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EXHIBIT 1.1
EOP OPERATING LIMITED PARTNERSHIP
(a Delaware limited partnership)
$200,000,000
7.5% Notes due April 19, 2029
UNDERWRITING AGREEMENT
April 13, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
on behalf of the Underwriters listed on Schedule A hereof
c/o MERRILL LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Ladies and Gentlemen:
EOP Operating Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") on behalf
of the Underwriters listed on Schedule A hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as
representative (in such capacity, the "Representative"), with respect to the
sale by the Operating Partnership and the purchase by the Underwriters, acting
severally and not jointly, of $200,000,000 aggregate principal amount of 7.5%
Notes due April 19, 2029 (the "Securities"). The Securities will be issued
pursuant to an indenture dated as of September 2, 1997 (such indenture, as
supplemented, the "Indenture"), between the Operating Partnership and State
Street Bank and Trust Company, as trustee (the "Trustee"). The Securities will
be issued in book-entry form only to Cede & Co. as nominee of The Depository
Trust Company ("DTC") pursuant to a letter agreement, to be dated as of the
Closing Time (as defined in Section 2(c)) (the "DTC Agreement"), among the
Operating Partnership, the Trustee and DTC. Unless the context otherwise
requires, as used herein, "you" and "your" shall mean the parties to whom this
Underwriting Agreement (this "Agreement") is addressed. Capitalized terms used
herein without definition shall have the meanings assigned to such terms in the
Prospectus (as defined below) relating to the Securities.
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The Operating Partnership understands that the Underwriters
propose to make a public offering of the Securities as soon as the
Representative deems advisable after this Agreement has been executed.
The Operating Partnership has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333-58689) covering the registration of debt securities, including the
Securities, under the Securities Act of 1933, as amended (the "1933 Act"),
including the related preliminary prospectus or prospectuses. Promptly after
execution and delivery of this Agreement, the Operating Partnership will prepare
and file a prospectus supplement relating to the Securities in accordance with
the provisions of Rule 424(b) ("Rule 424(b)") of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"). Any prospectus
supplement relating to the Securities that omitted certain pricing information
and was used after the effectiveness of such registration statement and prior to
the execution and delivery of this Agreement and the prospectus contained in
such registration statement are collectively referred to as herein as a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus and the prospectus supplement
relating to the Securities, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first
furnished to the Underwriters for use in connection with confirming sales of the
Securities, are collectively referred to herein as the "Prospectus." For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus or the Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "set forth" or
"stated" in the Registration Statement, any preliminary prospectus or the
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), which is incorporated by reference in the Registration
Statement, such preliminary prospectus or the Prospectus, as the case may be.
The "Company" shall mean Equity Office Properties Trust, a
Maryland real estate investment trust, which is the managing general partner of
the Operating Partnership.
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Section 1. Representations and Warranties of the Operating
Partnership.
(a) The Operating Partnership represents and warrants to each
Underwriter as of the date hereof and as of the Closing Time, and agrees with
each Underwriter, as follows:
(i) Compliance with Registration
Requirements. The Operating Partnership meets the requirements
for use of Form S-3 under the 1933 Act. The Registration
Statement, including any Rule 462(b) Registration Statement,
has become effective under the 1933 Act and no stop order
suspending the effectiveness of the 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, are contemplated by
the Commission, and any request on the part of the Commission
for additional information has been complied with.
At the respective times the Registration
Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement
and any amendments 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 "1939 Act") and the rules and regulations of
the Commission under the 1939 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. Neither the Prospectus nor
any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and
at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will 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. The representations and warranties
in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished
to the Operating Partnership in writing by any Underwriter
through the Representative expressly for use in the
Registration Statement or Prospectus.
Each preliminary prospectus and the
prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act Regulations, complied
when so filed in all material respects with the 1933 Act
Regulations, and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection
with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant
to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents
incorporated or deemed to be incorporated by reference in the
Registration Statement and the
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Prospectus, when they became effective or 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 1933 Act and the 1933 Act Regulations or the 1934 Act and
the rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), as applicable, and, when read
together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time, 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.
(iii) Independent Accountants. Ernst & Young
LLP, the accounting firm that certified the financial
statements and supporting schedules included in the
Registration Statement, is an independent public accountant as
required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial
statements included in the Registration Statement and the
Prospectus, together with the related schedules and notes,
present fairly the financial position of the respective entity
or entities presented therein at the respective dates
indicated and the results of their operations for the
respective periods specified, and except as otherwise stated
therein, said financial statements have been prepared in
conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis. The supporting
schedules included in the Registration Statement present
fairly in accordance with GAAP the information required to be
stated therein. The financial information and data included in
the Prospectus present fairly the information included therein
and have been prepared on a basis consistent with that of the
books and records of the respective entities presented
therein. The Statements of Revenues and Certain Operating
Expenses included in the Prospectus for certain of the
Properties (as defined below) present fairly the information
included therein and have been prepared on a basis consistent
with that of the books and records of the respective entities
presented therein. Pro forma financial information included in
the Registration Statement and the Prospectus has been
prepared in accordance with the applicable requirements of
Rules 11-01 and 11-02 of Regulation S-X under the 1933 Act,
and the necessary pro forma adjustments have been properly
applied to the historical amounts in the compilation of such
information, and, in the opinion of the Operating Partnership,
the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to
therein.
