EXECUTION COPY
Exhibit 1.1
RECKSON OPERATING PARTNERSHIP, L.P.
AND
RECKSON ASSOCIATES REALTY CORP.
UNDERWRITING AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1. Representations and Warranties.................................................................3
(a) Representations and Warranties by the Operating Partnership and the Company....................3
(1) Compliance with Registration Requirements.............................................4
(2) Incorporated Documents................................................................5
(3) Independent Accountants...............................................................5
(4) Financial Statements..................................................................5
(5) Internal Accounting Controls..........................................................6
(6) Controls and Procedures...............................................................6
(7) No Material Adverse Change in Business................................................6
(8) Good Standing of the Company..........................................................6
(9) Good Standing of the Operating Partnership............................................7
(10) Good Standing of the Subsidiaries.....................................................7
(11) Capitalization........................................................................7
(12) Authorization of Securities, and Indenture............................................8
(13) Descriptions of the Underwritten Securities, the Underlying Shares and the
Indenture.............................................................................8
(14) Authorization of this Underwriting Agreement and Terms Agreement......................9
(15) Authorization of the Common Stock Delivery Agreement..................................9
(16) Authorization of Guarantees...........................................................9
(17) Authorization of the Underlying Shares................................................9
(18) Absence of Defaults and Conflicts.....................................................9
(19) Absence of Labor Dispute.............................................................10
(20) Absence of Proceedings...............................................................10
(21) Accuracy of Exhibits.................................................................11
(22) REIT Qualification...................................................................11
(23) Investment Company Act...............................................................11
(24) Intellectual Property................................................................11
(25) Absence of Further Requirements......................................................12
(26) Possession of Licenses and Permits...................................................12
(27) Title to Property....................................................................12
(28) Environmental Laws...................................................................13
(29) Tax Returns..........................................................................14
(30) Environmental Consultants............................................................14
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TABLE OF CONTENTS
(continued)
Page
(31) Title Insurance......................................................................14
(32) Absence of Regulation M Violation....................................................14
(33) Sarbanes Oxley Act Compliance........................................................15
(b) Officers' Certificates........................................................................15
SECTION 2. Sale and Delivery to Underwriters; Closing....................................................15
(a) Underwritten Securities.......................................................................15
(b) Option Underwritten Securities................................................................15
(c) Payment.......................................................................................16
(d) Denominations; Registration...................................................................16
SECTION 3. Covenants of the Operating Partnership and the Company........................................16
(a) Compliance with Securities Regulations and Commission Requests................................16
(b) Filing of Amendments..........................................................................17
(c) Delivery of Registration Statements...........................................................17
(d) Delivery of Prospectuses......................................................................17
(e) Continued Compliance with Securities Laws.....................................................18
(f) Blue Sky Qualifications.......................................................................18
(g) Earnings Statement............................................................................18
(h) Reporting Requirements........................................................................19
(i) REIT Qualification............................................................................19
(j) Use of Proceeds...............................................................................19
(l) No Manipulation of Market for Securities......................................................19
(n) Reservation of Securities.....................................................................19
(o) Listing.......................................................................................20
(p) Lock-Up.......................................................................................20
SECTION 4. Payment of Expenses...........................................................................20
(a) Expenses......................................................................................20
(b) Termination of Agreement......................................................................21
SECTION 5. Conditions of Underwriters' Obligations.......................................................21
(a) Effectiveness of Registration Statement.......................................................21
(b) Opinion of Counsel for the Operating Partnership and the Company..............................21
(c) Opinion of Counsel for Underwriters...........................................................22
(d) Officers' Certificate.........................................................................22
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TABLE OF CONTENTS
(continued)
Page
(e) Accountant's Comfort Letter...................................................................23
(g) Ratings.......................................................................................23
(h) Over-Allotment Option.........................................................................23
(i) Additional Documents..........................................................................24
(j) Termination of Terms Agreement................................................................24
(k) Lock-Up Agreements............................................................................24
SECTION 6. Indemnification...............................................................................24
(a) Indemnification of Underwriters...............................................................24
(b) Indemnification of the Operating Partnership and the Company..................................25
(c) Actions against Parties; Notification; Settlement without Consent if Failure to
Reimburse.....................................................................................26
SECTION 7. Contribution..................................................................................26
SECTION 8. Representations, Warranties and Agreements to Survive Delivery................................27
SECTION 9. Termination...................................................................................28
(a) Underwriting Agreement........................................................................28
(b) Terms Agreement...............................................................................28
(c) Liabilities...................................................................................28
SECTION 10. [Intentionally Omitted].......................................................................28
SECTION 11. Notices.......................................................................................29
SECTION 12. Parties.......................................................................................30
SECTION 13. Governing Law and Time........................................................................30
SECTION 14. Effect of Headings............................................................................30
SECTION 15. Counterparts..................................................................................30
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RECKSON OPERATING PARTNERSHIP, L.P.
(a Delaware limited partnership)
Debt Securities
Fully and Unconditionally Guaranteed By
RECKSON ASSOCIATES REALTY CORP.
(a Maryland corporation)
UNDERWRITING AGREEMENT
June 21, 2005
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
As Representative
Ladies and Gentlemen:
Reckson Operating Partnership, L.P., a Delaware limited partnership (the
"Operating Partnership"), proposes to issue and sell up to $250,000,000
aggregate initial public offering price of its debt securities ("Debt
Securities") from time to time, in or pursuant to one or more offerings on
terms to be determined at the time of sale. The Debt Securities will be fully
and unconditionally guaranteed as to the payment of principal and interest
thereon (the "Guarantee" and, together with the Debt Securities, the
"Securities") by Reckson Associates Realty Corp., a Maryland corporation (the
"Company").
As used herein, "Underlying Shares" shall mean the shares of common
stock, par value $0.01 per share (the "Common Stock"), of the Company that may
be issued upon the exchange of the Securities.
The terms and rights of any particular issuance of Securities shall be as
specified in the Terms Agreement (as defined below) relating thereto and in or
pursuant to the indenture and any supplements or amendments thereto (the
"Indenture") identified in such Terms Agreement.
Whenever the Operating Partnership and the Company determine to make an
offering of Securities through the Representative or through an underwriting
syndicate managed by the Representative, the Operating Partnership and the
Company will enter into an agreement (each, a "Terms Agreement") providing for
the sale of such Securities to, and the purchase and offering thereof by, the
Representative and such other underwriters, if any, selected by the
Representative as have authorized the Representative to enter into such Terms
Agreement on their behalf (the "Underwriters," which term shall include the
Representative whether acting alone in the sale of the Underwritten Securities
(as defined herein) or as a member of an underwriting syndicate or any
Underwriter substituted pursuant to Section 10 hereof); provided, that, the
Operating
1
Partnership and the Company are not obligated, and shall have complete and
absolute discretion to determine if and when, to make any offering, to make
any offering through the Representative or any other person, or to enter into
any Terms Agreement. Prior to execution of a Terms Agreement, this
Underwriting Agreement shall not be construed as an obligation of the
Operating Partnership and the Company to sell any Securities or as an
obligation of any of the Underwriters to purchase Securities. The obligation
of the Operating Partnership and the Company to issue and sell any Securities
and the obligation of any of the Underwriters to purchase any Securities shall
be evidenced by the Terms Agreement with respect to the Underwritten
Securities specified therein. The Terms Agreement relating to the offering of
Securities shall specify the aggregate principal amount of Securities to be
initially issued (the "Initial Underwritten Securities"), the name of each
Underwriter participating in such offering (subject to substitution as
provided in Section 10 hereof), the aggregate principal amount of Initial
Underwritten Securities which each such Underwriter severally agrees to
purchase, whether such offering is on a fixed or variable price basis and, if
on a fixed price basis, the initial offering price, the price at which the
Initial Underwritten Securities are to be purchased by the Underwriters, the
form, time, date and place of delivery and payment of the Initial Underwritten
Securities and any other material variable terms of the Initial Underwritten
Securities, as well as the material terms of the related Underlying Shares. In
addition, if applicable, such Terms Agreement shall specify whether the
Operating Partnership and the Company have agreed to grant to the Underwriters
an option to purchase additional Securities to cover over-allotments, if any,
and the aggregate principal amount of Securities subject to such option (the
"Option Underwritten Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten Securities. 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 among the
Operating Partnership, the Company and the Representative, acting for
themselves and, if applicable, as representatives of any other Underwriters.
Each offering of Underwritten Securities will be governed by this Underwriting
Agreement, as supplemented by the applicable Terms Agreement.
The Company and the Operating Partnership have filed with the Securities
and Exchange Commission (the "Commission") registration statements on Form S-3
(Nos. 333-46883 and 333-115997), for the registration of certain securities,
including the Securities and the Underlying Shares, under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"), and the Company
and the Operating Partnership have filed such post-effective amendments
thereto as may be required prior to the execution of the applicable Terms
Agreement. Such registration statements (as so amended, if applicable) have
been declared effective by the Commission. Such registration statements (as so
amended, if applicable), including the information, if any, deemed to be a
part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule
430A Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), are referred to herein collectively as the "Registration
Statement"; and the final prospectus constituting a part thereof and the
applicable prospectus supplement relating to the offering of the Underwritten
Securities, in the form first furnished to the Underwriters by the Operating
Partnership and the Company for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference
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pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
prior to the execution of the applicable Terms Agreement; provided, further,
that if the Operating Partnership files a registration statement with the
Commission pursuant to Section 462(b) of the 1933 Act Regulations (the "Rule
462(b) Registration Statement"), then, after such filing, all references to
"Registration Statement" shall be deemed to include the Rule 462(b)
Registration Statement; provided, however, that a prospectus supplement shall
be deemed to have supplemented the Prospectus only with respect to the
offering of the Underwritten Securities to which it relates, and provided,
further, that if the Operating Partnership and the Company elect to rely upon
Rule 434 of the 1933 Act Regulations, then all references to "Prospectus"
shall be deemed to include the final or preliminary prospectus and the
applicable term sheet or abbreviated term sheet (the "Term Sheet"), as the
case may be, in the form first furnished to the Underwriters by the Operating
Partnership and the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references in this Underwriting Agreement to the date of
the Prospectus shall mean the date of the Term Sheet. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
registration statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was used
after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement. For purposes of this Underwriting Agreement, all
references to the Registration Statement, Prospectus, Term Sheet or
preliminary prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("▇▇▇▇▇"). Capitalized terms used but not otherwise defined herein shall have
the meanings given to those terms in the Prospectus.
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is or deemed to
be incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary 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, Prospectus or
preliminary prospectus, as the case may be.
