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06/05/97 12:25 H&H DRAFT
EXHIBIT 1.1
15,000,000 SHARES
EQUITY OFFICE PROPERTIES TRUST
(a Maryland real estate investment trust)
Common Shares of Beneficial Interest
($.01 Par Value Per Share)
PURCHASE AGREEMENT
__________ __, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ & CO.
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Ladies and Gentlemen:
Equity Office Properties Trust, a Maryland real estate investment trust
(the "Company"), and EOP Operating Limited Partnership, a Delaware limited
partnership (the "Operating Partnership"), each confirms its agreement with
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇
Brothers Inc. ("▇▇▇▇▇▇"), ▇.▇. ▇▇▇▇▇▇ & Co. ("▇.▇. ▇▇▇▇▇▇"), Prudential
Securities Incorporated ("Prudential") and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("▇▇▇▇▇ ▇▇▇▇▇▇")
and each of the other Underwriters named in Schedule A hereto (collectively,
the "Underwriters," which term shall also include any underwriter substituted
as provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇ Lynch, Lehman, ▇.▇. ▇▇▇▇▇▇,
Prudential and ▇▇▇▇▇ ▇▇▇▇▇▇ are acting as representatives (in such capacity,
▇▇▇▇▇▇▇ Lynch, Lehman, ▇.▇. ▇▇▇▇▇▇, Prudential and ▇▇▇▇▇ ▇▇▇▇▇▇ shall
hereinafter be referred to as the "Representatives"), with respect to the sale
by the
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Company and the purchase by the Underwriters, acting severally and not jointly,
of 15,000,000 common shares of beneficial interest, $.01 par value per share
(the "Common Shares"), of the Company, as set forth in Schedule 1 hereto
(except as may be provided otherwise in the Pricing Agreement, as hereinafter
defined), and with respect to the grant by the Company to the Underwriters of
the option described in Section 2(b) hereof to purchase all or any part of an
additional 2,250,000 Common Shares to cover over-allotments. The aforesaid
15,000,000 Common Shares (the "Initial Shares"), together with all or any part
of the 2,250,000 Common Shares subject to the option described in Section 2(b)
hereof (the "Option Shares"), are collectively hereinafter referred to as the
"Shares."
Prior to the purchase and public offering of the Shares by the several
Underwriters, the Company and the Representatives, acting on behalf of the
several Underwriters, shall enter into an agreement substantially in the form
of Exhibit A hereto (the "Pricing Agreement"). The Pricing Agreement may take
the form of an exchange of any standard form of written telecommunication
between the Company and the Representatives and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Shares
will be governed by this Agreement, as supplemented by the Pricing Agreement.
From and after the date of the execution and delivery of the Pricing Agreement,
this Agreement shall be deemed to incorporate the Pricing Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-11 (No. 333-26629) and a
related preliminary prospectus for the registration of the Shares under the
Securities Act of 1933, as amended (the "1933 Act"), and has filed such
amendments thereto, if any, and such amended preliminary prospectuses as may
have been required to the date hereof, and will file such additional amendments
thereto and such amended prospectuses as may hereafter be required. Such
registration statement (as amended, if applicable) and the prospectus
constituting a part thereof (including in each case the information, if any,
deemed to be a part thereof pursuant to Rule 430A(b) of the rules and
regulations under the 1933 Act (the "1933 Act Regulations")), as from time to
time amended or supplemented pursuant to the 1933 Act or otherwise, are
hereinafter referred to as the "Registration Statement" and the "Prospectus,"
respectively, except that if any revised prospectus shall be provided to the
Underwriters by the Company for use in connection with the offering of the
Shares which differs from the Prospectus on file at the Commission at the time
the Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Underwriters for
such use.
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At or prior to the Closing Time (as hereinafter defined), the Company will
complete a series of transactions described in the Prospectus under the heading
"Structure and Formation of the Company." As part of these transactions, among
other things, the Operating Partnership will acquire direct or indirect
interests in [90] office properties to be owned by the Operating Partnership
(the "Office Properties"), [14] stand-alone parking facilities to be owned by
the Operating Partnership (the "Parking Facilities", together with the Office
Properties, the "Properties"), the office property and asset management
business and parking asset management business relating to the Properties
(together, the "Management Business"), and third-party management contracts
relating to [37] office properties (collectively, the "Managed Properties").
As used herein, the term "Consolidation" shall mean the occurrence of all of
the events described in this paragraph and the other transactions described in
the section of the Prospectus captioned "Structure and Formation of the
Company," and the term "Formation Documents" shall mean all the material
contracts, agreements and other documents executed in connection with the
Consolidation as set forth in Schedule 2 hereto.
The Company and the Operating Partnership understand that the Underwriters
propose to make a public offering of the Shares as soon as the Representatives
deem advisable after the Registration Statement becomes effective and the
Pricing Agreement has been executed and delivered.
Section 1. Representations and Warranties of the Company and the
Operating Partnership.
