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally, (2) general equitable principles (regardless of
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whether enforcement is considered in a proceeding in equity or at law),
(3) requirements that a claim with respect to any Notes payable in a
foreign currency 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 (4) governmental authority to limit, delay or
prohibit the making of payments outside the United States; the Notes
will be substantially in a form previously certified to the Agents; and
each holder of Notes will be entitled to the benefits of the Indenture.
(ix) Description of the Indenture and the Notes. The
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Indenture and the Notes conform and will conform in all material
respects to the statements relating thereto contained in the Prospectus
and are substantially in the form filed or incorporated by reference,
as the case may be, as an exhibit to the Registration Statement.
(x) Accuracy of Exhibits. There are no contracts or
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documents that 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 that have not been so
described and filed as required.
(xi) Absence of Defaults and Conflicts. Neither the Company
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nor any of its subsidiaries is in violation of its declaration of
trust, partnership agreement, charter, by-laws or other organizational
document 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 property or assets of the Company or any of its
subsidiaries is subject, except for such defaults that would not result
in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement, the Indenture, the Notes and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
by the Prospectus, the consummation of the transactions contemplated in
the Prospectus (including the issuance and sale of the Notes and the
use of proceeds therefrom as described in the Prospectus) and the
compliance by the Company with its obligations hereunder and under the
Indenture, the Notes and such other agreements or instruments have been
duly authorized by all necessary action on the part of the Company and
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 under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, 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 property or assets of the Company or any of its
subsidiaries is subject (except for such conflicts, breaches, defaults,
events or liens, charges or encumbrances that would not result in a
Material Adverse Effect) nor will such action
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result in any violation of the provisions of the declaration of trust,
partnership agreement, charter, by-laws, or other organizational
documents of the Company or any of its subsidiaries or 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 of its subsidiaries or any
of their assets, properties or operations.
(xii) Absence of Proceedings. There is not pending or
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threatened any 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 of its subsidiaries that is
required to be disclosed in the Registration Statement and the
Prospectus (other than as stated therein), or that might reasonably be
expected to result in a Material Adverse Effect, or that might
reasonably be expected to materially and adversely affect the assets,
properties or operations thereof or the performance by the Company of
its obligations under this Agreement, the Indenture and the Notes or
the consummation of the transactions contemplated in the Prospectus.
The aggregate of all pending legal or governmental proceedings to which
the Company or any of its subsidiaries is a party or of which any of
their respective assets, properties or operations is the subject that
are not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(xiii) Filings, Approvals, etc.. Each approval, consent,
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order, authorization, designation, declaration or filing by or with any
regulatory, administrative or other governmental body necessary in
connection with the performance by the Company of its obligations under
this Agreement, the Indenture and the Notes, or in connection with the
transactions contemplated in the Prospectus (except such additional
steps as may be necessary to qualify the Notes for public offering by
the Agents under state securities or Blue Sky laws) has been obtained
or made and is in full force and effect.
(xiv) Possession of Licenses and Permits. The Company and
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its subsidiaries hold all licenses, certificates and permits from
governmental authorities that are necessary to the conduct of their
business the absence of which would result in a Material Adverse
Effect; and neither the Company nor any subsidiary has infringed any
patents, patent rights, trade names, trademarks or copyrights, which
infringement would result in a Material Adverse Effect.
(xv) REIT Status. With respect to all tax periods regarding
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which the Internal Revenue Service is or will be entitled to assert any
claim, the Company has met the requirements for qualification as a real
estate investment trust under Sections 856 through 860 of the Internal
Revenue Code, as amended, and the Company's present and contemplated
operations, assets and income continue to meet such requirements.
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(xvi) Title to Property. The Company and its subsidiaries
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have good and marketable title to, or valid and enforceable leasehold
estates in, all items of real and personal property referred to in the
Prospectus as owned or leased 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 that are not material in
amount. The Company has no reason to believe that the lessee under any
lease (excluding leases for which rent payments due for the remainder
of such lease are less than $1,000,000) calling for annual lease
payments in excess of $1,000,000 is not financially capable of
performing its obligations thereunder.
(xvii) Insurance. The Company and its subsidiaries are
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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 are engaged; and the Company has no reason
to believe that it or any of its subsidiaries will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect; and the Company and each of its subsidiaries has obtained title
insurance on all of the properties owned by each of them in an amount
at least equal to the original purchase price to acquire land and
improvements and such title insurance is in full force and effect.
(xviii) Taxes. The Company has filed all Federal, State and
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foreign income tax returns that have been required to be filed and has
paid all taxes indicated by said returns and all assessments received
by it to the extent that such taxes have become due.
(xix) Investment Company Act. The Company is not, and upon
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the issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(xx) Commodity Exchange Act. The Notes, upon issuance,
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will be excluded or exempted under, or beyond the purview of, the
Commodity Exchange Act, as amended (the "Commodity Exchange Act"), and
the rules and regulations of the Commodity Futures Trading Commission
under the Commodity Exchange Act (the "Commodity Exchange Act
Regulations").
