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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
October 7, 1994
MEDITRUST
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(Exact name of registrant as specified in charter)
Massachusetts 0-14022 04-6532031
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(State of (Commission (I.R.S. Employer
Incorporation) File No.) Identification No.)
197 First Avenue, Needham, Massachusetts 02194
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(617) 433-6000
This document consists of 32 pages. The exhibit index is located on page two.
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Item 7. FINANCIAL STATEMENTS AND EXHIBITS
<TABLE>
(c) Exhibits
<CAPTION>
Exhibit No. Description Page
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<S> <C> <C>
1 Form of Underwriting Agreement 3
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MEDITRUST
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October 7, 1994 /s/ Michael S. Benjamin
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Michael S. Benjamin
Senior Vice President
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EXHIBIT 1
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MEDITRUST
____________ SHARES OF BENEFICIAL INTEREST
UNDERWRITING AGREEMENT
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October __, 1994
NATWEST SECURITIES LIMITED
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
As Representatives
of the Several Underwriters,
c/o NatWest Securities Limited
135 Bishopsgate
London EC2M 3XT, ENGLAND
Dear Sirs:
Meditrust, a Massachusetts business trust (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule 1 hereto (the
"Underwriters"), for whom you have been duly authorized to act as
representatives (in such capacities, the "Representatives"), an aggregate of
_________ shares (the "Firm Securities") of the Company's Shares of Beneficial
Interest, no par value per share (the "Shares"). The Company has also agreed
to grant to you and the other Underwriters an option (the "Option"), subject to
the terms and conditions hereof, to purchase up to an additional _______ Shares
(the "Option Securities"). The Firm Securities and any Option Securities are
collectively referred to herein as the "Securities." The Company hereby
confirms its agreements with the Representatives and the several other
Underwriters, as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be the
Underwriters.
1. AGREEMENTS TO SELL AND PURCHASE. (a) The Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company,
upon the basis of the representations, warranties, agreements and covenants
herein contained and subject
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to the terms and conditions herein set forth, and at a purchase price of $_____
per share, the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule 1 hereto. The Company shall deliver, or cause to be
delivered, to the Representatives for the respective accounts of the
Underwriters, one or more certificates in definitive form for the Firm
Securities that the several Underwriters have agreed to purchase hereunder, and
in such denomination or denominations and registered in such name or names as
the Representatives request upon notice to the Company at least 48 hours prior
to the Firm Closing Date (as hereinafter defined), against payment by or on
behalf of the Underwriters of the purchase price therefor by certified or
official bank check or checks drawn upon or by a New York Clearing House bank
and payable in next-day funds to the order of the Company in the case of the
Firm Securities sold by it. Such delivery of and payment for the Firm
Securities shall be made at the offices of Stroock & Stroock & Lavan, 7 Hanover
Square, New York, New York 10004 at 9:30 A.M., New York time, on __________,
1994, or at such other place, time or date as the Representatives and the
Company may agree upon or as the Representatives may determine pursuant to
Section 8 hereof, such time and date of delivery against payment being herein
referred to as the "Firm Closing Date". The Company will make such certificate
or certificates for the Firm Securities available for checking and packaging by
the Representatives at the offices in New York, New York of the Company's
transfer agent or registrar at least 24 hours prior to the Firm Closing Date.
(b) Solely for the purpose of covering any
over-allotments in connection with the distribution and sale of the Firm
Securities as contemplated by the Prospectus (as hereinafter defined), the
Company hereby grants to the several Underwriters an option to purchase,
severally and not jointly, the Option Securities. The purchase price to be
paid for any Option Securities shall be the same price per share as the price
per share for the Firm Securities set forth above in paragraph (a) of this
Section 1. The option granted hereby may be exercised as to all or any part of
the Option Securities from time to time within thirty days after the date of
the Prospectus. The Underwriters shall not be under any obligation to purchase
any of the Option Securities prior to any exercise of such option. The
Representatives may from time to time exercise the option granted hereby by
giving notice in writing or by telephone (confirmed in writing) to the Company
setting forth the aggregate amount of Option Securities as to which the several
Underwriters are then exercising the option and the date and time for delivery
of and payment for such Option Securities. Any such date of delivery shall be
determined by the Representatives but shall not be earlier than two business
days or later than seven business days after such exercise of the option and,
in any event, shall not be earlier than the Firm Closing Date. The time and
date set
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forth in such notice, or such other time on such other date as the
Representatives and the Company may agree upon or as the Representatives may
determine pursuant to Section 8 hereof, is herein called the "Option Closing
Date" with respect to such Option Securities. Upon exercise of the option as
provided herein, the Company shall become obligated to sell to each of the
several Underwriters, and, subject to the terms and conditions herein set
forth, each of the Underwriters (severally and not jointly) shall become
obligated to purchase from the Company the same percentage of the total number
of the Option Securities as to which the several Underwriters are then
exercising the option as such Underwriter is obligated to purchase of the
aggregate number of Firm Securities, as adjusted by the Representatives in such
manner as they deem advisable to avoid fractional Shares. If the option is
exercised as to all or any portion of the Option Securities, one or more
certificates in definitive form for such Option Securities, and payment
therefor, shall be delivered on the related Option Closing Date in the manner,
and upon the terms and conditions, set forth in paragraph (a) of this Section
1, except that reference therein to the Firm Securities and the Firm Closing
Date shall be deemed, for purposes of this paragraph (b), to refer to such
Option Securities and Option Closing Date, respectively.
