SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 22, 1997
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MGI PROPERTIES
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(Exact name of registrant as specified in its charter)
Massachusetts 1-6833 04-6268740
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
One Winthrop Square, Boston, Massachusetts 02110
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(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (617) 422-6000
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Item 5. Other Events.
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On January 22, 1997, MGI Properties (the "Trust") entered into an
Underwriting Agreement (the "Underwriting Agreement") with Alex. Brown & Sons
Incorporated, Davenport & Co. of Virginia, Inc., Sutro & Co. Incorporated and
Tucker Anthony Incorporated (collectively, the "Underwriters") for the sale of
an aggregate of 2,000,000 of the Trust's Common Shares, $1.00 par value (the
"Common Shares"), at a price of $22.00 per share. The Underwriting Agreement
also grants to the Underwriters an option to purchase up to 300,000 additional
Common Shares, solely to cover over-allotments, if any. The securities were
registered under the Securities Act of 1933, as amended, pursuant to a
Registration Statement on Form S-3 (File No. 333-15245), which was declared
effective on December 13, 1996, for up to $100 million of securities of the
Trust.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
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Exhibit No. Exhibits
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1.1 Underwriting Agreement dated January 22, 1997,
by and among MGI Properties and Alex. Brown &
Sons Incorporated, Davenport & Co. of
Virginia, Inc., Sutro & Co. Incorporated and
Tucker Anthony Incorporated.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MGI PROPERTIES
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(Registrant)
Dated: January 22, 1997 By: /s/ Philip C. Vitali
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Name: Phillip C. Vitali
Title: Executive Vice President and
Treasurer
(Chief Financial Officer)
Dated: January 22, 1997 By: /s/ David P. Morency
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Name: David P. Morency
Title: Controller
(Principal Accounting Officer)
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Exhibit 1.1
2,000,000 Shares
MGI PROPERTIES
Common Shares
(Par Value $1.00 per share)
UNDERWRITING AGREEMENT
January 22, 1997
ALEX. BROWN & SONS INCORPORATED
DAVENPORT & CO. OF VIRGINIA, INC.
SUTRO & CO. INCORPORATED
TUCKER ANTHONY INCORPORATED
c/o ALEX. BROWN & SONS INCORPORATED
One South Street
Baltimore, Maryland 21202
Ladies and Gentlemen:
MGI Properties, a trust formed under the laws of the Commonwealth of
Massachusetts (the "Trust"), proposes to sell to the several underwriters named
in Schedule I hereto (the "Underwriters") an aggregate of 2,000,000 of the
Trust's Common Shares, par value $1.00 per share (the "Firm Shares"). The
respective amounts of the Firm Shares to be so purchased by the several
Underwriters are set forth opposite their names in Schedule I hereto. The Trust
also proposes to sell at the Underwriters' option an aggregate of up to 300,000
additional Common Shares of the Trust (the "Option Shares") as set forth below.
As the Underwriters, you have advised the Trust (a) that you are authorized
to enter into this Agreement, and (b) that the several Underwriters are willing,
acting severally and not jointly, to purchase the numbers of Firm Shares set
forth opposite their respective names in Schedule I, plus their pro rata portion
of the Option Shares if you elect to exercise the over-allotment option in whole
or in part for the accounts of the several Underwriters. The Firm Shares and the
Option
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Shares (to the extent the aforementioned option is exercised) are herein
collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Trust.
(a) The Trust represents and warrants as follows:
A registration statement on Form S-3 (File No. 333-15245) with respect
to the Shares has been prepared by the Trust in conformity with the requirements
of the Securities Act of 1933, as amended (the "Act"), and the Rules and
Regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has been filed with the Commission
under the Act. The Trust has complied with the conditions for the use of Form
S-3. Copies of such registration statement, including any amendments thereto,
the preliminary prospectuses contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have heretofore been
delivered by the Trust to you. Such registration statement, herein referred to
as the "Registration Statement," has been declared effective by the Commission
under the Act and no post-effective amendment to the Registration Statement has
been filed as of the date of this Agreement. The form of prospectus first filed
by the Trust with the Commission pursuant to its Rule 424(b) is herein referred
to as the "Prospectus." Each preliminary prospectus included in the Registration
Statement prior to the time it becomes effective is herein referred to as a
"Preliminary Prospectus." Any reference herein to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein, as of the date of such
Registration Statement, Preliminary Prospectus or Prospectus, as the case may
be, and, in the case of any reference herein to any Prospectus, also shall be
deemed to include any documents incorporated by reference therein, and any
supplements or amendments relating to the Shares being issued and sold pursuant
hereto, filed with the Commission after the date of filing of the Prospectus
under Rules 424(b), and prior to the termination of the offering of the Shares
by the Underwriters.