(xxi) Ratings. The Medium-Term Note Program under which
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the Notes are issued (the "Program"), as well as the Notes, are rated
Baa1 by Moody's Investors Service, Inc. and A- by Standard & Poor's
Ratings Service, or such other rating as to which the Company shall
have most recently notified the Agents pursuant to Section 4(a) hereof.
(xxii) Environmental Laws. The Company has no knowledge of
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(a) the unlawful presence of any hazardous substances, hazardous
materials, toxic substances or waste
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materials (collectively, "Hazardous Materials") on any of the
properties owned by it or any of its subsidiaries, or of (b) any lawful
spills, releases, discharges or disposal of Hazardous Materials that
have occurred or are presently occurring off such properties as a
result of any construction on or operation and use of such properties,
which presence or occurrence, singly or in the aggregate, would result
in a Material Adverse Effect. In connection with the construction on or
operation and the use of the properties owned by the Company and its
subsidiaries, the Company represents that, as of the date of this
Agreement and will represent that, as of each Settlement Date and each
Representation Date, it has no knowledge of any failure to comply with
all applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders relating
to the generation, recycling, reuse, sale, storage, handling, transport
and disposal of any Hazardous Materials, which failure would result in
a Material Adverse Effect.
(xxiii) Doing Business with Cuba. The Company has complied and
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will comply with the provisions of Florida H.B. 1771, codified as
Section 517.075 of the Florida Statutes, 1987, as amended, and all
regulations promulgated thereunder relating to issuers doing business
in Cuba or is exempt therefrom.
(b) Additional Certifications. Any certificate signed by any officer
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of the Company and delivered to one or more Agents or to counsel for the Agents
in connection with an offering of Notes to one or more Agents as principal or
through an Agent as agent shall be deemed a representation and warranty by the
Company to such Agent or Agents as to the matters covered thereby on the date of
such certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 3. Purchase as Principal, Solicitations as Agent.
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(a) Purchase as Principal. Notes purchased from the Company by the
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Agents, individually or in a syndicate, as principal shall be made in accordance
with terms agreed upon between such Agent or Agents and the Company (which
terms, unless otherwise agreed, shall, to the extent applicable, include those
terms specified in Exhibit A hereto and shall be agreed upon orally, with
written confirmation prepared by such Agent or Agents and mailed to the
Company). An Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Unless the context otherwise requires, references herein to "this
Agreement" shall include the applicable agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto. The
Agents may engage the services of any broker or dealer in connection with the
resale of the Notes purchased by them as principal and may allow all or any
portion of the discount received from the Company in connection with such
purchases to such brokers or dealers. At the time of each purchase of Notes from
the Company by one or more Agents as principal, such Agent or Agents shall
specify
11
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the requirements for the officers' certificate, opinion of counsel and comfort
letters pursuant to Sections 7(b), 7(c) and 7(d) hereof.
If the Company and two or more Agents enter into an agreement pursuant
to which such Agents agree to purchase Notes from the Company as principal and
one or more of such Agents shall fail at the Settlement Date to purchase the
Notes that it or they are obligated to purchase (the "Defaulted Notes"), then
the nondefaulting Agents shall have the right, within 24 hours thereafter, to
make arrangements for one of them or one or more other Agents or underwriters to
purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth; provided, however, that
if such arrangements shall not have been completed within such 24-hour period,
then:
(a) if the aggregate principal amount of Defaulted Notes does
not exceed 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, the
nondefaulting Agents shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective initial underwriting obligations bear to the underwriting
obligations of all nondefaulting Agents; or
(b) if the aggregate principal amount of Defaulted Notes
exceeds 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, such agreement
shall terminate without liability on the part of any nondefaulting
Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default that
does not result in a termination of such agreement, either the nondefaulting
Agents or the Company shall have the right to postpone the Settlement Date 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.
(b) Solicitations as Agent. On the basis of the representations and
----------------------
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers to purchase the Notes
upon the terms set forth in the Prospectus. The Agents are not authorized to
appoint sub-agents with respect to Notes sold through them as agent. All Notes
sold through an Agent as agent will be sold at 100% of their principal amount
unless otherwise agreed to between the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company, commencing at any time for any period of time or permanently. As
soon as practicable after receipt of instructions from the Company, such Agent
will suspend solicitation of purchases from the Company until such time as the
Company has advised such Agent that such solicitation may be resumed.