The term "Subsidiary" means a corporation or a partnership a majority of
the outstanding voting stock, partnership or membership interests, as the case
may be, of which is owned or controlled, directly or indirectly, by the
Operating Partnership and/or the Company or by one or more other Subsidiaries
of the Operating Partnership and/or the Company.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Operating Partnership and the
Company. Each of the Operating Partnership and the Company represents and
warrants, jointly and severally, to the Representative, as of the date hereof,
and to the Representative and each other Underwriter named in the applicable
Terms Agreement, as of the date thereof, as of the Closing
3
Time (as defined below) and, if applicable, as of each Date of Delivery (as
defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. Each of the Operating
Partnership and the Company meets the requirements for use of Form S-3
under the 1933 Act. Each of the Registration Statement and any Rule
462(b) Registration Statement has become effective under the 1933 Act and
no stop order suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement has been issued under the 1933
Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Operating Partnership and the
Company, are contemplated by the Commission or the state securities
authority of any jurisdiction, and any request on the part of the
Commission for additional information has been complied with. 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 Operating Partnership and the Company, threatened by the Commission
or the state securities authority of any jurisdiction.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto
(including the filing of the Operating Partnership's and the Company's
most recent Annual Reports on Form 10-K with the Commission (the "Annual
Reports on Form 10-K")) became effective and at each Representation Date,
the Registration Statement, any Rule 462(b) Registration Statement and
any amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission under
the Trust Indenture Act (the "1939 Act Regulations") and did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. At the date of the Prospectus, and at
each Representation Date, the Prospectus, and any amendments and
supplements thereto did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading. If the Operating Partnership and the
Company elect to rely upon Rule 434 of the 1933 Act Regulations, the
Operating Partnership and the Company will comply with the requirements
of Rule 434. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the
Operating Partnership and the Company in writing by any Underwriter
through the Representative expressly for use in the Registration
Statement or the Prospectus.
Each preliminary prospectus and Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act and the
1933 Act Regulations and, if applicable, each preliminary prospectus and
the Prospectus delivered to the Underwriters for use in connection with
the offering of Underwritten Securities will, at the time of such
delivery,
4
be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection
with the offering and sale of the Underwritten Securities, the Operating
Partnership has complied or will comply with the requirements of Rule 111
under the 1933 Act Regulations relating to the payment of filing fees
therefor.
(2) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the date of the
Prospectus and at each Representation Date, or during the period
specified in Section 3(e), did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement and the
Prospectus are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Operating
Partnership and the Company included, or incorporated by reference, in
the Registration Statement and the Prospectus, together with the related
schedules and notes, as well as those financial statements, schedules and
notes of any other entity acquired or to be acquired by the Operating
Partnership or the Company included therein, if any, present fairly the
financial position of the respective entity or entities or group
presented therein at the respective dates indicated and the statement of
operations, stockholders' equity and cash flows data of such entity, as
the case may be, for the periods specified. Such financial statements
have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly, in accordance with GAAP, the information required to be stated
therein. In addition, any pro forma financial information and the related
notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commission's rules and
guidelines of the Public Company Accounting Oversight Board ("PCAOB")
with respect to pro forma information and have been properly compiled on
the bases described therein, and the assumptions used in the preparation
thereof were then reasonable and the adjustments used therein were then
appropriate to give effect to the transactions and circumstances referred
to therein. All historical financial statements and information and all
pro forma financial statements and information relating to the Operating
Partnership, the Company or any entity acquired or to be acquired by the
Operating Partnership or the Company required by the 1933 Act,
5
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations are
included, or incorporated by reference, in the Registration Statement and
the Prospectus.
(5) Internal Accounting Controls. Each of the Operating Partnership
and the Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that: (a) transactions are
properly authorized; (b) assets are safeguarded against unauthorized or
improper use; and (c) transactions are properly recorded and reported as
necessary to permit preparation of its financial statements in conformity
with GAAP.
(6) Controls and Procedures. Each of the Operating Partnership and
the Company has established and maintains disclosure controls and
procedures in accordance with Rules 13a-15 and 15d-15 of the 1934 Act.
(7) No Material Adverse Change in Business. 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, assets, business affairs or business prospects of the
Operating Partnership, the Company and their Subsidiaries considered as
one enterprise whether or not arising in the ordinary course of business,
which would be material to the Operating Partnership and the Company,
taken as a whole (anything which would be material to the Operating
Partnership and the Company, taken as a whole, being hereinafter referred
to as "Material," and such a material adverse change, a "Material Adverse
Effect"), (B) no casualty loss or condemnation or other adverse event
with respect to any of the interests held directly or indirectly in any
of the real properties or real property interests, including without
limitation, any interest or participation, direct or indirect, in any
mortgage obligation owned, directly or indirectly, by the Operating
Partnership, the Company or any Subsidiary (the "Properties") has
occurred which would be Material, (C) there have been no transactions or
acquisitions entered into by the Operating Partnership, the Company or
any Subsidiary, other than those in the ordinary course of business,
which would be Material, (D) except for regular quarterly distributions
on units of the Operating Partnership (the "Units") or dividends on the
capital stock of the Company, there has been no dividend or distribution
of any kind declared, paid or made by the Operating Partnership with
respect to its Units or the Company with respect to its capital stock,
and (E) there has been no increase in the long term debt or decrease in
the capital of the Operating Partnership or any Subsidiary.
(8) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Maryland and has 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, or as contemplated under this Underwriting Agreement and the
applicable Terms Agreement. The Company is duly qualified or registered
as a foreign corporation to transact business and is in good standing in
each other 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 or be in good standing would not result in a Material Adverse
Effect.
6
(9) Good Standing of the Operating Partnership. The Operating
Partnership is duly organized and validly existing as a limited
partnership in good standing under the laws of the State of Delaware,
with partnership power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged and proposes
to engage as described in the Prospectus and to enter into and perform
its obligations under this Underwriting Agreement and the applicable
Terms Agreement. The Operating Partnership is duly qualified or
registered as a foreign partnership 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. The Company is the sole general partner
of the Operating Partnership and holds such number and/or percentage of
Units as disclosed in the Prospectus as of the dates set forth therein.
The Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, dated June 2, 1995, as amended (the "Operating
Partnership Agreement"), is in full force and effect.
(10) Good Standing of the Subsidiaries. Each Subsidiary that is a
"significant subsidiary" as such term is defined in Section 1-02 of
Regulation S-X (each a "Significant Subsidiary," and collectively, the
"Significant Subsidiaries") is listed on Exhibit B hereto and has been
duly organized and is validly existing as a corporation, limited
partnership, limited liability company or other legal entity, as the case
may be, in good standing under the laws of the state of its jurisdiction
of incorporation or organization, as the case may be, with the requisite
power and authority to own, lease and operate its properties, and to
conduct the business in which it is engaged or proposes to engage as
described in the Prospectus. Each such entity is duly qualified or
registered as a foreign corporation, limited partnership or limited
liability company or other legal entity, as the case may be, to transact
business 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. Except as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock or other
equity interests of each such entity has been duly authorized and validly
issued and is fully paid and non-assessable, has been offered and sold in
compliance with all applicable laws (including, without limitation,
federal or state securities laws) and are owned, directly or indirectly,
by the Operating Partnership or the Company, in each case free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity (collectively, "Liens"). No shares of capital stock or other
equity interests of such entities are reserved for any purpose, and there
are no outstanding securities convertible into or exchangeable for any
capital stock or other equity interests of such entities and no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such capital stock or other equity
interests or any other securities of such entities, except as disclosed
in the Prospectus.
(11) Capitalization. The capitalization of the Operating Partnership
and the Company is as set forth in the Prospectus as of the date
referenced therein. All the issued and outstanding Units have been duly
authorized and are validly issued, fully paid and non-assessable and have
been offered and sold or exchanged in compliance with all
7
applicable laws (including, without limitation, federal and state
securities laws). There are no Units reserved for any purpose and there
are no outstanding securities convertible into or exchangeable for any
Units and no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for Units, except for rights granted
to the partners in Omni Partners, L.P. (the "Omni Partnership") and the
rights of holders of Class C common Units and Series D and F preferred
Units or pursuant to the Company's Long-Term Incentive Plan. All issued
and outstanding shares of capital stock of the Company have been duly
authorized and validly issued by the Company and are fully paid and
non-assessable and have been offered and sold or exchanged in compliance
with all applicable laws (including, without limitation, federal and
state securities laws), and none of such shares of capital stock were
issued in violation of preemptive or other similar rights arising by
operation of law, under the charter and by-laws of the Company or under
any agreement to which the Company, the Operating Partnership or any
Subsidiary is a party or otherwise. Except as granted in this
Underwriting Agreement or any Terms Agreement and except for shares of
Common Stock issuable upon exchange of Units or upon the exercise of
options under the stock option plans, Long-Term Incentive Plan and/or
distribution reinvestment plans of the Company, there are no shares of
capital stock of the Company reserved for any purpose and there are no
outstanding securities convertible into or exchangeable for any shares of
capital stock of the Company and, except as granted in this Underwriting
Agreement or any Terms Agreement, there are no outstanding options,
rights (preemptive or otherwise) or warrants to purchase or to subscribe
for shares of such stock or any other securities of the Company.
(12) Authorization of Debt Securities and Indenture. The Debt
Securities have been duly authorized by the Operating Partnership, and,
when issued and delivered pursuant to this Underwriting Agreement and the
applicable Terms Agreement against payment of the requisite consideration
therefor, such Debt Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Operating Partnership entitled to the benefits
provided by the Indenture, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized by the Operating Partnership and, at the
Closing Time and each Date of Delivery for such Underwritten Securities,
will constitute a valid and legally binding agreement, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(13) Descriptions of the Underwritten Securities, the Underlying
Shares and the Indenture. The Underwritten Securities being sold pursuant
to the applicable Terms Agreement, the Underlying Shares, when issued and
delivered in accordance with the terms of the Underwritten Securities,
and the Indenture will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be in substantially
the form filed or incorporated by reference, as the case may be, as an
exhibit
8
to the Registration Statement. The form of debt security to be used to
evidence the Underwritten Securities and the form of stock certificate to
be used to evidence the Underlying Shares, respectively, will be in due
and proper form and will comply with all applicable legal requirements.
(14) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable Terms
Agreement as of the date thereof will have been, duly authorized,
executed and delivered by the Operating Partnership and the Company.
(15) Authorization of the Common Stock Delivery Agreement. The
Common Stock Delivery Agreement, between the Operating Partnership and
the Company, dated as of June 21, 2005 (the "Common Stock Delivery
Agreement"), has been duly authorized, executed and delivered by each of
the Operating Partnership and the Company and, shall constitute a valid
and legally binding agreement of each of the Operating Partnership and
the Company, enforceable against each of the Operating Partnership and
the Company in accordance with its terms except (a) to the extent that
enforceability thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether considered at
law or in equity); and (b) that rights to indemnity contained in the
Common Stock Delivery Agreement may be limited by state or federal
securities laws or public policy.