(v) No Material Adverse Change. 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, or business affairs of the Operating Partnership and
its subsidiaries considered as one
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enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Change"), (B) no casualty loss
or condemnation or other adverse event with respect to any
Property has occurred that would result in a Material Adverse
Effect (as defined below), (C) there have been no transactions
or acquisitions entered into by the Operating Partnership or
any of its subsidiaries, other than those arising in the
ordinary course of business, which are material with respect
to the Operating Partnership and its subsidiaries considered
as one enterprise, (D) except as described in the Registration
Statement and the Prospectus and except for regular quarterly
distributions on the partnership interests of the Operating
Partnership, there has been no distribution of any kind
declared, paid or made by the Operating Partnership with
respect to its partnership interests, and (E) there has been
no material change in the partnership interests of the
Operating Partnership, or any material increase in the
indebtedness of the Operating Partnership.
(vi) Good Standing of the Operating
Partnership. The Operating Partnership has been duly formed
and is validly existing as a limited partnership in good
standing under the Delaware Revised Uniform Limited
Partnership Act (the "Delaware Act") with partnership power
and authority to own, lease and operate any real property or
improvements thereon owned or leased by the Operating
Partnership or its subsidiaries (each individually, a
"Property" and collectively, the "Properties"), to conduct the
business in which it is engaged or proposes to engage as
described in the Registration Statement and the Prospectus and
to enter into and perform its obligations under or
contemplated under this 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, register or
be in good standing would not result in a material adverse
effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of
the Operating Partnership and the its subsidiaries considered
as one enterprise (a "Material Adverse Effect").
(vii) Good Standing of the Subsidiaries.
Each of the subsidiaries of the Operating Partnership listed
on Schedule C to this Agreement (collectively, the
"Significant Subsidiaries"), if any, has been duly organized
and is validly existing as a partnership, corporation, limited
liability company or real estate investment trust in good
standing under the laws of its respective jurisdiction of
organization, with all power and authority to own, lease and
operate its Properties and to conduct the business in which it
is engaged or proposes to engage as described in the
Registration Statement and the Prospectus. Each of the
subsidiaries of the Operating Partnership is duly qualified or
registered as a foreign partnership, corporation, limited
liability company, or real estate investment trust and is in
good standing in each jurisdiction in which the business
conducted by such subsidiary is required and permitted,
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure, singly or
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in the aggregate, to so qualify would not result in a Material
Adverse Effect. Each of the partnership or operating
agreements of the Significant Subsidiaries is in full force
and effect.
(viii) Capitalization of Operating
Partnership. The capitalization of the Operating Partnership
is as set forth in the Prospectus as of the date referenced
therein. All of the partnership interests outstanding at the
date hereof were duly authorized for issuance by the Operating
Partnership and are validly issued and fully paid. The
outstanding partnership interests were offered and sold in
compliance with all applicable laws (including, without
limitation, federal and state securities laws).
(ix) Authorization of the Indenture. The
Indenture has been duly authorized, executed and delivered by
the Operating Partnership, and assuming due authorization,
execution and delivery by the Trustee, constitutes a valid and
binding obligation of the Operating Partnership, enforceable
against the Operating Partnership in accordance with its
terms, except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(x) Authorization of the Securities. The
Securities have been duly authorized by the Operating
Partnership and, at the Closing Time, will have been duly
executed by the Operating Partnership and, when authenticated,
issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price
therefor as provided in this Agreement, will constitute valid
and binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance
with their terms, except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles
of general applicability, and the Securities will be in the
form contemplated by, and entitled to the benefits of, the
Indenture.
(xi) Description of the Securities and the
Indenture. The Securities and the Indenture will conform in
all material respects to the respective statements relating
thereto contained in the Prospectus and will be in
substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration
Statement.
(xii) Absence of Defaults. Neither the
Operating Partnership nor any Significant Subsidiary is in
violation of its declaration of trust, charter, by-laws,
limited liability company agreement, certificate of limited
partnership or partnership agreement, as the case may be, and
neither the Operating Partnership nor any Significant
Subsidiary is in default in the performance or observance of
any
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obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which such entity is a party or by which
such entity may be bound, or to which any of the property or
assets of such entity is subject, except where a default
thereunder would not result in a Material Adverse Effect.
(xiii) Absence of Conflicts. The execution
and delivery of this Agreement and the Indenture, the
performance of the obligations set forth herein or therein,
and the consummation of the transactions contemplated hereby
or thereby or in the Prospectus (including the issuance and
sale of the Securities by the Operating Partnership) will not
result in the creation of any lien, charge or encumbrance upon
the Properties or conflict with or constitute a breach or
violation by the Operating Partnership or any of its
subsidiaries, or default under, (A) any material contract,
indenture, mortgage, loan agreement, note, lease, joint
venture or partnership agreement or other instrument or
agreement to which such entity is a party or by which they,
any of them, any of their respective assets or any Property
may be bound or subject, (B) the declaration of trust, the
charter, by-laws, certificate of limited partnership,
partnership agreement, or limited liability company agreement,
as the case may be, of such entity or (C) any applicable law,
rule, order, administrative regulation or administrative or
court decree, except in the cases of clauses (A) and (C) for
such liens, charges, encumbrances, conflicts, breaches,
violations or defaults as would not result in a Material
Adverse Effect.
(xiv) Authorization of Agreement. The
Operating Partnership has the requisite power and authority
under its organizational documents to enter into this
Agreement, and this Agreement has been duly authorized,
executed and delivered by the Operating Partnership.