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The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent, as an
agent of the Company, as set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate or
-------------------------
formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon by the Company and the applicable
Agent(s) and specified in a pricing supplement to the Prospectus (each, a
"Pricing Supplement") to be prepared by the Company in connection with each sale
of Notes. Except as otherwise specified in the applicable Pricing Supplement,
the Notes will be issued in denominations of U.S. $1,000 or any larger amount
that is an integral multiple of U.S. $1,000. Administrative procedures with
respect to the issuance and sale of the Notes (the "Procedures") shall be agreed
upon from time to time among the Company, the Agents and the Trustee. The Agents
and the Company agree to perform, and the Company agrees to cause the Trustee to
agree to perform, their respective duties and obligations specifically provided
to be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
------------------------
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the Agents
------------------------
immediately, and confirm such notice in writing, of (i) the effectiveness of any
post-effective amendment to the Registration Statement or the filing of any
amendment or supplement to the Prospectus (other than any amendment or
supplement thereto providing solely for the determination of the variable terms
of the Notes or relating solely to the offering of securities other than the
Notes), (ii) the receipt of any comments from the Commission, (iii) any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, (iv)
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 the initiation of any proceedings for that purpose
and (v) any change in the rating assigned by any nationally recognized
statistical rating organization to the Program or any debt securities (including
the Notes) of the Company, or the public announcement by any nationally
recognized statistical rating organization that it has under surveillance or
review, with possible negative implications, its rating of the Program or any
such debt securities, or the withdrawal by any nationally recognized statistical
rating organization of its rating of the Program or any such debt securities.
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 or Use of Amendments. The Company will give the Agents
---------------------------
notice of its intention to file or prepare any additional registration statement
with respect to the registration of additional Notes, any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations) or any amendment or supplement to the prospectus included
13
<PAGE>
in the Registration Statement at the time it became effective or to the
Prospectus (other than an amendment or supplement providing solely for the
determination of the variable terms of the Notes or relating solely to the
offering of securities other than the Notes), whether pursuant to the 1933 Act,
the 1934 Act or otherwise, and will furnish to the Agents copies of any such
document a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such document to which the Agents or
counsel for the Agents shall object.
(c) Delivery of the Registration Statement. The Company has furnished
--------------------------------------
to the Agents and to counsel for the Agents, without charge, 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 incorporated or deemed to be incorporated by
reference therein) and signed and conformed copies of all consents and
certificates of experts. The Registration Statement and each amendment thereto
furnished to the Agents will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(d) Delivery of the Prospectus. The Company will deliver to each
--------------------------
Agent, without charge, as many copies of each preliminary prospectus as such
Agent may reasonably request, and the Company hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Company will furnish to each
Agent, without charge, such number of copies of the Prospectus (as amended or
supplemented) as such Agent may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Agents will be identical to
any electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(e) Preparation of Pricing Supplements. The Company will prepare, with
----------------------------------
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents. The Company will deliver such Pricing
Supplement no later than 11:00 a.m., New York City time, on the business day
following the date of the Company's acceptance of the offer for the purchase of
such Notes and will file such Pricing Supplement pursuant to Rule 424(b)(3)
under the 1933 Act not later than the close of business of the Commission on the
fifth business day after the date on which such Pricing Supplement is first
used.
(f) Revisions of Prospectus - Material Changes. Except as otherwise
-----------------------
provided in subsection (m) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the opinion of counsel for the Agents or counsel for the
Company, to amend the Registration Statement in order that the Registration
Statement 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 or 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 a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such
14
<PAGE>
counsel, to amend the Registration Statement or to amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company shall give immediate notice, confirmed in writing,
to the Agents to cease the solicitation of offers for the purchase of Notes in
their capacity as agents and to cease sales of any Notes they may then own as
principal, and the Company will promptly prepare and file with the Commission,
subject to Section 4(b) hereof, such amendment or supplement as may be necessary
to correct such statement or omission or to make the Registration Statement and
Prospectus comply with such requirements, and the Company will furnish to the
Agents, without charge, such number of copies of such amendment or supplement as
the Agents may reasonably request. In addition, the Company will comply with the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so
as to permit the completion of the distribution of each offering of Notes.
(g) Prospectus Revisions - Periodic Financial Information. Except as
-----------------------------------------------------
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be reported interim financial statement information related
to the Company with respect to each of the first three quarters of any fiscal
year or preliminary financial statement information with respect to any fiscal
year, the Company shall furnish such information to the Agents, confirmed in
writing, and shall cause the Prospectus to be amended or supplemented to include
financial information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) Prospectus Revisions - Audited Financial Information. Except as
----------------------------------------------------
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited consolidated financial statements of the
Company for the preceding fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the Prospectus
to be amended or supplemented, to include such audited consolidated financial
statements and the report or reports, and consent or consents to such inclusion,
of the independent accountants with respect thereto, as well as such other
information and explanations as shall be necessary for an understanding of such
financial statements or as shall be required by the 1933 Act or the 1933 Act
Regulations.
(i) Earnings Statements. The Company will timely file such reports
-------------------
pursuant to the 1934 Act as are necessary in order to make generally available
to its security holders 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 Regulations.
(j) Reporting Requirements. The Company, during the period when the
----------------------
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
15
<PAGE>
(k) Restriction on Offers and Sales of Securities. Unless otherwise
---------------------------------------------
agreed upon between one or more Agents acting as principal and the Company,
between the date of the agreement by such Agent(s) to purchase the related Notes
from the Company and the Settlement Date with respect thereto, the Company will
not, without the prior written consent of such Agent(s), issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise dispose of, any
debt securities of the Company (other than the Notes that are to be sold
pursuant to such agreement or commercial paper in the ordinary course of
business).
