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):
December 18, 1996
BEACON PROPERTIES CORPORATION
(Exact name of Registrant as specified in its Charter)
MARYLAND
(State or Other Jurisdiction of
Incorporation or Organization)
1-12926 04-3224258
(Commission (IRS Employer
File Number) Identification No.)
50 Rowes Wharf 02110
Boston, Massachusetts (Zip Code)
(Address of Principal Executive Offices)
(617) 330-1400
(Registrant's telephone number, including area code)
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Item 5. Other Events
On December 12, 1996, Beacon Properties Corporation (the "Company")
entered into an Underwriting Agreement with Merrill Lynch, Pierce, Fenner &
Smith Incorporated regarding the sale of shares of common stock, $.01 par value,
of the Company (the "Common Stock") from time to time in one or more offering
from the Company's Registration Statement on Form S-3 (File No. 333-17237).
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits
(c) Exhibits
1 Underwriting Agreement dated December 12, 1996 by and between
Beacon Properties Corporation and Merrill Lynch, Pierce, Fenner & Smith
Incorporated .
[Remainder of Page Intentionally Left Blank]
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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.
BEACON PROPERTIES CORPORATION
/s/ Robert J. Perriello
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Robert J. Perriello,
Chief Financial Officer
Date: December 18, 1996
BEACON PROPERTIES CORPORATION
(a Maryland Corporation)
Common Stock
UNDERWRITING AGREEMENT
----------------------
December 12, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281-1305
Dear Sirs:
Beacon Properties Corporation, a Maryland corporation (the "Company"),
proposes to issue and sell shares of Common Stock, $.01 par value (the "Common
Stock" or the "Securities"), from time to time, in one or more offerings on
terms to be determined at the time of sale. As used herein, "you" and "your",
unless the context otherwise requires, shall mean the parties to whom this
underwriting agreement (this "Agreement") is addressed together with the other
parties, if any, identified in the applicable Terms Agreement (as defined
herein) as additional co- managers with respect to Underwritten Securities (as
hereinafter defined) purchased pursuant thereto. It is understood that the net
proceeds of an offering of securities to which this Agreement relates will be
contributed to Beacon Properties, L.P., a Delaware limited partnership (the
"Operating Partnership") in exchange for interests in the Operating Partnership.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the
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"Terms Agreement") providing for the sale of such Securities (the "Underwritten
Securities") to, and the purchase and offering thereof by, you and such other
underwriters, if any, selected by you as have authorized you to enter into such
Terms Agreement on their behalf (the "Underwriters", which term shall include
you whether acting alone in the sale of the Underwritten Securities or as a
member of an underwriting syndicate and any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to the offering of Underwritten
Securities shall specify the number of Underwritten Securities to be initially
issued (the "Initial Underwritten Securities"), the names of the Underwriters
participating in such offering (subject to substitution as provided in Section
10 hereof), the number of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, the names of such of you or such other
Underwriters acting as co-managers, if any, in connection with such offering,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters from the Company, the initial public offering price, if any,
the time, date and place of delivery and payment and any delayed delivery
arrangements of the Initial Underwritten Securities. In addition, each Terms
Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Underwritten Securities to cover
over-allotments, if any, and the number of Underwritten Securities subject to
such option (the "Option Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of the Option Securities agreed to be purchased by the Underwriters as
provided herein, if any. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Company. Each offering of
Underwritten Securities through you or through an underwriting syndicate managed
by you will be governed by this Agreement, as supplemented by the applicable
Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-17237) for the
registration of the Securities, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act
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(the "1933 Act Regulations"), and the Company has filed such amendments thereto
as may have been required prior to the execution of the applicable Terms
Agreement. Such registration statement (as amended, if applicable) has been
declared effective by the Commission. Such registration statement and the
prospectus constituting a part thereof, in each case as supplemented by a
prospectus supplement relating to the offering of Underwritten Securities (the
"Prospectus Supplement"), including in each case all documents incorporated
therein by reference and the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) or Rule 434 of the 1933 Act Regulations as from time to
time amended or supplemented pursuant to the 1933 Act, the Securities Exchange
Act of 1934, as amended (the "1934 Act"), or otherwise, are collectively
referred to herein as the "Registration Statement" and the "Prospectus",
respectively; provided, however, that a Prospectus Supplement shall be deemed to
have supplemented the Prospectus only with respect to the offering of
Underwritten Securities to which it relates. All references in this Agreement to
financial statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any document under the 1934 Act which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. If the Company elects to rely on Rule 434 under
the 1933 Act Regulations, all references to the Prospectus shall be deemed to
include, without limitation, the form of prospectus and the abbreviated term
sheet, taken together, provided to the Underwriters by the Company in reliance
on Rule 434 under the 1933 Act (the "Rule 434 Prospectus"). If the Company files
a registration statement to register a portion of the Securities and relies on
Rule 462(b) for such registration statement to become effective upon filing with
the Commission (the "Rule 462 Registration Statement"), then any reference to
"Registration Statement" herein shall be deemed to be to both the registration
statement referred to above (No.
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333-17237) and the Rule 462 Registration Statement, as each such registration
statement may be amended pursuant to the 1933 Act.
Section 1. Representations and Warranties.
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(a) The Company and the Operating Partnership each severally represents
and warrants to you, as of the date hereof, and to you and each other
Underwriter named in the applicable Terms Agreement, as of the date thereof (in
each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and at each time thereafter on
which the Company filed an Annual Report on Form 10-K with the
Commission, complied, and as of each Representation Date will comply,
in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations; the Registration Statement, at the time the
Registration Statement became effective and at each time thereafter on
which the Company filed an Annual Report on From 10-K with the
Commission, did not, and at each time thereafter on which any amendment
to the Registration Statement becomes effective or the Company files an
Annual Report on Form 10-K with the Commission and as of each
Representation Date, and at the Closing Time (as hereinafter defined),
will not, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Prospectus, as of
the date hereof, does not, and as of each Representation Date will not,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through you expressly for use in the Registration Statement
or Prospectus.
(ii) The accountants who certified the financial
statements and supporting schedules included or incorporated
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by reference in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iii) The historical financial statements of the Company
and the historical combined financial statements of the Predecessor (as
defined in Note 1 to the Financial Statements of the Company and the
Predecessor) including the notes thereto, included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial position of the Company and the Predecessor, as at
the dates indicated and the results of operations for the periods
specified. If applicable, the historical financial information
including the notes thereto for properties or other assets included in
or incorporated by reference into the Registration Statement and
Prospectus present fairly the stated financial information for such
specific property or asset. Except as otherwise stated in the
Registration Statement, said historical financial statements of the
Company, the Predecessor, and, if applicable, the specific properties
or other assets, have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved, and all adjustments necessary for a fair
presentation of results for such periods have been made. The supporting
schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information required to
be stated therein; and the selected financial data (both historical and
pro forma) included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with the related
financial statements presented therein.
