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EXHIBIT 1.1
_______________ SHARES
EQUITY OFFICE PROPERTIES TRUST
(A MARYLAND REAL ESTATE INVESTMENT TRUST)
____% SERIES C CUMULATIVE REDEEMABLE PREFERRED SHARES
(PAR VALUE $0.01 PER SHARE) (LIQUIDATION PREFERENCE $___ PER SHARE)
UNDERWRITING AGREEMENT
_______________, 1998
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_____________, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Brothers Inc
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Equity Office Properties Trust, a Maryland real estate investment trust
(the "COMPANY"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "UNDERWRITERS") ______________ shares of its ____% Series
C Cumulative Redeemable Preferred Shares, par value $0.01 per share, liquidation
preference $_____ per share (the "SHARES").
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-11 (No. 333- ), including a
form of prospectus, relating to the Shares. The registration statement as
amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT";
the prospectus in the form first used to confirm sales of Shares is hereinafter
referred to as the "PROSPECTUS". If the Company has filed an abbreviated
registration statement to register additional shares of Common Stock pursuant to
Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"),
then any reference herein to the term "REGISTRATION STATEMENT" shall be deemed
to include such Rule 462 Registration Statement.
The Company is the managing general partner of EOP Operating Limited
Partnership, a Delaware limited partnership (the "Operating Partnership"). The
Company owns all of its assets and conducts all of its business through the
Operating Partnership and its subsidiaries.
1. Representations and Warranties of the Company and the
Operating Partnership. The Company and the Operating Partnership represent and
warrant to the Underwriters as of the date hereof and as of the date of the
Closing Date, as follows:
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(a) Compliance with Registration Requirements. At the
time the Registration Statement become effective and as of the
date hereof, the Registration Statement will comply in all
material respects with the requirements of the Securities Act
and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
the Prospectus, at the Closing Date, will comply in all
material respects with the requirements of the Securities Act
and will not contain 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 expressly for use in the
Registration Statement or the Prospectus.
Each of the preliminary prospectus and the Prospectus
filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant
to Rule 424 under the Securities Act, complied when so filed
in all material respects with the Securities Act and each
preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof
filed with the Commission pursuant ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(b) No Stop Order or Proceedings. No stop order
suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the
Company or the Operating Partnership, is contemplated by the
Commission or by the state securities authority of any
jurisdiction. No order preventing or suspending the use of the
Prospectus has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company or the
Operating Partnership, is contemplated by the Commission or by
the state securities authority of any jurisdiction.
(c) Independent Accountants. Each of Ernst & Young
LLP and Coopers & ▇▇▇▇▇▇▇ L.L.P., the accounting firms that
certified the financial statements and supporting schedules
included in the Prospectus, is an independent public
accountant as required by the Securities Act.
(d) Financial Statements. The financial statements
(including the notes thereto) included in the Prospectus
present fairly the financial position of the respective entity
or entities presented therein at the respective dates
indicated and the results of their operations for the
respective periods specified, and except as otherwise stated
in the Prospectus, said financial statements have been
prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis. The
supporting schedules included in the Prospectus present fairly
the information required to be stated therein. The financial
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information and data included in the Prospectus present fairly
the information included therein and have been prepared on a
basis consistent with that of the books and records of the
respective entities presented therein. The Statements of
Revenues and Certain Operating Expenses included in the
Prospectus for certain of the Properties present fairly the
information included therein and have been prepared on a basis
consistent with that of the books and records of the
respective entities presented therein. Pro forma financial
information included in the Prospectus has been prepared in
accordance with the applicable requirements of Rules 11-01 and
11-02 of Regulation S-X under the Securities Act, and the
necessary pro forma adjustments have been properly applied to
the historical amounts in the compilation of such information,
and, in the opinion of the Company, the assumptions used in
the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(e) No Material Adverse Change. Since the respective
dates as of which information is given in 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, assets, or business affairs of
the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a
"Material Adverse Change"), (B) no casualty loss or
condemnation or other adverse event with respect to any
Property has occurred that would result in a Material Adverse
Effect (as defined below), (C) there have been no transactions
or acquisitions entered into by the Company or any of its
subsidiaries, other than those arising in the ordinary course
of business, which are material with respect to the Company
and its subsidiaries considered as one enterprise, (D) except
as described in the Prospectus and except for regular
quarterly distributions of the Operating Partnership), there
has been no distribution of any kind declared, paid or made by
the Company or the Operating Partnership with respect to its
partnership interests, and (E) there has been no material
change in the partnership interests of the Operating
Partnership, or any material increase in the indebtedness of
the Company.