(a) The Company and the Operating Partnership jointly and severally
represent and warrant to each Underwriter as of the date hereof and as of the
date of the Pricing Agreement (such later date being hereinafter referred to as
the "Representation Date") as follows:
(i) Compliance with Registration Requirements. At the time the
Registration Statement becomes effective and at the Representation
Date, the Registration Statement will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and the
Prospectus, at the Representation Date (unless the term "Prospectus"
refers to a prospectus that has been provided to the Underwriters by
the Company for use in connection with the offering of the Shares
which differs from the Prospectus on file at the Commission at the
time the Registration Statement becomes effective, in which case at
the time it is first provided to the Underwriters for such use) and
at the Closing Time or Date of Delivery referred to in Section 2(c)
hereof, will comply in all
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material respects with the requirements of the 1933 Act and the 1933
Act Regulations and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement or
the 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,
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 ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(ii) No Stop Order or Proceedings. No stop order suspending
the effectiveness of the Registration Statement or any part thereof
has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company or the Operating
Partnership, is contemplated by the Commission or by the state
securities authority of any jurisdiction. No order preventing or
suspending the use of the Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Company or the Operating Partnership, is contemplated by the
Commission or by the state securities authority of any jurisdiction.
(iii) Independent Accountants. Ernst & Young, 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 (including
the notes thereto) included in the Registration Statement and the
Prospectus present fairly the financial position of the respective
entity or entities presented therein at the respective dates
indicated and the results of their operations for the respective
periods specified, and except as otherwise stated in the
Registration Statement, said financial statements have been prepared
in conformity with generally accepted
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accounting principles ("GAAP") applied on a consistent basis. The
supporting schedules included in the Registration Statement present
fairly the information required to be stated therein. The financial
information and data included in the Registration Statement and 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. Pro forma
financial information included in the Prospectus has been prepared
in accordance with the applicable requirements of Rules 11-01 and
11-02 of Regulation S-X under the 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 Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(v) 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, or
business affairs of the Company, the Operating Partnership, the
Subsidiaries (as hereinafter defined) and the Predecessor Entities
(as hereinafter defined) considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Change"), (B) no casualty loss or condemnation or other adverse
event with respect to any Property has occurred that is material to
the Company, the Operating Partnership, the Subsidiaries and the
Predecessor Entities considered as one enterprise, (C) there have
been no transactions or acquisitions entered into by the Company,
the Operating Partnership, any Subsidiary or any Predecessor Entity,
other than those arising in the ordinary course of business, which
are material with respect to such entity, except in connection with
the Consolidation, (D) there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital shares of beneficial interest or by the Operating
Partnership with respect to its respective partnership interests,
and (E) there has been no change in the capital shares of beneficial
interest of the Company or the partnership interests of the
Operating Partnership, or any material increase in the indebtedness
of the Company or the Operating Partnership, except in connection
with the Consolidation.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a real estate investment trust
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with transferable shares of beneficial interest and is in good
standing under the laws of the State of Maryland with all power and
authority to hold its properties, conduct the business in which it
is engaged or proposes to engage as described in the Prospectus and
to enter into and perform its obligations under this Agreement and
the Formation Documents to which it is a party. The Company is duly
qualified as a foreign entity in each jurisdiction in which the
business conducted by the Company will require such qualification,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or in the earnings, assets or
business affairs of the Company, the Operating Partnership, the
Subsidiaries and the Predecessor Entities considered as one
enterprise (a "Material Adverse Effect").
(vii) 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 its
Properties, to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus and to enter into
and perform its obligations under this Agreement and the Formation
Documents to which it is a party. The Operating Partnership is duly
qualified or registered as a foreign partnership and is in good
standing in each jurisdiction in which the business conducted by the
Operating Partnership will require such qualification after the
completion of the Consolidation, except where the failure to so
qualify or be in good standing would not result in a Material
Adverse Effect. The Company is the sole general partner of the
Operating Partnership and, immediately after the Closing Time, will
be the sole general partner of the Operating Partnership and will be
the holder of __________ Units, or approximately ___ percent (___%)
of the Units in the Partnership.
(viii) Good Standing of the Subsidiaries. The subsidiaries
listed on Exhibit 21 to the Registration Statement (collectively,
the "Subsidiaries") are the only subsidiaries required to be
identified as such in the Registration Statement. As of the Closing
Time, each of the Subsidiaries has been duly organized and is
validly existing as a partnership, corporation, limited liability
company, or real estate investment trust in good standing under the
laws of its respective jurisdiction of organization, with all power
and authority to own, lease and operate its Properties, to conduct
the business in which it is engaged or proposes to engage as
described in the Prospectus, and to
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enter into and perform its obligations under the Formation Documents
to which it is a party. Each of the Subsidiaries 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 the
Operating Partnership will require such qualification, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not result in
a Material Adverse Effect. Each of the partnership or member
agreements of the Subsidiaries is in full force and effect.
(ix) Good Standing of the Predecessor Entities. Each of the
ZML Opportunity Partnerships, the ZML REITs, EGI, EOP, and EOH (as
each of these terms is defined in the Prospectus) (collectively, the
"Predecessor Entities") has been duly formed and is validly existing
as a partnership, corporation, limited liability company or real
estate investment trust in good standing under the laws of its state
of formation, with power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged and to
enter into and perform its respective obligations under the Formation
Documents to which it is a party. Each Predecessor Entity is duly
qualified or registered to transact business 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 would not result in
a Material Adverse Effect.