(16) Authorization of Guarantee. The Guarantee has been duly
authorized by the Company, and, when the Debt Securities are executed,
authenticated, issued and delivered pursuant to the Indenture and this
Underwriting Agreement and the applicable Terms Agreement against payment
of the requisite consideration therefor, the Guarantee will constitute a
valid and legally binding obligation of the Company, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principals.
(17) Authorization of the Underlying Shares. The Underlying Shares
that may be issued upon the exchange of the Underwritten Securities have
been duly authorized and validly reserved for issuance by the Company
upon the exchange of the Underwritten Securities, and such Underlying
Shares, when so issued upon such exchange in accordance with the terms of
the Underwritten Securities and the Indenture, will be validly issued,
fully paid and non-assessable and will not be subject to preemptive or
other similar rights arising by operation of law, under the charter or
by-laws of the Company or under any agreement to which the Company, the
Operating Partnership or any Subsidiary is a party, or otherwise. No
holder of the Underling Shares will be subject to personal liability by
reason of being such a holder.
(18) Absence of Defaults and Conflicts. Neither the Operating
Partnership, the Company nor any Subsidiary is (A) in violation of its
charter, by-laws, certificate of limited partnership or partnership
agreement, limited liability company operating agreement or other
organizational document, as the case may be, or (B) in default in the
9
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which any such entity is a party or by which any of them may be bound, or
to which any of its property or assets may be bound or subject
(collectively, "Agreements and Instruments"), except (with respect to
clause (B) only) for such defaults that would not result in a Material
Adverse Effect. The execution, delivery and performance of this
Underwriting Agreement, the applicable Terms Agreement, the Indenture,
the Common Stock Delivery Agreement and any other agreement or instrument
entered into or issued or to be entered into or issued by the Operating
Partnership and the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein
and in the Registration Statement and the Prospectus (including the
issuance and sale of the Underwritten Securities, the issuance and
delivery, if applicable, of the Underlying Shares upon exchange of the
Underwritten Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use of Proceeds")
and compliance by the Operating Partnership and the Company with their
obligations hereunder and thereunder have been duly authorized by all
necessary partnership and corporate action, respectively, and do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any assets, properties or
operations of the Operating Partnership, the Company or any Subsidiary
pursuant to, any Agreements and Instruments, except for such conflicts,
breaches, defaults, Repayment Events (as defined below) or liens, charges
or encumbrances that would not result in a Material Adverse Effect, nor
will such action result in any violation of the provisions of (A) the
charter, by-laws or the organizational documents of the Operating
Partnership, the Company or any Subsidiary or (B) any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Operating Partnership, the Company or any
Subsidiary or any of their assets, properties or operations, except (with
respect to clause (B) only) for such violations that would not have a
Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
material portion of such indebtedness by the Operating Partnership or any
Subsidiary.
(19) Absence of Labor Dispute. No labor dispute with the employees
of the Operating Partnership, the Company or any Subsidiary exists or, to
the knowledge of the Operating Partnership or the Company, is imminent,
and neither the Operating Partnership nor the Company is aware of any
existing or imminent labor disturbance by the employees of any of the
Operating Partnership's, the Company's or any Subsidiary's principal
suppliers, manufacturers, customers or contractors, which dispute or
disturbance, in either case, may reasonably be expected to result in a
Material Adverse Effect.
10
(20) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or by any court or governmental agency or
body, domestic or foreign, now pending, or to the knowledge of the
Operating Partnership or the Company threatened against or affecting the
Operating Partnership, the Company or any Subsidiary or any of their
respective assets, properties or operations or any officer or director of
the Company which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
consummation of this Underwriting Agreement, the applicable Terms
Agreement, the Indenture, the Common Stock Delivery Agreement or the
transactions contemplated herein or therein. The aggregate of all pending
legal or governmental proceedings to which the Operating Partnership, the
Company or any Subsidiary is a party or of which any of their respective
assets, properties or operations is the subject that are not described in
the Registration Statement and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Effect.
(21) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and/or filed
as required and the descriptions thereof or references thereto are
correct in all Material respects.
(22) REIT Qualification. Commencing with its taxable year ending
December 31, 1995 the Company has been, and upon the sale of the
applicable Underwritten Securities and upon exchange of the Underwritten
Securities for the Underlying Shares, if applicable, the Company will
continue to be, organized and operated in conformity with the
requirements for qualification and taxation as a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the "Code"),
and its current and proposed method of operation will enable it to
continue to meet the requirements for qualification and taxation as a
real estate investment trust under the Code, and no actions have been
taken (or not taken which are required to be taken) which would cause
such qualification to be lost.
(23) Investment Company Act. Each of the Company, the Operating
Partnership and any Significant Subsidiary is not, and upon the issuance
and sale of the Underwritten Securities, and the issuance of the
Underlying Shares upon exchange of the Underwritten Securities, if
applicable, as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
(24) Intellectual Property. To the knowledge of the Operating
Partnership and the Company, none of the Operating Partnership, the
Company nor any Subsidiary is required to own, possess or obtain the
consent of any holder of any trademarks, service marks, trade names or
copyrights not now lawfully owned, possessed or licensed in order to
conduct the business now operated by such entity, and none of the
Operating
11
Partnership, the Company or any Subsidiary has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any such proprietary rights, which infringement
or conflict (if the subject of any unfavorable decisions, ruling or
finding) singly or in the aggregate would result in any Material Adverse
Effect.
(25) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
or any other entity or person is necessary or required for the
performance by the Operating Partnership and the Company of their
respective obligations under this Underwriting Agreement, the applicable
Terms Agreement, the Indenture, the Common Stock Delivery Agreement or in
connection with the transactions contemplated under this Underwriting
Agreement, such Terms Agreement or the Indenture, except such as have
been already obtained or as may be required under state securities laws
or under the by-laws and rules of the National Association of Securities
Dealers, Inc. (the "NASD") or under state securities or real estate
syndication laws.
(26) Possession of Licenses and Permits. Each of the Operating
Partnership, the Company and the Subsidiaries possesses such
certificates, permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them except for
such Governmental Licenses, the failure to obtain would not, singly or in
the aggregate, result in a Material Adverse Effect. The Operating
Partnership, the Company and the 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 Operating Partnership, the Company nor any Subsidiary 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.
(27) Title to Property. The Operating Partnership, the Company, the
Subsidiaries or any joint venture partnership in which the Operating
Partnership or the Company owns an interest, as the case may be, have
good and marketable fee simple title or leasehold title, as the case may
be, to all real property and related improvements and other assets owned
or leased, or represented to be owned or leased, as applicable, by the
Operating Partnership, the Company, or the Subsidiaries, and good title
to all other properties owned by them, and any 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, free and
clear of all liens, encumbrances, claims, security interests and defects,
except such as are Permitted Encumbrances (as defined below). All liens,
charges, encumbrances, claims or restrictions on or affecting any of the
Properties and the assets of any of the Operating Partnership, the
Company, the Subsidiaries or any joint
12
venture partnership in which the Operating Partnership or the Company
owns an interest that are required to be disclosed in the Prospectus are
disclosed therein. Each of the Properties comply with all applicable
codes, laws and regulations and (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 such failures to comply that would not in the aggregate have a
Material Adverse Effect. There are in effect for the assets of each of
the Operating Partnership, the Company, the Subsidiaries or any joint
venture partnership in which the Operating Partnership or the Company
owns an interest, insurance policies covering the risks and in amounts
that are commercially reasonable for the types of assets owned by them
and that are consistent with the types and amounts of insurance typically
maintained by prudent owners of properties similar to such assets in the
markets in which such assets are located, and none of the Operating
Partnership, the Company, the Subsidiaries or any joint venture
partnership in which the Operating Partnership or the Company owns an
interest has received from any insurance company notice of any material
defects or deficiencies affecting the insurability of any such assets or
any notices of cancellation or intent to cancel any such policies.
Neither the Operating Partnership nor the Company has any knowledge of
any pending or threatened litigation, moratorium, condemnation
proceedings, zoning change, or other similar proceeding or action that
could in any manner affect the size of, use of, improvements on,
construction on, access to or availability of utilities or other
necessary services to the Properties, except such proceedings or actions
that would not have a Material Adverse Effect. All of the leases and
subleases material to the business of the Operating Partnership, the
Company and the Subsidiaries considered as one enterprise, and under
which the Operating Partnership, the Company or any Subsidiary holds
Properties described in the Prospectus, are in full force and effect, and
neither the Operating Partnership, the Company nor any Subsidiary has
received any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Operating Partnership,
the Company or any Subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Operating
Partnership, the Company or any Subsidiary of the continued possession of
the leased or subleased premises under any such lease or sublease.
"Permitted Encumbrance" shall mean (a) liens on certain Properties
securing any of the Operating Partnership, the Company, any Subsidiary or
joint venture partnership obligations, (b) other liens which are
expressly described in, or which are incorporated by reference into, the
Prospectus and (c) customary easements and encumbrances and other
exceptions to title which do not impair the operation, development or use
of the Properties for the purposes intended therefor as contemplated in
the Prospectus.
(28) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except such violations as
would not, singly or in the aggregate, result in a Material Adverse
Effect, to the knowledge of the Operating Partnership, the Company and
any Subsidiary, as the case may be, after due inquiry, (A) none of the
the Operating Partnership, the Company nor any Subsidiary is in violation
of any federal, state, local or foreign statute, law, rule, regulation,
ordinance or code, policy or rule of common law and any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent, or decree of judgment relating to
pollution or protection of human health, the environment (including,
without
13
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) including, without limitation, laws and regulations
relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively,
"Environmental Laws"); (B) the Operating Partnership, the Company and any
Subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with
their requirements; (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings pursuant to any Environmental Law against
the Operating Partnership, the Company or any Subsidiaries; and (D) there
are no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against
or affecting the Operating Partnership, the Company, any Subsidiary or
any of their assets relating to any Hazardous Materials or the violation
of any Environmental Laws.
(29) Tax Returns. Each of the Operating Partnership, the Company and
any Subsidiary has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in which
an extension has been granted or the failure to so file would not have a
Material Adverse Effect) and has paid all taxes required to be paid and
any other assessment, fine 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.