(c) It is understood that any of you, individually and
not as one of the Representatives, may (but shall not be obligated to) make
payment on behalf of any Underwriter or Underwriters for any of the Securities
to be purchased by such Underwriter or Underwriters. No such payment shall
relieve such Underwriter or Underwriters from any of its or their obligations
hereunder.
2. REPRESENTATIONS AND WARRANTIES. (a) The Company
represents and warrants to, and agrees with, each of the several Underwriters
that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a "shelf" registration statement on Form
S-3 (File No. 33-50835), which has become effective, relating to
Shares and certain convertible subordinated debentures. The Company
will promptly file with the Commission a supplement to the form of
prospectus included in such registration statement specifically
relating to the Securities pursuant to Rule 424 under the Securities
Act of 1933, as amended (the "Act"). Such registration statement, as
amended at the date hereof, meets the requirements of Rule 415 under
the Act. As used in this Agreement, the term "Registration Statement"
means such registration statement as amended at the date hereof,
including exhibits, financial statements, schedules and documents
incorporated by reference therein. The term
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"Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement specifically relating to the Securities as filed with the
Commission pursuant to such Rule 424. Any reference herein to the Registration
Statement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein as of the date hereof or the date
of the Prospectus, as the case may be, and any reference herein to any
amendment or supplement to the Registration Statement or the Prospectus shall
be deemed to refer to and include any documents filed after such date and
through the date of such amendment or supplement under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and so incorporated by reference.
For purposes of the preceding sentence, any reference to the "effective date"
of an amendment to a registration statement shall, if such amendment is
effected by means of the filing with the Commission under the Exchange Act of a
document incorporated by reference in such registration statement, be deemed to
refer to the date on which such document was so filed with the Commission.
(ii) When the Registration Statement or any amendment thereto was
declared effective, as of the date hereof, and at the time any
amendment to the Registration Statement filed after the date hereof
becomes effective (including the filing of any document incorporated
by reference in the Registration Statement), the Registration
Statement (i) met, meets and will meet, as the case may be, the
requirements set forth in Rule 415(a)(1) under the Act and complied,
complies and will comply, as the case may be, in all material respects
with said Rule, (ii) contained, contains and will contain, as the case
may be, all statements required to be stated therein in accordance
with, and complied in all material respects with the requirements of,
the Act, the Exchange Act and the respective rules and regulations of
the Commission thereunder and (iii) did not, does not and will not, as
the case may be, include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein not misleading. As of the date hereof, and when the
Prospectus is filed with the Commission pursuant to Rule 424(b), on
the date when the Prospectus is otherwise supplemented and on the Firm
Closing Date and any Option Closing Date, the Prospectus (as
supplemented as of any such time), (i) contains and will contain, as
the case may be, all statements required to be stated therein in
accordance with, and complies and will comply in all material respects
with the requirements of, the Act, the Exchange Act and the respective
rules and regulations of the Commission thereunder and (ii) does not
and will not, as the case may
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be, include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. The foregoing provisions of this paragraph (b) do not
apply to statements or omissions made in the Prospectus or the
Registration Statement or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives
specifically for use therein.
(iii) The Company is a Massachusetts business trust in good standing
under the laws of the Commonwealth of Massachusetts. Each of the
subsidiaries of the Company (the "Subsidiaries") has been duly
organized and is validly existing in good standing under the laws of
its jurisdiction of organization; and each of the Company and its
Subsidiaries is duly qualified to transact business as a foreign
organization and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not result in a material liability or
disability to the Company and its Subsidiaries, taken as a whole.
(iv) The Company and each of its Subsidiaries have full power
(corporate and other) to own or lease their respective properties and
conduct their respective businesses as described in the Registration
Statement and the Prospectus; and the Company has full power
(corporate and other) to enter into this Agreement and to carry out
all the terms and provisions hereof to be carried out by it.
(v) The shares of capital stock owned by the Company which have
been issued by the Company's corporate Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and
are owned beneficially by the Company free and clear of any security
interests, liens, encumbrances, equities or claims, except for pledges
of such shares in connection with indebtedness included on the balance
sheets of the Company and its consolidated subsidiaries incorporated
by reference into the Registration Statement and the Prospectus.
(vi) The Company has an authorized capitalization as set forth in
the Prospectus. All of the issued shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and nonassessable. The Firm Securities have been duly authorized
and at the Firm Closing Date, after payment therefor in accordance
herewith, will be validly issued, fully paid and nonassessable. No
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holders of outstanding shares of capital stock of the Company are
entitled as such to any preemptive or other rights to subscribe for
any of the Securities, and no holders of securities of the Company are
entitled to have such securities registered under the Registration
Statement.
(vii) The shares of capital stock of the Company conform to the
description thereof contained in the Prospectus.
(viii) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries incorporated by reference
into the Registration Statement and the Prospectus fairly present the
financial condition, results of operations, stockholders' equity and
cash flows of the Company and its consolidated subsidiaries as of the
dates and periods therein specified. Such financial statements and
schedules have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein). The selected financial
data set forth in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993, fairly present, on the basis
stated in such Annual Report, the information included therein.
(ix) Coopers & Lybrand, who have audited certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules incorporated in the Registration
Statement and the Prospectus, are independent public accountants as
required by the Act, the Exchange Act and the related published rules
and regulations thereunder.
(x) The execution and delivery of this Agreement has been duly
authorized by the Company and this Agreement has been duly executed
and delivered by the Company.