(b) The Trust has been duly formed and is validly existing as a
business trust in good standing under the laws of the Commonwealth of
Massachusetts, with power and authority to own or lease its properties and
conduct its business as described in the Registration Statement. The Trust is
duly qualified to transact business and is in good standing in all jurisdictions
in which the conduct of its business requires such qualification, except to the
extent that the failure to be so qualified would not have a material adverse
effect on the Trust and the Subsidiaries, taken as a whole. Each of MGI Andover
Street, Inc., MGI 234 Ballardvale Street, Inc., MGI Beachwood Properties Corp.,
MGI 321 Billerica Road, Inc., MGI Crosby Drive, Inc., MGI Chelmsford Corp., MGI
Federal Street, Inc., MGI Five Federal Street, Inc., MGI 8 Forge Park, Inc., MGI
9 Forge Park, Inc., MGI 100 Griffin Brook Drive, Inc., MGI 300 Griffin Brook
Drive, Inc., MGI Holdings Inc., MGI One Park West, Inc., MGI Point West Corp.,
MGI 25 Porter Road,
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Inc., MGI One Portland Square, Inc., MGI Two Portland Square, Inc., Option
Parcel, Inc., MGI Research Drive Corp., MGI Rider Trail Corp., MGI Riverside
Drive, Inc., MGI One Tech Andover Corp., MGI Two Federal Street, Inc., MGI West
Port, Inc., MGI 450 Whitney Avenue, Inc., MGI Winthrop Associates, Inc., MGI Ten
Winthrop Square, Inc., Lumberland Corp., and MGI Harvard Street Corp. has been
duly organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of their incorporation with corporate power and
authority to own or lease their respective properties and conduct their
respective businesses as described in the Registration Statement. Each of the
foregoing subsidiaries of the Trust, together with MGI Andover Corp., MGI
Ballardvale Corp., MGI 33 Broad Street, MGI Forest Street Inc., MGI 15 Forge
Park, Inc., MGI 805 Middle Corp., MGI Tech Center Corp., MGI Yorkshire Holdings,
Inc. and Peabody Andover Corp. are hereafter referred to as the "Subsidiaries."
Each of the Subsidiaries is duly qualified to transact business in all
jurisdictions in which the conduct of its business requires such qualification,
except to the extent that the failure to be so qualified would not have a
material adverse effect on the Trust and the Subsidiaries, taken as a whole. The
outstanding shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and the
outstanding shares of capital stock of each of the Subsidiaries are owned by the
Trust free and clear of all liens, encumbrances and security interests, and no
options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into shares of capital stock
of the Subsidiaries are outstanding. Except for the Trust's ownership of stock
in its wholly owned subsidiaries, its 4% interest in a partnership owning
property in Washington, D.C. and investments in securities as described in the
Registration Statement, the Trust has no equity or other interest in, or right
to acquire, an equity or other interest in, any corporation, partnership, trust
or other entity.
(c) The outstanding Common Shares of the Trust have been duly
authorized and validly issued and are fully paid and non-assessable; the Shares
to be issued and sold by the Trust have been duly authorized and when issued and
paid for as contemplated herein will be validly issued, fully-paid and
non-assessable; and no preemptive rights of shareholders exist with respect to
any of the Shares or the issue and sale thereof.
(d) The Shares conform in all material respects with the statements
concerning them in the Registration Statement.
(e) The Commission has not issued an order preventing or suspending
the use of any Prospectus or Preliminary Prospectus relating to the proposed
offering of the Shares nor instituted proceedings for that purpose. The
Registration Statement contains and the Prospectus and any amendments or
supplements thereto will contain all statements which are required to be stated
therein by, and in all material respects conform or will so conform, as the case
may be, to the requirements of, the Act and the Rules and Regulations. The
documents incorporated by reference in the Prospectus, at the time they were
filed or will be filed with the Commission, in all material respects conformed
or will conform at the time of filing, in all material respects to the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") or
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the Act, as applicable, and the Rules and Regulations of the Commission
thereunder. Neither the Registration Statement nor any amendment thereto, and
neither the Prospectus nor any supplement thereto, including any documents
incorporated by reference therein as of the Closing Date (as hereinafter
defined), contains or will contain, as the case may be, any untrue statement of
a material fact or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Trust makes no representations or warranties as to information
contained in or omitted from the Registration Statement or the Prospectus, or
any such amendment or supplement, or any documents incorporated by reference
therein, in reliance upon, and in conformity with, written information furnished
to the Trust by or on behalf of any Underwriter, specifically for use in the
preparation thereof.
(f) The consolidated financial statements of the Trust and the
Subsidiaries, together with related notes and schedules as set forth or
incorporated by reference in the Registration Statement, present fairly in all
material repsects the consolidated financial position and the results of
operations of the Trust and the Subsidiaries at the indicated dates and for the
indicated periods. The financial statements with respect to the properties
acquired or to be acquired by the Trust, together with related notes and
schedules as set forth or incorporated by reference in the Registration
Statement, present fairly in all material respects the financial position and
the results of operations of such properties at the indicated dates and for the
indicated periods. Such financial statements have been prepared in all material
respects in accordance with generally accepted principles of accounting,
consistently applied throughout the periods involved, and all adjustments
necessary for a fair presentation of results for such periods have been made.
The summary financial and statistical data included or incorporated by reference
in the Registration Statement presents fairly in all material respects the
information shown therein and, to the extent based upon or derived from the
consolidated financial statements, have been compiled on a basis consistent with
the consolidated financial statements presented therein.
(g) There is no action or proceeding pending or, to the knowledge of
the Trust, threatened against the Trust before any court or administrative
agency or by any regulatory authority which might result in any material adverse
change in the business or condition of the Trust, except as set forth in the
Registration Statement.
(h) The Trust and the Subsidiaries have good and marketable title to
all of the properties and assets reflected in the financial statements (or as
described in the Registration Statement) hereinabove described, subject to no
lien, mortgage, pledge, charge or encumbrance of any kind except those reflected
in such financial statements (or as described in the Registration Statement) or
which are not material in amount.