(x) Authorization of Shares of Beneficial Interest. The
authorized shares of beneficial interest of the Company are as set
forth in the Prospectus under "Shares of Beneficial Interest" and the
issued and outstanding shares of beneficial interest of the Company
are set forth in the Prospectus under "Capitalization". All of such
issued and outstanding Common Shares are validly issued, fully paid
and non-assessable and have been offered and sold in compliance with
all applicable laws (including, without limitation, federal and state
securities laws). All of the issued partnership interests of the
Operating Partnership (the "Units") have been duly and validly
authorized and issued and are fully paid and, with respect to the
Units owned by the Company, are owned directly by the Company, free
and clear of all liens, encumbrances, equities or claims. No shares
of beneficial interest of the Company are reserved for any purpose
except in connection with (A) the Consolidation, (B) the employee
benefit plans, dividend reinvestment plans and employee and trustee
share option plans of the Company included as exhibits to the
Registration Statement, and (C) the possible
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issuance of Common Shares upon the redemption of Units pursuant to
the Partnership Agreement. Except for Units and Common Shares
issuable upon the exercise of options as described in the Prospectus,
there are no outstanding securities convertible into or exchangeable
for any capital shares of beneficial interest of the Company and no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such beneficial interest or
any other securities of the Company. Immediately after the Closing
Time, __________ Common Shares (excluding the Shares) will be issued
and outstanding, all of which shares, upon issuance, will be validly
issued, fully paid and non-assessable. Except as described in the
Prospectus, the Company has not sold or issued any shares of
beneficial interest during the six-month period preceding the date of
the Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act.
(xi) Description of Shares. The Initial Shares and the Option
Shares have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement, and, when issued and
delivered by the Company pursuant to this Agreement against payment
of the consideration set forth in the Pricing Agreement, will be
validly issued, fully paid and non-assessable. The Common Shares to
be issued in connection with the Consolidation have been and will be
offered and sold at or prior to the Closing Time, or the Date of
Delivery, as the case may be, in compliance with all applicable laws
(including, without limitation, federal and state securities laws).
The terms of the Common Shares conform to all statements and
descriptions related thereto contained in the Prospectus. The form
of share certificate to be used to evidence the Common Shares will be
in due and proper form and will comply with all applicable legal
requirements. The issuance of the Shares is not subject to any
preemptive or other similar rights.
(xii) Description of Units. The Units to be issued in
connection with the Consolidation, including, without limitation, the
Units to be issued to the Company, have been duly authorized for
issuance by the Operating Partnership to the holders or prospective
holders thereof, and at the Closing Time or Date of Delivery will be
validly issued, fully paid and non-assessable, except to the extent
that the Company, as general partner of the Operating Partnership,
may have liability as such general partner. Immediately after the
Closing Time, __________ Units will be issued and outstanding. The
Units have been and will be offered and sold at or prior to the
Closing Time in compliance with all applicable laws (including,
without limitation, federal and state securities laws).
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(xiii) Absence of Defaults and Conflicts. None of the Company,
the Operating Partnership, or any 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 none of the Company, the
Operating Partnership, or any Subsidiary is in default in the
performance or observance of any 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.
(xiv) Absence of Conflicts with Formation Documents. The
transfer of interests or other assets pursuant to the Formation
Documents does not violate the declaration of trust, charter,
limited liability company agreement, certificate of limited
partnership or partnership agreement, as the case may be, of any
Predecessor Entity. The Formation Documents are sufficient to
effect the transfer to the Company or Operating Partnership of all
direct or indirect interests in the Properties and other assets
specified therein upon payment of the consideration therefor.
(xv) Authorization of Agreements. (A) This Agreement has been
duly and validly authorized, executed and delivered by the Company
and the Operating Partnership, and assuming due authorization,
execution and delivery by the Representatives, is a valid and
binding agreement of the Company and the Operating Partnership,
enforceable in accordance with its terms; (B) at the Representation
Date, the Pricing Agreement will have been duly and validly
authorized, executed and delivered by the Company, and assuming due
authorization, execution and delivery by the Representatives, will
be a valid and binding agreement of the Company and the Operating
Partnership, enforceable in accordance with its terms; (C) at the
Closing Time, the Agreement of Limited Partnership of the Operating
Partnership (the "Partnership Agreement") will have been duly and
validly authorized, executed and delivered by the parties thereto
and will be a valid and binding agreement, enforceable in accordance
with its terms; (D) at the Representation Date, each of the
Formation Documents to which the Company, the Operating Partnership,
any Subsidiary or any Predecessor Entity is a party pursuant to the
Consolidation will have been duly and validly authorized, executed
and delivered by such parties, and will be valid and binding
agreements of such parties, enforceable in accordance with their
terms; (E) at the
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Representation Date, the Noncompetition Agreement of ▇▇▇▇▇▇
▇▇▇▇ with the Company and the Operating Partnership will have
been duly and validly authorized, executed and delivered by the
parties thereto and will be valid and binding agreements,
enforceable in accordance with their terms; provided, however, that
the enforceability of each of the foregoing documents may be limited
by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally.