(f) Good Standing of the Company. The Company has
been duly formed and is validly existing as a real estate
investment trust in good standing under the Maryland General
Corporation Law (the "MGCL") with trust power and authority to
own, lease and operate any real property or improvements
thereon owned or leased by the Company or its subsidiaries
(each individually, a "Property" and collectively, the
"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 or contemplated
under this Agreement. The Company is duly qualified or
registered as a foreign real estate investment trust 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, register or be in good
standing would not result in a material adverse effect on the
condition, financial or otherwise, or the earnings, assets,
business affairs or business
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prospects of the Company and its subsidiaries considered as
one enterprise (a "Material Adverse Effect").
(g) Good Standing of the Subsidiaries. Each of the
"significant subsidiaries" of the Company and the Operating
Partnership listed on Schedule II to this Agreement
(collectively, the "Significant Subsidiaries") has been duly
organized and is validly existing as a partnership,
corporation, limited liability company or real estate
investment trust in good standing under the laws of its
respective jurisdiction of organization, with all power and
authority 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. Each of the subsidiaries of the
Company is duly qualified or registered as a foreign
partnership, corporation, limited liability company, or real
estate investment trust and is in good standing in each
jurisdiction in which the business conducted by such
subsidiary is required and permitted, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure, singly or in the aggregate, to so
qualify would not result in a Material Adverse Effect. Each of
the partnership or operating agreements of the Significant
Subsidiaries is in full force and effect.
(h) Capitalization of Company. The capitalization of
the Company is as set forth in the Prospectus as of the date
referenced in the Prospectus. All of the Company's common and
preferred shares of beneficial interest outstanding at the
date hereof were duly authorized for issuance by the Company
and are validly issued and fully paid. None of such shares of
beneficial interest were issued in violation of preemptive or
other similar rights of any security holder of the Company.
Such outstanding shares of beneficial interest were offered
and sold in compliance with all applicable laws (including,
without limitation, federal and state securities laws).
(i) Authorization of the Shares. The Shares have been
duly authorized and classified for issuance and sale to the
Underwriters pursuant to this Agreement, and when Articles
Supplementary ("Articles Supplementary") to the Company's
Amendment and Restatement and Restatement of Declaration of
Trust ("Declaration of Trust") setting the terms of the Shares
are duly executed and filed for record with the State
Department of Assessments & Taxation of Maryland (the "SDAT")
and the Shares are duly paid for, sold and issued, and
certificates therefor are duly executed, countersigned and
delivered as provided herein, the Shares will be validly
issued, fully paid and nonassessable; the Shares conform in
all material respect to the Articles Supplementary and the
description thereof contained in the Prospectus; and the
issuance of the Shares is not subject to preemptive or similar
rights.
(j) Absence of Defaults. Neither the Company nor any
Significant Subsidiary is in violation of its declaration of
trust, charter, by-laws, limited liability company agreement,
certificate of limited partnership or partnership agreement,
as the case may be, and neither the Company nor any of its
subsidiaries is in default in the performance or observance of
any obligation,
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agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which such entity is a party or by which such
entity may be bound, or to which any of the property or assets
of such entity is subject, except where a default thereunder
would not result in a Material Adverse Effect.