(i) Each of the Trust and the Subsidiaries has filed all Federal,
State and foreign income tax returns which have been required to be filed and
have paid all taxes indicated
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by said returns and all assessments received by it to the extent that such taxes
have become due and are not being contested in good faith.
(j) Since the respective dates as of which information is given in the
Registration Statement, as it may be amended or supplemented, there has not been
any material adverse change or any development involving a prospective material
adverse change in or affecting the condition, financial or otherwise, of the
Trust or the earnings, business affairs, management, or business prospects of
the Trust, whether or not occurring in the ordinary course of business, and
there has not been any material transaction entered into by the Trust other than
transactions in the ordinary course of business and changes and transactions
contemplated by the Registration Statement, as it may be amended or
supplemented. The Trust has no material contingent obligations which are not
disclosed in the Registration Statement, as it may be amended or supplemented.
(k) Neither the Trust nor any of the Subsidiaries is, nor with the
giving of notice, lapse of time or both, will be in default under the respective
Declaration of Trust, as amended of the Trust or Articles of Organization, as
applicable, or the By-Laws, as amended, of the Trust or the Subsidiaries,
respectively, or any agreement, lease, contract, indenture or other instrument
or obligation to which they are a party or by which they or any of their
properties is bound and which default is, or after any required notice and
passage of any applicable grace period would be, of material significance in
respect of the business or financial condition of the Trust. The consummation of
the transactions herein contemplated and the fulfillment of the terms hereof
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Trust or any Subsidiary is a party,
or of the Declaration of Trust, as amended, or the By-Laws, as amended, of the
Trust or to the best of its knowledge, any order, rule or regulation applicable
to the Trust of any court or of any regulatory body or administrative agency or
other governmental body having jurisdiction.
(l) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Trust of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") or which may be necessary
to qualify the Shares for public offering by the Underwriters under State
securities or Blue Sky laws) has been obtained or made and is in full force and
effect.
(m) The Trust and each of the Subsidiaries holds all material
licenses, certificates and permits from governmental authorities which are
necessary to the conduct of its business; and neither the Trust nor any
Subsidiary has, to the best of its knowledge, infringed any patents, patent
rights, trade names, trademarks or copyrights, which infringement is material to
the business of the Trust.
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(n) To the Trust's knowledge, KPMG Peat Marwick LLP, who has certified
certain of the financial statements filed with the Commission as part of, or
incorporated by reference in, the Registration Statement, are independent public
accountants as required by the Act and the Rules and Regulations.
(o) The Trust is not now, and immediately after the sale of the Shares
under this Agreement will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(p) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim, the Trust has met
the requirements for qualification as a real estate investment trust under
Sections 856 through 860 of the Internal Revenue Code, as amended (the "Code"),
and the Trust's present and contemplated operations, assets and income continue
to meet such requirements.
(q) The Trust's Common Shares are listed on the New York Stock
Exchange (the "NYSE"), and the Shares of the Trust to be sold under this
Agreement have been approved for listing on the NYSE, upon official notice of
issuance.
2. Purchase, Sale and Delivery of the Firm Shares. On the basis of the
representations, warranties and covenants herein contained, and subject to the
conditions herein set forth, the Trust agrees to sell to the Underwriters and
each Underwriter agrees, severally and not jointly, to purchase, at a price of
$20.75 per share, the number of Firm Shares set forth opposite the name of each
Underwriter in Schedule I hereof, subject to adjustments in accordance with
Section 9 hereof.
Payment for the Firm Shares to be sold hereunder is to be made by wire
transfer in immediately available funds in accordance with the Trust's written
instructions against delivery of certificates therefor to the Underwriters for
the several accounts of the Underwriters at the offices of Alex. Brown & Sons
Incorporated, One South Street, Baltimore, Maryland 21202, at 10:00 A.M., New
York City time, on the third business day after the date of this Agreement or at
such other time and date not later than five business days thereafter as you and
the Trust shall agree upon, such time and date being herein referred to as the
"Closing Date." (As used herein, "business day" means a day on which the New
York Stock Exchange is open for trading and on which banks in New York are open
for business and are not permitted by law or executive order to be closed.) The
certificates for the Firm Shares will be delivered in such denominations and in
such registrations as the Underwriters request in writing not later than the
second full business day prior to the Closing Date, and will be made available
for inspection by the Underwriters at least one business day prior to the
Closing Date.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
hereby grants an option to the several Underwriters to purchase the Option
Shares at the price per share as set forth in the first
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paragraph of this Section 2. The option granted hereby may be exercised in whole
or in part but only once and at any time upon written notice given within 30
days after the date of this Agreement, by you to the Trust setting forth the
number of Option Shares as to which the several Underwriters are exercising the
option, the names and denominations in which the Option Shares are to be
registered and the time and date at which such certificates are to be delivered.
The time and date at which certificates for Option Shares are to be delivered
shall be determined by the Underwriters but shall not be earlier than three nor
later than 10 full business days after the exercise of such option, nor in any
event prior to the Closing Date (such time and date being herein referred to as
the "Option Closing Date"). If the date of exercise of the option is three or
more days before the Closing Date, the notice of exercise shall set the Closing
Date as the Option Closing Date. The number of Option Shares to be purchased by
each Underwriter shall be in the same proportion to the total number of Option
Shares being purchased as the number of Firm Shares being purchased by such
Underwriter bears to the total number of Firm Shares, adjusted by you in such
manner as to avoid fractional shares. The option with respect to the Option
Shares granted hereunder may be exercised only to cover over-allotments in the
sale of the Firm Shares by the Underwriters. You may cancel such option at any
time prior to its expiration by giving written notice of such cancellation to
the Trust. To the extent, if any, that the option is exercised, payment for the
Option Shares shall be made on the Option Closing Date in New York Clearing
House funds by certified or bank cashier's check drawn to the order of the Trust
against delivery of certificates therefor at the offices of Alex. Brown & Sons
Incorporated, One South Street, Baltimore, Maryland 21202.