(xv) Absence of Proceedings. There is no
action, suit or proceeding before or brought by any court or
governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Operating Partnership, threatened
against or affecting the Operating Partnership, the Company,
any Significant Subsidiary, any Property or any officer or
trustee of the Company that, if determined adversely to the
Operating Partnership, the Company, any Significant
Subsidiary, any Property or any such officer or trustee, might
(A) result in any Material Adverse Effect or (B) materially
and adversely affect the consummation of the transactions
contemplated by this Agreement. There are no legal or
governmental proceedings pending or, to the knowledge of the
Operating Partnership, threatened to which the Operating
Partnership or any significant subsidiary is a party or to
which any of their respective assets, properties or operations
is the subject that are required to be described in the
Prospectus that are not so described. The aggregate of all
pending legal or governmental proceedings to which the
Operating Partnership, the Company or any Significant
Subsidiary is a party or of which any of their respective
assets, properties or operations is the subject which are not
described in the Prospectus, including ordinary routine
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litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(xvi) 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 filed as
required.
(xvii) Investment Company Act. Neither the
Operating Partnership nor any Significant Subsidiary is, or at
the Closing Time will be, required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(xviii) Possession of Intellectual Property.
The Operating Partnership and its subsidiaries own or possess,
or can acquire on reasonable terms, the trademarks, service
marks, trade names, or other intellectual property
(collectively, "Intellectual Property") necessary to carry on
the business now operated by them, and no such entity has
received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances
which would render any Intellectual Property invalid or
inadequate to protect the interest of such entities therein,
and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xix) Absence of Further Requirements. All
authorizations, approvals and consents of any court or
governmental authority or agency that are necessary in
connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the other
transactions contemplated by this Agreement or the Indenture
have been obtained, except such as have been already obtained
or as may be required under the securities, blue sky or real
estate syndication laws of various states in connection with
such offer, issuance and sale.
(xx) Possession of Licenses and Permits. The
Operating Partnership and its subsidiaries possess such
permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, or local regulatory
agencies or bodies necessary to conduct the business now
conducted by them, or proposed to be conducted by them, as
described in the Prospectus, except where the failure to
possess any such Governmental License would not have a
Material Adverse Effect. The Operating Partnership and its
subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are
valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect
would not result in a Material Adverse
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Effect. Neither the Operating Partnership nor any of its
subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xxi) Absence of Labor Dispute. No labor
dispute with the employees of the Operating Partnership or any
of its subsidiary exists or, to the knowledge of the Operating
Partnership, is imminent, which may reasonably be expected to
result in a Material Adverse Effect.
(xxii) Title to Property. (A) With respect
to the Properties in which the Operating Partnership owns,
directly or indirectly, all of the ownership interest therein,
the Operating Partnership or its subsidiaries have good and
marketable fee simple title to the land underlying such
Properties (or, to the extent described in the Prospectus, a
valid leasehold estate in such land) and (except for the
Property known as "500 Orange") good and marketable title to
the improvements thereon and all other assets that are
required for the effective operation of such Properties in the
manner in which they currently are operated, subject, however,
to existing mortgages on such Properties, to utility easements
serving such Properties, to liens of ad valorem taxes not due
and payable as of the Closing Time (or which are being
contested pursuant to applicable law), to zoning and similar
governmental land use matters affecting such Properties that
are consistent with the current uses of such Properties, to
matters of title not adversely affecting marketability of
title to such Properties, other statutory liens not due and
payable as of the Closing Time, title matters that may be
material in character, amount or extent but which do not
materially detract from the value, or interfere with the use,
of the Properties or otherwise materially impair the business
operations being conducted or proposed to be conducted
thereon, tenant leases, service marks and trade names used in
connection with such Properties, ground leases and ownership
by others of certain items of equipment and other items of
personal property that are not material to the conduct of
business operations at such Properties; (B) with respect to
the Properties in which the Operating Partnership owns,
directly or indirectly, less than all of the ownership
interest (the "Joint Venture Properties"), the Operating
Partnership or its subsidiaries have good and marketable title
to such ownership interests and the respective entities owning
the Joint Venture Properties have good and marketable title to
such interests in the Joint Venture Properties and good and
marketable title to the improvements thereon and all other
assets that are required for the effective operation of such
Properties in the manner in which they currently are operated,
subject to the exceptions set forth in clause (A) above; (C)
the ground leases under which the applicable subsidiaries of
the Operating Partnership lease the land on which certain
Properties are located are in full force and effect, and each
of such subsidiaries is not in default in respect of any of
the terms or provisions of such leases and neither the
Operating Partnership nor any such subsidiary has not received
notice of the assertion of any claim by anyone adverse to such
subsidiaries' rights as lessees under such leases, or
affecting or questioning such
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subsidiaries' right to the continued possession or use of the
Property under such leases or of a default under such leases;
(D) all liens, charges, encumbrances, claims, or restrictions
on or affecting any of the Properties and the assets of the
Operating Partnership or any of its subsidiaries are disclosed
in the Prospectus, subject to the exceptions set forth in
clause (A) above; (E) neither any subsidiary of the Operating
Partnership nor any tenant of any of the Properties is in
default under any of the leases pursuant to which the
Operating Partnership or any of its subsidiaries, as lessor,
leases its Property (and the Operating Partnership does not
know of any event which, but for the passage of time or the
giving of notice, or both, would constitute a default under
any of such leases) other than such defaults and unmatured
events of default that would not result in a Material Adverse
Effect; (F) except for such rights of first refusal as may be
contained in the agreements related to the Joint Venture
Properties, no person has an option or right of first refusal
to purchase all or part of any Property or any interest
therein; (G) each of the Properties complies with all
applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations
and laws relating to access to the Properties), except if and
to the extent disclosed in the Prospectus and except for such
failures to comply that would not individually or in the
aggregate result in a Material Adverse Effect; (H) there is in
full force and effect insurance coverages for the assets of
the Properties that are commercially reasonable for such types
of assets, and neither the Operating Partnership nor any of
its subsidiaries has received from any insurance company
notice of any material defects or deficiencies affecting the
insurability of any such assets (including the Properties);
and (I) neither the Operating Partnership nor any of its
subsidiaries has any knowledge of any pending or threatened
condemnation proceedings, zoning change, or other similar
proceeding or action that will in any manner affect the size
of, use of, improvements on, construction on or access to the
Properties, except such proceedings or actions as are
disclosed in the Prospectus or that would not have a Material
Adverse Effect.