(xi) No legal or governmental proceedings are pending to which the
Company or any of its subsidiaries is a party or to which the property
of the Company or any of its Subsidiaries is subject that are required
to be described in the Registration Statement or the Prospectus and
are not described therein and no such proceedings have been threatened
against the Company or any of its Subsidiaries or with respect to any
of their respective properties; and no contract or other document is
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
that is not described therein or filed as required.
(xii) Since the respective dates as of which information
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is given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any of its Shares.
(xiii) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
Securities and the consummation of the other transactions herein
contemplated do not (i) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except such as have been obtained and such as may be required under
state securities or blue sky laws or (ii) conflict with or result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
lease or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or any of their respective properties are bound, or the
charter documents or by-laws of the Company or any of its
Subsidiaries, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any
arbitrator applicable to the Company or any of its Subsidiaries.
(xiv) The Company is organized in conformity with the requirements
for qualification as, and, as of the date hereof and as of the Firm
Closing Date, operates in a manner that qualifies it as, a "real
estate investment trust" under the Internal Revenue Code of 1986, as
amended (the "Code") and the rules and regulations thereunder and will
be so qualified after consummation of the transactions contemplated by
the Prospectus.
(xv) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xvi) The Company and each of its Subsidiaries have good and
marketable title to all real properties, and interests in real
property, described in the Prospectus (including the documents
incorporated by reference therein) as owned by
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each of them, in each case free and clear of all liens, charges,
encumbrances and restrictions except such as are described in the
Registration Statement or such as do not materially adversely affect
the value of such property or interests or interfere with the use made
or proposed to be made of such property or interests by the Company
and each of its Subsidiaries; the Company has obtained satisfactory
confirmations, except as is otherwise described in the Registration
Statement, that the Company and each of its Subsidiaries has the
foregoing title to such real property and interests in real property;
and any real property and buildings held under lease by the Company or
any of its Subsidiaries are held by the Company or any of its
Subsidiaries, as the case may be, under valid, binding and enforceable
leases conforming to the description thereof set forth in or the
documents incorporated by reference into the Registration Statement
and the Prospectus, with such exceptions as do not interfere with the
use made and proposed to be made of such property and buildings by the
Company, its Subsidiaries or any third party.
(xvii) No statement, representation, warranty or covenant made by the
Company in this Agreement or made in any certificate or document
required by this Agreement to be delivered to the Representatives was
or will be, when made, inaccurate, untrue or incorrect in any material
respect.
(xviii) Neither the Company nor any of its trustees, officers or
controlling persons has taken, directly or indirectly, any action
intended, or which might reasonably be expected, to cause or result,
under the Act or otherwise, in, or which has constituted,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(xix) The Company has been advised by the New York Stock Exchange
that the Securities will be listed for trading on the New York Stock
Exchange upon official notice of issuance.
(xx) Neither the Company nor any of its Subsidiaries is involved in
any material labor dispute nor, to the best knowledge of the Company,
is any such dispute threatened.
(xxi) Neither the Company nor any of its Subsidiaries nor, to the
Company's best knowledge, any employee or agent of the Company or any
subsidiary has made any payment of funds of the Company or any
subsidiary of the Company or received or retained any funds in
violation of any law, rule or regulation or of a character required to
be disclosed in the Prospectus.
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(xxii) Any certificate signed by any officer of the Company and delivered to
the Representatives or to counsel for the Underwriters in connection with the
transactions contemplated by this Agreement shall be deemed a representation
and warranty by the Company to each Underwriter as to the matters covered
thereby.
(xxiii) No default exists, and no event has occurred which, with notice or
lapse of time or both, would constitute a default in the due performance and
observance of any term, covenant or condition of any indenture, mortgage, deed
of trust, lease or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its Subsidiaries
or any of their respective properties is bound or may be affected in any
material adverse respect with regard to property, business or operations of the
Company and its Subsidiaries which, in any such event, would require disclosure
in the Registration Statement and the Prospectus.
(xxiv) The Company has no actual knowledge of (a) the presence of any
hazardous substances, hazardous materials, toxic substances or waste materials
(collectively, "Hazardous Materials"), the existence of which is in violation
of any environmental law or regulation, on any of the properties owned by it
(the "Properties"), or (b) any spills, releases, discharges or disposal of
Hazardous Materials by the Company that have occurred or are presently
occurring on adjoining properties as a result of any construction on or
operation and use of such Properties except, with respect to (a) and (b), as
may otherwise be set forth in environmental reports obtained by the Company.
With respect to the construction on or operation and use of the Properties the
Company represents that it has no actual knowledge of any material failure to
comply with all applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders relating to the
generation, recycling, reuse, sale, storage, handling, transport and disposal
of any Hazardous Materials.
3. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS.
Upon your authorization of the release of the Firm Securities, the several
Underwriters propose to offer the Firm Securities for sale to the public upon
the terms set forth in the Prospectus. NatWest Securities Limited represents
and agrees that (i) it has not offered or sold and will not offer or sell in
the United Kingdom, by means of any document, any Securities other than to
persons whose ordinary business it is to buy or sell shares or debentures
(whether as principal or agent) or in circumstances which do not constitute an
offer to the public
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within the meaning of the Companies Act 1985; (ii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom; and (iii) it has issued or passed on
and will issue or pass on to any person in the United Kingdom any document
received by it in connection with the issue of the Securities only if that
person is of a kind described in Article 9(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemption 3) Order 1988, as amended.
4. AGREEMENTS OF THE COMPANY. (a) The Company
covenants and agrees with each of the Underwriters that:
(i) Subject to the next sentence, the Company will file the
Prospectus with the Commission pursuant to Rule 424 under the Act.