3. Offering by the Underwriters. It is understood that the several
Underwriters are to make a public offering of the Firm Shares as soon as the
Underwriters deem it advisable to do so. The Firm Shares are to be initially
offered to the public at the initial public offering price set forth in the
Prospectus. The Underwriters may from time to time thereafter change the public
offering price and other selling terms. To the extent, if at all, that any
Option Shares are purchased pursuant to Section 2 hereof, the Underwriters will
offer them to the public on the foregoing terms.
It is further understood that you will act as the Underwriters in the
offering and sale of the Shares in accordance with a Master Agreement Among
Underwriters entered into by you and the several other Underwriters.
4. Covenants of the Trust. The Trust covenants and agrees with the several
Underwriters that:
(a) The Trust will (i) prepare and timely file with the Commission
under Rule 424(b) of the Rules and Regulations a Prospectus containing
information previously omitted at the time of effectiveness of the Registration
Statement in reliance on Rule 430A of the Rules and Regulations, (ii) not file
any amendment to the Registration Statement or supplement to the Prospectus or
document incorporated by reference therein of which the Underwriters shall not
previously have been advised and furnished with a copy or to which the
Underwriters shall have
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reasonably objected in writing or which is not in compliance with the Rules and
Regulations and (iii) file on a timely basis all reports and any definitive
proxy or information statements required to be filed by the Trust with the
Commission subsequent to the date of the Prospectus and prior to the termination
of the offering of the Shares by the Underwriters.
(b) The Trust will advise the Underwriters promptly of any request of
the Commission for amendment of the Registration Statement or for supplement to
the Prospectus or for any additional information, or of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus or of the institution of any proceedings
for that purpose, and the Trust will use its best efforts to prevent the
issuance of any such stop order preventing or suspending the use of the
Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(c) The Trust will cooperate with the Underwriters in endeavoring to
qualify the Shares for sale under the securities laws of such jurisdictions as
the Underwriters may reasonably have designated in writing and will make such
applications, file such documents, and furnish such information as may be
reasonably required for that purpose, provided the Trust shall not be required
to qualify as a foreign trust or to file a general consent to service of process
or subject itself to taxation in any jurisdiction where it is not now so
qualified or required to file such a consent or so subject to taxation. The
Trust will, from time to time, prepare and file such statements, reports, and
other documents, as are or may be required to continue such qualifications in
effect for so long a period as the Underwriters may reasonably request for
distribution of the Shares.
(d) The Trust will take all necessary action and file all necessary
documents with the appropriate authorities to ensure that each of MGI Andover
Corp., MGI Ballardvale Corp., MGI 33 Broad Street, MGI Forest Street, Inc., MGI
15 Forge Park, Inc., MGI 805 Middle Corp., MGI Tech Center Corp., MGI Yorkshire
Holdings, Inc. and Peabody Andover Corp. is validly existing as a corporation in
good standing under the laws of the jurisdiction of its organization, prior to
the Closing Date, or as soon thereafter as possible.
(e) The Trust will deliver to, or upon the order of, the Underwriters,
from time to time, as many copies of any Preliminary Prospectus as the
Underwriters may reasonably request. The Trust will deliver to, or upon the
order of, the Underwriters during the period when delivery of a Prospectus is
required under the Act, as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Underwriters may reasonably request.
The Trust will deliver to the Underwriters at or before the Closing Date, one
xerox copy of a signed copy and four conformed copies of the Registration
Statement and all amendments thereto including all exhibits filed therewith, and
will deliver to the Underwriters such number of copies of the Registration
Statement, including documents incorporated by reference therein, but without
exhibits, and of all amendments thereto, as the Underwriters may reasonably
request.
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(f) If during the period in which a prospectus is required by law to
be delivered by an Underwriter or dealer any event shall occur as a result of
which, in the judgment of the Trust or in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, not misleading, or, if
it is necessary at any time to amend or supplement the Prospectus to comply with
any law, the Trust promptly will either (i) prepare and file with the Commission
an appropriate amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an appropriate filing
under the Exchange Act which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented will not, in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with law.
(g) The Trust will make generally available to its security holders,
as soon as it is practicable to do so, but in any event not later than 15 months
after the effective date of the Registration Statement, an earning statement
(which need not be audited) in reasonable detail, covering a period of at least
12 consecutive months beginning after the effective date of the Registration
Statement, which earning statement shall satisfy the requirements of Section
11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you
in writing when such statement has been so made available.
(h) The Trust will, for a period of five years from the Closing Date,
deliver to the Underwriters copies of annual reports and copies of all other
documents, reports and information furnished by the Trust to its shareholders or
filed with any securities exchange pursuant to the requirements of such exchange
or with the Commission pursuant to the Act or the Exchange Act.