(xxiii) Environmental Laws. Except as
disclosed in the Prospectus or as would not have a Material
Adverse Effect: (A) each Property, including, without
limitation, the Environment (as defined below) associated with
such Property, is free of any Hazardous Substance (as defined
below) in violation of any Environmental Law (as defined
below) applicable to such Property, except for Hazardous
Substances that would not result in a Material Adverse Effect;
(B) neither the Operating Partnership nor any of its
subsidiaries has during the period of its ownership caused or
suffered to occur any Release (as defined below) of any
Hazardous Substance into the Environment on, in, under or from
any Property in violation of any Environmental Law applicable
to such Property, and no condition exists on, in, under or, to
the knowledge of the Operating Partnership or any of its
subsidiaries adjacent to, any Property that could result in
the incurrence of material liabilities or any material
violations of any Environmental Law applicable to such
Property, or give rise to the imposition of any Lien (as
defined below) under any Environmental Law; (C) neither the
Operating Partnership nor any of its
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subsidiaries is engaged in or intends to engage in any
manufacturing at the Properties that (1) requires the use,
handling, transportation, storage, treatment or disposal of
any Hazardous Substance (other than cleaning solvents and
similar materials and other than insecticides and herbicides
that are used in the ordinary course of operating the
Properties and in compliance with all applicable Environmental
Laws) or (2) requires permits or is otherwise regulated
pursuant to any Environmental Law; (D) neither the Operating
Partnership nor any of its subsidiaries has received any
notice of a claim under or pursuant to any Environmental Law
applicable to a Property or under common law pertaining to
Hazardous Substances on or originating from any Property; (E)
neither the Operating Partnership nor any of its subsidiaries
has received any notice from any Governmental Authority (as
defined below) claiming any violation of any Environmental Law
that is uncured or unremediated as of the date hereof; and (F)
no Property is included or, to the knowledge of the Operating
Partnership nor any of its subsidiaries, proposed for
inclusion on the National Priorities List issued pursuant to
CERCLA (as defined below) by the United States Environmental
Protection Agency (the "EPA") or on the Comprehensive
Environmental Response, Compensation, and Liability
Information System database maintained by the EPA, and has not
otherwise been identified by the EPA as a potential CERCLA
removal, remedial or response site or included or, to the
knowledge of the Operating Partnership, proposed for inclusion
on, any similar list of potentially contaminated sites
pursuant to any other applicable Environmental Law nor has the
Operating Partnership nor any of its subsidiaries received any
written notice from the EPA or any other Governmental
Authority proposing the inclusion of any Property on such
list; and (G) there are no underground storage tanks located
on or in any Property which have not been disclosed to the
Representative.
As used herein, the term "Hazardous
Substance" shall include, without limitation, any hazardous
substance, hazardous waste, toxic or dangerous substance,
pollutant, solid waste or similarly designated materials,
including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or
asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation
or any constituent of any such substance, pollutant or waste,
including any such substance, pollutant or waste identified or
regulated under any Environmental Law (including, without
limitation, materials listed in the United States Department
of Transportation Optional Hazardous Material Table, 49 C.F.R.
ss. 172.101, as heretofore amended, or in the EPA's List of
Hazardous Substances and Reportable Quantities, 40 C.F.R. Part
302, as heretofore amended); "Environment" shall mean any
surface water, drinking water, ground water, land surface,
subsurface strata, river sediment, buildings, structures, and
ambient workplace and indoor air; "Environmental Law" shall
mean the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. ss. 9601 et
seq.) ("CERCLA"), the Resource Conservation and Recovery Act
of 1976, as amended (42 U.S.C. ss. 6901, et seq.), the Clean
Air Act, as amended (42 U.S.C. ss. 7401, et
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seq.), the Clean Water Act, as amended (33 U.S.C. ss. 1251, et
seq.), the Toxic Substances Control Act, as amended (15 U.S.C.
ss. 2601, et seq.), the Occupational Safety and Health Act of
1970, as amended (29 U.S.C. ss. 651, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. ss. 1801,
et seq.), and all other federal, state and local laws,
ordinances, regulations, rules, orders, decisions and permits
relating to the protection of the environment or of human
health from environmental effects; "Governmental Authority"
shall mean any federal, state or local governmental office,
agency or authority having the duty or authority to
promulgate, implement or enforce any Environmental Law; "Lien"
shall mean, with respect to any Property, any mortgage, deed
of trust, pledge, security interest, lien, encumbrance,
penalty, fine, charge, assessment, judgment or other liability
in, on or affecting such Property; and "Release" shall mean
any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating
or disposing of any Hazardous Substance into the Environment,
including, without limitation, the abandonment or discard of
barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance or any release,
emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(xxiv) Tax Compliance. Each of the Operating
Partnership and its subsidiaries has filed all federal, state,
and local income tax returns which have been required to be
filed and has paid all taxes required to be paid and any other
assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except, in all
cases, for any such tax, assessment, fine or penalty that is
being contested in good faith, and except in any case in which
the failure to so file or pay would not have a Material
Adverse Effect.