(l) Use of Proceeds. The Company will use the net proceeds received by
---------------
it from the issuance and sale of the Notes in the manner specified in the
Prospectus under the caption "Use of Proceeds."
(m) Suspension of Certain Obligations. The Company shall not be
---------------------------------
required to comply with the provisions of subsections (f), (g) or (h) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of offers for the purchase of Notes in their capacity as agents
pursuant to a request from the Company and (ii) no Agent shall then hold any
Notes purchased from the Company as principal, as the case may be, until the
time the Company shall determine that solicitation of offers for the purchase of
Notes should be resumed or an Agent shall subsequently purchase Notes from the
Company as principal.
SECTION 5. Conditions of Agents' Obligations.
---------------------------------
The obligations of one or more Agents to purchase Notes from the
Company as principal and to solicit offers for the purchase of Notes as agent of
the Company, and the obligations of any purchasers of Notes sold through an
Agent as agent of the Company, will be subject to the accuracy of the
representations and warranties on the part of the Company herein contained or
contained in any certificate of an officer of the Company delivered pursuant to
the provisions hereof, to the performance and observance by the Company of all
its covenants and other obligations hereunder and to the following additional
conditions precedent:
(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 shall 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 Agents.
(b) Legal Opinions. On the date hereof, the Agents shall have received
--------------
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents.
(1) Opinion of Company Counsel. The favorable opinion of Arent Fox
--------------------------
Kintner Plotkin & Kahn, PLLC, counsel to the Company, to the effect
that:
16
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(i) The Company has been duly organized and is
validly existing as a real estate investment trust in good
standing under the laws of the State of Maryland, with trust
power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus and to
enter into this Agreement and to consummate the transactions
contemplated in the Prospectus; and at the time of filing the
Registration Statement and at the time of the filing of any
post-effective amendment to the Registration Statement
(including the filing of the Annual Report on Form 10-K) the
conditions for use of a registration statement on Form S-3
were satisfied.
(ii) The Company is duly qualified to transact
business 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 would not result in a Material Adverse Effect.
(iii) Each Subsidiary has been duly organized and is
validly existing as a corporation or partnership, as the case
may be, in good standing under the laws of the jurisdiction of
its organization and has corporate or partnership 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. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and
outstanding capital stock or other ownership interests of each
Subsidiary have been duly authorized and are validly issued,
are fully paid and non-assessable and, to the best of the
knowledge of such counsel, are owned by the Company, directly
or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity. To such counsel's knowledge, none of the outstanding
shares of capital stock of any Subsidiary was issued in
violation of preemptive or other similar rights of any
security holder of such Subsidiary
(iv) Each Subsidiary of 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 be in good standing would
not result in a Material Adverse Effect.
(v) All of the issued and outstanding shares of
beneficial interest of the Company have been duly authorized
and validly issued by the Company and are fully paid and non-
assessable, and none of such shares of beneficial interest was
issued in violation of preemptive or other similar rights of
any security holder of the Company arising by operation of law
or, to such counsel's knowledge, otherwise.
(vi) This Agreement has been duly authorized,
executed and delivered by the Company.
17
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(vii) The Indenture has been duly authorized,
executed and delivered by the Company and (assuming the
Indenture has been duly authorized, executed and delivered by
the Trustee) constitutes a valid and legally binding agreement
of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be
limited by (A) bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally, (B) general equitable principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law), (C) requirements that a claim
with respect to any debt securities issued under the Indenture
that are payable in a foreign currency 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 (D) governmental authority to limit, delay
or prohibit the making of payments outside the United States.
(viii) The Notes have been duly authorized by the
Company for offer, sale, issuance and delivery pursuant to
this Agreement and, when issued, authenticated and delivered
in the manner provided for in the Indenture and delivered
against payment of the consideration therefor, will constitute
valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by (A)
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights
generally, (B) general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or
at law), (C) requirements that a claim with respect to any
Notes payable in a foreign currency 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
(D) governmental authority to limit, delay or prohibit the
making of payments outside the United States; and the Notes,
in the forms certified on the date hereof, are in the form
contemplated by, and each registered holder thereof is
entitled to the benefits of, the Indenture.
(ix) The Indenture and the Notes, in the forms
certified on the date hereof, conform in all material respects
to the statements relating thereto contained in the Prospectus
and are in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the
Registration Statement.
(x) The statements in the Prospectus under
"Description of Debt Securities," "Description of the Notes"
and "United States Federal Income Taxation" and in the
Registration Statement under Item 15, insofar as such
statements constitute a summary of documents referred to
therein or matters of law, are accurate summaries and fairly
and correctly present the information called for with respect
to such documents and matters in all material respects.
18
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(xi) To such counsel's knowledge, neither the
Company nor any of its subsidiaries is in violation of its
declaration of trust, partnership agreement, charter, by-laws
or other organizational document.