(iv) The unaudited pro forma condensed consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the pro forma financial
position of the Company as of the dates indicated and the results of
its operations for the periods specified; and such unaudited pro forma
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a basis substantially
consistent with the audited financial
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statements of the Company and the Predecessor included or incorporated
by reference in the Registration Statement and the Prospectus, the
assumptions on which such pro forma financial statements have been
prepared are reasonable and are set forth in the notes thereto, and
such pro forma financial statements have been prepared, and the pro
forma adjustments set forth therein have been applied, in accordance
with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations, and such pro forma adjustments have been properly
applied to the historical amounts in the compilation of such
statements.
(v) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (a) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company, the Operating Partnership and its
subsidiaries considered as one enterprise, or any of the real property
or improvements thereon owned by either the Company, the Operating
Partnership or any of its subsidiaries (each individually a "Property"
and collectively the "Properties"), whether or not arising in the
ordinary course of business, (b) no material casualty loss or material
condemnation or other material adverse event with respect to any of the
Properties has occurred, (c) there have been no transactions entered
into or acquisitions by the Company, or the Operating Partnership or
any of its subsidiaries, other than those in the ordinary course of
business or disclosed in the Prospectus, which are material with
respect to the Company, the Operating Partnership and its subsidiaries
considered as one enterprise, and (d) except for regular quarterly
dividends on the Company's Common Stock, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock or by the Operating Partnership or any of
its subsidiaries with respect to its partnership interests or any class
of its capital stock. As used in this Agreement, the term subsidiary as
it relates to the Operating Partnership includes the Subsidiary
Corporations (as such term is defined in the Prospectus), Beacon
Property Management, L.P. (the "Management Partnership") and Beacon
Design, L.P. (the
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"Design Partnership") as well as any corporation, limited liability
company, limited or general partnership, joint venture or other entity
through which the Operating Partnership owns an interest, either
directly or indirectly, in a Property.
(vi) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Maryland, with corporate power and authority to own, lease
and operate its Properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under this
Agreement and the Terms Agreement and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company, the Operating Partnership and its
subsidiaries considered as one enterprise or the Properties,
collectively; and, except with respect to the Operating Partnership,
and with respect to BCN Management, LLC, BCN Center Plaza, LLC, BCN
Crystal, LLC, and BCN Acquisition, LLC, each a limited liability
company in which the Company and the Operating Partnership hold a 1%
and a 99% membership interest, respectively, and with respect to
Wellesley Holding, L.P., Wellesley Holding II, L.P., Wellesley Holding
III, L.P., Crystal Holdings, L.P., Rowes Wharf Holdings, L.P., Center
Plaza Associates, L.P., Burlington Holding, L.P., 1333 H Street, L.P.,
BeaMetFed, Inc., the Subsidiary Corporations, the Management
Partnership and the Design Partnership (collectively, the "Subsidiary
Entities"), the Company owns no material amounts of stock or other
beneficial interest in any corporation, limited liability company,
partnership, joint ventures or other business entity.
(vii) The Agreement of Limited Partnership of the Operating Partnership
(the "Partnership Agreement") has been duly and validly authorized,
executed and delivered by the Company and is a valid and binding
agreement, enforceable
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against the Company in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting creditors' rights generally and by
general principles of equity. The Partnership Agreement has been duly
executed and delivered by the other parties thereto and, to the
Company's knowledge, is a valid and binding agreement, enforceable
against such parties in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting creditors' rights generally and by
general principles of equity. The Operating Partnership and each of its
subsidiaries has been duly formed and is validly existing as a limited
partnership, limited liability company or corporation, as the case may
be, in good standing under the laws of its state of organization with
partnership, limited liability company or corporate power and
authority, as the case may be, to own, lease and operate its
properties, to conduct the business in which it is engaged or proposes
to engage as described in the Prospectus and to enter into and perform
its obligations under this Agreement. The Operating Partnership and
each of its subsidiaries is duly qualified or registered as a foreign
partnership, limited liability company or corporation, as the case may
be, and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or register would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company, the
Operating Partnership and its subsidiaries considered as one enterprise
or the Properties, collectively. The Company is the sole general
partner of the Operating Partnership. The Operating Partnership has no
subsidiaries other than the entities through which it owns interests in
the Properties, the Subsidiary Corporations, the Management Partnership
and the Design Partnership. Except as otherwise stated in the
Prospectus, all of the issued and outstanding capital stock or other
ownership interests in each Subsidiary Entity have been duly authorized
and validly issued, are fully paid and non-assessable and, except for a
90% limited partner interest in Crystal Holdings, L.P., a 24% limited
partner
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interest in Center Plaza Associates, L.P., 19% of the voting stock and
49% of the nonvoting stock of BeaMetFed, Inc. and 99% of the voting
stock of each of the Subsidiary Corporations, are owned by the Company
or the Operating Partnership, directly or indirectly, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except for security interests granted in respect of
indebtedness of the Company or the Operating Partnership or any of its
subsidiaries as described in the Prospectus and except for security
interests which would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company, the Operating Partnership, or any of
its subsidiaries considered as one enterprise or the Properties,
collectively.
(viii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization"
(except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans, dividend reinvestment plans,
employee and director stock option plans or upon the exercise of
options or convertible securities referred to in the Prospectus); and
such shares of capital stock have been duly authorized and validly
issued and are fully paid and non-assessable and are not subject to
preemptive or other similar rights. The Company has duly reserved a
sufficient number of shares of Common Stock for issuance upon exchange
of outstanding units of limited partner interest in the Operating
Partnership (the "Units").
(ix) The issued and outstanding Units have been duly
authorized and validly issued by the Operating Partnership and are
fully paid and non-assessable. The Units have been sold in compliance
with all applicable laws (including, without limitation, federal and
state securities laws).
(x) The Underwritten Securities being sold pursuant to
this Agreement and the applicable Terms Agreement have, as of each
Representation Date, been duly authorized for issuance and sale
pursuant to this Agreement and such Terms Agreement and such
Underwritten Securities, when issued and delivered by the Company
pursuant to this Agreement against
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payment of the consideration set forth in such Terms Agreement or any
Delayed Delivery Contract (as hereinafter defined), will be validly
issued, fully paid and non-assessable, and the issuance of such
Underwritten Securities will not be subject to preemptive or other
similar rights; and the Underwritten Securities being sold pursuant to
the applicable Terms Agreement conform in all material respects to all
statements relating thereto contained in the Prospectus. The form of
stock certificate used to evidence the Underwritten Securities is in
due and proper form and complies with all applicable legal
requirements.