(k) Absence of Conflicts. The execution and delivery
of this Agreement, the performance of the obligations set
forth herein, and the consummation of the transactions
contemplated hereby or in the Prospectus, including the
issuance and sale of the Shares to the Underwriters, by the
Company will not result in the creation of any lien, charge or
encumbrance upon the Properties or conflict with or constitute
a breach or violation by the Company or any of its
subsidiaries, or default under, (A) any material contract,
indenture, mortgage, loan agreement, note, lease, joint
venture or partnership agreement or other instrument or
agreement to which such entity is a party or by which they,
any of them, any of their respective assets or any Property
may be bound or subject; (B) the charter, by-laws, certificate
of limited partnership, partnership agreement, or limited
liability company agreement, as the case may be, of such
entity; or (C) any applicable law, rule, order, administrative
regulation or administrative or court decree, except in the
cases of clauses (A) and (C) for such liens, charges,
encumbrances, conflicts, breaches, violations or defaults as
would not result in a Material Adverse Effect.
(l) Authorization of Agreement. The Company has the
requisite power and authority under its organization documents
to enter into this Agreement, and this Agreement has been duly
authorized, executed and delivered by the Company.
(m) Absence of Proceedings. There is no action, suit
or proceeding before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or affecting the
Company, any Significant Subsidiary, any Property or any
officer or trustee of the Company that, if determined
adversely to the Company, any Significant Subsidiary, any
Property or any such officer or trustee, might (A) result in
any Material Adverse Effect or (B) materially and adversely
affect the consummation of the transactions contemplated by
this Agreement. The aggregate of all pending legal or
governmental proceedings to which the Company or any
subsidiary of the Company is a party or of which any of their
respective assets, properties or operations is the subject
which are not described in the Prospectus, including ordinary
routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(n) Investment Company Act. Neither the Company nor
any Significant Subsidiary is, or as of the Closing Date will
be, required to be registered under the Investment Company Act
of 1940, as amended (the "1940 Act").
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(o) Possession of Intellectual Property. The Company
and its subsidiaries own or possess, or can acquire on
reasonable terms, the trademarks, service marks, trade names,
or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by
them, and no such entity has received any notice or is
otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render
Intellectual Property invalid or inadequate to protect the
interest of such entities therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling
or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(p) Absence of Further Requirements. All
authorizations, approvals and consents of any court or
governmental authority or agency that are necessary in
connection with the offering, issuance or sale of the Shares
hereunder or the consummation of the other transactions
contemplated by this Agreement, except such as may be required
under the securities, blue sky or real estate syndication laws
of various states in connection with the offer and sale of the
Shares.
(q) Possession of Licenses and Permits. Each of the
Company and its subsidiaries possesses such permits, licenses,
approvals consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal,
state, or local regulatory agencies or bodies necessary to
conduct the business now conducted by it, or proposed to be
conducted by it, as described in the Prospectus, except where
the failure to possess any such Governmental Licenses would
not have a Material Adverse Effect. The Company and its
subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are
valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect
would not result in a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(r) Absence of Labor Dispute. No labor dispute with
the employees of the Company or any of its subsidiaries exists
or, to the knowledge of the Company, is imminent, which may
reasonably be expected to result in a Material Adverse Effect.