(xii) Such counsel does not know of any contracts or
documents required to be filed as exhibits to or incorporated
by reference in the Registration Statement or described in the
Registration Statement or the Prospectus that are not so
filed, incorporated by reference or described as required, and
such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized
in all material respects (except that such counsel need
express no opinion as to the financial statements, schedules
and other financial information included or incorporated by
reference therein).
(xiii) The execution, delivery and performance of
this Agreement, the Indenture and the Notes and any other
agreement or instrument entered into or issued or to be
entered into or issued by the Company in connection with the
transactions contemplated in the Prospectus, the consummation
of the transactions contemplated in the Prospectus (including
the issuance and sale of the Notes and the use of the proceeds
therefrom as described in the Prospectus) and the compliance
by the Company with its obligations hereunder and thereunder
have been duly authorized by the Company and do not constitute
a breach of any of the terms or provisions of, or constitute a
material default under, (a) the declaration of trust,
partnership agreement, charter, by-laws, or other
organizational document of the Company or any of its
subsidiaries, (b) certain specified agreements that are set
forth on a schedule to such opinion to which the Company is a
party, (c) any order known to such counsel of any court or
government agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties.
(xiv) Such counsel knows of no material legal
proceedings pending or threatened against the Company.
(xv) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in
connection with the performance by the Company of its
obligations under this Agreement, the Indenture or the Notes
or the consummation of the transactions contemplated in the
Prospectus (other than as may be required by state securities
or Blue Sky laws, as to which such counsel need express no
opinion) except such as have been obtained or made.
(xvi) The investments of the Company described in
the Prospectus are permitted investments under its declaration
of trust.
(xvii) The Company has qualified to be taxed as a
real estate investment trust pursuant to Sections 856-860 of
the Internal Revenue Code, as amended, for
19
<PAGE>
the fiscal years ended December 31, 1995 through December 31,
1999, and the Company's present method of operation and its
assets and contemplated income are such that the Company is in
a position under present law to so qualify for the fiscal year
ended December 31, 2000, and under the present law the federal
income tax treatment of the Company will be as set forth in
the Prospectus under the heading "Description of Shares."
(xviii) The Indenture has been duly qualified under
the 1939 Act.
(xix) The Registration Statement has been declared
effective under the 1933 Act; any required filing of the
Prospectus pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); and, to
such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have
been initiated or are pending or threatened by the Commission.
(xx) The Registration Statement and the
Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration
Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or
issue dates (other than the financial statements and
supporting schedules included therein or omitted therefrom and
the Trustee's Statement of Eligibility on Form T-1 (the "Form
T-1"), as to which such counsel need express no opinion)
complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(xxi) Each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus complied when
so filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations.
(xxii) The Notes, in the forms certified on the date
hereof, will be excluded or exempted under, or beyond the
purview of, the Commodity Exchange Act.
(xxiii) The Company is not, and upon the issuance and
sale of the Notes and the application of the net proceeds
therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the 1940 Act.
(2) Opinion of Counsel to the Agents. The favorable
--------------------------------
opinion of Vinson & Elkins L.L.P., counsel to the Agents, covering the
matters referred to in subsection (b)(1) under the subheadings (vi),
(vii), (viii), (ix), (xviii), (xix) and (xx) above.
(3) Disclosure Documents. In giving their opinions
--------------------
required by subsection (b)(1) and (b)(2), respectively, of this Section
5, Arent Fox Kintner Plotkin & Kahn,
20
<PAGE>
PLLC, and Vinson & Elkins L.L.P. shall each additionally state that
nothing has come to their attention that would lead them to believe
that the Registration Statement or any post-effective amendment thereto
(except for financial statements, supporting schedules and other
financial data included therein or omitted therefrom and for the Form
T-1, as to which such counsel need make no statement), at the time the
Registration Statement or any post-effective amendment thereto
(including the filing of the Company's Annual Report on Form 10-K with
the Commission) became effective or at the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits 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 included
therein or omitted therefrom, as to which such counsel need make no
statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was delivered or at date hereof (or,
if such opinion is being delivered in connection with the purchase of
Notes from the Company by one or more Agents as principal pursuant to
Section 7(c) hereof, at the date of any agreement by such Agent or
Agents to purchase Notes as principal and at the Settlement Date with
respect thereto, as the case may be) 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 l ight
of the circumstances under which they were made, not misleading. With
respect to such statement, Arent Fox Kintner Plotkin & Kahn, PLLC, and
Vinson & Elkins L.L.P. may state that their belief is based upon the
procedures set forth therein, but is without independent check and
verification.
(c) Officers' Certificate. On the date hereof, there shall not have
---------------------
been, 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 and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Agents shall have received a
certificate of the President or a Vice President of the Company and of the chief
financial officer and chief accounting officer of the Company, dated as of the
date hereof, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties of the Company herein contained
are true and correct with the same force and effect as though expressly made at
and as of the date of such certificate, (iii) the Company has performed or
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate and (iv) 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, to the best of such officer's knowledge, are threatened by the Commission.