(xvi) Absence of Default or Conflicts Regarding Consolidation.
The execution, delivery, and performance of this Agreement and the
consummation of the transactions contemplated hereby and the
consummation of the Formation Transactions will not conflict with or
constitute a breach or violation by such parties of, or default
under, (A) any of the Formation Documents; (B) any contract,
indenture, mortgage, loan agreement (except loan agreements to be
repaid in full with a portion of the proceeds of the Offering as
reflected in the "Use of Proceeds" section of the Prospectus), note,
lease, joint venture or partnership agreement or other instrument or
agreement to which the Company, the Operating Partnership, or any
Subsidiary is a party or by which they, any of them, any of their
respective properties or other assets or any Property may be bound
or subject, except for (1) contracts or other agreements that are
terminable at will or are terminable by the other party thereto on
not more than 30 days' notice and (2) operating, service, equipment
or other similar contracts entered into in the ordinary course
(provided that any contract or agreement excepted in (1) above, and
the contracts excepted in (2) above, are not material to the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the contract party); (C) the
declaration of trust, charter, by-laws, limited liability company
agreement, certificate of limited partnership or partnership
agreement, as the case may be, of the Company, the Operating
Partnership, or any Subsidiary; or (D) any applicable law, rule,
order, administrative regulation or administrative or court decree.
(xvii) Absence of Proceedings. There is no action, suit,
proceeding, before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company or the Operating Partnership, threatened against or
affecting the Company, the Operating Partnership, any Subsidiary,
any Predecessor Entity, any Property, or any officer or director of
the Company that is required to be disclosed in the Registration
Statement (other than as disclosed therein) or that, if determined
adversely to the Company, the Operating Partnership, any Subsidiary,
any Predecessor Entity, any Property, or any such officer or
director, might (A) result in
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any Material Adverse Change or which might reasonably be expected to
materially and adversely affect assets, properties or operations
thereof or (B) materially and adversely affect the consummation of
the Consolidation. The aggregate of all pending legal or
governmental proceedings to which the Company or any Subsidiary
thereof is a party or of which any of their respective assets,
properties or operations is the subject which are not described in
the Registration Statement and the Prospectus, including ordinary
routine litigation incidental to the business, could not, considered
in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(xviii) Accuracy of Exhibits. There are no contracts or
documents of the Company, the Operating Partnership, any Subsidiary
or any Predecessor Entity which are required to be filed as exhibits
to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been filed as exhibits to the
Registration Statement.
(xix) REIT Qualification. Upon completion of the Consolidation
and the sale of Shares hereunder, the Company is intended to be
organized in conformity with the requirements for qualification as a
real estate investment trust under the Internal Revenue Code of
1986, as amended (the "Code"), and its proposed method of operation
will enable it to meet the requirements for taxation as a real
estate investment trust under the Code for its taxable periods
beginning or otherwise including the period after the Closing Time.
(xx) Investment Company Act. None of the Company, the
Operating Partnership, any Subsidiary or any Predecessor Entity is,
or at the Closing Time will be, required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxi) Possession of Intellectual Property. The Company, the
Operating Partnership, the Subsidiaries, and the Predecessor
Entities 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,
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ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xxii) 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 is necessary or required for performance by the Company of
its obligations in connection with the offering, issuance or sale of
the Shares hereunder or the consummation of any other part of the
Consolidation, except such as have already been obtained or may be
required under the 1933 Act or the 1933 Act Regulations or state
securities or real estate syndication laws.
(xxiii) Possession of Licenses and Permits. Each of the
Company, the Operating Partnership, the Subsidiaries, and
Predecessor Entities 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 in
the manner described in the Registration Statement and Prospectus,
except where the failure to possess any such Governmental License
would not have a Material Adverse Effect. The Company, the
Operating Partnership, the Subsidiaries, and Predecessor Entities
are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, result in a Material Adverse
Effect. All of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not result in a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(xxiv) Absence of Labor Dispute. No labor dispute with the
employees of the Company, the Operating Partnership or any
Subsidiary exists or, to the knowledge of the Company or the
Operating Partnership, is imminent, and the Company or the Operating
Partnership is not aware of any existing or imminent labor
disturbance by the employees of any of its or any Subsidiary's
principal customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
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(xxv) Listing on NYSE. The Common Shares have been approved
for listing on the New York Stock Exchange subject to notice of
issuance.