(xxv) No Price Manipulation. Neither the
Operating Partnership nor any of its Significant Subsidiaries,
nor any of their directors, officers or controlling persons,
has taken or will take, directly or indirectly, any action
designed to cause or result under the 1934 Act, or otherwise
in, or which has constituted or which reasonably might be
expected to constitute, the unlawful stabilization or
manipulation of the price of any security of the Operating
Partnership to facilitate the sale or resale of the
Securities.
(xxvi) Plan Assets. The assets of the
Operating Partnership and its subsidiaries do not constitute
"plan assets" under the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and
published interpretations thereof.
(xxvii) Regulations G, T, U and X. None of
the transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of
the Securities) will violate or result in a violation of
Section 7 of the 1934 Act, or any regulation promulgated
thereunder, including,
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without limitation, Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System.
(xxviii)Partnership Classification. The
Operating Partnership and each of the Significant Subsidiaries
that are partnerships are properly classified as partnerships,
and not as corporations or as associations taxable as
corporations, for federal income tax purposes throughout the
period from July 11, 1997 through the date hereof, or, in the
case of any Significant Subsidiary partnerships that have
terminated, through the date of termination of such
Significant Subsidiary partnerships.
(xxix) Cross Defaults. The mortgages and
deeds of trust encumbering the properties and assets described
in general in the Prospectus are not convertible and are not
cross-defaulted or cross-collateralized to any property not
owned by the Operating Partnership or any of its subsidiaries;
and, except as disclosed in the Prospectus, neither the
Operating Partnership nor any of its subsidiaries holds
participating interests in such mortgages and deeds of trust.
(b) Any certificate signed by any officer of the Company, on
behalf of the Operating Partnership, and delivered to the Representative or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Operating Partnership to each Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery; Closing.
(a) Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions set forth
herein, the Operating Partnership agrees to sell to each Underwriter, severally
and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Operating Partnership, at the price set forth in Schedule B,
the aggregate principal amount of Securities set forth in Schedule A opposite
the name of such Underwriter, plus any additional principal amount of Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery
of certificates for, the Securities shall be made at the offices of ▇▇▇▇▇ & ▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other
place as shall be agreed upon by the Representative and the Operating
Partnership, at 9:00 A.M. (New York City time) on the third business day after
the date hereof (unless postponed in accordance with the provisions of Section
10), 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 (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Operating Partnership by wire
transfer of immediately available funds to a bank account designated by the
Operating Partnership, against delivery to the Representative for the respective
accounts of the Underwriters of certificates for the Securities to be purchased
by them. It is understood that each Underwriter has authorized the
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Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has agreed to
purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(c) Denominations; Registration. The Securities shall be in
book-entry form only and shall be represented by global certificates in such
denominations and registered in such names as the Representative may request in
writing at least two full business days before the Closing Time. The 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. (New York City time) on the
business day prior to the Closing Time.
Section 3. Covenants of the Operating Partnership. The
Operating Partnership covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. During the period when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities, the Operating
Partnership will notify the Representative immediately, and confirm the notice
in writing, (i) when any post-effective amendment to the Registration Statement
shall become effective, or any amendment or supplement to the Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of 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) of 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 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 will promptly effect the filings necessary pursuant to
Rule 424(b) and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. 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. During the period when the
Prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, the Operating Partnership will give the Representative notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) 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 object.
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(c) Delivery of Registration Statements. The Operating
Partnership has furnished or will 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 (including exhibits filed
therewith or incorporated by reference therein) and conformed copies of all
consents and certificates of experts, and will also deliver to the
Representative, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. 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 ▇▇▇▇▇.
(d) Delivery of Prospectuses. The Operating Partnership has
delivered to each Underwriter, without charge, as many copies of each
preliminary prospectus as such Underwriter reasonably requested, and the
Operating Partnership hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Operating Partnership will furnish to each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. 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 will comply with the 1933 Act and the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations
so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the 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, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements 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 Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Operating Partnership 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 or the
Prospectus comply with such requirements, and the Operating Partnership will
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) State Law. The Operating Partnership will use its best
efforts, in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions, including real estate syndication laws, as the Representative may
designate and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Registration Statement
and any Rule 462(b) Registration Statement; provided, however, that the
Operating Partnership shall not
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be obligated to file any general consent to service of process or to qualify as
a foreign limited partnership or as a dealer in securities in any jurisdiction
in which it is not so qualified 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 Securities have been so qualified, the Operating
Partnership will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration Statement and
any Rule 462(b) Registration Statement. The Operating Partnership will also
supply the Underwriters with such information as is necessary for the
determination of the legality of the Securities for investment under the laws of
such jurisdictions as the Underwriters may request.
(g) Rule 158. The Operating Partnership will timely file such
reports pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings statement
for the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Operating Partnership will use the
net proceeds received by it from the sale of the Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(i) Reporting Requirements. The Operating Partnership, 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.
(j) DTC. The Operating Partnership shall use its reasonable
best efforts in cooperation with the Underwriters to permit the Securities to be
eligible for clearance and settlement through DTC.