(d) Comfort Letter of Arthur Andersen LLP. On the date hereof, the
-------------------------------------
Agents shall have received a letter from Arthur Andersen LLP, dated as of the
date hereof and in form and substance satisfactory to the Agents, to the effect
that:
21
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(i) they are independent accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations;
(ii) it is their opinion that the consolidated financial
statements and supporting schedule(s) of the Company and its
subsidiaries and included or incorporated by reference in the
Registration Statement and the Prospectus and audited by them and
covered by their opinions therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations;
(iii) based upon limited procedures set forth in detail in
such letter (which shall include, without limitation, the procedures
specified by the American Institute of Certified Public Accountants for
a review of interim financial information as described in SAS No. 71,
Interim Financial Information, with respect to the unaudited condensed
consolidated financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement),
nothing has come to their attention that causes them to believe that:
(1) any material modifications should be made to the
unaudited condensed consolidated financial statements included
or incorporated by reference in the Registration Statement for
them to be in conformity with generally accepted accounting
principles;
(2) the unaudited condensed consolidated financial
statements included or incorporated by reference in the
Registration Statement do not comply as to form in all
material respects with the applicable accounting requirements
of the 1933 Act and the 1934 Act as it applies to Form 10-Q
and the related published rules and regulations;
(3) at a specified date not more than three days prior to
the date of such letter, there was any change in the
capitalization of the Company and its subsidiaries, any
decrease in total assets, any change in long-term debt or any
change in short-term borrowings of the Company and its
subsidiaries, as compared with the amounts shown in the most
recent consolidated balance sheet incorporated by reference in
the Registration Statement; or
(4) during the period from the date of the most recent
consolidated balance sheet incorporated by reference in the
Registration Statement to a specified date not more than three
days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the
preceding year, in real estate rental revenue, net income or
net income per share of the Company and its subsidiaries;
except in all cases for changes, increases or decreases that
the Registration Statement discloses have occurred or may
occur;
22
<PAGE>
(iv) in addition to the limited procedures referred to in
clause (iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages
and financial information that are derived from the general accounting
records of the Company and its subsidiaries, which are included or
incorporated by reference in the Registration Statement and which are
specified by you, and have compared such amounts, percentages and
financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement; and
(v) based upon limited procedures set forth in detail in
such letter, nothing came to their attention that caused them to
believe that the unaudited pro forma consolidated financial statements
included or incorporated by reference in the Registration Statement and
the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of Rule 11-02 of Regulation S-X
or that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements.
(e) Comfort Letter of Stoy, Malone & Company, P.C.. On the date
-----------------------------------------------
hereof, the Agents shall have received a letter from Stoy, Malone & Company,
P.C., dated as of the date hereof and in form and substance satisfactory to the
Agents, to the effect that (i) they are independent accountants with respect to
the Company and its subsidiaries and certain properties and assets acquired by
the Company and its subsidiaries, within the meaning of the 1933 Act and the
1933 Act Regulations; and (ii) it is their opinion that the historical financial
statements for the 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, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations.
(f) Additional Documents. On the date hereof, counsel to the
--------------------
Agents shall have been furnished with such documents and opinions as such
counsel may require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy and completeness of any of the representations
and 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 Notes as herein contemplated shall be satisfactory in form and substance
to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the applicable Agent or Agents by notice to the Company at any time and any
such termination shall be without liability of any party to any other party,
except as provided in Section 10 hereof, and except that Sections 8, 9, 11, 14
and 15 hereof shall survive any such termination and remain in full force and
effect.
23
<PAGE>
SECTION 6. Delivery of and Payment for Notes Sold through an Agent as Agent.