(i) No offering, sale or other disposition of any Common Shares of the
Trust will be made for a period of 90 days after the date of this Agreement,
directly or indirectly, by the Trust otherwise than hereunder or with the prior
written consent of the Underwriters except that the Trust may, without such
consent, issue shares upon the exercise of options outstanding on the date of
this Agreement issued pursuant to the Trust's stock option plans, issued as
consideration for future acquisitions or issued pursuant to the Trust's dividend
reinvestment plan.
5. Costs and Expenses. The Trust will pay all costs, expenses and fees
incident to the performance of the obligations of the Trust under this
Agreement, including, without limiting the generality of the foregoing, the
following: accounting fees of the Trust; the fees and disbursements of counsel
for the Trust; the cost of printing and delivering to, or as requested by, the
Underwriters copies of the Registration Statement, Preliminary Prospectuses, the
Prospectus, this Agreement, the Agreement Among Underwriters, the Underwriters'
Selling Memorandum, the Underwriters' Questionnaire, the Invitation Letter, the
Blue Sky Survey and any supplements or amendments thereto; the filing fees of
the Commission; the filing fees and expenses incident to securing any required
review by the NASD of the terms of the sale of the Shares; the fees and
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expenses incurred with respect to the listing of the Shares on the NYSE; and the
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters, incurred in connection with the qualification of the Shares under
State securities or Blue Sky laws. The Trust shall not, however, be required to
pay for any of the Underwriters' expenses (other than those related to
qualification under State securities or Blue Sky laws) except that, if this
Agreement shall not be consummated because the conditions in Section 7 hereof
are not satisfied, or because this Agreement is terminated by the Underwriters
pursuant to Section 6 hereof (other than a termination as a result of a failure
to satisfy the condition set forth in Section 6(e) hereof), or by reason of any
failure, refusal or inability on the part of the Trust to perform any
undertaking or satisfy any condition of this Agreement or to comply with any of
the terms hereof on its part to be performed, unless such failure to satisfy
said condition or to comply with said terms be due to the default or omission of
any Underwriter, then the Trust shall reimburse the several Underwriters for
reasonable out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred in connection with investigating, marketing and proposing to
market the Shares or in contemplation of performing their obligations hereunder;
but the Trust shall not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits from the sale
by them of the Shares.
6. Conditions of Obligations of the Underwriters. The several obligations
of the Underwriters to purchase the Firm Shares on the Closing Date and the
Option Shares, if any, on the Option Closing Date are subject to the accuracy,
as of the Closing Date or the Option Closing Date, as the case may be, of the
representations and warranties of the Trust contained herein, and to the
performance by the Trust of its covenants and obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been taken or, to the knowledge of the
Trust, shall be contemplated by the Commission.
(b) The Underwriters shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Olshan Grundman Frome &
Rosenzweig LLP, counsel for the Trust, dated the Closing Date or the Option
Closing Date, as the case may be, addressed to the Underwriters to the effect
that:
(i) The Trust has been duly formed and is validly existing as a
business trust in good standing under the laws of the Commonwealth of
Massachusetts, with power and authority to own its properties and
conduct its business as described in the Prospectus; each of the
Subsidiaries has been duly organized and, with the exception of MGI
Andover Corp., MGI Ballardvale Corp., MGI 33 Broad Street, MGI Forest
Street, Inc., MGI 15 Forge Park, Inc., MGI 805 Middle Corp., MGI Tech
Center Corp., MGI Yorkshire Holdings, Inc., MGI 100 Griffin Brook
Drive, Inc., MGI 300 Griffin Brook Drive, Inc., MGI 8 Forge Park, Inc.
and Peabody Andover Corp., is validly existing as a corporation in
good standing under the laws
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of the jurisdiction of its organization; each of the Subsidiaries has
the power and authority to own its properties and conduct its business
as currently conducted; the Trust and each of the Subsidiaries are
duly qualified to transact business in all jurisdictions in which the
conduct of its business requires such qualification, or in which the
failure to qualify would have a materially adverse effect upon the
business of the Trust and the Subsidiaries taken as a whole; the
outstanding shares of capital stock of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and
nonassessable; and the outstanding shares of capital stock of each of
the Subsidiaries are owned by the Trust free and clear of all liens,
encumbrances and security interests, and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into shares of capital stock of the
Subsidiaries are outstanding.
(ii) The Trust has authorized and outstanding shares as set forth
under the caption "Capitalization" in the Prospectus; the authorized
Common Shares have been duly authorized; the outstanding Common Shares
have been duly authorized and validly issued and are fully paid and
non-assessable; all of the Shares conform in all material respects to
the description thereof contained in the Prospectus; and the
certificates for the Shares are in due and proper form.
(iii) The Common Shares, including the Option Shares, if any, to
be sold by the Trust pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and non-assessable
when issued and paid for as contemplated by this Agreement; and no
preemptive rights of shareholders exist with respect to any of the
Shares or the issue and sale thereof.
(iv) The Registration Statement has become effective under the
Act and, to the best of the knowledge of such counsel, no stop order
proceedings with respect thereto have been instituted or are pending
or threatened under the Act.
(v) The Registration Statement, all Preliminary Prospectuses, the
Prospectus and each amendment or supplement thereto and document
incorporated by reference therein comply as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable and the applicable rules and regulations thereunder (except
that such counsel need express no opinion as to the financial
statements, schedules and other financial information or statistical
data included or incorporated by reference therein).