(s) Title to Property. (A) With respect to the
Properties in which the Operating Partnership or its
subsidiaries have good and marketable fee simple title to the
land underlying such Properties (or, to the extent described
in the Prospectus, a valid leasehold estate in such land) and
(except for the Property known as "500 Orange") good and
marketable title to the improvements thereon
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and all other assets that are required for the effective
operation of such Properties in the manner in which they
currently are operated, subject, however, to existing
mortgages on such Properties, to utility easements serving
such Properties, to liens of ad valorem taxes not due and
payable as of the Closing Date (or which are being contested
pursuant to applicable law), to zoning and similar
governmental land use matters affecting such Properties that
are consistent with the current uses of such Properties, to
matters of title not adversely affecting marketability of
title to such Property, other statutory liens not due and
payable as of the Closing Date, title matters that may be
material in character, amount or extent but which do not
materially detract from the value, or interfere with the use
of, the Properties or otherwise materially impair the business
operations being conducted or proposed to be conducted
thereon, tenant leases, service marks and trade names used in
connection with such Properties, ground leases and ownership
by others of certain items of equipment and other items of
personal property that are not material to the conduct of
business operations at such Properties; (B) with respect to
the Properties in which the Operating Partnership owns,
directly or indirectly, less than all of the ownership
interest (the "Joint Venture Properties"), the Company or the
applicable subsidiaries of the Company have good and
marketable title to such ownership interests and the
respective entities owning the Joint Venture Properties have
good and marketable title to such interests in the Joint
Venture Properties and good and marketable title to the
improvements thereon and all other assets that are required
for the effective operation of such Properties in the manner
in which they currently are operated, subject to the
exceptions set forth in clause (A) above; (C) the ground
leases under which the applicable subsidiaries of the
Operating Partnership lease the land on which certain
Properties are located are in full force and effect, and each
of such subsidiaries is not in default in respect of any of
the terms or provisions of such leases and the Company has not
received notice of the assertion of any claim by anyone
adverse to such subsidiaries' rights as lessees under such
leases, or affecting or questioning such subsidiaries' right
to the continued possession or use of the Property under such
leases or of a default under such leases; (D) all liens,
charges, encumbrances, claims, or restrictions on or affecting
any of the Properties and the assets of the Company or any of
its subsidiaries are disclosed in the Prospectus, subject to
the exceptions set forth in clause (A) above; (E) neither any
subsidiary of the Company nor any tenant of any of the
Properties is in default under any of the leases pursuant to
which the Operating Partnership or any of its subsidiaries, as
lessor, leases its Property (and the Company does not know 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) other than such defaults and unmatured events of
default that would not result in a Material Adverse Effect;
(F) except for such rights of first refusal as may be
contained in the agreements related to the Joint Venture
Properties, no person has an option or right of first refusal
to purchase all or part of any Property or any interest
therein; (G) each of the Properties complies with all
applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations
and laws relating to access to the Properties), except if and
to the extent disclosed in the Prospectus and except for
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such failures to comply that would not individually or in the
aggregate result in a Material Adverse Effect; (H) there is in
full force and effect insurance coverage for the assets of the
Properties that are commercially reasonable for such types of
assets, and neither the Company nor any of its subsidiaries
has received from any insurance company notice of any material
defects or deficiencies affecting the insurability of any such
assets (including the Properties); and (I) neither the Company
nor any of its subsidiaries has any knowledge or any pending
or threatened condemnation proceedings, zoning change, or
other similar 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 as are disclosed in the Prospectus or that would not
have a Material Adverse Effect.
(t) Environmental Laws. Except as disclosed in the
Prospectus or as would not have a Material Adverse Effect, (A)
each Property, including, without limitation, the Environment
(as defined below) associated with such Property, is free of
any Hazardous Substance (as defined below) in violation of any
Environmental Law (as defined below) applicable to such
Property, except for Hazardous Substances that would not
result in a Material Adverse Effect; (B) neither the Company
nor any of its subsidiaries has during the period of its
ownership caused or suffered to occur any Release (as defined
below) of any Hazardous Substance into the Environment on, in,
under or from any Property in violation of any Environmental
Law applicable to such Property, and no condition exists on,
in, under or, to the knowledge of the Company, adjacent to any
Property that could result in the incurrence of material
liabilities or any material violations of any Environmental
Law applicable to such Property, or give rise to the
imposition of any Lien (as defined below) under any
Environmental Law; (C) neither the Company nor any of its
subsidiaries is engaged in or intends to engage in any
manufacturing at the Properties that (1) require the use,
handling, transportation, storage, treatment or disposal of
any Hazardous Substance (other than cleaning solvents and
similar materials and other than insecticides and herbicides
that are used in the ordinary course of operating the
Properties and in compliance with all applicable Environmental
Laws) or (2) require permits or are otherwise regulated
pursuant to any Environmental Law; (D) neither the Company nor
any of its subsidiaries has received any notice of a claim
under or pursuant to any Environmental Law applicable to a
Property or under common law pertaining to Hazardous
Substances on or originating from any Property; (E) neither
the Company nor any of its subsidiaries has received any
notice from any Governmental Authority (as defined below)
claiming any violation of any Environmental Law that is
uncured or unremediated as of the date hereof, and (F) no
Property is included or, to the knowledge of the Company or
any of its subsidiaries, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA (as defined
below) by the United States Environmental Protection Agency
(the "EPA") or on the Comprehensive Environmental Response,
Compensation, and Liability Information System database
maintained by the EPA, and has not otherwise been identified
by the EPA as a potential CERCLA removal, remedial or response
site or included or, to the knowledge of the Company or any of
its subsidiaries, proposed for inclusion on, any similar list
of
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potentially contaminated sites pursuant to any other
applicable Environmental Law nor has the Company or any of its
subsidiaries received any written notice from the EPA or any
other Governmental Authority proposing the inclusion of any
Property on such list and (G) there are no underground storage
tanks located on or in any Property which have not been
disclosed to the Underwriters.