----------------------------------------------------------------
Delivery of Notes sold through an Agent as an agent of the Company
shall be made by the Company to such Agent for the account of any purchaser only
against payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement, such Agent shall promptly notify the Company
and deliver such Note to the Company and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by such Agent
in the performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the period
such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with each Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance
-----------------------------------------------
by the Company of an offer for the purchase of Notes (whether to one or more
Agents as principal or through an Agent as agent), and each delivery of Notes
(whether to one or more Agents as principal or through an Agent as agent), shall
be deemed to be an affirmation that the representations and warranties of the
Company herein contained and contained in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to such Agent or Agents or to the purchaser or its agent, as the case may be, of
the Notes relating to such acceptance or sale, as the case may be, as though
made at and as of each such time (it being understood that such representations
and warranties shall relate to the Registration Statement and Prospectus as
amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
-----------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Company by one or more Agents as principal) the Company sells
Notes to one or more Agents as principal or (iii) the Company sells Notes in a
form not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished to the Agent(s), forthwith a certificate dated
the date of filing with the Commission or the date of effectiveness of such
amendment, or supplement, as applicable, or the date of such sale, as the case
may be, in form satisfactory to the Agent(s) to the effect that the statements
contained in the certificate referred to in Section 5(c) hereof which were last
furnished to the Agents are true and correct at the time of such filing or
effectiveness of such amendment or supplement, as applicable, or the time of
such sale, as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as
24
<PAGE>
the certificate referred to in Section 5(c) hereof, modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate (it being understood
that, in the case of clause (ii) above, any such certificate shall also include
a certification that 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 and its subsidiaries considered as one enterprise since
the date of the agreement by such Agent(s) to purchase Notes from the Company as
principal).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
-------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Company by one or more Agents as principal) the Company sells
Notes to one or more Agents as principal or (iii) the Company sells Notes in a
form not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished forthwith to the Agent(s) and to counsel to the
Agents the written opinion of Arent Fox Kintner Plotkin & Kahn, PLLC, counsel to
the Company, or other counsel satisfactory to the Agent(s), dated the date of
filing with the Commission or the date of effectiveness of such amendment or
supplement, as applicable, or the date of such sale, as the case may be, in form
and substance satisfactory to the Agent(s), of the same tenor as the opinion
referred to in Section 5(b)(1) and 5(b)(3) hereof, but modified, as necessary,
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agent(s) with a letter substantially to the effect that the Agent(s) may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
--------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities other
than the Notes) or (ii) (if required in connection with the purchase of Notes
from the Company by one or more Agents as principal) the Company sells Notes to
one or more Agents as principal, the Company shall cause Arthur Andersen LLP and
Stoy, Malone & Company, P.C. forthwith to furnish to the Agent(s) letters, dated
the date of filing with the Commission or the date of effectiveness of such
amendment or supplement, as applicable, or the date of such sale, as the case
may be, in form satisfactory to the Agent(s), of the same tenor as the letters
referred to in Sections 5(d) and 5(e) hereof but modified to relate to the
Registration Statement and Prospectus as amended and supplemented to the date of
such letter.
25
<PAGE>
SECTION 8. Indemnification.
---------------
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls such Agent 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), 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 any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided
that 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 such Agent),
reasonably incurred in investigating, preparing or defending against
any litigation, or 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 subparagraph (i) or (ii) above.
provided however; that this indemnity does not apply to any loss, liability,
-------- -------
claim, damage or expense to the extent arising out of an 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 Agent
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 and its Trustees and Officers. Each
--------------------------------------------------------
Agent severally agrees to indemnify and hold harmless the Company, its trustees,
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 Section 8(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements
26
<PAGE>
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 Agents expressly 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 8(a) hereof,
counsel to the indemnified parties shall be selected by the applicable Agent(s)
and, in the case of parties indemnified pursuant to Section 8(b) hereof, 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 the 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 8 or 9 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) included 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.
SECTION 9. Contribution.
------------
27
<PAGE>
If the indemnification provided for in Section 8 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, on the one hand, and the
applicable Agent(s), on the other hand, from the offering of the Notes that were
the subject of the claim for indemnification or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
applicable Agent(s), on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
applicable Agent(s), on the other hand, in connection with the offering of the
Notes that were the subject of the claim for indemnification shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of such Notes (before deducting expenses) received by the Company and
the total discount or commission received by each applicable Agent, as the case
may be, bears to the aggregate initial offering price of such Notes.
The relative fault of the Company, on the one hand, and the applicable
Agent(s), on the other hand, shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the applicable Agent(s) and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the applicable Agent(s) 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 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 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 applicable untrue statement
or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning
28
<PAGE>
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. In addition, in
connection with an offering of Notes purchased from the Company by two or more
Agents as principal, the respective obligations of such Agents to contribute
pursuant to this Section 9 are several, and not joint, in proportion to the
aggregate principal amount of Notes that each such Agent has agreed to purchase
from the Company.
For purposes of this Section 9, each person, if any, who controls an
Agent 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 Agent, and each trustee
of the Company, each officer of the Company 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 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation, filing, printing and delivery of the Registration
Statement as originally filed and all amendments thereto and any preliminary
prospectus, the Prospectus and any amendments or supplements thereto;
(b) The preparation, photocopying and delivery of this Agreement and
the Indenture;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the eligibility and issuance of
Notes in book-entry form and the cost of obtaining CUSIP or other identification
numbers for the Notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any calculation agent or
exchange rate agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and incurred from
time to time in connection with the transactions contemplated hereby;
(f) The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
(g) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(h) The fees and expenses incurred with respect to any filing with the
National Association of Securities Dealers, Inc. ("NASD"); and
29
<PAGE>
(i) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of an Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for the Notes.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any
-----------------------------
agreement by one or more Agents to purchase Notes from the Company as principal)
may be terminated for any reason, at any time by either the Company or an Agent,
as to itself, upon the giving of 30 days' written notice of such termination to
the other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
-------------------------------------------------------
applicable Agent(s) may terminate any agreement by such Agent(s) to purchase
Notes from the Company as principal, immediately upon notice to the Company, at
any time prior to the Settlement Date relating thereto, if (i) there has been,
since the date of such 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 and its subsidiaries 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 such Notes are denominated and/or payable in, or indexed
to, one or more 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 or event 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 such
Agent(s), impracticable to market such Notes or enforce contracts for the sale
of such Notes, or (iii) trading in any securities of the Company has been
suspended or limited by the Commission or a national securities 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 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 by the
relevant authorities in the country or countries of origin of any foreign
currency or currencies in which such Notes are denominated or payable, or (v)
the rating assigned by any nationally recognized statistical rating organization
to the Program or any debt securities (including the Notes) of the Company as of
the date of such agreement shall have been lowered or withdrawn since that date
or if any such rating organization shall have publicly announced that it has
under surveillance or review, its rating of
30
<PAGE>
the Program or any such debt securities, or (vi) there shall have come to the
attention of such Agent(s) any facts that would cause such Agent(s) to believe
that the Prospectus, at the time it was required to be delivered to a purchaser
of such Notes, included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time of such delivery, not
misleading.