(30) Environmental Consultants. None of the environmental
consultants which prepared environmental and asbestos inspection reports
with respect to certain of the Properties was employed for such purpose
on a contingent basis or has any substantial interest in the Company, the
Operating Partnership or any Subsidiary and none of them or any of their
directors, officers or employees is connected with the Company, the
Operating Partnership or any Subsidiary as a promoter, selling agent,
voting trustee, director, officer or employee.
(31) Title Insurance. The Operating Partnership, the Company and any
Subsidiary, as the case may be, have obtained title insurance on the fee
interests and leasehold interests in each of the Properties in an amount
at least equal to the greater of (A) the mortgage indebtedness on each
such Property and (B) the purchase price paid for each such Property (in
the case of any Property having been acquired by the Operating
Partnership via an exchange of Units for partnership interests in the
entity holding such property, the "purchase price" of such Property being
deemed to be the sum of (i) the per-share price of the Common Stock of
the Company on the date such Property was exchanged for Units multiplied
by the number of Units exchanged for such Property or interests in the
entity holding such Property and (ii) the amount of any assumed
indebtedness secured by such Property), except that Omni Partnership has
obtained title insurance insuring Omni Partnership's interest in its real
property assets in an amount not less than $48 million.
14
(32) Absence of Regulation M Violation. None of the Company, the
Operating Partnership, the Subsidiaries, nor any of their respective
directors, officers, members or controlling persons, has taken or will
take, directly or indirectly, any action resulting in a violation of
Regulation M under the 1934 Act, or designed to cause or result in, or
that has constituted or that reasonably might be expected to constitute,
the stabilization or manipulation of the price of any security of the
Operating Partnership or the Company to facilitate the sale or resale of
the Underwritten Securities.
(33) Sarbanes Oxley Act Compliance. There is and has been no failure
on the part of the Company and the Operating Partnership to comply in all
material respects with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
and the rules and regulations in connection therewith.
(b) Officers' Certificates. Any certificate signed by any authorized
representative of the Company, on behalf of the Company for itself and as
general partner of the Operating Partnership, and delivered to any Underwriter
or to counsel for the Underwriters in connection with the offering of the
Underwritten Securities shall be deemed a representation and warranty by such
entity or person, as the case may be, to each Underwriter 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. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Underwritten Securities. 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) Option Underwritten Securities. If so provided in the applicable
Terms Agreement and subject to the terms and conditions set forth therein, the
Operating Partnership and the Company may grant an option to the Underwriters,
severally and not jointly, to purchase up to the aggregate principal amount of
the Option Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security,
less an amount equal to any interest paid or payable on the Initial
Underwritten Securities but not payable on the Option Underwritten Securities.
Such option, if granted, will expire 30 days after the date of such Terms
Agreement, 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 the Representative to the Operating Partnership setting forth the
aggregate principal amount of Option Underwritten 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 Underwritten Securities. Any
such time and date of payment and delivery (each, a "Date of Delivery") shall
be determined by the Representative, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, unless otherwise agreed upon by the Representative and the
Operating Partnership and the Company. If the option is exercised as to all or
any portion of the Option Underwritten Securities, each of the Underwriters,
severally and not jointly, will purchase that proportion of the total
aggregate principal amount of Option
15
Underwritten Securities then being purchased which the aggregate principal
amount of Initial Underwritten Securities each such Underwriter has severally
agreed to purchase as set forth in such Terms Agreement bears to the total
aggregate principal amount of Initial Underwritten Securities, subject to such
adjustments as the Representative in its discretion shall make to eliminate
any sales or purchases of a fractional aggregate principal amount of Option
Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the office of Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, or at such other place as shall be agreed upon by the
Representative and the Operating Partnership and the Company, at 10:00 a.m.
(Eastern time) on the third (fourth, if the pricing occurs after 4:30 p.m.
(Eastern time) on any given day) business day after the date of the applicable
Terms Agreement (unless postponed in accordance with the provisions of Section
10 hereof), or such other time not later than ten business days after such
date as shall be agreed upon by the Representative and the Operating
Partnership and the Company (such time and date of payment and delivery being
herein called "Closing Time"). In addition, in the event that the Underwriters
have exercised their option, if any, to purchase any or all of the Option
Underwritten Securities, payment of the purchase price for, and delivery of
such Option Underwritten Securities, shall be made at the above-mentioned
offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, or at such other place as shall be
agreed upon by the Representative and the Operating Partnership and the
Company on the relevant Date of Delivery as specified in the notice from the
Representative to the Operating Partnership and the Company.
Payment shall be made to the Operating Partnership by wire transfer of
Federal funds or similar same day funds payable to the order of the Operating
Partnership against delivery to the Representative for the respective accounts
of the Underwriters of the Underwritten Securities to be purchased by them. It
is understood that each Underwriter has authorized the Representative, for
their account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Underwritten Securities which it has severally agreed
to purchase. The Representative, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Underwritten Securities to be purchased by any Underwriter whose
check has not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities shall be in
such denominations and registered in such names as the Representative may
request in writing at least one full business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be. The Underwritten Securities
will be made available for examination and packaging by the Representative in
The City of New York not later than 10:00 a.m. (Eastern time) on the business
day prior to the Closing Time or the relevant Date of Delivery, as the case
may be.
SECTION 3. Covenants of the Operating Partnership and the Company.
------------------------------------------------------
Each of the Operating Partnership and the Company, jointly and severally,
covenants with the Representative and with each Underwriter participating in
the offering of Underwritten Securities, as follows:
16
(a) Compliance with Securities Regulations and Commission Requests. The
Operating Partnership and the Company, subject to Section 3(b), will comply
with the requirements of the 1933 Act Regulations, including Rule 430A and
Rule 434, and will notify the Representative immediately, and confirm the
notice in writing, of (i) the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information,
and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes. The Operating Partnership and the Company will promptly
effect the filings necessary pursuant to Rule 424 and will take such steps as
they deem necessary to ascertain promptly whether the Prospectus transmitted
for filing under Rule 424 was received for filing by the Commission and, in
the event that it was not, will promptly file the Prospectus. The Operating
Partnership and the Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. 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 Operating Partnership and the Company will
give the Representative notice of their intention to file or prepare any
amendment to the Registration Statement (including any filing under Rule
462(b) of the 1933 Act Regulations), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representative with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representative or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Operating Partnership and
the Company have furnished or will deliver to the Representative and counsel
for the Underwriters, without charge, a signed copy of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and signed
copies of all consents and certificates of experts, and will also deliver to
the Representative and counsel for the Underwriters, without charge, conformed
copies of the Registration Statement as originally filed and of each amendment
thereto for each of the Underwriters. If applicable, the copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Operating Partnership and the Company
will deliver to each Underwriter, without charge, as many copies of each
preliminary prospectus as such Underwriter may reasonably request, and the
Operating Partnership and the Company hereby consent to the use of such copies
for purposes permitted by the 1933 Act. The Operating Partnership and the
Company will furnish to each Underwriter, without charge, during the period
17
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act and prior to 4:00 p.m. New York City time on the New York business day
next succeeding the date of the applicable Terms Agreement, such number of
copies of the Prospectus as such Underwriter may reasonably request. If
applicable, the Prospectus and any amendments or supplements thereto furnished
to the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Operating Partnership
and the Company will comply with the 1933 Act and the 1933 Act Regulations and
the 1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Underwritten Securities as contemplated in this
Underwriting Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time when the applicable
preliminary prospectus or Prospectus is required by the 1933 Act or the 1934
Act to be delivered in connection with sales of the Underwitten Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Operating
Partnership and the Company, to amend the Registration Statement in order that
the Registration Statement will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to amend or
supplement the applicable preliminary prospectus or Prospectus in order that
the applicable preliminary prospectus or Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the applicable preliminary
prospectus or Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Operating Partnership and the Company
will promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement, applicable preliminary
prospectus or the Prospectus comply with such requirements, and the Operating
Partnership and the Company will furnish to the Underwriters and counsel for
the Underwriters, without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Operating Partnership and the Company
will use their best efforts, in cooperation with the Underwriters, to qualify
the Underwritten Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign)
as the Representative may designate and to maintain such qualifications in
effect for a period of not less than one year from the date of the applicable
Terms Agreement; provided, however, that the Operating Partnership and the
Company shall not be obligated to file any general consent to service of
process or to qualify or register as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or registered,
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction in
which the Underwritten Securities have been so qualified or registered, the
Operating Partnership and 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 date
of such Terms Agreement.
18
(g) Earnings Statement. The Operating Partnership and the Company will
timely file such reports pursuant to the 1934 Act as are necessary in order to
make generally available to their security holders as soon as practicable an
earnings statement (in form complying with Rule 158 of the 1933 Act
Regulations) for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the 1933 Act.
(h) Reporting Requirements. The Operating Partnership and the Company,
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
(i) REIT Qualification. The Company will use its best efforts to continue
to meet the requirements for qualification as a "real estate investment trust"
under the Code for each of its current and subsequent taxable years.
(j) Use of Proceeds. The Operating Partnership and the Company will use
the net proceeds received from the sale of the Underwritten Securities in the
manner specified in the Prospectus under "Use of Proceeds."
(k) Exchange Act Filings. During the period from each Closing Time until
June 30, 2006, the Operating Partnership will deliver to the Representative,
(i) promptly upon their becoming available, copies of all current, regular and
periodic reports of the Operating Partnership and the Company mailed to
unitholders and shareholders, respectively, that are not 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 Operating Partnership and the Company as the
Representative may reasonably request.
(l) No Manipulation of Market for Securities. Except for the
authorization of actions permitted to be taken by the Underwriters as
contemplated herein or in the Prospectus, the Operating Partnership and the
Company will not (a) 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 Operating
Partnership or the Company to facilitate the sale or resale of the
Underwritten Securities, and (b) until the Closing Date, or the Date of
Delivery, if any, (i) sell, bid for or purchase the Underwritten Securities or
pay any person any compensation for soliciting purchases of the Underwritten
Securities or (ii) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Operating
Partnership.
(m) Rule 462(b) Registration Statement. If the Operating Partnership and
the Company elect to rely upon Rule 462(b), the Operating Partnership and the
Company shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., New York City time, on the date of
this Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the 1933 Act.
19
(n) Reservation of Securities. The Company will reserve and keep
available at all times, free of preemptive rights, a sufficient number of
shares of Common Stock for the purpose of enabling the Company to satisfy any
obligations to issue Underlying Shares upon the exchange of the Underwritten
Securities.
(o) Listing. The Company will use its best efforts to effect and maintain
the listing of the Underlying Shares, prior to issuance, on the New York Stock
Exchange or such other national securities exchange on which the Company's
shares of Common Stock are then listed.