(k) Ratings. The Operating Partnership will use its reasonable
best efforts to enable Standard & Poor's Ratings Services ("S&P") and ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's") to provide their respective credit ratings
of the Securities.
(l) Notification of Certain Events. Prior to the Closing Time,
the Operating Partnership will notify the Representative in writing immediately
if any event occurs that renders any of the representations and warranties of
the Operating Partnership contained herein inaccurate or incomplete.
Section 4. Payment of Fees and Expenses.
(a) Expenses. The Operating Partnership will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment and
supplement thereto, (ii) the preparation and delivery to the Underwriters of
this 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 Securities,
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including any global securities, (iii) the preparation, issuance and delivery of
the Securities, including any global Securities, (iv) the fees and disbursements
of the Operating Partnership's counsel, accountants, and other advisors or
agents (including transfer agents and registrars), (v) the qualification of the
Securities under state securities laws 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 a blue sky memorandum (the "Blue Sky Memorandum") and any amendment
or supplement thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus and the Prospectus and any amendments or
supplements thereto, (vii) any fees charged by nationally recognized statistical
rating organizations for the rating of the Securities, (viii) the fees and
expenses of the Trustee, including the reasonable fees and disbursements of
counsel for the Trustee, in connection with the Indenture and the Securities,
(ix) all expenses and listing fees incurred in connection with the clearance and
settlement of the Securities through DTC and (x) all expenses and listing fees
incurred in connection with the application to obtain CUSIP numbers for the
Securities.
(b) Termination of Agreement. If this Agreement is terminated
by the Representative in accordance with the provisions of Section 5 hereof, the
Operating Partnership 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
several obligations of the Underwriters hereunder are subject to the accuracy,
as of the date hereof and as of the Closing Time, of the representations and
warranties of the Operating Partnership contained in Section 1(a) hereof, to the
performance by the Operating Partnership of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters.
(b) (i) At the Closing Time, you shall have received the
favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.,
counsel for the Operating Partnership, in form and substance satisfactory to
you, to the effect set forth in Exhibit A hereto.
(ii) At the Closing Time, the Representative shall
have received the favorable opinion, dated as of the Closing
Time, of ▇▇▇▇▇ & Wood LLP, counsel for the Underwriters, with
respect to the matters set forth in Items (1) (as to
formation, valid existence and good standing only),
(3),(4),(5),(6),(7),(8) and (14) of Exhibit A hereto and a
statement similar to the statement referred to in the last
paragraph of Exhibit A hereto.
(iii) At the Closing Time, you shall have received
the favorable opinion, dated as of the Closing Time, of
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, P.C., counsel for the Operating
Partnership, with respect to the foreign qualifications of
the Operating Partnership.
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In giving their opinions required by Section 5(b)(i),
(ii) and (iii), each of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇▇▇ & Wood LLP and ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇▇, P.C. may rely, (A) as to all matters of fact, upon certificates and
written statements of officers and employees of and accountants for each of the
Operating Partnership or the Significant Subsidiaries and (B) as to the
qualification and good standing of each of the Operating Partnership or the
Significant Subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of counsel in such
jurisdictions, which opinions shall be in form and substance reasonably
satisfactory to counsel for the Underwriters.
(c) At the Closing Time, there shall not have been, since the
respective dates as of which information is given in the Prospectus, any
Material Adverse Change, and you shall have received a certificate of the Chief
Executive Officer and the chief financial or chief accounting officer of the
Company, on behalf of the Operating Partnership, dated as of the Closing Time,
evidencing compliance with the provisions of this subsection (c), stating that
(i) there has been no Material Adverse Change, (ii) the representations and
warranties set forth in Section 1(a) hereof are accurate as though expressly
made at and as of the Closing Time, and (iii) the conditions precedent set forth
in this Section 5 have been satisfied or waived and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or, to such
officer's knowledge, are contemplated by the Commission.
(d) At the time of execution of this Agreement, you shall have
received from Ernst & Young, LLP a letter dated such date, in form and substance
satisfactory to you, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(e) At the Closing Time, you shall have received from Ernst &
Young LLP a letter dated as of the Closing Time to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (d)(i) of
this Section 5, except that the "specified date" referred to shall be a date not
more than three days prior to the Closing Time. Any exception will be identified
in such letter.
(f) At the Closing Time, 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 of the 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;
and all proceedings taken by the Operating Partnership in connection with the
issuance of the Securities as herein contemplated shall be satisfactory in form
and substance to you and counsel for the Underwriters.
(g) At or prior to the Closing Time, the Securities shall be
rated at least Baa1 by ▇▇▇▇▇'▇ and BBB by S&P and the Operating Partnership
shall have delivered to the Representative evidence reasonably satisfactory to
the Representative confirming that the Securities have such ratings; and since
the date of the Agreement, there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the Operating Partnership's other
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debt securities or the Company's preferred shares of beneficial interest by any
"nationally recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
securities rating organization shall have publicly announced that it has under
surveillance or review any rating of the Securities or any of the Operating
Partnership's other debt securities or the Company's preferred shares of
beneficial interest.
(h) If any condition specified in this Section 5 shall not
have been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by you by notice to the Operating Partnership at any time at or prior
to the Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Sections 4 and except that
Sections 6, 7, 8 and 13 shall survive any such termination and remain in full
force and effect.
Section 6. Indemnification.
(a) Indemnification of Underwriters. The Operating Partnership
agrees 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 or
Section 20 of the 1934 Act, and any director, officer, employee or affiliate
thereof, as follows:
(i) 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), or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the
Operating Partnership; and
(iii) against any and all expense whatsoever
(including, without limitation, the reasonable fees and
disbursements of counsel chosen by the Representative),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii)
above;
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provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership 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).