During any time when a prospectus relating to the Securities is
required to be delivered under the Act, the Company (i) will comply
with all requirements imposed upon it by the Act and the Exchange Act
and the respective rules and regulations of the Commission thereunder
to the extent necessary to permit the continuance of sales of or
dealings in the Securities in accordance with the provisions hereof
and of the Prospectus, as then amended or supplemented, and (ii) will
not file with the Commission the Prospectus, any amendment or
supplement to the Prospectus, or any amendment to the Registration
Statement, of which the Representatives shall not previously have been
advised and furnished with a copy a reasonable period of time prior to
the proposed filing and as to which filing the Representatives shall
not have given their consent. The Company will advise the
Representatives, promptly after receiving notice thereof, of the time
when (i) the Prospectus has been filed with the Commission and (ii)
any amendment to the Registration Statement has been filed or declared
effective or any amendment or supplement to the Prospectus has been
filed and will provide evidence satisfactory to the Representatives of
each such filing or effectiveness.
(ii) The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto or
any order directed at any document incorporated by reference in the
Registration Statement or the Prospectus or any amendment or
supplement thereto or any order preventing or suspending the use of
the Prospectus, (ii) the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, (iii) the
institution, threatening or
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contemplation of any proceeding for any such purpose or (iv) any
request made by the Commission for amending or supplementing the
Registration Statement, for amending the Prospectus or for additional
information. The Company will use its best efforts to prevent the
issuance of any such stop order and, if any such stop order is issued,
to obtain the withdrawal thereof as promptly as possible.
(iii) The Company will arrange for the qualification of the
Securities for offering and sale under the securities or blue sky laws
of such jurisdictions as the Representatives may designate and will
continue such qualifications in effect for as long as may be necessary
to complete the distribution of the Securities; PROVIDED, HOWEVER,
that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction.
(iv) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus, as then amended or supplemented, would
include any 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, or if for any other reason it is necessary at any time to
amend or supplement the Prospectus to comply with the Act, the
Exchange Act or the respective rules or regulations of the Commission
thereunder, the Company will promptly notify the Representatives
thereof and, subject to Section 4(a) hereof, will prepare and file
with the Commission, at the Company's expense, an amendment to the
Registration Statement or an amendment to the Basic Prospectus or the
Prospectus that corrects such statement or omission or effects such
compliance.
(v) The Company will, without charge, provide (i) to the
Representatives and to counsel for the Underwriters a signed copy of
the registration statement originally filed with respect to the
Securities and each amendment thereto (in each case including exhibits
thereto), (ii) to each other Underwriter, a conformed copy of such
registration statement and each amendment thereto (in each case
without exhibits thereto) and (iii) so long as a prospectus relating
to the Securities is required to be delivered under the Act, as many
copies of the Prospectus or any amendment or supplement thereto as the
Representatives may reasonably request.
(vi) The Company, as soon as practicable, will make generally
available to its security holders and to the
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Representatives a consolidated earnings statement of the Company and
its Subsidiaries (which need not be audited) that satisfies the
provisions of Section 11(a) of the Act and Rule 158 thereunder.
(vii) The Securities will be listed on the New York Stock
Exchange, subject to notice of issuance.
(viii) The Company will enter into an agreement with NatWest
Securities Limited in a form acceptable to NatWest Securities Limited
to the effect that it will not, directly or indirectly, offer, sell or
otherwise dispose of in the United States any Shares or any securities
convertible into or exercisable or exchangeable for, or any rights to
purchase or acquire, Shares, other than (a) the Securities offered
hereby, (b) Securities issuable upon the conversion of the Company's
outstanding convertible debentures or upon the exercise of outstanding
stock options or (c) grants to employees for compensation purposes for
a period of 90 days after the date hereof without the prior written
consent of NatWest Securities Limited.
(ix) The Company intends to use the net proceeds from the sale of
the Securities sold by it hereunder as set forth under "Use of
Proceeds" in the Prospectus.
(x) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the
Code.
5. EXPENSES. The Company will pay all costs and expenses
incident to the performance of their obligations under this Agreement, whether
or not the transactions contemplated herein are consummated or this Agreement
is terminated pursuant to Section 10 hereof, including all costs and expenses
incident to (i) the printing or other production of all documents with respect
to the transactions, including any costs of printing the registration statement
originally filed with respect to the Securities and any amendment thereto and
the Prospectus and any amendment or supplement thereto, this Agreement and any
blue sky memoranda, (ii) all arrangements relating to the delivery to the
Underwriters of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, accountants and any other experts or advisors
retained by the Company, (iv) preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Securities, including transfer
agent's and registrar's fees, (v) the qualification of the Securities under
state securities and blue sky laws, including filing fees and fees and
disbursements of counsel not to exceed ________________ for the Underwriters
relating thereto, (vi) the filing fees of the Commission relating to the
Securities, (vii) the listing of
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the Securities on the New York Stock Exchange and (viii) expenses of Company
personnel in connection with their attendance at meetings with prospective
investors in the Securities and advertising relating to the offering of the
Securities (other than shall have been specifically approved by the
Representatives to be paid for by the Underwriters). If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because this Agreement is terminated pursuant to Section 10 hereof or because
of any failure, refusal or inability on the part of the Company to perform all
obligations and satisfy all conditions on their part to be performed or
satisfied hereunder other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities. The Company shall not in any event be
liable to any of the Underwriters for the loss of anticipated profits from the
transactions covered by this Agreement.
6. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities shall be subject, in the Representatives' sole discretion, to the
accuracy in all material respects of the representations and warranties of the
Company contained herein as of the date hereof and as of the Firm Closing Date
as if made on and as of the Firm Closing Date, to the accuracy in all material
respects of the statements of the Company's officers made pursuant to the
provisions hereof, to the performance by the Company of its covenants and
agreements hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the
Commission in the manner and within the time period required by Rule
424(b) under the Act; no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto and
no order directed at any document incorporated by reference in the
Registration Statement or the Prospectus or any amendment or
supplement thereto shall have been issued and no proceedings for that
purpose shall have been instituted or threatened or, to the knowledge
of the Company, or the Representatives, shall be contemplated by the
Commission; and the Company shall have complied with any request of
the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise).
(b) The Representatives shall have received an opinion,
dated the Firm Closing Date, of Nutter, McClennen &
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<PAGE> 14
Fish, counsel for the Company, to the effect that:
(i) the Company is a business trust duly
organized and validly existing in good standing under the laws
of the Commonwealth of Massachusetts. All of its subsidiaries
listed on Exhibit A to such counsel's opinion (the
"Subsidiaries") have been duly organized; and the Company and
each of its Subsidiaries are validly existing as organizations
in good standing under the laws of their respective
jurisdictions of organization and are duly qualified to
transact business as foreign corporations and are in good
standing under the laws of the jurisdictions listed on Exhibit
B to such counsel's opinion in which, to such counsel's
knowledge, the ownership or leasing of their respective
properties or the conduct of their respective businesses
requires such qualification, except where the failure to be so
qualified does not amount to a material liability or
disability to the Company and the Subsidiaries, taken as a
whole);
(ii) the Company and each of the Subsidiaries have
corporate or partnership power to own or lease their
respective properties and conduct their respective businesses
as described in the Registration Statement and the Prospectus,
and the Company has corporate power to enter into this
Agreement and to carry out all the terms and provisions hereof
to be carried out by it;
(iii) the issued shares of capital stock owned by
the Company which have been issued by each of the corporate
Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable;
(iv) the Company has an authorized capitalization
as set forth in the Prospectus; all of the issued Shares have
been duly authorized and validly issued and are fully paid and
nonassessable; the Firm Securities sold by the Company
hereunder have been duly authorized by all necessary corporate
action of the Company and, when issued and delivered to and
paid for by the Underwriters pursuant to this Agreement, will
be validly issued, fully paid and nonassessable; the
Securities have been duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange;
to such counsel's knowledge, no holders of outstanding shares
of capital stock of the Company are entitled as such to any
preemptive or other rights to subscribe for any of the
Securities; and to such counsel's knowledge, no holders of
securities of the Company are entitled to have such securities
registered
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<PAGE> 15
under the Registration Statement;
(v) the description of the Shares contained in
the Prospectus, insofar as such statements purport to
summarize certain provisions of the Shares, provides a fair
summary of such provisions;
(vi) the execution and delivery of this Agreement
have been duly authorized by all necessary corporate action of
the Company and this Agreement has been duly executed and
delivered by the Company;
(vii) to such counsel's best knowledge, no legal or
governmental proceedings are pending to which the Company or
any of the Subsidiaries is a party or to which the property of
the Company or any of the Subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not described therein, and, to the best
knowledge of such counsel, no such proceedings have been
threatened against the Company or any of the Subsidiaries or
with respect to any of their respective properties; and to
such counsel's best knowledge, no contract or other document
is required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described therein or filed
as required;
(viii) the issuance, offering and sale of the
Securities to the Underwriters by the Company pursuant to this
Agreement, the compliance by the Company with the other
provisions of this Agreement and the consummation of the other
transactions herein contemplated do not (A) require the
consent, approval, authorization, registration or
qualification of or with any governmental authority, except
such as have been obtained and such as may be required under
state securities or blue sky laws, or (B) conflict with or
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or
instrument, known to such counsel, to which the Company or any
of the Subsidiaries is a party or by which the Company or any
of the Subsidiaries or any of their respective properties are
bound, or the charter documents or by-laws of the Company or
any of the Subsidiaries, or any statute or any judgment,
decree, order, rule or regulation of any court or other
governmental authority or any arbitrator known to such counsel
and applicable to the Company or any of the Subsidiaries;
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<PAGE> 16
(ix) the compliance by the Company with the
provisions of this Agreement and the consummation of the other
transactions herein contemplated do not (A) require the
consent, approval, authorization, registration or
qualification of or with any govern-mental authority, except
such as have been obtained and such as may be required under
state securities or blue sky laws, or (B) conflict with or
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or
instrument, known to such counsel, to which the Company or any
of the Subsidiaries is a party or by which the Company or any
of the Subsidiaries or any of their respective properties are
bound, or the charter documents or by-laws of the Company or
any of the Subsidiaries, or any statute or any judgment,
decree, order, rule or regulation of any court or other
governmental authority or any arbitrator known to such counsel
and applicable to the Company or any of the Subsidiaries;
(x) the Registration Statement is effective under
the 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 no stop order suspending
the effectiveness of the Registration Statement or any
post-effective amendment thereto and no order directed at any
document incorporated by reference in the Registration
Statement or the Prospectus or any amendment or supplement
thereto has been issued, and no proceedings for that purpose
have been instituted or threatened or, to the best knowledge
of such counsel, are contemplated by the Commission;