(xxvi) Title to Property. (A) With respect to the Properties
in which the Operating Partnership will succeed to all of the
ownership interest, the Predecessor Entities that currently own such
Properties have, and at the Closing Time or Date of Delivery the
Operating Partnership and the Subsidiaries will have, good and
marketable fee simple title to the land underlying such 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, 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, 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, service marks and trade names used in connection
with such Properties (which are owned by the Predecessor Entities
and to which the Operating Partnership shall succeed), 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 will acquire less than all of the ownership
interest, (the "Joint Venture Properties"), the Predecessor Entities
that currently own such Properties have, and at the Closing Time or
Date of Delivery the Operating Partnership and applicable
Subsidiaries will continue to have, good and marketable fee simple
title to the land underlying such 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 lease the land on which the
Properties known as "Two California Plaza," "Canterbury Green," and
"One American Center" are located are in full force and effect, and
each of such Subsidiaries are not in default in respect of any of
the terms or provisions of such leases and neither the Company, the
Operating Partnership, nor such Subsidiary has received notice of
the assertion of
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14
any claim by anyone adverse to such Subsidiaries' rights as lessees
under such leases, or affecting or questioning such Subsidiaries'
right to the continued possession or use of the Property under such
leases or of a default under such leases; (D) all liens, charges,
encumbrances, claims, or restrictions on or affecting any of the
Properties and the assets of the Company, the Operating Partnership,
any Subsidiary or any Predecessor Entity which are required to be
disclosed in the Prospectus are disclosed therein; (E) neither any
Subsidiary nor any tenant of any of the Properties is in default
under any of the leases pursuant to which any Subsidiary, as lessor,
leases its Property (and neither the Company nor the Operating
Partnership knows of any event which, but for the passage of time or
the giving of notice, or both, would constitute a default under any
of such leases) other than such defaults that would not result in a
Material Adverse Effect; (F) 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 effect for the assets of the
Company, the Operating Partnership, the Subsidiaries and the
Predecessor Entities (including the Properties) insurance coverages
that are commercially reasonable for the types of assets owned by
them, and neither the Company, the Operating Partnership, any
Subsidiary, nor any Predecessor Entity 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 of the Company nor the Operating
Partnership has 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 that would not have a Material Adverse Effect.
(xxvii) Environmental Laws. Except as disclosed in the
Prospectus, (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) none of the Company, the Operating
Partnership, any Subsidiary or any Predecessor Entity has caused or
suffered to occur any Release (as defined below) of any Hazardous
Substance into
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15
the Environment on, in, under or from any Property in violation of
any Environmental Law applicable to such Property, and no condition
exists on, in, under or, to the knowledge of the Company and the
Operating Partnership, 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, give rise to the
imposition of any Lien (as defined below) under any Environmental
Law, or cause or constitute a health, safety or environmental hazard
to any property, person or entity; (C) none of the Company, the
Operating Partnership, any Subsidiary or any Predecessor Entity is
engaged in or intends to engage in any manufacturing or any other
similar operations at the Properties that (1) require the use,
handling, transportation, storage, treatment or disposal of any
Hazardous Substance (other than cleaning solvents and similar
materials and other than insecticides and herbicides that are used
in the ordinary course of operating the Properties and in compliance
with all applicable Environmental Laws) or (2) require permits or
are otherwise regulated pursuant to any Environmental Law; (D)
neither the Company nor the Operating Partnership has received any
notice of a claim under or pursuant to any Environmental Law
applicable to a Property or under common law pertaining to Hazardous
Substances on or originating from any Property; (E) neither the
Company nor the Operating Partnership has received any notice from
any Governmental Authority (as defined below) claiming any violation
of any Environmental Law that is uncured or unremediated as of the
date hereof; and (F) no Property is included or, to the knowledge of
the Company and the Operating Partnership, proposed for inclusion on
the National Priorities List issued pursuant to CERCLA (as defined
below) by the United States Environmental Protection Agency (the
"EPA") or on the Comprehensive Environmental Response, Compensation,
and Liability Information System database maintained by the EPA, and
has not otherwise been identified by the EPA as a potential CERCLA
removal, remedial or response site or included or, to the knowledge
of the Company and the Operating Partnership, proposed for inclusion
on, any similar list of potentially contaminated sites pursuant to
any other applicable Environmental Law nor has the Company, the
Operating Partnership, or any such Property Partnership 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 Representatives.
As used herein, "Hazardous Substance" shall include, without
limitation, any hazardous substance, hazardous waste, toxic or
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16
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. Section 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.
Section 9601 et seq.) ("CERCLA"), the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. Section 6901, et seq.),
the Clean Air Act, as amended (42 U.S.C. Section 7401, et seq.),
the Clean Water Act, as amended (33 U.S.C. Section 1251, et seq.),
the Toxic Substances Control Act, as amended (15 U.S.C. Section
2601, et seq.), the Occupational Safety and Health Act of 1970, as
amended (29 U.S.C. Section 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Section 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.
(xxviii) Tax Compliance. Each of the Company, the Operating
Partnership, the Subsidiaries, and the Predecessor Entities filed
all
- ▇▇ -
▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇, 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 (except in any case in which the failure to
so file or pay would not have a Material Adverse Effect).
(xxix) No Price Manipulation. Neither the Company nor the
Operating Partnership, nor any of their trustees, officers or
controlling persons, has taken or will take, directly or indirectly,
any action resulting in a violation of Rule 102 of Regulation M
under the Securities Exchange Act of 1934, as amended (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 Company to
facilitate the sale or resale of the Shares.
(xxx) Individual Materiality of Representations and Warranties.
With respect to the representations and warranties of the Company and
the Operating Partnership contained herein that are limited to
materiality considering the Company, the Operating Partnership, and
the Subsidiaries as one enterprise, the Company and the Operating
Partnership have provided the Representatives with written notice of
any matter or event that would render such representation or warranty
inaccurate or incomplete if it were given with respect to the Company
or the Operating Partnership on an individual basis.