(vi) The statements under the captions "Description of Capital
Stock," "Legal Matters" and "Taxation" in the Prospectus, insofar as
such statements constitute a summary of documents referred to therein
or matters of law, are accurate summaries and fairly and correctly
present in all material respects the information called for with
respect to such documents and matters.
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<PAGE>
(vii) 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 which 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.
(viii) Such counsel knows of no material legal proceedings or
regulatory or other claims pending or threatened against the Trust
except as set forth in the Prospectus.
(ix) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, the Declaration of
Trust, as amended, or By-Laws of the Trust, or any material agreement
or instrument known to such counsel to which the Trust is a party or
by which the Trust may be bound.
(x) This Agreement has been duly authorized, executed and
delivered by the Trust.
(xi) 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 execution
and delivery of this Agreement and the consummation of the
transactions herein contemplated (other than as may be required by the
NASD or as required by State securities and Blue Sky laws as to which
such counsel need express no opinion) except such as have been
obtained or made, specifying the same.
(xii) The Trust is not, and will not become as a result of the
consummation of the transactions contemplated by this Agreement, an
"investment company" within the meaning of the Investment Trust Act of
1940, as amended.
(xiii) The Trust was organized in conformity with the
requirements for qualification of the Trust as a real estate
investment trust under the Code, and the proposed method of operation
of the Trust will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the Code. The
provisions of Section 269B(a)(3) of the Code do not apply to the
Trust.
(xiv) The Trust has met the requirements for qualification and
taxation as a real estate investment trust ("REIT") with respect to
all tax periods regarding which the Internal Revenue Service is or
will be entitled to assert any claim.
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In rendering such opinion, Olshan Grundman Frome & Rosenzweig LLP may rely
as to matters governed by the laws of states other than New York or Federal laws
on local counsel in such jurisdictions provided that in each case Olshan
Grundman Frome & Rosenzweig LLP shall state that they believe that they and the
Underwriters are justified in relying on such other counsel and such other
counsel's opinion is also addressed to the Underwriters. In rendering such
opinion, Olshan Grundman Frome & Rosenzweig LLP may also rely as to any facts
material to the opinions expressed therein which Olshan Grundman Frome &
Rosenzweig LLP has not independently established or verified, upon statements
and representations of officers and other Underwriters of the Trust and others.
In addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such counsel
which leads them to believe that the Registration Statement, as of the time it
became effective under the Act, the Prospectus or any amendment or supplement
thereto, on the date it was filed pursuant to Rule 424(b) or any of the
documents incorporated by reference therein, as of the date of effectiveness of
the Registration Statement or, in the case of documents incorporated by
reference in the Prospectus after the date of effectiveness of the Registration
Statement, as of the respective dates when such documents were filed with the
Commission and the Registration Statement and the Prospectus, or any amendment
or supplement thereto, as of the Closing Date or the Option Closing Date, as the
case may be, 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 (except that such counsel need express no view as to
financial statements, schedules and other financial information or statistical
data included or incorporated by reference therein). With respect to such
statement, Olshan Grundman Frome & Rosenzweig LLP may state that their belief is
based upon the procedures set forth therein, but is without independent check
and verification.
(c) The Underwriters shall have received from Piper & Marbury L.L.P.,
counsel for the Underwriters, an opinion dated the Closing Date or the Option
Closing Date, as the case may be, substantially to the effect specified in
subparagraphs (iii), (iv), (v) and (x) of Paragraph (b) of this Section 6, and
that the Trust is a validly formed and existing trust under the laws of the
Commonwealth of Massachusetts. In rendering such opinion Piper & Marbury L.L.P.
may rely as to all matters governed other than by the laws of the State of
Maryland or Federal laws on the opinion of counsel referred to in paragraph (b)
of this Section 6. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that nothing has come to the
attention of such counsel which leads them to believe that the Registration
Statement, as of the time it became effective under the Act, and the Prospectus
or any amendment or supplement thereto, on the date it was filed pursuant to
Rule 424(b) or any of the documents incorporated by reference therein, as of the
date of effectiveness of the Registration Statement or, in the case of documents
incorporated by reference in the Prospectus after the date of effectiveness of
the Registration Statement, as of the respective dates when such documents were
filed with the Commission and the Registration Statement and the Prospectus, or
any amendment or supplement thereto, as of the Closing Date or the Option
Closing Date, as the case may be, contain an untrue statement of a material fact
or omit to state a material fact required to be stated
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<PAGE>
therein or necessary to make the statements therein not misleading (except that
such counsel need express no view as to financial statements, schedules and
other financial information or statistical data included or incorporated by
reference therein). With respect to such statement, Piper & Marbury L.L.P. may
state that their belief is based upon the procedures set forth therein, but is
without independent check and verification.
(d) The Underwriters shall have received at or prior to the Closing
Date from Piper & Marbury L.L.P. a memorandum or summary, in form and substance
satisfactory to the Underwriters, with respect to the qualification for offering
and sale by the Underwriters of the Shares under the State securities or Blue
Sky laws of such jurisdictions as the Underwriters may reasonably have
designated to the Trust.
(e) The Underwriters shall have received on the Closing Date or the
Option Closing Date, as the case may be, a signed letter from KPMG Peat Marwick
LLP, dated the Closing Date or the Option Closing Date, as the case may be,
which shall confirm, on the basis of a review in accordance with the procedures
set forth in the letter signed by such firm and dated and delivered to the
Underwriters on the date hereof that nothing has come to their attention during
the period from the date five days prior to the date hereof, to a date not more
than five days prior to the Closing Date or the Option Closing Date, as the case
may be, which would require any change in their letter dated the date hereof if
it were required to be dated and delivered on the Closing Date or the Option
Closing Date, as the case may be. All such letters shall be in form and
substance reasonably satisfactory to the Underwriters.