(xi) the Company is not required to be registered under
the Investment Company Act of 1940, as amended;
(xii) the registration statement originally filed
with respect to the Securities and each amendment thereto and
the Basic Prospectus and the Prospectus (in each case,
including the documents incorporated by reference therein but
not including the financial statements and other financial and
statistical information contained therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act,
the Exchange Act and the respective rules and regulations of
the Commission thereunder; and
(xiii) the Company is constituted in conformity with
the requirements for qualification as a real estate
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<PAGE> 17
investment trust ("REIT") set forth in Sections 856(a)(1) through (6)
and 859 of the Code. Furthermore, the Company's proposed method of
operation as described in the Basic Prospectus, if followed by the
Company, is consistent with meeting the requirements for qualification
and taxation as a REIT under the Code so long as the Company meets the
various qualification tests imposed by the Code through actual
operating results.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
laws of jurisdictions in which such counsel are not admitted to practice, to the
extent satisfactory to counsel for the Underwriters, upon the opinion of local
counsel in such jurisdictions and in the case of the opinion described in
paragraph (i) above upon certificates of public officials. The foregoing
opinion shall also state that the Underwriters are justified in relying upon any
such opinion of such local counsel, and copies of the opinion of such local
counsel shall be delivered to the Representatives and counsel for the
Underwriters.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that such counsel has no reason to believe
that the Registration Statement, as of the date hereof, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as of its date or the date of such opinion, included or
includes any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that such opinion shall state that such belief is based upon its
examinations made as counsel to the Company, its participation in meetings held
for the purpose of preparing the Registration Statement and Prospectus
(including the documents incorporated by reference), its assistance in the
preparation of the Registration Statement and Prospectus and its representation
of the Company, but that such counsel has not independently verified the
accuracy or completeness of the information set forth in the Registration
Statement and Prospectus except as otherwise expressly stated in its opinion and
it being further understood that such counsel need not express any opinion with
respect to the financial statements, schedules and other financial data included
in or incorporated by
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<PAGE> 18
reference into the Registration Statement and Prospectus).
References to the Registration Statement and the Prospectus in
this paragraph (b) shall include any amendment thereto at the date of
such opinion.
(c) The Representatives shall have received an opinion,
dated the Firm Closing Date, of Stroock & Stroock & Lavan, counsel for
the Underwriters, with respect to the issuance and sale of the Firm
Securities, the Registration Statement, the Prospectus, and such other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
may reasonably request for the purpose of enabling them to pass upon
such matters. In rendering such opinion, such counsel may rely as to
all matters of Massachusetts law upon the opinion of Nutter, McClennen
& Fish referred to in paragraph (b) above.
(d) The Representatives shall have received from Coopers
& Lybrand a letter or letters dated, respectively, the date hereof and
the Firm Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) they are independent accountants with respect
to the Company and its consolidated subsidiaries within the
meaning of the Act, the Exchange Act and the applicable rules
and regulations thereunder;
(ii) in their opinion, the audited consolidated financial
statements and schedules examined by them and included in the
Registration Statement and the Prospectus comply in form in
all material respects with the applicable accounting
requirements of the Act, the Exchange Act and the related
published rules and regulations thereunder;
(iii) on the basis of a reading of the latest available
interim unaudited consolidated financial statements of the
Company and its consolidated subsidiaries, carrying out
certain specified procedures (which do not constitute an audit
made in accordance with generally accepted auditing standards)
that would not necessarily reveal matters of significance with
respect to the comments set forth in this paragraph (iii), a
reading of the minute books of the shareholders, the board of
directors and any committees thereof of the Company and each
of its consolidated subsidiaries, and inquiries of certain
officials of the Company and its consolidated subsidiaries who
have
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<PAGE> 19
responsibility for financial and accounting matters, nothing came to
their attention that caused them to believe that:
(A) the unaudited consolidated financial
statements of the Company and its consolidated
subsidiaries included by incorporation by reference
in the Registration Statement and the Prospectus do
not comply in form in all material respects with the
applicable accounting requirements of the Act, the
Exchange Act and the related published rules and
regulations thereunder, or are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the
audited consolidated financial statements included in
the Registration Statement and the Prospectus;
(B) at a specific date not more than
five business days prior to the date of such letter,
there were any changes in the shares of capital stock
or indebtedness of the Company and its consolidated
subsidiaries or any decreases in total assets,
current assets or shareholders' equity of the Company
and its consolidated subsidiaries, in each case
compared with amounts shown on the June 30, 1994
unaudited consolidated balance sheet included by
incorporation by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30,
1994 in the Registration Statement and the
Prospectus, or for the period from July 1, 1994 to
such specified date there were any decreases, as
compared with the corresponding period of the
preceding fiscal year, in net revenues, net income
before income taxes or total or per share amounts of
net income of the Company and its consolidated
subsidiaries, except in all instances for changes,
decreases or increases set forth in such letter; and
(iv) 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
consolidated subsidiaries and are included in its Annual
Report on Form 10-K for the fiscal year ended December 31,
1993, and its Quarterly Reports on Form 10-Q for the fiscal
quarter ended June 30, 1994, respectively, incorporated by
reference in the Registration Statement and the Prospectus,
and
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<PAGE> 20
have compared such amounts, percentages and financial information with
such records of the Company and its consolidated subsidiaries and with
information derived from such records and have found them to be in
agreement, excluding any questions of legal interpretation.