(xxxi) Disclosed Relationships. No relationship, direct or
indirect, exists between or among the Company or the Operating
Partnership on the one hand, and the directors, officers,
shareholders (in the case of the Company), limited partners (in the
case of the Operating Partnership), customers or suppliers of the
Company or the Operating Partnership on the other hand, which is
required to be described in the Prospectus which is not so described.
(xxxii) ERISA Compliance. The Company and the Operating
Partnership are in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company or the Operating
Partnership would have any liability; the Company or the Operating
Partnership has not
- 17 -
18
incurred and does not expect to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Code including the
regulations and published interpretations thereunder; and each
"pension plan" for which the Company or the Operating Partnership
would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification, except for such
noncompliance, reportable events, liabilities, or failures to qualify
that would not result in a Material Adverse Effect.
(xxxiii) Record Keeping. The Company and the Operating
Partnership and the Predecessor Entities (i) make and keep books and
records which are accurate in all material respects and (ii) maintain
internal accounting controls which provide reasonable assurance that
(A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of their financial statements and to maintain
accountability for their assets, (C) access to their assets is
permitted only in accordance with management's authorization and (D)
the reported accountability for their assets is compared with
existing assets at reasonable intervals.
(xxxiv) Foreign Corrupt Practices Act. Neither the Company nor
the Operating Partnership, nor any director, officer, agent, employee
or other person associated with or acting on behalf of the Company or
the Operating Partnership, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful
payment to any foreign or domestic government official or employee
from corporate funds; violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(xxxv) Representations in Formation Documents. All of the
representations and warranties of the Company and the Operating
Partnership contained in the Formation Documents set forth on
Schedule 2 hereof are true and correct in all material respects.
(xxxvi) Americans with Disabilities Act. The Company, the
Operating Partnership, any Subsidiary, and any Predecessor Entities
are currently in substantial compliance with all presently applicable
provisions of the Americans with Disabilities Act and no failure of
the Company, the Operating Partnership, any Subsidiary, or any
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19
Predecessor Entity to comply with all presently applicable provisions
of the Americans with Disabilities Act would result in a Material
Adverse Effect.
(b) Any certificate signed by any officer of the Company or the
Operating Partnership and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by such entity to
each Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Shares. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in the Pricing Agreement,
the number of Initial Shares set forth in Schedule A hereto opposite the name
of such Underwriter (except as otherwise provided in the Pricing Agreement),
plus any additional number of Initial Shares which such Underwriter may become
obligated to purchase pursuant to Section 10 hereof.
If the Company has elected not to rely upon Rule 430A under the 1933
Act Regulations, the initial public offering price and the purchase price per
share to be paid by the several Underwriters for the Shares have each been
determined and set forth in the Pricing Agreement, dated the date hereof, and
an amendment to the Registration Statement and the Prospectus reflecting such
information will be filed before the Registration Statement becomes effective.
If the Company has elected to rely upon Rule 430A under the 1933 Act
Regulations, the purchase price per share to be paid by the several
Underwriters for the Shares shall be an amount equal to the initial public
offering price, less an amount per share to be determined by agreement among
the Representatives and the Company. The initial public offering price per
share of the Shares shall be a fixed price to be determined by agreement among
the Representatives and the Company. The initial public offering price and the
purchase price, when so determined, shall be set forth in the Pricing
Agreement. In the event that such prices have not been agreed upon and the
Pricing Agreement has not been executed and delivered by all parties thereto by
the close of business on the fourth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without liability of any
party to any other party, unless otherwise agreed to by the Company and the
Representatives.
(b) Option Shares. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not
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20
jointly, to purchase up to an additional 2,250,000 Option Shares at the
price per share set forth in the Pricing Agreement. The option hereby granted
will expire 30 days after the date hereof (or, if the Company has elected to
rely upon Rule 430A under the 1933 Act Regulations, 30 days after the
Representation Date) 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 Shares upon notice
by the Representatives to the Company setting forth the number of Option Shares
as to which the several Underwriters are then exercising the option and the
time, date and place of payment and delivery for such Option Shares. Any such
time and date of delivery (a "Date of Delivery") shall be determined by the
Representatives 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, as
hereinafter defined, unless otherwise agreed upon by the Representatives and
the Company. If the option is exercised as to all or any portion of the Option
Shares, the Option Shares shall be purchased by the Underwriters, severally and
not jointly, in proportion to their respective Initial Share underwriting
obligations as set forth in Schedule A hereto (except as may be otherwise
provided in the Pricing Agreement).