(xi) None of the Company, the Operating Partnership or any of
its subsidiaries is in violation of its charter, by-laws, agreement of
limited liability company, agreement of limited partnership or other
organizational documents or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company, the Operating Partnership or any
of its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company, the
Operating Partnership or any of its subsidiaries is subject, except for
any such violation or default that would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company, the Operating
Partnership or its subsidiaries considered as one enterprise and the
execution, delivery and performance of this Agreement, the applicable
Terms Agreement, if any, and the consummation of the transactions
contemplated herein and therein and compliance by the Company and the
Operating Partnership (with respect to this Agreement), each severally,
with obligations hereunder and thereunder have been duly authorized by
all necessary action, and will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company,
the Operating Partnership or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company, the Operating Partnership or any of
its subsidiaries is a party or by which any of
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them may be bound, or to which any of the property or assets of the
Company, the Operating Partnership or any of its subsidiaries is
subject, except for any such violation or default that would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company,
the Operating Partnership or its subsidiaries considered as one
enterprise, nor will such action result in any violation of the
charter, by-laws, the agreement of limited partnership or other
organizational documents of the Company, the Operating Partnership or
any of its subsidiaries or any applicable law, administrative
regulation or administrative or court decree, except for any such
violation or default that would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company, the Operating Partnership
or its subsidiaries considered as one enterprise.
(xii) Commencing with the Company's first taxable year
ended December 31, 1994, the Company has been organized in conformity
with the requirements for qualification as a real estate investment
trust ("REIT") under the Internal Revenue Code of 1986, as amended (the
"Code"), and the Company's method of operation will enable it to meet
the requirements for taxation as a REIT under the Code.
(xiii) Neither the Company, the Operating Partnership nor
any of its subsidiaries is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(xiv) Other than as disclosed or incorporated by reference
into the Prospectus, there is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company or the Operating
Partnership threatened against or affecting the Company, the Operating
Partnership or any of its subsidiaries which is required to be
disclosed in the Prospectus (other than as disclosed therein), or which
might result in any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company, the
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Operating Partnership and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the property
or assets thereof and the Properties, collectively, or which might
materially and adversely affect the consummation of this Agreement or
the applicable Terms Agreement, or the transactions contemplated herein
or therein; all pending legal or governmental proceedings to which the
Company, the Operating Partnership or any of its subsidiaries is a
party or of which any property or assets of the Company, the Operating
Partnership or any of its subsidiaries or the Properties is subject
which are not described in or incorporated by reference into the
Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material; and there are
no contracts or documents of the Company, the Operating Partnership or
any of its subsidiaries which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xv) Each of the Company, the Operating Partnership and
its subsidiaries are not required to own or possess any trademarks,
service marks, trade names or copyrights in order to conduct the
business to be operated by them.
(xvi) No authorization, approval or consent of any court
or governmental authority or agency is required that has not been
obtained in connection with the consummation by the Company or the
Operating Partnership of the transactions contemplated by this
Agreement or the applicable Terms Agreement, except such as may be
required under the 1933 Act or the 1933 Act Regulations, state
securities laws, real estate syndication laws or under the rules and
regulations of the National Association of Securities Dealers, Inc.
(xvii) Each of the Company, the Operating Partnership and
its subsidiaries possess such certificates, authorities or permits
issued by the appropriate state, federal or foreign regulatory agencies
or bodies necessary to conduct the businesses to be conducted by it,
and neither the Company, nor the Operating Partnership or any of its
subsidiaries has received any written notice of proceedings relating to
the revocation or modification of any such
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certificate, authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company,
the Operating Partnership and its subsidiaries considered as one
enterprise.
(xviii) The Company has full right, power and authority to
enter into this Agreement, the applicable Terms Agreement and the
Delayed Delivery Contracts (as defined below), if any, and this
Agreement has been, and as of each Representation Date, the applicable
Terms Agreement and the Delayed Delivery Contracts, if any, will have
been, duly authorized, executed and delivered by the Company.
(xix) The Operating Partnership has full right, power and
authority to enter into this Agreement and this Agreement has been duly
authorized, executed and delivered by the Operating Partnership.
(xx) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations"), and, when read together with the other information
in the Prospectus, at the time the Registration Statement became
effective and as of the applicable Representation Date or Closing Time
(as defined herein) or during the period specified in Section 3(f), did
not and will not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(xxi) (A) The following is a complete list of
registration rights agreements entered into by the Company and
currently in effect: (1) agreement dated May 26, 1994 with Richard L.
Friedman and John L. Hall II; (2) agreement dated May 26, 1994 with
certain holders of Units; (3)
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agreement dated October 27, 1994 with Wellesley Office Realty Corp. and
Federal 175 Realty Corp.; and (4) agreement dated February 15, 1996
with TMPC, L.P. (B) No person has exercised registration or other
similar rights to have any securities registered pursuant to the
Registration Statement.
(xxii) (a) The Operating Partnership or its subsidiary, as
the case may be, has good and marketable title to all items of real
property owned by them, in each case free and clear of all liens,
encumbrances, claims, security interests and defects, other than those
referred to in the Prospectus or which are not material in amount; (b)
all liens, charges, encumbrances, claims, or restrictions on or
affecting the properties and assets owned by the Operating Partnership
or any of its subsidiaries which are required to be disclosed in the
Prospectus are disclosed therein; (c) except as disclosed in the
Prospectus, none of the Company, the Operating Partnership or any of
its subsidiaries, or, to the best of the knowledge of the Company and
the Operating Partnership, any lessee under a lease relating to any of
the Properties, is in default under any of the leases relating to the
Properties and neither the Company nor the Operating Partnership knows
of any event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such leases,
except such defaults that would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Company, the Operating Partnership
and its subsidiaries considered as one enterprise; (d) no tenant under
any of the leases pursuant to which the Company, the Operating
Partnership or any of its subsidiaries leases any of its real property
or improvements has an option to purchase the premises demised under
such lease; (e) each of the Properties is in compliance with all
applicable codes and zoning laws and regulations, except for such
failures to comply which would not individually or in the aggregate
have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects
of the Company, the Operating Partnership and its subsidiaries
considered as one enterprise; and (f) except with respect to a
potential taking of Russia Wharf, neither
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the Company nor the Operating Partnership has knowledge of any pending
or threatened condemnation, zoning change, or other proceeding or
action that will in any manner affect the size of, use of, improvements
on, construction on, or access to the Properties, except such
proceedings or actions that would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Company, the Operating Partnership
and its subsidiaries considered as one enterprise.
(xxiii) The Operating Partnership or its subsidiaries have
obtained title insurance on all the Properties described in the
Prospectus as owned by the Operating Partnership or its subsidiaries in
an amount at least equal to the greater of (a) the cost of acquisition
of such Property and (b) the cost of construction of the improvements
located on such Properties.