In the event that the letters referred to above set forth any
such changes, decreases or increases, it shall be a further condition
to the obligations of the Underwriters that (A) such letters shall be
accompanied by a written explanation of the Company as to the
significance thereof, unless the Representatives deem such explanation
unnecessary, and (B) such changes, decreases or increases do not, in
the sole judgment of the Representatives, make it impractical or
inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended
as of the date hereof.
References to the Registration Statement and the Prospectus in
this paragraph (d) with respect to either letter referred to above
shall include any amendment thereto at the date of such letter.
(e) The Representatives shall have received a
certificate, dated the Firm Closing Date, of the President and the
Principal Financial and Accounting Officer of the Company to the
effect that:
(i) the representations and warranties of the
Company in this Agreement are true and correct as if made on
and as of the Firm Closing Date; the Registration Statement,
as amended as of the Firm Closing Date, does not include any
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented as
of the Firm Closing Date, does not include any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and the Company has performed all covenants and
agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment
thereto and no order directed at any document incorporated by
reference in the Registration Statement
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<PAGE> 21
or any amendment thereto or the Prospectus has been issued,
and no proceedings for that purpose have been instituted or
threatened or, to the best of the Company's knowledge, are
contemplated by the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change, or
any development involving a prospective material adverse
change (including without limitation a change in management or
control of the Company), in the condition (financial or
otherwise), business prospects, net worth or results of
operations of the Company and the Subsidiaries, except in each
case as described in or contemplated by the Prospectus
(exclusive of any amendment or supplement thereto after the
date hereof).
(f) On or before the Firm Closing Date, the
Representatives and counsel for the Underwriters shall have received
such further certificates, documents or other information as they may
have reasonably requested from the Company.
(g) Prior to the commencement of the offering of the
Securities, the Securities shall have been accepted for listing on the
New York Stock Exchange.
All opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to
purchase and pay for any Option Securities shall be subject, in their
discretion, to each of the foregoing conditions to purchase the Firm
Securities, except that all references to the Firm Securities and the Firm
Closing Date shall be deemed to refer to such Option Securities and the related
Option Closing Date, respectively.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company
will indemnify and hold harmless each Underwriter or each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act against any losses, claims, damages or liabilities,
joint or
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<PAGE> 22
several, to which such Underwriter or such controlling person may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon:
(i) any untrue statement or alleged untrue
statement made by the Company in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue
statement of any material fact contained in (A) the
registration statement originally filed with respect to the
Securities or any amendment thereto, the Prospectus or any
amendment or supplement thereto or (B) any application or
other document, or any amendment or supplement thereto,
executed by the Company or based upon written information
furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Securities under the
securities or blue sky laws thereof or filed with the
Commission or any securities association or securities
exchange (each an "Application") or
(iii) the omission or alleged omission to state in such
registration statement or any amendment thereto, the
Prospectus or any amendment or supplement thereto, or any
Application a material fact required to be stated therein or
necessary to make the statements therein not misleading,
and will reimburse, as incurred, 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, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement
or any amendment thereto, the Prospectus or any amendment or supplement
thereto, or any Application in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have. The Company
will not, without the prior written consent of each Underwriter, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not such Underwriter or any person who controls
such
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<PAGE> 23
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of such
Underwriter and each such controlling person from all liability arising out of
such claim, action, suit or proceeding.
(b) Each Underwriter will indemnify and hold harmless the
Company, each of its trustees, each of its officers who signed the Registration
Statement, each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which the Company or any such trustee,
officer or controlling person may become subject under the Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or any amendment thereto, the Prospectus or any
amendment or supplement thereto, or any Application or (ii) the omission or the
alleged omission to state therein a material fact required to be stated in the
Registration Statement or any amendment thereto, the Prospectus or any
amendment or supplement thereto, or any Application or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein; and, subject to the limitation
set forth immediately preceding this clause, will reimburse, as incurred, any
legal or other expenses reasonably incurred by the Company, any such trustee,
officer or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or any action in respect thereof. This
indemnity agreement will be in addition to any liability which such Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 7. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel
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<PAGE> 24
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available
to the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or
parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Representatives in the case of
paragraph (a) of this Section 7, representing the indemnified parties under
such paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not
be liable for the costs and expenses of any settlement of such action effected
by such indemnified party without the consent of the indemnifying party, unless
such indemnified party waived its rights under this Section 7 in which case the
indemnified party may effect such a settlement without such consent.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 7 is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation
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<PAGE> 25
provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the indemnifying
party or parties on the one hand and the indemnified party on the other in
connection with the statements or omissions or alleged statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof). The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault of the parties
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 Company or the
Underwriters, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and 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 to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the "County NatWest Securities Limited Master Agreement Among Underwriters".
For purposes of this paragraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter,
and each trustee of the Company, each officer of the Company who signed the
Registration Statement, each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall
have the same rights to contribution as the Company.