(c) Payment and Denominations. Payment of the purchase price for and
delivery of certificates for the Initial Shares shall be made at the offices of
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or
at such other place as shall be agreed upon by the Representatives and the
Company, at 10:00 a.m. on the third business day (or, if pricing takes place
after 4:30 p.m., on the fourth business day) following the date the
Registration Statement becomes effective, or such other time as shall be agreed
upon by the Representatives and the Company (such time and date of payment and
delivery being herein called the "Closing Time"). In addition, in the event
that any or all of the Option Shares are purchased by the Underwriters, payment
of the purchase price for and the delivery of such Option Shares shall be made
at the above-mentioned offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., or at such other
place as shall be mutually agreed upon by the Representatives and the Company,
on each Date of Delivery as specified in the notice from the Representatives to
the Company. Payment shall be made to the Company by certified or official
bank check or checks in New York Clearing House or similar next day funds
payable to the order of the Company, against delivery to the Representatives
for the respective accounts of the Underwriters of certificates for the Shares
to be purchased by them. The certificates for the Initial Shares and the
Option Shares shall be in such authorized denominations and registered in such
names as the Representatives may request in writing at least two business days
before the Closing Time or each Date of Delivery, as the case may be. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Shares which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
individually and not as Representatives of the Underwriters, may
- 20 -
21
(but shall not be obligated to) make payment of the purchase price for the
Shares to be purchased by any Underwriter whose check has not been received by
the Closing Time, but such payment shall not relieve such Underwriter from its
obligations hereunder. The certificates for the Initial Shares and the Option
Shares will be made available for examination and packaging by the
Representatives not later than 10:00 a.m. on the last business day prior to the
Closing Time or each Date of Delivery, as the case may be.
Section 3. Covenants of the Company and the Operating Partnership. Each
of the Company and the Operating Partnership covenants with each Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company will use its best efforts to cause the Registration Statement to become
effective as promptly as possible and will notify the Representatives
immediately, and confirm the notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment thereto (including any post-effective
amendment), (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company will make every reasonable effort to
prevent the issuance of any such stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any post-effective amendment) or any amendment or
supplement to the Prospectus (including any revised prospectus that the Company
proposes for use by the Underwriters in connection with the offering of the
Shares that differs from the prospectus on file at the Commission at the time
the Registration Statement becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations), will furnish the Representatives with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Representatives or counsel
for the Underwriters shall reasonably object.
(c) Delivery in Registration Statements. The Company will deliver to the
Representatives, as soon as available, as many signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) as
the
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22
Representatives may reasonably request and will also deliver to the
Representatives as many conformed copies of the Registration Statement as
originally filed and of each amendment thereto (excluding exhibits) as the
Representatives may reasonably request.
(d) Delivery of Prospectuses. The Company will furnish to each
Underwriter, from time to time during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request for the purposes contemplated by the 1933 Act or the 1934
Act or the respective applicable rules and regulations of the Commission
thereunder.
(e) Continued Compliance with Securities Laws. If any event shall occur
as a result of which it is necessary, in the reasonable opinion of counsel for
the Underwriters, to amend or supplement the Prospectus in order to make the
Prospectus not contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances existing at the time it is delivered to a purchaser, not
misleading, or in order to otherwise comply with the 1933 Act or the 1934 Act,
the Company will forthwith prepare an amendment of or supplement to the
Prospectus (in form and substance reasonably satisfactory to counsel for the
Underwriters) which will amend or supplement the Prospectus so that it will not
contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, and the Company will furnish to the Underwriters a reasonable
number of copies of such amendment or supplement.
(f) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Underwriters, to qualify the Shares for offering and sale under the
applicable securities laws and real estate syndication laws of such states and
other jurisdictions of the United States as the Representatives may designate;
provided, however, that the Company shall not be obligated to (i) file any
general consent to service of process, (ii) qualify as a foreign corporation in
any jurisdiction in which it is not so qualified or (iii) take any action that
would subject it to income taxation in any such jurisdiction. In each
jurisdiction in which the Shares have been so qualified, the Company will file
such statements and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect for a period of not less than one year
from the effective date of the Registration Statement.
(g) Earnings Statement. The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) covering a
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23
12-month period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of
the Registration Statement.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Shares in the manner specified in the Prospectus under the
caption "Use of Proceeds."
(i) Listing. The Company will use its reasonable best efforts to effect
the listing of the Shares on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During the period from the date of
the Pricing Agreement until 365 days after the Closing Time, the Company and
the Operating Partnership will not, without the prior written consent of the
Representatives, which will not be unreasonably withheld, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, any Common Shares or Units (except for Units issued in connection
with the acquisition directly or indirectly of Properties) or any other
security convertible into or exchangeable into or exercisable for the Common
Shares, otherwise than (i) in accordance with this Agreement, (ii) in
connection with the employee benefit plans, dividend reinvestment plans and
employee and trustee share option plans which are filed as exhibits to the
Registration Statement, (iii) Common Shares issued upon redemption of Units
(provided the recipients remain subject to the lock-up provisions contained in
the [Registration Rights Agreement]), or (iv) as contemplated in the
Prospectus.
(k) Lock-Up Agreements. The Company and the Operating Partnership will
cause, or have caused, each person or entity who will hold Common Shares (other
than the Shares) or Units at the Closing Time to enter into agreements
substantially in the form of Exhibit C hereto (the "Lock-Up Agreements"), and
each of the Company and the Operating Partnership acknowledges that the
Representatives are intended third party beneficiaries of such agreements as
contemplated thereby.
(l) REIT Qualification. The Company will use its reasonable best efforts
to meet the requirements to qualify, effective first for the fiscal year ending
December 31, 1997, as a "real estate investment trust" under the Code.