(b) Indemnification of the Operating Partnership. Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Operating Partnership, and each person, if any, who controls the Operating
Partnership within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, and any trustee, officer, 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 concerning
such Underwriter furnished to the Operating Partnership through the
Representative by or on behalf of such Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected by
the Representative, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the
Operating Partnership. An indemnifying party may participate at its own expense
in the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. 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 prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding 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.
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(d) Settlement without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(iii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
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 held to be unenforceable by
the indemnified parties although applicable in accordance with its terms, the
Operating Partnership, 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 and the Underwriters, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the discounts and commissions appearing on the cover page of the
Prospectus bears to the price to investors appearing thereon and the Operating
Partnership is responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each trustee of the Company, and each person, if any, who
controls the Operating Partnership within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Operating Partnership. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the principal
amount of Securities set forth opposite their respective names in Schedule A
hereto and not joint.
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 Securities purchased and sold by it to
purchasers exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission in the Prospectus.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company, on behalf of the
Operating Partnership, submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriters or any controlling person, or by or on behalf of the Operating
Partnership or any controlling person, and shall survive delivery of the
Securities to the Underwriters.
21
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Section 9. Termination of Agreement.
(a) The Representative may terminate this Agreement, by notice
to the Operating Partnership, at any time at or prior to the Closing Time, (i)
if there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Prospectus, any Material Adverse
Change, (ii) if there has occurred any material adverse change in the financial
markets in the United States or any outbreak of hostilities or escalation
thereof or other calamity or crisis 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 Representative's reasonable judgment, impracticable to market the Securities
or enforce contracts for the sale of the Securities, (iii) if trading in any of
the Company's shares of beneficial interest or the Operating Partnership's debt
securities has been suspended by the Commission or the New York Stock Exchange,
or if trading generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq Stock Market has been suspended, 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 National Association of Securities Dealers, Inc., or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either federal, New York, Delaware or Maryland authorities.
(b) If this 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 Sections 4 and 10 hereof and provided further that
Sections 4, 6, 7, 8 and 13 hereof shall survive such termination and remain in
full force and effect.
Section 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Securities to be
purchased hereunder, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective purchase obligations hereunder bear to the
purchase obligations of all non-defaulting Underwriters.
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be purchased
hereunder, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
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In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Operating
Partnership shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term " Underwriter" includes any person substituted for an
Underwriter under this Section 10.
Section 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at World Financial Center,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇ ▇▇▇▇▇, Managing
Director; and notices to the Operating Partnership shall be directed to it at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Chief Legal Counsel.
Section 12. Parties. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Operating Partnership and their respective successors and the
controlling persons and officers and trustees referred to in Sections 6 and 7
and their successors, heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties hereto and
their respective successors and said controlling persons and officers and
directors and their successors, heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
Section 14. Counterparts. This Agreement may be
executed in one or more counterparts and, if executed in more than one
counterpart, the executed counterparts shall constitute a single instrument.
Section 15. Effect of Headings. The Article, Section
and Sub-Section headings herein are for convenience only and shall not
affect the construction hereof.
* * * * *
23
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If the foregoing is in accordance with your understanding of
our agreement please sign and return to the Operating Partnership a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters and the Operating Partnership in
accordance with its terms.
Very truly yours,
EOP OPERATING LIMITED
PARTNERSHIP
By: Equity Office Properties Trust
Managing General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive V.P., Secretary and
Chief Legal Counsel
Confirmed and Accepted,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
For themselves and as the Representative of the
other Underwriters named in Schedule A hereto
By: ▇▇▇▇ ▇. Breely
--------------
Authorized Signatory
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SCHEDULE A
Aggregate Principal
Underwriter Amount of Securities
--------------- --------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ $125,000,000
Incorporated..................
▇▇▇▇▇▇ Brothers, Inc...................... 25,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc................ 25,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated......... 25,000,000
-------------------
Total......................... $200,000,000
===================
Sch A-1
26
SCHEDULE B
EOP Operating Limited Partnership
$200,000,000
7.5% Notes due April 19, 2029
1. The initial public offering price of the Securities shall be 99.456%
of the aggregate principal amount thereof, plus accrued interest, if any, from
April 19, 1999.
2. The purchase price to be paid by the Underwriters for the Securities
shall be 98.581% of the aggregate principal amount thereof.
3. The interest rate on the Securities shall be 7.5% per annum.
4. The Securities will mature on April 19, 2029 unless redeemed at the
option of the Operating Partnership at the redemption price.
Sch B-1
27
SCHEDULE C
Significant Subsidiaries
None
Sch C-1
28
EXHIBIT A
Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
(1) The Operating Partnership is a limited partnership
formed and validly existing and in good standing under the laws of the
State of Delaware and has the partnership power and partnership
authority under the limited partnership agreement of the Operating
Partnership (the "Partnership Agreement") and the Delaware Revised
Uniform Limited Partnership Act (the "Delaware Act") to own, lease and
operate its current properties, to conduct the business in which it is
engaged or proposes to engage as described in the Prospectus and to
enter into and perform its obligations under the Underwriting
Agreement and the Indenture (collectively, the "Listed Agreements"),
and the Securities. The Operating Partnership is qualified or
registered as a foreign limited partnership and is in good standing
under the laws of the States listed on Appendix A hereto as of the
respective dates of the certificates received from such States. The
Company is the managing general partner of the Operating Partnership.