(xxiv) Except as disclosed in the Prospectus, each of the
Company and the Operating Partnership has no knowledge of (a) the
unlawful presence of any substance, material or waste which is
regulated by any federal, state or local governmental or
quasi-governmental authority, including, without limitation, (i) any
substance, material or waste defined, used or listed as a "hazardous
waste", "extremely hazardous waste", "restricted hazardous waste",
"hazardous substance", "hazardous material", "toxic substance" or other
similar terms as defined or used in any Environmental Law (as defined
below), (ii) any petroleum products, asbestos, polychlorinated
biphenyls, lead-based paint, flammable explosives or radioactive
materials and (iii) any additional substances or materials which are
hazardous or toxic substances under any Environmental Law relating to
the Properties (collectively, "Hazardous Materials") on any of the
Properties or of (b) any spill, release, discharge or disposal of
Hazardous Materials that have occurred or are presently occurring at,
from or onto any of the Properties or any properties near or adjacent
to the Properties, which presence or occurrence would materially
adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company, the
Operating Partnership and its subsidiaries considered as one
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enterprise. Except as disclosed in the Prospectus, in connection with
the construction on or operation and use of the Properties, the Company
and the Operating Partnership represent that, as of the date of this
Agreement, each of the Company and the Operating Partnership has no
knowledge of any material failure to comply with all applicable local,
state and federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the use, generation,
recycling, reuse, sale, storage, handling, transport and disposal of
any Hazardous Materials (collectively, "Environmental Laws") that would
have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects
of the Company, the Operating Partnership and its subsidiaries
considered as one enterprise.
(xxv) Each of the Company and the Operating Partnership does
no business with any person or affiliate located in Cuba within the
meaning of Florida Rule 3E- 900.001.
(b) Any certificate signed by any officer of the Company in such
capacity or as general partner of the Operating Partnership and delivered to you
or to counsel for the Underwriters in connection with the offering of the
Underwritten Securities shall be deemed a representation and warranty by the
Company or the Operating Partnership, as the case may be, to each Underwriter
participating in such offering as to the matters covered thereby on the date of
such certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
Section 2. Purchase and Sale.
-----------------
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable Terms Agreement relating to
the
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Initial Underwritten Securities, an option to the Underwriters named in such
Terms Agreement, severally and not jointly, to purchase up to the number of
Option Securities set forth therein at the same price per Option Security as is
applicable to the Initial Underwritten Securities. Such option, if granted, will
expire 30 days or such lesser number of days as may be specified in the
applicable Terms Agreement after the Representation Date relating to the Initial
Underwritten Securities, and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by you to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option Securities.
Any such time and date of delivery (a "Date of Delivery") shall be determined by
you, but shall not be later than three full business days and not be earlier
than two full business days after the exercise of said option, unless otherwise
agreed upon by you and the Company. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in the applicable Terms Agreement bears to the total number of Initial
Underwritten Securities (except as otherwise provided in the applicable Terms
Agreement), subject to such adjustments as you in your discretion shall make to
eliminate any sales or purchases of fractional Initial Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at the
offices of Brown & Wood LLP, One World Trade Center, New York, New York
10048-0557, or at such other place as shall be agreed upon by you and the
Company, at 10:00 A.M., New York City time, on the third business day (unless
postponed in accordance with the provisions of Section 10) following the date of
the applicable Terms Agreement or, if pricing takes place after 4:30 p.m. New
York City time on the date of the applicable Terms Agreement, on the fourth
business day (unless postponed in accordance with the provisions of Section 10)
following the date of the applicable Terms Agreement or at such other time as
shall
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be agreed upon by you and the Company (each such time and date being referred
to as a "Closing Time"). In addition, in the event that any or all of the
Option Securities are purchased by the Underwriters, payment of the purchase
price for, and delivery of certificates representing, such Option Securities,
shall be made at the above-mentioned offices of Brown & Wood LLP, or at such
other place as shall be agreed upon by you and the Company on each Date of
Delivery as specified in the notice from you to the Company. Unless otherwise
specified in the applicable Terms Agreement, payment shall be made to the
Company by wire transfer of immediately available funds to a bank account
designated by the Company, against delivery to you for the respective accounts
of the Underwriters for the Underwritten Securities to be purchased by them. The
Underwritten Securities shall be in such authorized denominations and registered
in such names as you may request in writing at least one business day prior to
the applicable Closing Time or Date of Delivery, as the case may be. The
Underwritten Securities, which may be in temporary form, will be made available
for examination and packaging by you on or before the first business day prior
to the Closing Time or Date of Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Underwritten Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types described
in the Prospectus. At the Closing Time, the Company will enter into Delayed
Delivery Contracts (for not less than the minimum number of Underwritten
Securities per Delayed Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate number of
Underwritten Securities in excess of that specified in the applicable Terms
Agreement.
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The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
You shall submit to the Company, at least two business days prior to
the Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least two business days prior to the Closing Time,
of the names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Company and the number of Underwritten Securities
to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be reduced
by the number of Underwritten Securities covered by Delayed Delivery Contracts,
as to each Underwriter as set forth in a written notice delivered by you to the
Company; provided, however, that the total number of Underwritten Securities to
be purchased by all Underwriters shall be the total number of Underwritten
Securities covered by the applicable Terms Agreement, less the number of
Underwritten Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company and the Operating Partnership. Each
of the Company and the Operating Partnership covenants with you, and with each
Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) Immediately following the execution of the applicable Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Underwritten Securities are
being issued, the names of the Underwriters participating in the offering and
the number of Underwritten Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co- managers in connection
with the offering, the price at which the Underwritten Securities are to be
purchased by the Underwriters from the Company, the initial public offering
price, if any, the selling concession and reallowance, if any, any delayed
delivery arrangements, and such other information as you and the Company
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deem appropriate in connection with the offering of the Underwritten Securities;
and the Company will, by the close of business in New York on the business day
immediately succeeding the date of the applicable Terms Agreement, transmit
copies of the Prospectus Supplement to the Commission for filing pursuant to
Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters
named therein as many copies of the Prospectus (including such Prospectus
Supplement) as you shall reasonably request. If the Company elects to rely on
Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated
term sheet that complies with the requirements of Rule 434 under the 1933 Act
Regulations and will provide the Underwriters with copies of the form of Rule
434 Prospectus, in such number as the Underwriters may reasonably request, and
file or transmit for filing with the Commission the form of Prospectus complying
with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b)
of the 1933 Act Regulations by the close of business in New York on the business
day immediately succeeding the date of the applicable Terms Agreement.