(f) The Underwriters shall have received on the Closing Date or the
Option Closing Date, as the case may be, a certificate or certificates of the
Chief Executive Officer and the Chief Financial Officer of the Trust to the
effect that, as of the Closing Date or the Option Closing Date, as the case may
be, each of them severally represents as follows:
(i) The Registration Statement has become effective under the Act
and no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have
been taken or are, to his knowledge, contemplated by the Commission.
(ii) He or she does not know of any litigation instituted or
threatened against the Trust or the Subsidiaries of a character
required to be disclosed in the Registration Statement which is not so
disclosed; he does not know of any material contract required to be
filed as an exhibit to the Registration Statement which is not so
filed; and the representations and warranties of the Trust and the
Subsidiaries contained in Section 1 hereof are true and correct in all
material respects as of the Closing Date or the Option Closing Date,
as the case may be.
(iii) He or she has carefully examined the Registration Statement
and the Prospectus and, in his opinion, as of the effective date of
the Registration Statement,
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the statements contained in the Registration Statement, including any
document incorporated by reference therein, were true and correct in
all material respects, and such Registration Statement and Prospectus
or any document incorporated by reference therein did not omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading and, in his
opinion, since the effective date of the Registration Statement, no
event has occurred which should have been set forth in a supplement to
or an amendment of the Prospectus which has not been so set forth in
such supplement or amendment.
(g) The Trust shall have furnished to the Underwriters such further
certificates and documents confirming the representations and warranties
contained herein and related matters as the Underwriters may reasonably have
requested.
(h) The Firm Shares, and Option Shares, if any, have been approved for
listing upon official notice of issuance on the NYSE.
(i) The Underwriters shall have received from each officer and trustee
of the Trust a letter or letters, in form and substance satisfactory to the
Underwriters, pursuant to which such person shall agree not to offer, sell, sell
short or otherwise dispose of any Common Shares of the Trust or other capital
stock of the Trust, or any other securities convertible, exchangeable or
exercisable for Common Shares or derivative of Common Shares owned by such
person (or as to which such person has the right to direct the disposition of)
for a period of 90 days after the date of this Agreement, except with the prior
written consent of the Underwriters.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects reasonably satisfactory to the Underwriters and to Piper & Marbury
L.L.P., counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Underwriters by notifying the Trust of such termination in writing or by
telegram at or prior to the Closing Date or the Option Closing Date, as the case
may be.
In such event, the Trust and the Underwriters shall not be under any
obligation to each other (except to the extent provided in Sections 5 and 8
hereof).
7. Conditions of the Obligations of the Trust. The obligations of the Trust
to sell and deliver the portion of the Shares required to be delivered as and
when specified in this Agreement are subject to the conditions that at the
Closing Date or the Option Closing Date, as the case may be, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and in effect or proceedings therefor initiated or threatened.
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<PAGE>
8. Indemnification
(a) The Trust agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of the
Act against any losses, claims, damages or liabilities to which such Underwriter
or such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter and each such controlling person for any legal
or other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability, action or proceeding; provided, however, that the Trust will
not be liable in any such case to the extent that (i) any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made or incorporated
by reference in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Trust by or through the Underwriters
specifically for use in the preparation thereof; or (ii) such statement or
omission was contained or made in any Preliminary Prospectus and corrected in
the Prospectus and (a) any such loss, claim, damage or liability suffered or
incurred by any Underwriter (or any person who controls any Underwriter)
resulted from an action, claim or suit by any person who purchased Shares which
are the subject thereof from such Underwriter in the offering and (b) such
Underwriter failed to deliver or provide a copy of the Prospectus to such person
at or prior to the confirmation of the sale of such Shares in any case where
such delivery is required by the Act. This indemnity agreement will be in
addition to any liability which the Trust may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Trust, each
of its trustees, each of its officers who have signed the Registration Statement
and each person, if any, who controls the Trust within the meaning of the Act,
against any losses, claims, damages or liabilities to which the Trust or any
such trustee, officer, or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made; and will reimburse any legal or other expenses reasonably incurred by the
Trust or any such trustee, officer, or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that each Underwriter will be liable
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in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Trust by or through the Underwriters specifically
for use in the preparation thereof. This indemnity agreement will be in addition
to any liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 8, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in Section
8(a) or (b) shall be available to any party who shall fail to give notice as
provided in this Section 8(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
prejudiced by the failure to give such notice, but the failure to give such
notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or otherwise
than on account of the provisions of Section 8(a) or (b). In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred the fees and expenses of the counsel
retained by the indemnified party in the event (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by you in the case of parties
indemnified pursuant to Section 8(a) and by the Trust in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable
by such
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indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Trust on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under Section 8(c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Trust on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Trust on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Trust bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Trust on the one hand or
the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Trust and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above in