As of April ___, 1999 there were ___ Units outstanding and the Company
held of record _______ Units, as reflected in the Partnership
Agreement.
(2) All of the outstanding units of partnership interest
("Units") of the Operating Partnership have been duly authorized for
issuance by the Operating Partnership to the holders thereof, and
assuming receipt of the capital contributions specified in the
Partnership Agreement, are validly issued and fully paid.
(3) The Securities have been duly authorized by the
Operating Partnership. The Securities, when issued and authenticated
in the manner provided for in the Indenture and delivered against
payment in accordance with the Underwriting Agreement, will be
entitled to the benefits of the Indenture, and will constitute valid
and legally binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors' rights (including, without limitation, the effect of
statutory and other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers) and as may be limited by the
exercise of judicial discretion and the application of principles of
equity, including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of whether
enforcement is considered in a proceeding at law or in equity).
(4) The Underwriting Agreement has been duly authorized,
executed and delivered by the Operating Partnership.
A-1
29
(5) The Indenture has been duly authorized, executed and
delivered by the Operating Partnership and (assuming due
authorization, execution and delivery thereof by the other parties
thereto) constitutes a valid and binding agreement of the Operating
Partnership, enforceable against the Operating Partnership in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors' rights (including, without limitation, the effect of
statutory and other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers) and as may be limited by the
exercise of judicial discretion and the application of principles of
equity, including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of whether
such agreement is considered in a proceeding at law or in equity) and
except that a waiver of rights under any usury law may be
unenforceable.
(6) The Indenture has been duly qualified under the ▇▇▇▇
▇▇▇.
(7) The Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Prospectus.
(8) The Registration Statement, including any Rule 462(b)
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); and, to the best of such counsel's knowledge, 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
threatened by the Commission.
(9) The execution, delivery and performance as of the date
hereof by the Operating Partnership of the Listed Agreements and the
issuance and sale of the Securities do not (i) violate the Delaware
Act or the Partnership Agreement, (ii) to such counsel's knowledge,
violate any applicable law, rule, regulation, order, judgment or
decree of any Delaware agency or court, or (iii) breach or constitute
a default under any agreement or contract listed on Appendix B hereto.
(10) The Registration Statement, including any Rule 462(b)
Registration Statement, and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting
schedules included therein or omitted therefrom, and the Trustee's
Statement of Eligibility on Form T-1 (the "Form T-1"), as to which
such counsel need express no opinion), complied
A-2
30
as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
(11) The documents incorporated by reference in the
Registration Statement and the Prospectus (other than the financial
statements and supporting schedules included therein or omitted
therefrom, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission , as the case
may be, complied as to form in all material respects with the
requirements of the 1933 Act or the 1934 Act , as applicable, and the
rules and regulations of the Commission thereunder.
(12) Neither the Operating Partnership nor any Significant
Subsidiary is or after giving effect to the issuance of the Securities
and the application of the net proceeds therefrom as described in the
Prospectus will be, as of the date hereof, an "investment company"
within the meaning of the 1940 Act.
(13) No consent, approval, authorization or order of, or
filing or registration with, the Commission or any Delaware court or
governmental agency or body is required to be obtained or made by the
Operating Partnership for the issuance of the Securities or the
performance as of the date hereof of the obligations contained in the
Securities and the Listed Agreements by the Operating Partnership.
(14) The information in the Prospectus under the captions
"Description of Notes," "Description of Debt Securities" and "Plan of
Distribution" to the extent that such information constitutes matters
of law or legal conclusions, has been reviewed by us and is correct in
all material respects.
(15) The Operating Partnership is classified as a
partnership, and is not taxed as a corporation or association taxable
as a corporation, for Federal income tax purposes throughout the
period from July 7, 1997 through the date hereof.
The opinions as to enforceability expressed in Paragraphs
(3) and (5) above shall be understood to mean only that if there is a
default in performance of an obligation, (i) if a failure to pay or
other damage can be shown and (ii) if the defaulting party can be
brought into a court which will hear the case and apply the governing
law, then, subject to the availability of defenses, and to the
exceptions set forth in Paragraphs (3) and (5) above, the court will
provide a money damage (or perhaps injunctive or specific performance)
remedy.
In giving its opinion required by Section 5(b)(i), such
counsel shall additionally state that no facts have come to their
attention which cause such counsel to believe that (i) the
Registration Statement or any amendment thereto
A-3
31
(except for the Form T-1, as to which such counsel need make no
statement), at the time such Registration Statement or any such
amendment became effective, 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 (except for the Form T-1, as to which such counsel need make
no statement), 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, (ii) there are any legal or
governmental proceedings pending or threatened against the Operating
Partnership that are required to be disclosed in the Prospectus, other
than those disclosed therein, or (iii) there are any contracts or
documents of a character required to be described in the Prospectus
that are not described or referred to therein; provided that in making
the foregoing statements (which shall not constitute an opinion), such
counsel need not express any views as to the financial statements and
supporting schedules and other financial information and data included
in or omitted from the Prospectus. In making the foregoing statement,
such counsel may state that such statement is based upon such
counsel's participation in conferences with officers and other
representatives of the Operating Partnership, representatives of the
independent public accountants for the Operating Partnership and with
you and your representatives during the course of the preparation of
the Registration Statement and the Prospectus.
A-4
32
Appendix A
States Requiring Registration by or
Qualification of the Operating Partnership
as a Foreign Limited Partnership
▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇
Material Agreements and Contracts
of the Operating Partnership
B-1