(b) The Company will notify you immediately, and confirm such notice in
writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus or any document to
be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any such stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company will give you notice of its intention to file or prepare
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise,
(including any revised Prospectus which the Company
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proposes for use by the Underwriters in connection with an offering of
Underwritten Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement first becomes effective,
whether or not such revised Prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations, or any abbreviated term sheet prepared in
reliance on Rule 434 of the 1933 Act Regulations) and will furnish you with
copies of any such amendment or supplement a reasonable amount of time prior to
such proposed filing or preparation, as the case may be, and will not file or
prepare any such amendment or supplement or other documents in a form to which
you or counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) as such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act in connection with sales of the Underwritten Securities,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for the
Company, to amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of either such counsel, at any such
time to amend or supplement the Registration Statement or the Prospectus in
order to comply with
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the requirements of the 1933 Act or the 1933 Act Regulations, then the Company
will promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise,
as may be necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply, in the opinion of Counsel to the
Underwriters, with such requirements, and the Company will furnish to the
Underwriters a reasonable number of copies of such amendment or supplement.
(g) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Underwritten Securities for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as you may designate; provided, however, that
the Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction where it is not so qualified. In each jurisdiction in which the
Underwritten Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation in any jurisdiction
where it is not so qualified.
(h) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as practicable,
but not later than 60 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a twelve month period beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in such Rule 158) of the Regis- tration Statement.
(i) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable year
in which sales of the Underwritten Securities are to occur.
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<PAGE>
(j) The Company will use the net proceeds received by it from the sale
of the Underwritten Securities in the manner specified in the Prospectus under
the caption "Use of Proceeds."
(k) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(l) Neither the Company nor the Operating Partnership will, during a
period of 90 days from the date of the applicable Terms Agreement, with respect
to the Underwritten Securities covered thereby, without your prior written
consent, directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any of the Company's or the Operating
Partnership's equity securities (other than the Underwritten Securities which
are to be sold pursuant to such Terms Agreement) or any securities convertible
into or exchangeable into or exercisable for equity securities of either the
Company or the Operating Partnership, except in accordance with this Agreement,
pursuant to a dividend reinvestment plan, pursuant to employee or director stock
option plans, or as partial or full payment for properties to be acquired by the
Operating Partnership.
(m) If applicable, the Company will use its best efforts to list the
shares of Common Stock on the New York Stock Exchange or such other national
exchange on which the Company's shares of Common Stock are then listed.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the cost of reproducing and distributing to you copies of this Agreement and the
applicable Terms Agreement, (iii) the preparation, issuance and delivery of the
Underwritten Securities to the Underwriters, (iv) the fees and disbursements of
the Company's counsel and accountants, (v) the qualification of the Underwritten
Securities under securities laws and real estate syndication laws in
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accordance with the provisions of Section 3(g), including filing fees and the
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey, (vi) the
printing, reproduction and delivery to the Underwriters copies of the Blue Sky
Survey, (vii) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, each
preliminary prospectus and of the Prospectus and any amendments or supplements
thereto, (viii) the fees and expenses, if any, incurred with respect to the
listing of the Underwritten Securities on any national securities exchange, and
(ix) the fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.
If the applicable Terms Agreement is terminated by you in accordance
with the provisions of Section 5, Section 9(b)(i) or 9(b)(ii), the Company shall
reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company and the Operating Partnership
herein contained, the performance by each of the Company and the Operating
Partnership of all of its covenants and other obligations hereunder, and to the
following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and (ii) there
shall not have come to your attention any facts that would cause you to believe
that the Prospectus, together with the applicable Prospectus Supplement, at the
time it was required to be delivered to purchasers of the Underwritten
Securities, included an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light of
the circumstances existing at such time, not misleading.
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(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of
Goodwin, Procter & Hoar LLP, counsel for the Company and the Operating
Partnership, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing under the
laws of the State of Maryland.
(ii) The Operating Partnership has been duly formed
and is validly existing as a limited partnership in good
standing under the laws of the State of Delaware. All of the
issued and outstanding partnership interests of the Operating
Partnership have been duly authorized and validly issued to
the Company and the entities or persons described in the
Prospectus and are fully paid. The Company is the sole general
partner of the Operating Partnership.
(iii) Each subsidiary of the Operating Partnership
has been duly organized and is validly existing as a
partnership, limited liability company or corporation, as the
case may be, in good standing under the laws of its state of
organization.
(iv) Each of the Company, the Operating Partnership
and its subsidiaries has full corporate, limited liability
company or partnership power and authority, as the case may
be, to own, lease and operate its properties and to conduct
its respective business as described in the Prospectus.
(v) Each of the Company, the Operating Partnership
and its subsidiaries, respectively, is duly qualified or
registered as a foreign corporation, limited liability company
or partnership, as the case may be, to transact business and
is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where
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the failure to so qualify or to be in good standing would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company, the Operating Partnership and its
subsidiaries considered as one enterprise.
(vi) The authorized issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization" (as of the date set forth therein) and such
stock has been duly authorized, validly issued, fully paid and
non-assessable.
(vii) Each of this Agreement and the applicable Terms
Agreement has been duly authorized, executed and delivered by
the Company.
(viii) This Agreement has been duly authorized,
executed and delivered by the Operating Partnership.
(ix) The Underwritten Securities being sold pursuant
to this Agreement and the applicable Terms Agreement have been
duly authorized for issuance and sale pursuant to this
Agreement and such Terms Agreement; and such Underwritten
Securities, when issued and delivered by the Company pursuant
to this Agreement against payment of the consideration set
forth in such Terms Agreement or any Delayed Delivery
Contract, will be validly issued, fully paid and
non-assessable, and the issuance of such Underwritten
Securities will not be subject to preemptive or other similar
rights arising out of the operation of law or, to their
knowledge, otherwise.
(x) The Registration Statement has been declared
effective under the 1933 Act and, to the best of their
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(xi) The Registration Statement and the Prospectus,
excluding the documents incorporated by
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reference therein, as of their respective effective or issue
dates, comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations; it
being understood, however, that no opinion need be rendered
with respect to the financial statements, schedules and other
financial and statistical data included or incorporated by
reference in the Registration Statement or the Prospectus. If
applicable, the Rule 434 Prospectus conforms to the
requirements of Rule 434 under the 1933 Act Regulations.
(xii) Each document filed pursuant to the 1934 Act
(other than the financial statements, schedules and other
financial and statistical data included therein, as to which
no opinion need be rendered) and incorporated or deemed to be
incorporated by reference in the Prospectus complied when so
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations.
(xiii) To their knowledge, no authorization, approval
or consent of any court or governmental authority or agency is
required that has not been obtained in connection with the
consummation by the Company, the Operating Partnership or any
of its subsidiaries of the transactions contemplated by this
Agreement and the applicable Terms Agreement except such as
may be required under the 1933 Act, the 1934 Act and state
securities laws or real estate syndication laws.
(xiv) None of the Company, the Operating Partnership
or any of its subsidiaries is required to be registered under
the Investment Company Act of 1940.