(p) Lock-Up. From the date of the Prospectus and for a period of 30 days
thereafter, the Company and the Operating Partnership will not, directly or
indirectly: (1) offer for sale, sell, contract to sell, pledge, hedge or
otherwise dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition by any person
at any time in the future of), any Common Stock (other than the Underlying
Shares, shares issued pursuant to the stock option plans, Long-Term Incentive
Plan and/or distribution reinvestment plans of the Company existing on the
date hereof, shares issued in connection with the acquisition of real property
or interests therein, including mortgage or leasehold interests or in
conjunction with any joint venture transaction to which the Company, the
Operating Partnership or an affiliate of the Company or Operating Partnership
is or becomes a party, or shares issued in connection with the conversion or
redemption of partnership units of the Operating Partnership by holders of
such), any securities which are substantially similar to the Underwritten
Securities or the Common Stock or any such securities convertible,
exchangeable or exercisable for Common Stock or any securities which are
substantially similar to the Underwritten Securities or the Common Stock, or
(2) enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of
ownership of such securities (whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of such securities or other
securities, in cash or otherwise), or (3) publicly disclose an intention to
make any such offer, sale, pledge, hedge, swap or other transaction, in each
case without the prior written consent of Citigroup Global Markets Inc.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Operating Partnership and the Company, jointly and
severally, will pay all expenses incident to the performance of respective
obligations under this Underwriting Agreement and each applicable Terms
Agreement and the Common Stock Delivery Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the printing and delivery to the Underwriters of this
Underwriting Agreement, any Terms Agreement, any Agreement among Underwriters,
the Indenture and such other documents as may be required in connection with
the offering, purchase, sale and delivery of the Underwritten Securities and
the Underlying Shares that may be issued upon exchange of Underwritten
Securities, (iii) the preparation, issuance and delivery of the Underwritten
Securities to the Underwriters and the Underlying Shares that may be issued
upon exchange of the Underwritten Securities, (iv) the fees and disbursements
of the Operating Partnership's and the Company's counsel, accountants and
other advisors or agents (including transfer agents and registrars), as well
as the fees and disbursements of any trustee or its agents under any Indenture
and their respective counsel, (v) the qualification of the Underwritten
Securities and the Underlying
20
Shares that may be issued upon exchange of the Underwritten Securities under
state securities and real estate syndication laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation, printing and delivery of the Blue Sky
Survey, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheet, the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto and the Prospectus and any amendments or supplements thereto, (vii)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities, (viii) the fees and expenses
incurred with respect to the listing of the Underlying Shares, (ix) the fees
and expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Rule 2720(a)(15) of the Conduct Rules
of the NASD), if applicable, and (x) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by the Representative in accordance with the provisions of Section
5 or Section 9(b) hereof, the Operating Partnership and the Company, jointly
and severally, shall reimburse the Underwriters 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 obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of the Operating
Partnership and the Company contained in Section 1 hereof or in certificates
of any officer or authorized representative of the Operating Partnership and
the Company delivered pursuant to the provisions hereof, to the performance by
the Operating Partnership and the Company of their respective covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
has become effective under the 1933 Act (and in the case of a Rule 462(b)
Registration Statement such Registration Statement shall have become effective
by 10:00 p.m. New York City time on the date of this Agreement) and 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 or the state securities authority of any jurisdiction, and
any request on the part of the Commission or the state securities authority of
any jurisdiction for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing information relating to the description of the Underwritten
Securities and the Underlying Shares, the specific method of distribution and
similar matters shall have been filed with the Commission in accordance with
Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A), or, if
the Operating Partnership and the Company have elected to rely upon Rule 434
of the 1933 Act Regulations, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance with Rule 424(b)(7).
21
(b) Opinion of Counsel for the Operating Partnership and the Company. (i)
At Closing Time, the Representative shall have received the favorable opinion,
dated as of Closing Time, of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Operating Partnership and the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters, such opinion shall address
such of the items set forth in Exhibit C hereto as may be relevant to the
particular offering contemplated or to such further effect as counsel to the
Underwriters may reasonably request.
(ii) At Closing Time, the Representative shall have received the
favorable opinion, dated as of Closing Time, of Solomon and ▇▇▇▇▇▇▇▇ LLP,
special tax counsel for the Operating Partnership and the Company, to the
effect that:
(A) at all times since January 1, 2000, the Company has been organized
and operated in conformity with the requirements for qualification and
taxation as a real estate investment trust under the Code and the proposed
method of operation of the Company will enable the Company to continue to meet
the requirements for qualification and taxation as a real estate investment
trust under the Code; and
(B) the information in the Prospectus Supplement under "Certain Federal
Income Tax Consequences" and in the Prospectus under "Material Federal Income
Tax Consequences" has been reviewed by such counsel and is correct in all
material respects.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Underwriters, or such other
counsel as may be designated by the Representative together with signed or
reproduced copies of such letter for each of the other Underwriters, with
respect to the matters set forth in (1) (with respect to the first clause of
the first sentence only), (2) (with respect to the first clause of the first
sentence only), (6), (7), (8), (11) (with respect to the Prospectus Supplement
only and not inclusive of any tax disclosure), and (17) of Exhibit C hereto
and the last two paragraphs of Exhibit C hereto. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the Representative. Such counsel may also
state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of authorized
representatives of the Operating Partnership and the Company and certificates
of public officials.
(d) Officers' Certificate. 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 in the earnings, business
affairs or business prospects of the Operating Partnership, the Company or any
Subsidiary considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representative shall have received a
certificate of the President or a Vice President of the Company, on its own
behalf and as general partner of the Operating Partnership, and of the chief
financial officer or chief accounting officer of the Company, on its own
behalf and as general partner of the Operating Partnership, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in
22
Section 1 are true and correct, in all material respects, with the same force
and effect as though expressly made at and as of the Closing Time, (iii) the
Company and Operating Partnership have complied with all agreements and
satisfied all conditions on their respective parts to be performed or
satisfied at or prior to the Closing Time and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission or by the state securities authority of any jurisdiction.
(e) Accountant's Comfort Letter. At the Closing Time, the Representative
shall have received from Ernst & Young LLP a letter, dated such date, in form
and substance satisfactory to the Representative and counsel to the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" as set forth in the
PCAOB's Statement on Auditing Standards 100 to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representative shall
have received from Ernst & Young LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(g) Ratings. The Underwritten Securities shall be rated at least Baa3 by
▇▇▇▇▇'▇ Investors Service, Inc. and BBB by Standard & Poor's Rating Service,
and as soon as practicable after the Closing Time, the Operating Partnership
and the Company shall have delivered to the Underwriters a letter from each
such rating agency, or other evidence satisfactory to the Representative,
confirming that the Underwritten Securities have such ratings. Since the time
of execution of such Terms Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten Securities or any of
the Operating Partnership's and the Company's other securities by any such
rating organization, and no such rating organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Underwritten Securities or any of the
Operating Partnership's or the Company's other securities.
(h) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Operating Partnership and the Company in the
applicable Terms Agreement and the Underwriters exercise their option to
purchase all or any portion of the Option Underwritten Securities, the
representations and warranties of the Operating Partnership and the Company
contained herein and the statements in any certificates furnished by the
Operating Partnership and the Company hereunder shall be true and correct as
of each Date of Delivery, and, at the relevant Date of Delivery, the
Representative shall have received:
(1) A certificate dated such Date of Delivery, of the President or a
Vice President of the Company, on its own behalf and as general partner
of the Operating Partnership, and the chief financial officer or chief
accounting officer of the Company, on its own behalf and as general
partner of the Operating Partnership, confirming that the certificate
23
delivered at the Closing Time pursuant to Section 5(d) hereof remains
true and correct as of such Date of Delivery.
(2) The favorable opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel
for the Operating Partnership and the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Underwritten Securities and otherwise to
the same effect as the opinion required by Section 5(b)(i) hereof.
(3) The favorable opinion of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from Ernst & Young LLP, in form and substance
satisfactory to the Representative and dated such Date of Delivery, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the "specified
date" on the letter furnished pursuant to this paragraph shall be a date
not more than three business days prior to such Date of Delivery.
(5) The favorable opinion of Solomon and ▇▇▇▇▇▇▇▇ LLP, special tax
counsel for the Operating Partnership and the Company, in form and
substance satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Underwritten Securities and otherwise
to the same effect as the opinion required by Section 5(b)(ii) hereof.
(i) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained.
(j) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing Time, the
obligations of the Underwriters to purchase the Option Underwritten Securities
on such Date of Delivery) may be terminated by the Representative by notice to
the Operating Partnership and the Company at any time at or prior to the
Closing Time (or such Date of Delivery, as applicable), and such termination
shall be without liability of any party to any other party except as provided
in Section 4, and except that Sections 1, 6 and 7 shall survive any such
termination and remain in full force and effect.
(k) Lock-Up Agreements. On the date of the applicable Terms Agreement,
the Representative shall have received, in form and substance satisfactory to
them, each Lock-Up Agreement, if any, specified in such Terms Agreement as
being required to be delivered by the persons or entities listed therein.
24
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Operating Partnership and the
Company, jointly and severally, 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, and any director, officer, employee or
affiliate thereof, as follows:
(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) 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 any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(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 of any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever for which indemnification is provided under subsection (1)
above, if such settlement is effected with the written consent of the
indemnifying party, which consent shall not be unreasonably withheld; and
(3) against any and all expense whatsoever (including without
limitation, the fees and disbursements of counsel chosen by the
Representative) 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 for which indemnification is provided under subsection (1)
above, to the extent that any such expense is not paid under subsection
(1) or (2) above; provided, however, that the indemnity agreement
provided for in this Section 6(a) 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
Operating Partnership and the Company by any Underwriter through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto); provided, however, that neither the
Company nor the Operating Partnership shall be required to indemnify any
Underwriter with respect to any preliminary prospectus to the extent that
any loss, claim, damage or expense of such Underwriter results solely
from an untrue statement of a material fact contained in, or the omission
of a material fact from, such preliminary prospectus which untrue
statement or omission was corrected in the Prospectus and identified to
such Underwriter in writing and which corrected Prospectus was furnished
by the Operating Partnership and the Company to such Underwriter pursuant
to Section 3(d) hereof but it shall be established that such Prospectus
was not sent or given by such
25
Underwriter to the purchaser of the Underwritten Securities at or prior
to the written confirmation of such sale and such correction would have
cured the defect giving rise to such loss, claim, damage or expense.