(c) General. In the event of any such termination, neither party will
-------
have any liability to the other party hereto, except that (i) the Agents shall
be entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it from the Company as principal or (b) an offer to
purchase any of the Notes has been accepted by the Company but the time of
delivery to the purchaser or his agent of such Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant set forth in Section 4(i) hereof, the provisions of Section
10 hereof, the indemnity and contribution agreements set forth in Sections 8 and
9 hereof, and the provisions of Sections 11, 14 and 15 hereof shall remain in
effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Washington Real Estate Investment Trust
6110 Executive Boulevard
Suite 800
Rockville, Maryland 20852
Attention: Mr. Larry E. Finger
Telecopy No.: (301) 984-9610
31
<PAGE>
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy No.: (212) 449-2234
Banc One Capital Markets, Inc.
1 Bank One Plaza, Suite IL1-0595
Chicago, Illinois 60670
Attention: Corporate Securities Structuring
Telecopy No.: (312) 732-4773
Deutsche Bank Securities Inc.
1290 Avenue of the Americas, 6th Floor
New York, New York 10019
Attention: DCM Operations Support
Telecopy No.: (212) 469-2246
A.G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, Missouri 63103
Attention: 7th Floor Bond Department
Telecopy No.: (314) 955-5989
Legg Mason Wood Walker, Incorporated
100 Light Street, 31st Floor
Baltimore, Maryland 21202
Attention: Real Estate Investment Banking
Telecopy No.: (410) 454-5342
Salomon Smith Barney Inc.
388 Greenwich Street, 34th Floor
New York, New York 10013
Attention: Medium-Term Note Department
Telecopy No.: (212) 816-7912
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
32
<PAGE>
SECTION 14. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the
Agents 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 parties hereto and their respective
successors and the controlling persons and officers and trustees referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
trustees and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW; FORUM.
--------------------
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY THE COMPANY AGAINST ANY AGENT IN CONNECTION WITH OR
ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL
COURT OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY
OF NEW YORK.
SECTION 16. Effect of Headings.
------------------
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 17. Counterparts.
------------
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
33
<PAGE>
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Distribution Agreement, along with all counterparts, will become a binding
agreement among the Agents and the Company in accordance with its terms.
Very truly yours,
WASHINGTON REAL ESTATE INVESTMENT TRUST
By:______________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_____________________________
Authorized Signatory
BANC ONE CAPITAL MARKETS, INC.
By:___________________________________
Authorized Signatory
DEUTSCHE BANK SECURITIES INC.
By:___________________________________
Authorized Signatory
A.G. EDWARDS & SONS, INC.
By:___________________________________
Authorized Signatory
34
<PAGE>
LEGG MASON WOOD WALKER, INCORPORATED
By:___________________________________
Authorized Signatory
SALOMON SMITH BARNEY INC.
By:___________________________________
Authorized Signatory
35
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year....................... .125%
From 1 year to less than 18 months...................... .150
From 18 months to less than 2 years..................... .200
From 2 years to less than 3 years....................... .250
From 3 years to less than 4 years....................... .350
From 4 years to less than 5 years....................... .450
From 5 years to less than 6 years....................... .500
From 6 years to less than 7 years....................... .550
From 7 years to less than 10 years...................... .600
From 10 years to less than 15 years..................... .625
From 15 years to less than 20 years..................... .700
From 20 years to 30 years............................... .750
Greater than 30 years................................... *
----------------------
* As agreed to by the Company and the applicable Agent at the time of sale.
<PAGE>
EXHIBIT A
PRICING TERMS
Principal Amount: $_______
(or principal amount of foreign currency or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
[ ] LIBOR Reuters Page:
[ ] LIBOR Telerate Page:
LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052,
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
<PAGE>
Purchase Price: ___%, plus accrued interest, if any, from ___________
Price to Public: ___%, plus accrued interest, if any, from ___________
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement .
Comfort Letters pursuant to Section 7(d) of the Distribution
Agreement.
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