(xv) To the best of such counsel's knowledge (A) the
following is a complete list of registration rights agreements
entered into by the Company and currently in effect: (1)
agreement dated May 26, 1994 with Richard L. Friedman and John
L. Hall II; (2) agreement dated May 26, 1994 with certain
holders of Units; (3) agreement dated October 27, 1994 with
Wellesley Office
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Realty Corp. and Federal 175 Realty Corp.; (4) agreement dated
February 15, 1996 with TMPC, L.P.; and (5) agreement dated
September 5, 1996 with the Contributors of the Fairfax County
Portfolio; and (B) no persons have exercised registration or
other similar rights to have any securities registered
pursuant to the Registration Statement.
(xvi) Commencing with the Company's first taxable
year ended December 31, 1994, the Company has been organized
in conformity with the requirements for qualifications as a
REIT under the Code and the Company's method of operation will
enable it to meet the requirements for taxation as a REIT
under the Code.
(xvii) The Underwritten Securities conform in all
material respects to the statements relating thereto contained
in the Prospectus and the form of certificate used to evidence
the Underwritten Securities is in due and proper form and
complies in all material respects with all applicable
statutory requirements.
(xviii) The statements set forth in the Prospectus
under the captions "Description of Common Stock,"
"Restrictions on Transfers of Capital Stock" and "Federal
Income Tax Considerations", to the extent such statements
constitute matters of law, or legal conclusions, have been
reviewed by them and are correct in all material respects.
(2) The favorable opinion, dated as of Closing Time, of
Goulston & Storrs, P.C., special counsel for the Company and the
Operating Partnership, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) To the best of their knowledge, there are no
legal or governmental proceedings pending or threatened
against the Company, the Operating Partnership or any of its
subsidiaries which are required to be disclosed in the
Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the
Company, the Operating Partnership or any of its subsidiaries
is a party or of which any of the Properties or assets of the
Company, the Operating Partnership or any of
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its subsidiaries is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental
to the business, are, considered in the aggregate, not
material.
(ii) To the best of their knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or
referred to in the Registration Statement or the Prospectus or
to be filed as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto other than
those described or referred to therein or filed as exhibits
thereto and the descriptions thereof or references thereto are
correct in all material respects, and, to the best of their
knowledge and information, no default exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to or filed.
(iii) The execution and delivery of this Agreement
and the applicable Terms Agreement and the consummation of the
transactions contemplated herein and therein and compliance by
each of the Company, the Operating Partnership or any of its
subsidiaries with its obligations hereunder and thereunder
will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any Property or assets of the
Company, the Operating Partnership or any of its subsidiaries
pursuant to any contract, indenture, mortgage, loan agreement,
to which the Company, the Operating Partnership or any of its
subsidiaries is a party or by which it or any of them may be
bound or to which any of the Properties or assets of the
Company, the Operating Partnership or any of its subsidiaries
is subject, nor will such action result in violation of the
provisions of the charter, by-laws, agreement of limited
partnership or other organizational documents
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of the Company, the Operating Partnership or any of its
subsidiaries or any applicable law, administrative regulation
or administrative or court order or decree.
(3) The favorable opinion, dated as of Closing Time, of Brown
& Wood LLP, counsel for the Underwriters, with respect to the matters
set forth in (i), (vii) to (xi), inclusive and (xvii), of subsection
(b)(1).
(4) In giving their opinions required by subsections (b)(1),
(b)(2) and (b)(3), respectively, of this Section, Goodwin, Procter &
Hoar LLP, Goulston & Storrs, P.C. and Brown & Wood LLP shall each
additionally state that nothing has come to their attention that would
lead them to believe that the Registration Statement or any amendment
thereto, (except for financial statements and schedules and other
financial and statistical data, as to which counsel need make no
statement) at the time it became effective (or, if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed
by the Company with the Commission, subsequent to the effectiveness of
the Registration Statement, then at the time such amendment becomes
effective or at the time of the most recent filing of such Annual
Report, as the case may be) or at the Representation Date, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, (except for financial statements and
schedules and other financial and statistical data, as to which such
counsel need make no statement) at the Representation Date or at
Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. In giving their opinions required
by subsections (b)(1), (b)(2) and (b)(3), respectively, of this
Section, Goodwin, Procter & Hoar LLP, Goulston & Storrs, P.C. and Brown
& Wood LLP may rely, (1) as to all matters of fact, upon certificates
and written statements of officers and employees of and accountants for
the Company and Operating Partnership, (2) with respect to certain
other matters, upon certificates of appropriate
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government officials in such jurisdiction, and (3) Brown & Wood LLP may
additionally rely, as to matters involving the laws of the State of
Maryland, upon the opinion of Goodwin, Procter & Hoar LLP (or other
counsel reasonably satisfactory to counsel for the Underwriters) in
form and substance satisfactory to counsel for the Underwriters.
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company, the Operating Partnership and its subsidiaries considered as one
enterprise, or the Properties, collectively, whether or not arising in the
ordinary course of business, from that set forth in the Prospectus; no
proceedings shall be pending or, to the knowledge of the Company or Operating
Partnership, threatened against the Company, the Operating Partnership or any of
its subsidiaries or any of the Properties before or by any Federal, state or
other commission, board or administrative agency wherein an unfavorable
decision, ruling or finding would materially and adversely affect the business,
property, financial condition or income of the Company, the Operating
Partnership and its subsidiaries considered as one enterprise or the Properties,
collectively, other than as set forth in the Prospectus or incorporated therein
by reference; and you shall have received a certificate of the President and
Chief Executive Officer and of the Chief Financial Officer of the Company in
such capacity, and of the general partner of the Operating Partnership, dated as
of such Closing Time, to the effect that (i) there has been no such material
adverse change and (ii) the representations and warranties in Section 1 are true
and correct with the same force and effect as though such Closing Time were a
Representation Date. As used in this Section 5(c), the term "Prospectus" means
the Prospectus in the form first used to confirm sales of the Underwritten
Securities.