(b) Indemnification of the Operating Partnership and the Company. Each
Underwriter severally and not jointly agrees to indemnify and hold harmless
the Operating Partnership and the Company, and each person, if any, who
controls the Operating Partnership and the Company within the meaning of
Section 15 of the 1933 Act, and any employee or affiliate thereof, against any
and all loss, liability, claim, damage, and expense described in the indemnity
contained in subsection (a) of this Section 6, as incurred, 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 Operating Partnership and the Company by such Underwriter through the
Representative 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) Actions against Parties; Notification; Settlement without Consent if
Failure to Reimburse. 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
so to 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 the defense of such
action with counsel chosen by it and reasonably approved by the other
indemnifying parties defendant in such action and reasonably approved by the
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to an indemnifying party), unless such other indemnifying
parties or an indemnified party reasonably object to such assumption on the
ground that the named parties to any such action (including any impleaded
parties) include both such indemnified party and an indemnifying party, and
such indemnified party reasonably believes that there may be legal defenses
available to it 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. No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgement (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
26
SECTION 7. Contribution.
------------
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, the Operating Partnership and the Company, on the one hand, and the
Underwriters, on the other, shall contribute to the aggregate losses,
liabilities claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Operating Partnership, the Company and the
Underwriters, 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 bears to
the initial public offering price appearing thereon and the Operating
Partnership and the Company are responsible for the balance. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under Section 6(c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits allocation referred to
in the first sentence of this Section 7 but also the relative fault of the
Operating Partnership and the Company, on the one hand, and the Underwriters
on the other, in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Operating Partnership, on the one hand, or such Underwriters, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Operating
Partnership, the Company and the Underwriters agree that it would not be just
and 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 which does not take account
of the equitable considerations referred to above in this Section 7. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this Section shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the applicable Underwritten
Securities underwritten by it 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 by reason of such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the foregoing, no
person guilty of fraudulent misrepresentation (within the meaning of section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. 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 employee or affiliate of the Operating Partnership
and each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls either the
Operating Partnership or the Company, within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Operating
Partnership and the Company.
27
The Underwriters' obligations to contribute pursuant to this Section 7
are several in proportion to their respective underwriting commitments and not
joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery.
--------
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company, on behalf of the Company and as general partner of
the Operating Partnership, submitted pursuant hereto or thereto shall remain
operative and in full force and effect, regardless of any investigation made
by or on behalf of any Underwriter or controlling person, or by or on behalf
of the Operating Partnership and the Company, and shall survive delivery of
and payment for the Underwritten Securities.
SECTION 9. Termination.
-----------
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by
the Operating Partnership, the Company or by the Representative upon the
giving of 30 days' prior written notice of such termination to the other party
hereto.
(b) Terms Agreement. The Representative may terminate the applicable
Terms Agreement, by notice to the Operating Partnership and the Company, at
any time at or prior to the Closing Time or any relevant Date of Delivery, if
(i) there has been, since the time of execution 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 Operating
Partnership, the Company and any Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, in each case the
effect of which is such as to make it, in the judgment of the Representative,
impracticable or inadvisable to market the Underwritten Securities, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or internationally or any outbreak or escalation of hostilities
or acts of terrorism involving the United States or there is a declaration by
the United States of a national emergency or war or escalation thereof or
other calamity or crisis, or any change or development involving a prospective
change in national or international political, financial, or economic
conditions, in each case the effect of which is such as to make it, in the
sole judgment of the Representative, impracticable or inadvisable to proceed
with the offering or delivery of the Underwritten Securities or to enforce
contracts for the sale of the Underwritten Securities, or (iii) trading in any
securities of the Company or the Operating Partnership has been suspended or
limited by the Commission or the New York Stock Exchange, or if trading in
securities generally on the New York Stock Exchange or the American Stock
Exchange or in the over-the-counter market has been suspended or limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv)
a banking moratorium has been declared by either federal or New York state
authorities, or a material disruption in clearance or settlement systems has
occurred.
28
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in
Section 4 hereof; provided that Sections 1, 6, 7, 8 and 13 hereof shall
survive such termination and remain in full force and effect.
SECTION 10. Intentionally Omitted.
---------------------
SECTION 11. Notices.
-------
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed as provided
in a Terms Agreement, and notices to the Operating Partnership and the Company
shall be directed to them at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Executive Officer and President.
SECTION 12. Parties.
-------
This Underwriting Agreement and the applicable Terms Agreement shall each
inure to the benefit of and be binding upon the parties hereto and, upon
execution of such Terms Agreement, any other Underwriters and their respective
successors. Nothing expressed or mentioned in this Underwriting Agreement or
such Terms Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters, the Operating Partnership,
the Company and their respective successors and the controlling persons and
officers and directors 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 Underwriting Agreement or such Terms Agreement or any
provision herein or therein contained. This Underwriting Agreement and such
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 UNDERWRITING AGREEMENT AND ANY 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. Effect of Headings.
------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
29
SECTION 15. Counterparts.
------------
This Underwriting Agreement and the applicable Terms Agreements may be
executed in one or more counterparts, and if executed in more than one
counterpart, the executed counterparts shall constitute a single instrument.
[The remainder of the page has been left blank intentionally.]
30
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership and the Company
an executed counterpart of the applicable Terms Agreement, whereupon this
Underwriting Agreement, along with the applicable Terms Agreement, will become
a binding agreement among the Underwriters and the Operating Partnership and
the Company in accordance with their terms.
Very truly yours,
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.
its General Partner
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
RECKSON ASSOCIATES REALTY CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first
above written:
CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
Exhibit A
---------
RECKSON OPERATING PARTNERSHIP, L.P.
(a Delaware limited partnership)
and
Debt Securities
Fully and Unconditionally Guaranteed By
RECKSON ASSOCIATES REALTY CORP.
(a Maryland corporation)
TERMS AGREEMENT
__________ __, 200_
To: Reckson Operating Partnership, L.P.
Reckson Associates Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that Reckson Operating Partnership, L.P. (the "Operating
Partnership") proposes to issue and sell $[_____] in aggregate principal
amount of its debt securities (the "Notes"), which shall be fully and
unconditionally guaranteed as to the payment of principal and interest thereon
(the "Guarantee", and together with the Notes, the "Initial Underwritten
Securities") by Reckson Associates Realty Corp. (the "Company"). The Initial
Underwritten Securities shall be exchangeable in accordance with their terms
and the terms of the Indenture (as defined in the Underwriting Agreement) into
cash and, if applicable, shares of the Company's common stock, par value $0.01
per share (the "Underlying Shares"). Subject to the terms and conditions set
forth or incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
aggregate principal amount of Initial Underwritten Securities set forth below
opposite their names at the purchase price set forth below, and a
proportionate share of Option Underwritten Securities (as defined in the
Underwriting Agreement referred to below) set forth below, to the extent any
are purchased.
Aggregate Principal Amount of
Initial Underwritten Securities
Total [$]
A-1
The Underwritten Securities shall have the following terms:
Title:
Aggregate Principal Amount: $
Aggregate Principal Amount of Option
Underwritten Securities: $
Initial public offering price: $
Purchase price: $
Interest rate:
Interest Payment Date:
Maturity Date:
Redemption provisions:
Sinking Fund requirements:
Conversion provisions:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "RECKSON OPERATING PARTNERSHIP, L.P. AND RECKSON ASSOCIATES
REALTY CORP. -- 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-2
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,
[ ]
[address for Notice]
By: ________________________________
Name:
Title:
Acting on behalf of itself and as Representative[s] for the other named
Underwriters.
Accepted:
RECKSON OPERATING PARTNERSHIP, L.P.
By: RECKSON ASSOCIATES REALTY CORP., its sole general partner
By: ___________________________
Name:
Title:
By: RECKSON ASSOCIATES REALTY CORP.
By: ___________________________
Name:
Title:
A-3
Exhibit B
---------
SIGNIFICANT SUBSIDIARIES
Reckson 1185 Avenue of the Americas LLC
Reckson MEZZ 1185 Avenue of the Americas LLC
Reckson Tri-State Member LLC
RT Tri-State LLC
Metropolitan Partners LLC
Metropolitan Operating Partnership, L.P.
Metropolitan ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ LLC
Metropolitan 919 Manager LLC
919 JV LLC
Reckson Court Square, LLC
B-1
Exhibit C
---------
FORM OF OPINION OF THE COMPANY'S AND THE
OPERATING PARTNERSHIP'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
(1) The Company has been duly incorporated and is validly existing as a
corporation and is in good standing with the State Department of Assessments
and Taxation of Maryland. The Company has the 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, or as
contemplated under, the Underwriting Agreement, the applicable Terms Agreement
and the Common Stock Delivery Agreement and is duly qualified or registered as
a foreign corporation to transact business and is in good standing in the
jurisdictions indicated on Schedule I hereto.
(2) The Operating Partnership has been duly organized and is validly
existing as a limited partnership and is in good standing with the Secretary
of State of the State of Delaware. The Operating Partnership has the
partnership 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, or as contemplated under, the Underwriting
Agreement and the applicable Terms Agreement and the Common Stock Delivery
Agreement and is duly qualified or registered as a foreign partnership to
transact business and is in good standing in the jurisdictions indicated on
Schedule I hereto.
(3) The issued and outstanding shares of capital stock of the Company are
duly authorized; all issued and outstanding shares of capital stock of the
Company are validly issued, fully paid and non-assessable and conform in all
material respects to the description thereof contained in the Prospectus; to
our knowledge, no shares of capital stock of the Company are reserved for any
purpose except in connection with (i) the Company's employee stock option
plans (collectively, the "Reckson Stock Option Plans"), (ii) the Company's
Long-Term Incentive Plan and (iii) the possible issuance of shares of Common
Stock upon the exchange of Units; and, to our knowledge, except for the
Underwritten Securities and for the Units and the options issued under the
Reckson Stock Option Plans, there are no outstanding securities convertible
into or exchangeable for any capital stock of the Company, other than as
described in the Prospectus, no outstanding preemptive or similar rights to
purchase or to subscribe for shares of such stock or any other securities of
the Company arising under Maryland law or under the charter or bylaws of the
Company or any contracts to which the Company is a party of which we are
aware.
(4) All the outstanding Units have been duly authorized for issuance by
the Operating Partnership to the holders of Units and, assuming that the
holders of Units, as limited partners of the Operating Partnership, do not
participate in the control of the business of the Operating Partnership, the
Units will represent valid and, subject to the qualifications set forth
herein, fully paid limited partner interests in the Operating Partnership
(subject to the obligation of a limited
C-1
partner of the Operating Partnership to make payments provided for in the
Operating Partnership Agreement and to repay any funds wrongfully distributed
to it). No Units are reserved for any purpose and except for the "put rights"
accorded to Odyssey Partners, L.P., under Section 12.4 of the Second Amended
and Restated Agreement of Limited Partnership of the Omni Partnership, and the
rights of the holders of the Class C common units, Series D and F preferred
units of limited partner interest in the Operating Partnership or pursuant to
the Company's Long-Term Incentive Plan, and except as otherwise described in
the Prospectus, to our knowledge, there are no outstanding securities
convertible into or exchangeable for any Units and no outstanding preemptive
or other similar rights to purchase or subscribe for Units or any other
securities of the Operating Partnership arising under the Delaware Revised
Uniform Limited Partnership Act or under the Operating Partnership Agreement
or any contracts to which the Operating Partnership is a party of which we are
aware.