(u) As used herein, the term "Hazardous Substance"
shall include, without limitation, any hazardous substance,
hazardous waste, toxic or dangerous substance, pollutant,
solid waste or similarly designated materials, including
without limitation, oil, petroleum or any petroleum-derived
substance or waste, asbestos or asbestos-containing materials,
PCBs, pesticides, explosives, radioactive materials, dioxins,
urea formaldehyde insulation or any constituent of any such
substance, pollutant or waste, including any such substance,
pollutant or waste identified or regulated under any
Environmental Law (including, without limitation, materials
listed in the United States Department of Transportation
Optional Hazardous Material Table, 49 C.F.R. ss. 172.101, as
heretofore amended, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 302, as
heretofore amended); "Environment" shall mean any surface
water, drinking water, ground water, land surface, subsurface
strata, river sediment, buildings, structures, and ambient
workplace and indoor air; "Environmental Law" shall mean the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. ss. 9601 et seq.)
("CERCLA"), the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. ss. 6901, et seq.), the Clean Air
Act, as amended (42 U.S.C. ss. 7401, et seq.), the Clean Water
Act, as amended (33 U.S.C. ss. 1251, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. ss. 2601, et
seq.), the Occupational Safety and Health Act of 1970, as
amended (29 U.S.C. ss. 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. ss. 1801, et seq.),
and all other federal, state and local laws, ordinances,
regulations, rules, orders, decisions and permits relating to
the protection of the environment or of human health from
environmental effects; "Governmental Authority" shall mean any
federal, state or local governmental office, agency or
authority having the duty or authority to promulgate,
implement or enforce any Environmental Law; "Lien" shall mean,
with respect to any Property, any mortgage, deed of trust,
pledge, security interest, lien, encumbrance, penalty, fine,
charge, assessment, judgment or other liability in, on or
affecting such Property; and "Release" shall mean any
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating
or disposing of any Hazardous Substance into the Environment,
including, without limitation, the abandonment or discard of
barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance or any release,
emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(v) Tax Compliance. Each of the Company and the
subsidiaries has filed all federal, state, and local income
tax returns which have been required to be filed and has paid
all taxes required to be paid and any other assessment, fine
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or penalty levied against it, to the extent that any of the
foregoing is due and payable, except, in all cases, for any
such tax, assessment, fine or penalty that is being contested
in good faith, and except in any case in which the failure to
so file or pay would not have a Material Adverse Effect.
(w) Taxation as a REIT. The Company has operated
since its initial public offering and intends to continue to
operate in such a manner as to qualify to be taxed as a "real
estate investment trust" under the Internal Revenue Code of
1986, as amended.
(x) No Price Manipulation. Neither the Company nor
any of its Significant Subsidiaries, nor any of their
trustees, directors, officers or controlling persons, has
taken or will take, directly or indirectly, any action
designed to cause or result under the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), or otherwise in, or
which has constituted or which reasonably might be expected to
constitute, the unlawful stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Shares.
(y) Plan Assets. The assets of the Company and its
subsidiaries do not constitute "plan assets" under the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations
thereof.
(z) Cross Defaults. The mortgages and deeds of trust
encumbering the properties and assets described in general in
the Prospectus are not convertible and are not cross-defaulted
or cross-collateralized to any property not owned by the
Company or any of its subsidiaries; and, except as disclosed
in the Prospectus, neither the Company nor any of its
subsidiaries holds participating interests in such mortgages
and deeds of trust.