(d) At the time of execution of the applicable Terms Agreement, you
shall have received a letter dated such date from Coopers & Lybrand L.L.P., in
form and substance satisfactory to you, to the effect that (i) they are
independent public accountants with respect to the Company and the Predecessor
31
<PAGE>
within the meaning of the 1933 Act and the 1933 Act Regulations thereunder; (ii)
it is their opinion that the financial statements and financial statement
schedules included or incorporated by reference in the Registration Statement
and the Prospectus and covered by their opinions therein comply as to form in
all material respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations; (iii) they have performed limited procedures,
not constituting an audit, including a reading of the latest available interim
financial statements of the Company, a reading of the minute books of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and such other inquiries and procedures as may
be specified in such letter, and on the basis of such limited review and
procedures (which shall include, without limitation, the procedures specified by
the American Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial Information,
with respect to the unaudited condensed consolidated financial statement of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement), nothing has come to their attention which causes them
to believe (A) that any material modifications should be made to the unaudited
condensed financial statements of the Company included in the Registration
Statement for them to be in conformity with generally accepted accounting
principles or that such unaudited financial statements do not comply as to form
in all material respects with the applicable accounting requirements of the 1934
Act and the 1934 Act Regulations, (B) the unaudited financial data of the
Company included or incorporated by reference in the Registration Statement and
the Prospectus under the caption "Selected Financial Information" was not
determined on a basis substantially consistent with that used in determining the
corresponding amounts in the audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus, (C)
the pro forma financial information included or incorporated by reference in the
Registration Statement was not prepared in accordance with the requirements of
the 1933 Act and the 1933 Act Regulations or that the pro forma financial
information included in or incorporated by reference in the Registration
Statement and the Prospectus has not been properly applied to the historical
amounts in the compilation of those statements, and (D) at a specified date not
32
<PAGE>
more than three days prior to the date of the applicable Terms Agreement, there
has been any change in the capital stock of the Company or any increase in the
debt of the Company or any decrease in the net assets of the Company, as
compared with the amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration Statement and the
Prospectus or, during the period from the date of the most recent consolidated
statement of operations included or incorporated by reference in the
Registration Statement and the Prospectus to a specified date not more than
three days prior to the date of the applicable Terms Agreement, there were any
decreases, as compared with the corresponding period in the preceding year, in
consolidated revenues, operating income, funds from operations, net income or
net income per share of the Company, except in all instances for changes,
increases or decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur; and (iv) in addition to the examination
referred to in their opinion and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by you, and have
found such amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the Company
identified in such letter.
(e) At Closing Time, you shall have received a letter, dated as of
Closing Time, from Coopers & Lybrand L.L.P. to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the "specified date" referred to shall be a date not more
than three days prior to such Closing Time.
(f) At the time of the execution of the applicable Terms Agreement, you
shall have received a letter dated such date from such independent accountants
that have prepared historical financial statements included in or incorporated
by reference into the Registration Statement and Prospectus which financial
statements relate to properties or assets acquired or to be acquired by the
Company, in form and substance satisfactory to the Underwriters, to the effect
that (i) they are independent
33
<PAGE>
accountants with respect to the Company and such properties or assets within the
meaning of the 1933 Act and the 1933 Act Regulations; and (ii) it is their
opinion that the historical financial statements for such properties or assets
that have been audited by them and covered by their opinions included or
incorporated by reference into the Registration Statement and the Prospectus
comply in form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations.
(g) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Underwritten Securities, as herein contemplated shall be reasonably satisfactory
in form and substance to you and counsel for the Underwriters.
(h) In the event that the Underwriters exercise their option provided
in a Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company and the Operating Partnership contained herein and the statements in any
certificates furnished by the Company and the Operating Partnership hereunder
shall be true and correct as of each Date of Delivery and, at the relevant Date
of Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery, of the
President and Chief Executive Officer or a Vice President of the
Company and of the chief financial or chief accounting officer of the
Company on behalf of the Company and on behalf of the Company in its
capacity as general partner of the Operating Partnership confirming
that the certificate delivered at the Closing Time pursuant to Section
5(c) hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Goodwin, Procter & Hoar LLP,
counsel for the Company and the Operating Partnership,
34
<PAGE>
in form and substance reasonably satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Sections 5(b)(1) and 5(b)(4)
hereof.
(3) The favorable opinion of Goulston & Storrs, P.C., special
counsel for the Company and the Operating Partnership in form and
substance reasonably satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Shares and
otherwise to the same extent as the opinion required by Sections
5(b)(2) and 5(b)(4) hereof.
(4) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Sections 5(b)(3) and 5(b)(4)
hereof.
(5) A letter from Coopers & Lybrand L.L.P., in form and
substance satisfactory to you and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to you pursuant to Section 5(d) hereof, except that the "specified
date" in the letter furnished pursuant to this Section 5(h)(5) shall be
a date not more than three days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to the
Closing Time or Date of Delivery, as the case may be, and such termination shall
be without liability of any party to any other party except as provided in
Section 4 hereof.
Section 6. Indemnification. (a) The Company and the Operating
Partnership, jointly and severally, hereby agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act as follows:
35
<PAGE>
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant to
Rule 430A(b) or Rule 434 of the 1933 Act Regulations, if applicable, or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission, or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the indemnifying
party; and
(3) against any and all expense whatsoever (including, the
reasonable fees and disbursements of counsel chosen by you) reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceedings by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration
36
<PAGE>
Statement (or any amendment thereto) and the Prospectus (or any amendment or
supplement thereto); and provided, further, that neither the Company nor the
Operating Partnership will be liable to any Underwriter or any person
controlling such Underwriter with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus which is
corrected in the Prospectus (or any amendment or supplement thereto) if the
Company or the Operating Partnership sustains the burden of proving that such
Underwriter sold Underwritten Securities to the person asserting any such loss,
claim, damage or liability without sending or giving, at or prior to the written
confirmation of the sale of such Underwritten Securities to such person, a copy
of the Prospectus (or any amendment or supplement thereto), if the Company had
previously furnished copies thereof to such Underwriter.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company and the Operating Partnership, the directors, each of the officers
who signed the Registration Statement and each person, if any, who controls the
Company or the Operating Partnership within the meaning of Section 15 of the
1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. If it so elects within a reasonable time after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume
37
<PAGE>
the defense of such action with counsel chosen by it and approved by the
indemnified parties defendant in such action, unless such indemnified parties
reasonably object to such assumption on the ground that there may be legal
defenses available to them which are different from or in addition to those
available to such indemnifying party. If an indemnifying party assumes the
defense of such action, the indemnifying parties shall not be liable for any
fees and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
(d) For purposes of this Section 6, all references to the Registration
Statement, any preliminary prospectus or the Prospectus, or any amendment or
supplement to any of the foregoing, shall be deemed to include, without
limitation, any electronically transmitted copies thereof, including, without
limitation, any copies filed with the Commission pursuant to EDGAR.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the Operating
Partnership and the Underwriters with respect to the offering of the
Underwritten Securities shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company, the Operating Partnership and one or more of
the Underwriters in respect of such offering, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus in respect of such offering bears to the initial public offering
price appearing thereon and the Company and the Operating Partnership are
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who
38
<PAGE>
was not guilty of such fraudulent misrepresentation. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Underwritten Securities purchased by it pursuant to the applicable Terms
Agreement and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
in respect of such losses, liabilities, claims, damages and expenses. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company or the Operating Partnership within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Company and the Operating Partnership, respectively. The Underwriter's
obligations to contribute pursuant to this Section 7 are several in proportion
to their respective underwriting commitments and not joint. For purposes of this
Section 7, the Company, the Operating Partnership and its subsidiaries shall be
deemed one party jointly and severally liable for any obligations hereunder.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Company and the Operating Partnership submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
termination of this Agreement or the applicable Terms Agreement, or
investigation made by or on behalf of any Underwriter or any controlling person,
or by or on behalf of the Company or the Operating Partnership, and shall
survive delivery of and payment for the Underwritten Securities.