(5) Each Significant Subsidiary has been duly organized and is validly
existing as a limited partnership or limited liability company, as the case
may be, in good standing under the laws of the jurisdiction of its
organization, as the case may be, and has the partnership or limited liability
company power and authority to own, lease and operate its properties and to
conduct the business in which it is engaged or proposes to engage as described
in the Prospectus and is duly qualified or registered as a foreign limited
partnership or foreign limited liability company, as the case may be, to
transact business and is in good standing in the jurisdictions indicated on
Schedule I hereto. Except as otherwise stated in the Registration Statement
and the Prospectus, all of the issued and outstanding capital stock or other
equity interests, as the case may be, of each Significant Subsidiary has been
duly authorized and is validly issued, and except with regard to Metropolitan
Operating Partnership, L.P., fully paid and non-assessable.
(6) The Underwriting Agreement, the applicable Terms Agreement and the
Common Stock Delivery Agreement have been duly authorized, executed and
delivered by each of the Operating Partnership and the Company.
(7) The Indenture has been duly authorized, executed and delivered by the
Operating Partnership and constitutes a valid and legally binding agreement,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
and the Indenture has been duly qualified under the Trust Indenture Act.
(8) The Debt Securities have been duly authorized by the Operating
Partnership and, when issued and delivered pursuant to the Indenture, the
Underwriting Agreement and the applicable Terms Agreement against payment of
the requisite consideration therefor, such Debt Securities will have been duly
executed and delivered by the Operating Partnership and will constitute valid
and legally binding obligations of the Operating Partnership entitled to the
benefits provided by the Indenture, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights generally and to general equity principles.
(9) The Underlying Shares have been duly authorized and reserved for
issuance by the Company upon the exchange of the Underwritten Securities, if
applicable. The Underlying
C-2
Shares, if and when issued upon such exercise, will be validly issued, fully
paid and non-assessable and will not be subject to preemptive or other similar
rights.
(10) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and the Indenture conform, in all material respects, to the
statements relating thereto contained in the Prospectus and are in
substantially the form filed or incorporated by reference, as the case may be,
as an exhibit to the Registration Statement.
(11) The information in the Prospectus under "Description of Debt
Securities" and "Description of Debentures," and such other information in the
Prospectus Supplement or in any Annual Report on Form 10-K of the Company or
the Operating Partnership as may be agreed upon from time to time by the
Company and the Representative, to the extent that it constitutes matters of
law, descriptions of statutes, rules or regulations, summaries of legal
matters, the Operating Partnership's and the Company's legal proceedings, or
legal conclusions, has been reviewed by us and is correct in all material
respects and fairly summarizes the information required to be disclosed
therein.
(12) (A) To our knowledge, none of the Company, the Operating Partnership
or any of the Significant Subsidiaries is in violation of its charter,
by-laws, partnership agreement, limited liability company operating agreement,
or other organizational document, as the case may be, and (B) to our
knowledge, no default by the Operating Partnership or any Significant
Subsidiary exists in the due performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument that is
filed or incorporated by reference as an exhibit to the Registration Statement
to which the Operating Partnership, the Company or any Significant Subsidiary
is a party or by which any of them may be bound, except for such defaults that
would not have a Material Adverse Effect, and except that we express no
opinion concerning whether there has been a default under any such contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument with regard to financial covenants or insurance coverage for acts
of terrorism.
(13) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement, the Common Stock Delivery Agreement
and the Indenture and consummation of the transactions contemplated in the
Underwriting Agreement and such Terms Agreement and in the Registration
Statement and the Prospectus (including the issuance and sale of the
Underwritten Securities) and compliance by the Operating Partnership, the
Company or any Significant Subsidiary with its obligations thereunder do not
and will not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or default or Repayment
Event under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Operating Partnership, the
Company or any Significant Subsidiary pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, filed or incorporated by reference as an exhibit to
the Registration Statement to which the Operating Partnership, the Company or
any Significant Subsidiary is a party or by which it or any of them may be
bound, or to which any of the assets, properties or operations of the
Operating Partnership, the Company or any Significant Subsidiary is subject,
except for such conflicts, breaches, defaults, events or liens, charges or
encumbrances that would not result in a Material Adverse Effect, nor will such
action
C-3
result in any violation of the provisions of the charter, by-laws, agreement
of limited partnership, or limited liability company operating agreement, as
applicable, of the Operating Partnership, the Company or any Significant
Subsidiary or any applicable Delaware Revised Uniform Limited Partnership Act,
Maryland, New York or U.S. federal laws, statute, rule, regulations, or any
judgment, order, writ or decree, known to us, of any Delaware, Maryland, New
York or U.S. federal government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Operating Partnership, the Company or
any Significant Subsidiary or any of their assets, properties or operations.
(14) To our knowledge, except as disclosed in the Prospectus, there are
no pending or threatened actions, suits or proceedings against or affecting
any of the Operating Partnership, the Company or any Subsidiary or any of
their respective properties or other assets that, if determined adversely to
any such entity would individually or in the aggregate have a Material Adverse
Effect or would materially adversely affect the ability of the Operating
Partnership or the Company to perform their respective obligations under the
Underwriting Agreement and the applicable Terms Agreement.
(15) The descriptions in the Registration Statement of the $250,000,000
4.00% Exchangeable Senior Debentures due 2025 to be issued pursuant to the
Indenture, dated as of March 26, 1999 between the Operating Partnership, the
Company and The Bank of New York, as trustee, as well as contracts and other
documents filed as exhibits to the Operating Partnership's Annual Report on
Form 10-K, the Operating Partnership's Quarterly Report on Form 10-Q for the
first quarter of 2005, the Company's Annual Report on Form 10-K and the
Company's Quarterly Report on Form 10-Q for the first quarter of 2005, are
accurate in all material respects. To our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto.
(16) The Registration Statement has been declared effective under the
1933 Act. Any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b). To
our knowledge, 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.
(17) The Registration Statement, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements (including notes and supporting
schedules thereto) and other financial data included or incorporated by
reference therein or omitted therefrom or the Trustee's Statement of
Eligibility on Form T-1, and for statistical information derived from such
financial statements, schedules, or other financial data, as to which we
express no opinion), complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the Trust
Indenture Act and 1939 Act Regulations.
C-4
(18) The documents incorporated by reference in the Prospectus (other
than the financial statements (including notes and supporting schedules
thereto) and other financial data included or incorporated by reference
therein or omitted therefrom, and for statistical information derived from
such financial statements, schedules, or other financial data, as to which we
express no opinion), when they were filed with the Commission, (or, if later,
upon the filing of an amendment thereto), complied as to form in all material
respects with the requirements of the 1934 Act and the rules and regulations
of the Commission thereunder.
(19) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Delaware, Maryland, New York or
U.S. federal court or governmental authority or agency is necessary or
required for the performance by the Operating Partnership and the Company of
their respective obligations under the Underwriting Agreement or the
applicable Terms Agreement or in connection with the transactions contemplated
under the Underwriting Agreement or such Terms Agreement other than under the
1933 Act, the 1933 Act Regulations, the Trust Indenture Act or the 1939 Act
Regulations, which have been obtained, or as may be required under the by-laws
and rules of the NASD, state securities or blue sky laws or real estate
syndication laws.
(20) Neither the Operating Partnership nor the Company is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act").
No fact has come to our attention that has caused us to believe that the
Registration Statement (other than the financial statements (including notes
and supporting schedules thereto) and other financial data included or
incorporated by reference therein or omitted therefrom and for statistical
information derived from such financial statements, schedules or other
financial data or the Trustee's Statement of Eligibility on Form T-1, as to
which we have not been requested to comment), at the time the Registration
Statement or any post-effective amendment thereto (including the filing of the
Operating Partnership's and the Company's Annual Reports on Form 10-K with the
Commission) became effective or at the date of the applicable Terms Agreement,
contained an 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 or that the Prospectus or any amendment or
supplement thereto (other than the financial statements (including notes and
supporting schedules thereto) and other financial data included or
incorporated by reference therein or omitted therefrom and for statistical
information derived from such financial statements, schedules or other
financial data, as to which we have not been requested to comment), at the
time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the 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 rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company on behalf of the Company
for itself and as general partner of the Operating Partnership, and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document
C-5
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991).
C-6
Schedule I
----------
1. Reckson Associates Realty Corp.
o New York
o New Jersey
o Connecticut
2. Reckson Operating Partnership, L.P.
o New York
o New Jersey
o Connecticut
3. Metropolitan Partners LLC
o New York
4. Metropolitan Operating Partnership, L.P.
o New York
5. Metropolitan ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ LLC
o New York
6. Metropolitan 919 Manager LLC
7. 919 JV LLC
8. Reckson Tri-State Member LLC
9. RT Tri-State LLC
10. Reckson 1185 Avenue of the Americas LLC
o New York
11. Reckson Mezz 1185 Avenue of the Americas LLC
12. Reckson Court Square, LLC
o New York
S-1
Annex I
-------
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations.
(i) in our opinion, the audited financial statements and the related
financial statement schedules included or incorporated by reference in
the Registration Statement and the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and the published rules and regulations thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim [consolidated] financial statements of
the Company for the [three month periods ended __________, ____, and
__________, ____, the three and six month periods ended __________, ____,
and __________, ____, and the three and nine month periods ended
__________, ____, and __________, ____, included or incorporated by
reference in the Registration Statement and the Prospectus (collectively,
the "10-Q Financials")](1) [, a reading of the unaudited interim
[consolidated] financial statements of the Company for the _____-month
periods ended __________, ____, and __________, ____, included in the
Registration Statement and the Prospectus (the "_____-month
financials")](2) [, a reading of the latest available unaudited interim
[consolidated] financial statements of the Company],(3) a reading of the
minutes of all meetings of the stockholders and directors of the Company
[and its subsidiaries] and the Committees of the Company's Board of
Directors [and any subsidiary committees] since [day after end of last
audited period], inquiries of certain officials of the Company [and its
subsidiaries] responsible for financial and accounting matters, a review
of interim financial information in accordance with standards established
by the Public Accounting Oversight Board (United States), as described in
▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Financial Information,(4) with respect to the
[description of
--------------------------
(1) Include the appropriate dates of the 10-Q Financials.