(aa) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business
with the Government of Cuba or with any person or affiliate
located in Cuba.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Shares set forth in Schedule I hereto opposite
its name at $______ a share (the "PURCHASE PRICE") plus accumulated dividends,
if any, to the Closing Date.
The Company hereby agrees that, without the prior written consent of
the Representatives on behalf of the Underwriters, it will not , during the
period ending 30 days after the date hereof, (i) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend or
otherwise transfer or dispose of, directly or indirectly, any of the Shares, any
other equity securities of the Company which are substantially similar to the
Shares (other than securities of the Company which are convertible into the
common shares of the Company) or (ii) enter into any swap or other
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arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of any of the Shares, any other equity securities of
the Company which are substantially similar to the Shares (other than any
securities of the Company which are convertible into common shares of the
Company), whether any such transaction described in caluse (i) or (ii) is to be
settled by delivery of the Shares or such other securities, in cash or
otherwise. The restrictions described in this section do not apply to the sale
of the Shares to the Underwriters.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$________ a share (the "PUBLIC OFFERING PRICE") plus accrued dividends, if any,
to the Closing Date and to certain dealers selected by you at a price that
represents a concession not in excess of $________ a share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $_________ a share, to any Underwriter
or to certain other dealers.
4. Payment and Delivery. Payment for the Shares shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Shares for the respective accounts of the several Underwriters
at 10:00 a.m., New York City time, on ____________, 1998, or at such other time
on the same or such other date as shall be designated in writing by you. The
time and date of such payment are hereinafter referred to as the "CLOSING DATE".
Certificates for the Shares shall be in definitive form and registered
in such names and in such denominations as you shall request in writing not
later than one full business day prior to the Closing. The certificates
evidencing the Shares shall be delivered to you on the Closing Date for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 10:00 a.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible
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change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any
change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the
Closing Date a certificate, dated the Closing Date and signed
by an executive officer of the Company, to the effect set
forth in Section 5(a)(i) above and to the effect that the
representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and
that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings
threatened.
(c) The Underwriters shall have received on the
Closing Date an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., outside
counsel for the Company, dated the Closing Date, to the effect
that:
(i) the Company has been duly incorporated,
is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a Material Adverse Effect on
the Company and its subsidiaries, taken as a whole;
(ii) the authorized capital stock of the
Company conforms as to legal matters to the description
thereof contained in the Prospectus;
(iii) the Shares have been duly authorized
and, when issued and delivered in accordance with the terms of
this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be
subject to any preemptive or similar rights;
(iv) all of the issued shares of capital
stock of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid
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and non-assessable and are owned directly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(v) this Agreement has been duly
authorized, executed and delivered by the Company;
(vi) the execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene any
provision of applicable law or the certificate of
incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by the Company of its obligations
under this Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares;
(vii) the statements in the Prospectus under
the captions "Series C Preferred Shares", "Certain Federal
Income Tax Consequences", "ERISA Considerations" and
"Underwriters" insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with
respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein;
(viii) after due inquiry, such counsel does
not know of any legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is
a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and
are not so described or of any statutes, regulations,
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not
described or filed as required;
(ix) the Company is not and, after giving
effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended;
and
(x) such counsel (A) is of the opinion that
the Registration Statement and Prospectus (except for
financial statements and schedules and other financial and
statistical data included therein as to which such counsel
need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder, (B) has no
reason to believe that (except for financial statements and
schedules and
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other financial and statistical data as to which
such counsel need not express any belief) the Registration
Statement and the prospectus included therein at the time the
Registration Statement became effective contained any untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading and (C) has no reason to
believe that (except for financial statements and schedules
and other financial and statistical data as to which such
counsel need not express any belief) the Prospectus contains
any untrue statement of a material fact 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.
(d) The Underwriters shall have received on the
Closing Date an opinion of ▇▇▇▇▇ & Wood LLP, counsel for the
Underwriters, dated the Closing Date, covering the matters
referred to in Sections 5(c)(iii), 5(c)(v), 5(c)(vii) (but
only as to the statements in the Prospectus under "Series C
Preferred Shares" and "Underwriters") and 5(c)(x).