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<PAGE> 26
8. DEFAULT OF UNDERWRITERS. If one or more Underwriters
default in their obligations to purchase Firm Securities or Option Securities
hereunder and the aggregate number of such Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase is ten percent or
less of the aggregate number of Firm Securities or Option Securities to be
purchased by all of the Underwriters at such time hereunder, the other
Underwriters may make arrangements satisfactory to the Representatives for the
purchase of such Securities by other persons (who may include one or more of
the non-defaulting Underwriters, including the Representatives), but if no such
arrangements are made by the Firm Closing Date or the related Option Closing
Date, as the case may be, the other Underwriters shall be obligated severally
in proportion to their respective commitments hereunder to purchase the Firm
Securities or Option Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase. If one or more Underwriters so
default with respect to an aggregate number of Securities that is more than ten
percent of the aggregate number of Firm Securities or Option Securities, as the
case may be, to be purchased by all of the Underwriters at such time hereunder,
and if arrangements satisfactory to the Representatives are not made within 36
hours after such default for the purchase by other persons (who may include one
or more of the non-defaulting Underwriters, including the Representatives) of
the Securities with respect to which such default occurs, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, or
the Company other than as provided in Section 9 hereof. In the event of any
default by one or more Underwriters as described in this Section 8, the
Representatives shall have the right to postpone the Firm Closing Date or the
Option Closing Date, as the case may be, established as provided in Section 1
hereof for not more than seven business days in order that any necessary
changes may be made in the arrangements or documents for the purchase and
delivery of the Firm Securities or Option Securities, as the case may be. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section 8. Nothing herein shall relieve any
defaulting Underwriter from liability for its default.
9. SURVIVAL. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Company, its officers and the several Underwriters set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Company, any of its officers or trustees, any Underwriter or
any controlling person referred to in Section 7 hereof and (ii) delivery of and
payment for the Securities. The respective agreements, covenants, indemnities
and other statements set forth in Sections 5 and 7 hereof shall remain in
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<PAGE> 27
full force and effect, regardless of any termination or cancellation of this
Agreement.
10. TERMINATION. This Agreement may be terminated with
respect to the Firm Securities or any Option Securities in the sole discretion
of the Representatives by notice to the Company given prior to the Firm Closing
Date or the related Option Closing Date, respectively, in the event that the
Company shall have failed, refused or been unable to perform all obligations
and satisfy all conditions on its part to be performed or satisfied hereunder
at or prior thereto or, if at or prior to the Firm Closing Date or such Option
Closing Date, respectively, the Representatives determine in their sole
discretion (which determination shall be conclusive absent manifest error)
that:
(i) trading in the Securities or trading in the Shares
shall have been suspended by the Commission or trading in
securities generally on the New York Stock Exchange or the
International Stock Exchange of the United Kingdom shall have
been suspended or minimum or maximum prices shall have been
established for the Shares on either such exchange;
(ii) a banking moratorium shall have been declared by New
York, Massachusetts, United Kingdom or United States
authorities; or
(iii) there shall have been (A) an outbreak or escalation
of hostilities between the United States or the United Kingdom
and any foreign power, (B) an outbreak or escalation of any
other insurrection or armed conflict involving the United
States or the United Kingdom or (C) any other calamity or
crisis having an effect on the financial markets that makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities as contemplated by
the Registration Statement.
11. INFORMATION SUPPLIED BY UNDERWRITERS. The statements
set forth in the last paragraph on the front cover page and under the heading
"Underwriting" in the Prospectus (to the extent such statements relate to the
Underwriters) constitute the only information furnished by any Underwriter
through the Representatives to the Company for the purposes of Section 7(b)
hereof. The Underwriters confirm that such statements (to such extent) are
correct.
12. NOTICES. All communications hereunder shall be in
writing and, if sent to any of the Underwriters, shall be mailed or delivered
or telegraphed and confirmed in writing to NatWest
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<PAGE> 28
Securities Limited, 135 Bishopsgate, London EC2M, 3XT, England, Attention:
Melvyn Rowe, and if sent to the Company, shall be mailed, delivered or
telegraphed and confirmed in writing to the Company at 197 First Avenue,
Needham, Massachusetts, 02194 Attention: David F. Benson, President.
13. SUCCESSORS. This Agreement shall inure to the benefit of
and shall be binding upon the several Underwriters, the Company, and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of
this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of such persons and for the benefit of no other person
except that (i) the indemnities of the Company contained in Section 7 of this
Agreement shall also be for the benefit of any person or persons who control
any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act and (ii) the indemnities of the Underwriters contained in
Section 7 of this Agreement shall also be for the benefit of the trustees of
the Company, the officers of the Company who have signed the Registration
Statement and any person or persons who control the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of
Securities from any Underwriter shall be deemed a successor because of such
purchase.
14. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF
THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
15. COUNTERPARTS. 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.
16. THE DECLARATION OF TRUST ESTABLISHING THE COMPANY, DATED
AUGUST 6, 1985, AS AMENDED, A COPY OF WHICH IS DULY FILED WITH THE OFFICE OF
THE SECRETARY OF STATE OF THE COMMONWEALTH OF MASSACHUSETTS, PROVIDES THAT THE
NAME "MEDITRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS
TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY; AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE
COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO
THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.
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<PAGE> 29
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute an agreement binding the
Company and each of the several Underwriters.
Very truly yours,
MEDITRUST
By:
________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
NATWEST SECURITIES LIMITED
By:____________________________
Name:
Title:
DEAN WITTER REYNOLDS INC.
By:____________________________
Name:
Title:
PAINEWEBBER INCORPORATED
By:____________________________
Name:
Title:
SMITH BARNEY INC.
By:____________________________
Name:
Title:
For themselves and on behalf of the Underwriters.
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<PAGE> 30
<TABLE>
SCHEDULE 1
UNDERWRITERS' COMMITMENTS
<CAPTION>
Number of Firm
Securities to be
Purchased
---------
Underwriter
-----------
<S> <C>
NatWest Securities Limited . . . . . . . . . .
Dean Witter Reynolds Inc. . . . . . . . . . . .
PaineWebber Incorporated . . . . . . . . . . .
Smith Barney Inc. . . . . . . . . . . . . . . .
-----------
Total . . . . . . . . . . . .
</TABLE>