(2) Include if non-10-Q interim financial statements are included in the
Registration Statement and the Prospectus.
(3) Include if the most recent unaudited financial statements are not included
in the Registration Statement and the Prospectus.
(4) Note that a review in accordance with Statements on Auditing Standards
("SAS") No. 100 is required for an accountant to give negative assurance on
interim financial information. A review in accordance with SAS No. 100 will
only be performed at the request of the Company and the accountant's report,
if any, related to that review will be addressed only to the Company. Many
companies have a SAS No. 100 review performed in connection with the
preparation of their 10-Q financial statements. See Codification of Statements
on Auditing Standards, AU ss. 722 for a description of the procedures that
constitute such a review. The comfort letter itself should recite that the
review was performed and a copy of the report, if any, should be attached to
the comfort letter. Any report issued pursuant to SAS No. 100
A-1
relevant periods](5) and such other inquiries and procedures as may be
specified in such letter, nothing came to our attention that caused us to
believe that:
[(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations applicable to unaudited
financial statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials incorporated by
reference in the Registration Statement and the Prospectus for them
to be in conformity with generally accepted accounting
principles;](6)
[(B) the _____-month financials included in the Registration
Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations applicable to unaudited
interim financial statements included in registration statements or
any material modifications should be made to the _____-month
financials included in the Registration Statement and the Prospectus
for them to be in conformity with generally accepted accounting
principles;](7)
(C) at [____________, ____ and at](8) a specified date not more
than five days(9) prior to the date of the applicable Terms
Agreement, there was any change in the __________ of the Company
[and its subsidiaries] or any decrease in the _________ of the
Company [and its subsidiaries] or any increase in the
--------------------------
that is mentioned in the Registration Statement should also be included in the
Registration Statement as an exhibit. If a review in accordance with SAS No.
100 has not and will not be performed by the accountants, they should be
prepared to perform certain agreed-upon procedures on the interim financial
information and to report their findings thereon in the comfort letter. See
Codification of Statements on Auditing Standards, AU ss. 622 for a discussion
of reports related to the accountant's performance of agreed-upon procedures.
Any question as to whether a review in accordance with SAS No. 100 will be
performed by the accountants should be resolved early.
(5) The relevant periods include all interim unaudited condensed consolidation
financial statements included or incorporated by reference in the Registration
Statement and the Prospectus.
(6) Include if the 10-Q Financials are incorporated by reference in the
Registration Statement and the Prospectus.
(7) Include if unaudited financial statements, not just selected unaudited
data, are included in the Registration Statement and the Prospectus.
(8) Include, and insert the date of most recent balance sheet of the Company,
if those statements are more recent than the unaudited financial statements
included in the Registration Statement and the Prospectus.
(9) According to Example A of SAS No. 72, the specified date should be five
calendar days prior to the date of the applicable Terms Agreement. However, in
unusual circumstances, five business days may be used.
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___________ of the Company [and its subsidiaries,](10) in each case
as compared with amounts shown in the latest balance sheet included
in the Registration Statement and the Prospectus, except in each
case for changes, decreases or increases that the Registration
Statement and the Prospectus disclose have occurred or may occur; or
(D) [for the period from ___________, ____ to ___________, ____
and](11) for the period from _________, ____ to a specified date not
more than five days prior to the date of the applicable Terms
Agreement, there was any decrease in __________, ___________ or
___________,(12) in each case as compared with the comparable period
in the preceding year, except in each case for any decreases that
the Registration Statement and the Prospectus discloses have
occurred or may occur;
(iii) based upon the procedures set forth in clause (ii) above and a
reading of the [Selected Financial Data] included in the Registration
Statement and the Prospectus [and a reading of the financial statements
from which such data were derived,](13) nothing came to our attention
that caused us to believe that the [Selected Financial Data] included in
the Registration Statement and the Prospectus do not comply as to form in
all material respects with the disclosure requirements of Item 301 of
Regulation S-K of the 1933 Act [, that the amounts included in the
[Selected Financial Data] are not in agreement with the corresponding
amounts in the audited [consolidated] financial statements for the
respective periods or that the financial statements not included in the
Registration Statement and the Prospectus from which certain of such data
were derived are not in conformity with generally accepted accounting
principles];(14)
--------------------------
(10) The blanks should be filled in with significant balance sheet items,
selected by the banker and tailored to the issuer's industry in general and
operations in particular. While the ultimate decision of which items should be
included rests with the banker, comfort is routinely requested for certain
balance sheet items, including long-term debt, stockholders' equity, capital
stock and net current assets.
(11) Include, and insert dates to describe the period from the date of the
most recent financial statements in the Registration Statement and the
Prospectus to the date of the most recent unaudited financial statements of
the Company, if those dates are different. Regardless of whether this language
is inserted or not, the period including five days prior to the date of the
applicable Terms Agreement should run from the date of the last financial
statement included in the Registration Statement and the Prospectus, not from
the later one that is not included in the Registration Statement and the
Prospectus.
(12) The blanks should be filled in with significant income statements items,
selected by the banker and tailored to the issuer's industry in general and
operations in particular. While the ultimate decision of which items should be
included rests with the banker, comfort is routinely requested for certain
income statement items, including net sales, total and per share amounts of
income before extraordinary items and of net income.
(13) Include only if there are selected financial data that have been derived
from financial statements not included in the Registration Statement and the
Prospectus.
(14) In unusual circumstances, the accountants may report on "Selected
Financial Data" as described in SAS No. 42, Reporting on Condensed Financial
Statements and Selected Financial Data, and include
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(iv) we have compared the information in the Registration Statement
and the Prospectus under selected captions with the disclosure
requirements of Regulation S-K of the 1933 Act and on the basis of
limited procedures specified herein. Nothing came to our attention that
caused us to believe that this information does not comply as to form in
all material respects with the disclosure requirements of Items 302, 402
and 503(d), respectively, of Regulation S-K;
[(v) based upon the procedures set forth in clause (ii) above, a
reading of the unaudited financial statements of the Company for [the
most recent period] that have not been included in the Registration
Statement and the Prospectus and a review of such financial statements in
accordance with SAS 100, nothing came to our attention that caused us to
believe that the unaudited amounts for __________________ for the [most
recent period] do not agree with the amounts set forth in the unaudited
consolidated financial statements for those periods or that such
unaudited amounts were not determined on a basis substantially consistent
with that of the corresponding amounts in the audited [consolidated]
financial statements;](15)
[(vi)] we are unable to and do not express any opinion on the [Pro
Forma Combining Statement of Operations] (the "Pro Forma Statement")
included in the Registration Statement and the Prospectus or on the pro
forma adjustments applied to the historical amounts included in the Pro
Forma Statement; however, for purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed [an audit] [a review in accordance with SAS
100] of the financial statements to which the pro forma
adjustments were applied;
(C) made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters about
the basis for their determination of the pro forma adjustments
and whether the Pro Forma Statement complies as to form in all
material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X; and
--------------------------
in their report in the Registration Statement and the Prospectus the paragraph
contemplated by SAS No. 42.9. This situation may arise only if the Selected
Financial Data do not include interim period data and the five-year selected
data are derived entirely from financial statements audited by the auditors
whose report is included in the Registration Statement and the Prospectus. If
the guidelines set forth in SAS No. 42 are followed and the accountant's
report as included in the Registration Statement and the Prospectus includes
the additional language prescribed by SAS No. 42.9, the bracketed language may
be eliminated.
(15) This language should be included when the Registration Statement and the
Prospectus include earnings or other data for a period after the date of the
latest financial statements in the Registration Statement and the Prospectus,
but the unaudited interim financial statements from which the earnings or
other data is derived is not included in the Registration Statement and the
Prospectus. The blank should be filled in with a description of the financial
statement item(s) included.
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(D) proved the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the Pro
Forma Statement; and
on the basis of such procedures and such other inquiries and
procedures as specified herein, nothing came to our attention that
caused us to believe that the Pro Forma Statement included in the
Registration Statement does not comply as to form in all material
respects with the applicable requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those statements;(16) and
[(vii)] in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit,
with respect to certain amounts, percentages, numerical data and
financial information appearing in the Registration Statement and the
Prospectus, which are specified herein, and have compared certain of such
items with, and have found such items to be in agreement with, the
accounting and financial records of the Company;(17) and
[(viii) in addition, we [comfort on a financial forecast that is
included in the Registration Statement and the Prospectus.(18)]
--------------------------
(16) If an audit or a review in accordance with SAS No. 100 has not been
performed by the accountants with respect to the underlying historical
financial statements, or if negative assurance on the Company's pro forma
financial statements is not otherwise available, the accountants should be
requested to perform certain other procedures with respect to such pro forma
financial statements. See Example O of SAS No. 72.
(17) This language is intended to encompass all other financial/numerical
information appearing in the Registration Statement and the Prospectus for
which comfort may be given, including (but not limited to) amounts appearing
in the Registration Statement and the Prospectus narrative and other summary
financial data appearing in tabular form (e.g., the capitalization table).
(18) Accountants' services with respect to a financial forecast may be in one
of three forms: an examination of the forecast, a compilation of the forecast
or the application of agreed-upon procedures to the forecast. If the
accountant is to perform an examination of the forecast included in the
Registration Statement and the Prospectus, delivery of the related report
should be treated separately in Section 5(f) as follows (remember to change
subsequent letters accordingly):
(f) At the time that the applicable Terms Agreement is executed by
the Company, you shall have received from _________________ a report, dated
such date, in form and substance satisfactory to you, together with signed or
reproduced copies of such report for each of the other Underwriters, stating
that, in their opinion, the forecasted financial statements for the [relevant
period or periods] included in the Registration Statement and the Prospectus
are presented in conformity with guidelines for presentation of a forecast
established by the PCAOB, and that the underlying assumptions provide a
reasonable basis for management's forecast.
If the accountant is to perform a compilation of the forecasted financial
statements included in the Registration Statement and the Prospectus, delivery
of the related report should be treated separately in Section 5(e) as follows:
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--------------------------
(f) At the time that the applicable Terms Agreement is executed by
the Company, you shall have received from _________________ a report, dated
such date, in form and substance satisfactory to you, together with signed or
reproduced copies of such report of each of the other Underwriters, stating
that they have compiled the forecasted financial statements for the [relevant
period or periods] included in the Registration Statement and the Prospectus
in accordance with the guidelines established by the PCAOB.
Finally, if the accountant is to perform agreed-upon procedures on a forecast
included in the Registration Statement and the Prospectus, SAS No. 72 requires
that the accountant first prepare a compilation report with respect to the
forecast and attach that report to the comfort letter. The accountant may then
report on specific procedures performed and findings obtained.
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