With respect to Section 5(c)(x), ▇▇▇▇▇ & ▇▇▇▇▇▇▇
L.L.P. and ▇▇▇▇▇ & Wood LLP may state that their opinion and
belief are based upon their participation in the preparation
of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of
the contents thereof, but are without independent check or
verification, except as specified.
The opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. described in
Section 5(c) above shall be rendered to the Underwriters at
the request of the Company and shall so state therein.
(e) The Underwriters shall have received, on each of
the date hereof and on the Closing Date, a letter dated the
date hereof or the Closing Date, as the case may be, in form
and substance satisfactory to the Underwriters, from Ernst &
Young LLP and Coopers & ▇▇▇▇▇▇▇ L.L.P., independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and
certain financial information contained in the Registration
Statement and the Prospectus; provided, that the letter
delivered on the Closing Date shall use a "cut-off date" not
earlier than the date hereof.
6. Covenants of the Company and the Operating Partnership. Each of the
Company and the Operating Partnership covenants with each Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company will use its best efforts to cause the
Registration Statement to become effective as promptly as possible and
will notify the Underwriters immediately, and confirm the notice in
writing, (i) of the effectiveness of the Registration Statement and any
amendment thereto (including any post-effective amendment), (ii) of the
receipt of any comments from the Commission, (iii) of any request by
the Commission for any
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amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or 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.
(b) Filing of Amendments. The Company will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement (including any post-effective
amendment) or any amendment or supplement to the Prospectus, will
furnish the Underwriters with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Underwriters or
counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company
will deliver to the Underwriters, as soon as available, as many signed
copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated
by reference therein) as the Underwriters may reasonably request and
will also deliver to the Underwriters as many conformed copies of the
Registration Statement as originally filed and of each amendment
thereto (excluding exhibits) as the Underwriters may reasonably
request.
(d) Delivery of Prospectus. The Company will furnish
to each Underwriter, from time to time during the period when the
Prospectus is required to be delivered under the Securities Act or the
Exchange Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the Securities Act or the Exchange Act or the
respective applicable rules and regulations of the Commission
thereunder.
(e) Continued Compliance with Securities Laws. If any
event shall occur as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order to make the Prospectus not contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances existing at the time it is delivered to a purchaser,
not misleading, or in order to otherwise comply with the Securities Act
or the Exchange Act, the Company will forthwith prepare an amendment of
or supplement to the Prospectus (in form and substance reasonably
satisfactory to counsel for the Underwriters) which will amend or
supplement the Prospectus so that it will not contain 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 existing at the time it is delivered to a purchaser, not
misleading, and the Company will furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
(f) Blue Sky Qualifications. The Company will use its
best efforts, in cooperation with the Underwriters, to qualify the
Shares for offering and sale under the
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applicable securities laws and real estate syndication laws of such
states and other jurisdictions of the United States as the Underwriters
may designate; provided, however, that the Company shall not be
obligated to (i) file any general consent to service of process, (ii)
qualify as a foreign corporation in any jurisdiction in which it is not
so qualified or (iii) take any action that would subject it to income
taxation in any such jurisdiction. In each jurisdiction in which the
Shares have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than one
year from the effective date of the Registration Statement.
(g) Earnings Statement. The Company will make
generally available to its security holders as soon as practicable, but
not later than 90 days after the close of the period covered thereby,
an earnings statement (in form complying with the provisions of Rule
158 of the Securities Act) covering a 12-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 Registration
Statement.
(h) Use of Proceeds. The Company will use the net
proceeds received by it from the sale of the Shares in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(i) Listing. The Company will use its best efforts to
effect the listing of the Shares on the New York Stock Exchange.