this Section 8(d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), (i) no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts and commissions applicable to the Shares
purchased by such Underwriter and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 8(d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
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9. Default by Underwriters. If on the Closing Date or the Option Closing
Date, as the case may be, any Underwriter shall fail to purchase and pay for the
portion of the Shares which such Underwriter has agreed to purchase and pay for
on such date (otherwise than by reason of any default on the part of the Trust),
you shall use your best efforts to procure within 24 hours thereafter one or
more of the other Underwriters, or any others, to purchase from the Trust such
amounts as may be agreed upon and upon the terms set forth herein, the Firm
Shares or Option Shares, as the case may be, which the defaulting Underwriter or
Underwriters failed to purchase. If during such 24 hours you shall not have
procured such other Underwriters, or any others, to purchase the Firm Shares or
Option Shares, as the case may be, agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate number of shares with
respect to which such default shall occur does not exceed 10% of the Firm Shares
or Option Shares, as the case may be, covered hereby, the other Underwriters
shall be obligated, severally, in proportion to the respective numbers of Firm
Shares or Option Shares, as the case may be, which they are obligated to
purchase hereunder, to purchase the Firm Shares or Option Shares, as the case
may be, which such defaulting Underwriter or Underwriters failed to purchase, or
(b) if the aggregate number of shares of Firm Shares or Option Shares, as the
case may be, with respect to which such default shall occur exceeds 10% of the
Firm Shares or Option Shares, as the case may be, covered hereby, the Trust or
you will have the right, by written notice given within the next 24-hour period
to the parties to this Agreement, to terminate this Agreement without liability
on the part of the non-defaulting Underwriters or of the Trust except to the
extent provided in Section 8 hereof. In the event of a default by any
Underwriter or Underwriters, as set forth in this Section 9, the Closing Date or
Option Closing Date, as the case may be, may be postponed for such period, not
exceeding seven days, as you may determine in order that the required changes in
the Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section 9
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. Notices. All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered or telegraphed and
confirmed as follows: if to the Underwriters, to Alex. Brown & Sons
Incorporated, One South Street, Baltimore, Maryland 21202, Attention: William G.
Byrnes, Managing Director; if to the Trust, to MGI Properties, Attention: W.
Pearce Coues, Chairman of the Board and Chief Executive Officer.
11. Termination. This Agreement may be terminated by you by notice to the
Trust as follows:
(a) at any time prior to the earlier of (i) the time the Shares are
released by you for sale by notice to the Underwriters, or (ii) 11:00 A.M. on
the business day of this Agreement;
(b) at any time after the date hereof if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in or
affecting the condition, financial or otherwise, of
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the Trust or the earnings, business, management or business prospects of the
Trust, whether or not arising in the ordinary course of business, (ii) any
outbreak or escalation of hostilities or declaration of war or national
emergency after the date hereof or other national or international calamity or
crisis or change in economic or political conditions if the effect of such
outbreak, escalation, declaration, emergency, calamity, crisis or change on the
financial markets of the United States would, in your reasonable judgment, make
the offering or delivery of the Shares impracticable, (iii) trading in
securities on the NYSE or the American Stock Exchange shall have been suspended
or materially limited (other than limitations on hours or numbers of days of
trading) or minimum prices shall have been established for securities on either
such Exchange, (iv) the enactment, publication, decree or other promulgation of
any federal or state statute, regulation, rule or order of any court or other
governmental authority which in your reasonable opinion materially and adversely
affects or will materially or adversely affect the business or operations of the
Trust, (v) declaration of a banking moratorium by either federal or New York
State authorities, (vi) the suspension of trading of the Trust's Common Shares
by the NYSE; (vii) the taking of any action by any governmental body or agency
in respect of its monetary or fiscal affairs which in your reasonable opinion
has a material adverse effect on the securities markets in the United States or
elsewhere, or (viii) any litigation or proceeding is pending or threatened
against the Underwriters which seeks to enjoin or otherwise restrain, or seeks
damages in connection with, or questions the legality or validity of this
Agreement or the transactions contemplated hereby; or
(c) as provided in Sections 6 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the Trust, as to
any obligation of the Underwriters to purchase the Option Shares, upon the
occurrence at any time prior to the Option Closing Date of any of the events
described in subparagraph (b) above or as provided in Sections 6 and 9 of this
Agreement.
12. Successors. This Agreement has been and is made solely for the benefit
of the Underwriters and the Trust and their respective successors, executors,
administrators, heirs and assigns, and the officers, , trustees, directors and
controlling persons referred to herein, and no other person will have any right
or obligation hereunder. The term "successors" shall not include any purchaser
of the Shares merely because of such purchase.
13. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Trust or its trustees or officers and (c) delivery of and payment for the
Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
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This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Maryland.
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Trust and the several
Underwriters in accordance with its terms.
Very truly yours,
[remainder of page intentionally left blank]
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MGI PROPERTIES
By /s/ W. Pearce Coues
------------------------------------
W. Pearce Coues
Chairman and Chief Executive Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
ALEX. BROWN & SONS INCORPORATED
DAVENPORT & CO. OF VIRGINIA, INC.
SUTRO & CO. INCORPORATED
TUCKER ANTHONY INCORPORATED
By ALEX. BROWN & SONS INCORPORATED
By /s/ William G. Byrnes
------------------------------
William G. Byrnes
Managing Director
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SCHEDULE I
Schedule of Underwriters
Number of Firm Shares
Underwriter to be Purchased
----------- ---------------------
Alex. Brown & Sons Incorporated 500,000
Davenport & Co. of Virginia, Inc. 500,000
Sutro & Co. Incorporated 500,000
Tucker Anthony Incorporated 500,000
---------
Total 2,000,000
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