Section 9. Termination of Agreement. (a) This Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company, the Operating Partnership or by you upon the giving of 30 days' written
notice of such termination to the other parties hereto.
(b) You may also terminate the applicable Terms Agreement, by notice to
the Company, at any time at or prior to the Closing
39
<PAGE>
Time (i) if there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company, the Operating
Partnership and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or any
outbreak of hostilities or escalation thereof or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in your judgment, impracticable to market the Underwritten Securities or
enforce contracts for the sale of the Underwritten Securities, or (iii) if
trading in any of the securities of the Company has been suspended or limited by
the Commission, or the New York Stock Exchange, or if trading generally on
either the New York Stock Exchange or the American Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium has been declared by Federal or New York authorities. As used
in this Section 9(b), the term "Prospectus" means the Prospectus in the form
first used to confirm sales of the Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect so long as any Underwriter owns any such Underwritten
Securities purchased from the Company pursuant to the applicable Terms Agreement
and (y) the covenant set forth in Section 3(h) hereof, the provisions of
Section 4 hereof, the indemnity and contribution agreements set forth in
Sections 6 and 7 hereof, and the provisions of Sections 8 and 13 hereof shall
remain in effect.
Section 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to
40
<PAGE>
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, you
shall not have completed such arrangements within such 24-hour period, then:
(a) if the total number of Defaulted Securities does not exceed 10% of
the total number of Underwritten Securities to be purchased pursuant to such
Terms Agreement, the non-defaulting Underwriters named in such Terms Agreement
shall be obligated, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10% of the
total number of Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a termination
of the applicable Terms Agreement, either you or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed c/o Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Merrill Lynch World Headquarters, North Tower,
World Financial Center, New York, New York 10281-1305, attention of John Brady,
Managing Director; and notices to the Company and the Operating Partnership
shall be directed to them at Beacon Properties Corporation, 50 Rowes Wharf,
Boston, Massachusetts 02110, attention of Alan M. Leventhal, President.
41
<PAGE>
Section 12. Parties. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon you and the Company, the
Operating Partnership and any Underwriter who becomes a party to such Terms
Agreement, and their respective successors. Nothing expressed or mentioned in
this Agreement or the applicable Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than those referred to
in Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or such
Terms Agreement or any provision herein or therein contained. This Agreement and
the applicable Terms Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the parties
hereto and thereto and their respective successors and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of
Underwritten Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the applicable
Terms Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
Section 14. Counterparts. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart the executed counterparts shall constitute a single
instrument.
42
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument, along with all counterparts will become a binding agreement between
you, the Company and the Operating Partnership in accordance with its terms.
Very truly yours,
BEACON PROPERTIES L.P.
By:
---------------------------------
Name: Alan M. Leventhal
Title: President
BEACON PROPERTIES CORPORATION
By: Beacon Properties Corporation
(its general partner)
By:
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
------------------------------------
John C. Brady
Director
43
<PAGE>
Exhibit A
BEACON PROPERTIES CORPORATION
(a Maryland Corporation)
[Title of Securities]
TERMS AGREEMENT
---------------
Dated: , 199_
To: BEACON PROPERTIES CORPORATION
50 Rowes Wharf
Boston, Massachusetts 02110
Attention: Chairman of the Board of Directors
Dear Sirs:
We (the "Representative") understand that Beacon Properties
Corporation, a Maryland corporation (the "Company"), proposes to issue and sell
the number of shares of its Common Stock, $.01 par value, set forth below (such
Common Stock being hereinafter referred to as the "Underwritten Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, the underwriters named below (the "Underwriters") offer to purchase,
severally and not jointly, the respective numbers of Initial Underwritten
Securities (as defined in the Underwriting Agreement referred to below) set
forth below opposite their respective names, and a proportionate share of Option
Securities (as defined in the Underwriting Agreement referred to below) to the
extent any are purchased) at the purchase price set forth below.
A-1
<PAGE>
<TABLE>
<CAPTION>
Number of Shares
of Initial
Underwriter Underwritten Securities
----------- ------------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated ----------
Total ----------
==========
</TABLE>
A-2
<PAGE>
The Underwritten Securities shall have the following terms:
Title of Securities:
Number of Shares:
Public offering price per share: $
Purchase price per share: $
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum number of Shares:
Fee: ]
Additional co-managers, if any:
Other terms:
Closing date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "Beacon Properties Corporation - Common Stock - Underwriting Agreement"
are hereby incorporated by reference in their entirety herein and shall be
deemed to be a part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. Terms defined in such document are
used herein as therein defined.
A-3
<PAGE>
Please accept this offer no later than o'clock P.M. (New York City
time) on by signing a copy of this Terms Agreement in the space set forth below
and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
---------------------------------
Acting on behalf of itself and the
other named Underwriters.
Accepted:
BEACON PROPERTIES CORPORATION
By
--------------------------
Name:
Title:
A-4
<PAGE>
Exhibit B
BEACON PROPERTIES CORPORATION
(a Maryland corporation)
[Title of Securities]
DELAYED DELIVERY CONTRACT
-------------------------
, 199_
Beacon Properties Corporation
50 Rowes Wharf
Boston, Massachusetts 02110
Attention: Chairman of the Board of Directors
Dear Sirs:
The undersigned hereby agrees to purchase from Beacon Properties
Corporation (the "Company"), and the Company agrees to sell to the undersigned
on __________, 19__ (the "Delivery Date"),
of the Company's [insert title of security] (the "Securities"), offered by the
Company's Prospectus dated __________, 19__, as supplemented by its Prospectus
Supplement dated ___________, 19__, receipt of which is hereby acknowledged at a
purchase price of [$__________] to the Delivery Date, and on the further terms
and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
B-1
<PAGE>
, on the Delivery Date, upon delivery
to the undersigned of the Securities to be purchased by the undersigned in
definitive form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before __________, 19__, shall
have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated __________, 19__ between the Company and the Underwriters.
The obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payments for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this
B-2
<PAGE>
contract will constitute a valid and binding agreement of the undersigned in
accordance with its terms.
This contract will inure to the benefit of and binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for a number of Securities in excess of ________ and that the
acceptance of any Delayed Delivery Contract is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served
basis. If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This will
become a binding contract between the Company and the undersigned when such copy
is so mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
-----------------------------
(Name of Purchaser)
By
-----------------------------
(Title)
-----------------------------
-----------------------------
(Address)
Accepted as of the date first above written.
BEACON PROPERTIES CORPORATION
By
-----------------------
(Title)
B-3
<PAGE>
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print.)
Telephone No.
(including
Name Area Code)
---- --------------
B-4