(j) Amendments to Prospectus. If, at the time that
the Registration Statement becomes effective, any information shall
have been omitted therefrom in reliance upon Rule 430A of the
Securities Act, then immediately following the execution of the pricing
agreement, the Company will prepare and file or transmit for filing
with the Commission, in accordance with such Rule 430A and Rule 424(b)
of the Securities Act, copies of the amended Prospectus, or, if
required by such Rule 430A, a post-effective amendment to the
Registration Statement (including the amended Prospectus), containing
all information so omitted.
(k) Form SR Reports. The Company will file with the
Commission such reports on Form SR as may be required pursuant to Rule
463 of the Securities Act and will provide the Representatives with
copies of such reports as soon as practicable after the filing thereof.
(l) Price Stabilization or Manipulation. Except for
the authorization of actions permitted to be taken by the Underwriters
as contemplated herein or in the Prospectus, neither the Company nor
the Operating Partnership will (i) take, directly or indirectly, any
action designed to cause or to result in, or that might reasonably be
expected to constitute, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Shares, (ii) sell, bid for or purchase the Shares or pay any person any
compensation for soliciting purchases of the Shares or (iii) pay or
agree to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
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(m) Reports to Representatives. During the period
from the Closing Date until five years after the Closing Date, the
Company will deliver to the Representatives, (i) promptly upon their
becoming available, copies of all current, regular and periodic reports
of the Company mailed to its shareholders or filed with any securities
exchange or with the Commission or any governmental authority
succeeding to any of the Commission's functions, and (ii) such other
information concerning the Company, the Operating Partnership, any
subsidiary or any predecessor entity as the Representatives may
reasonably request.
(n) Accuracy of Representations. Prior to the Closing
Date, the Company and the Operating Partnership will notify the
Representatives in writing immediately if any event occurs that renders
any of the representations and warranties of the Company and the
Operating Partnership contained herein inaccurate or incomplete in any
respect.
(o) Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, to pay
or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof
to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and
delivery of the Shares to the Underwriters, including any transfer or
other taxes payable thereon, (iii) the cost of printing or producing
any Blue Sky or Legal Investment memorandum in connection with the
offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer
and sale under state securities laws as provided in Section 6(d)
hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification
and in connection with the Blue Sky or Legal Investment memorandum,
(iv) all fees and expenses in connection with the preparation and
filing of the registration statement on Form 8-A relating to the Shares
and all costs and expenses incident to listing the Shares on the NYSE,
(v) the cost of printing certificates representing the Shares, (vi) the
costs and charges of any transfer agent, registrar or depositary, (vii)
the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Shares, including, without limitation,
expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (viii) all
other costs and expenses incident to the performance of the obligations
of the Company hereunder for which provision is not otherwise made in
this Section. It is understood, however, that except as provided in
this Section, Section 7 entitled "Indemnity and Contribution", and the
last paragraph of Section 9 below, the
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Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Shares by them and any advertising expenses
connected with any offers they may make.
7. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case of
parties indemnified
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pursuant to Section 7(a), and by the Company, in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 7(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
7(d)(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation
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that does not take account of the equitable considerations referred to in
Section 7(d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
7 and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Shares.
8. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 8(a)(i) through 8(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Shares to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the number of Shares set forth opposite their respective names in Schedule
I bears to the aggregate number of Shares set forth opposite the names of all
such non-defaulting Underwriters,
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or in such other proportions as you may specify, to purchase the Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that
any Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Shares without the written consent of such Underwriter. If, on the Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Shares and the
aggregate number of Shares with respect to which such default occurs is more
than one-tenth of the aggregate number of Shares to be purchased, and
arrangements satisfactory to you and the Company for the purchase of such Shares
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company.
In any such case either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
22
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12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
EQUITY OFFICE PROPERTIES TRUST
By:__________________________________
Name:
Title:
EOP OPERATING LIMITED PARTNERSHIP
By: EQUITY OFFICE PROPERTIES TRUST
As its Managing General Partner
By:__________________________________
Name:
Title:
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Brothers Inc
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule I hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:_________________________________
Name:
Title:
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SCHEDULE I
Underwriter Number of
Shares
To Be Purchased
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Brothers Inc
[NAMES OF OTHER UNDERWRITERS]
Total ..................................................
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SCHEDULE II
Significant Subsidiaries
25