(m) Amendments to Prospectus. If, at the time that the Registration
Statement becomes effective, any information shall have been omitted therefrom
in reliance upon Rule 430A of the 1933 Act Regulations, then immediately
following the execution of the Pricing Agreement, the Company will prepare and
file or transmit for filing with the Commission, in accordance with such Rule
430A and Rule 424(b) of the 1933 Act Regulations, copies of an amended
Prospectus, or, if
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24
required by such Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information so
omitted.
(n) Form SR Reports. The Company will file with the Commission such
reports on Form SR as may be required pursuant to Rule 463 of the 1933 Act
Regulations and will provide the Representatives with copies of such reports as
soon as practicable after the filing thereof.
(o) Price Stabilization or Manipulation. Except for the authorization of
actions permitted to be taken by the Underwriters as contemplated herein or in
the Prospectus, neither the Company nor the Operating Partnership will (i)
take, directly or indirectly, any action designed to cause or to result in, or
that might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares, (ii) sell, bid for or purchase the Shares or pay any
person any compensation for soliciting purchases of the Shares or (iii) pay or
agree to pay to any person any compensation for soliciting another to purchase
any other securities of the Company.
(p) Reports to Representatives. During the period from the Closing Time
until five years after the Closing Time, the Company will deliver to the
Representatives, (i) promptly upon their becoming available, copies of all
current, regular and periodic reports of the Company mailed to its shareholders
or filed with any securities exchange or with the Commission or any
governmental authority succeeding to any of the Commission's functions, and
(ii) such other information concerning the Company, the Operating Partnership,
any Subsidiary or any Predecessor Entity as the Representatives may reasonably
request.
(q) Accuracy of Representations. Prior to the Closing Time, the Company
and the Operating Partnership will notify the Representatives in writing
immediately if (i) any event occurs that renders any of the representations and
warranties of the Company and the Operating Partnership contained herein
inaccurate or incomplete in any respect, or (ii) with respect to the
representations and warranties of the Company and the Operating Partnership
contained herein that are limited to materiality considering the Company, the
Operating Partnership, the Subsidiaries and the Predecessors Entities as one
enterprise, any matter or event occurs that would render such representation or
warranty inaccurate or incomplete if it were given with respect to the Company,
the Operating Partnership, or any Predecessor Entity on an individual basis.
(r) Obligations under Formation Documents. Subject to the terms thereof,
the Company and the Operating Partnership will do and perform their respective
obligations under the Formation Documents to which they are parties to
- 24 -
25
the extent required to consummate the transactions contemplated thereby and all
things required to be done or performed prior to the Closing Time pursuant to
this Agreement.
Section 4. Payment of Fees and Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including the
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing, and delivery of the Prospectus, this
Agreement, the Pricing Agreement and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Shares, (iii) the preparation, issuance and delivery of the certificates for
the Shares to the Underwriters including any transfer taxes and any stamp or
other duties payable upon the sale issuance or delivery of the Shares, (iv) the
fees and disbursements of the Company's counsel, accountants, and other
advisors or agents (including transfer agents and registrars), (v) the
qualification of the Shares under state securities laws and real estate
syndication laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky Memorandum, and any amendment thereto,
(vi) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, of
the preliminary prospectuses, and of the Prospectus and any amendments or
supplements thereto, (vii) the fee of the National Association of Securities
Dealers, Inc. (the "NASD"), including the fees and disbursements of counsel for
the Underwriters in connection with the NASD's review of the terms of the
proposed public offering of the Shares, (viii) the fees and expenses incurred
in connection with the listing of the Common Shares on the New York Stock
Exchange, including filing and listing fees, and (ix) fees and disbursements of
counsel for the Underwriters in connection with matters related to Shares that
are designated by the Company for sale to employees and others.
(b) Termination of the Agreement. If this Agreement is canceled or
terminated by the Representatives in accordance with the provisions of Section
5 or Section 9(a)(i) hereof, the Company also 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 hereunder are subject to the accuracy, as of the date hereof
and at the Closing Time or Date of Delivery, of the representations and
warranties of the Company and the Operating Partnership herein contained, to
the performance by
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26
the Company and the Operating Partnership of their respective obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
shall have become effective not later than 5:30 p.m. on the date hereof, or
with the consent of the Representatives, at a later time and date, not later,
however, than 5:30 p.m. on the first business day following the date hereof, or
at such later time and date as may be approved by a majority in interest of the
Underwriters; and at the Closing Time or Date of Delivery 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. If the Company has elected to rely upon Rule 430A of the 1933
Act Regulations, the price of the Shares and any price-related information
previously omitted from the effective Registration Statement pursuant to such
Rule 430A shall have been transmitted to the Commission for filing pursuant to
Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and
prior to the Closing Time the Company shall have provided evidence satisfactory
to the Representatives of such timely filing, or a post-effective amendment
providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A of the 1933 Act
Regulations.
(b) Opinion of Counsel for Company. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, P.C., counsel for each of the
Company, the Operating Partnership, the Subsidiaries, and the Predecessor
Entities, 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, to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At the Closing Time the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, with respect to
the matters set forth in Items (1) (first sentence only), (2) (first sentence
only), (6), (10) (with respect to this Agreement and the Pricing Agreement
only), (15) and (16) of Exhibit B hereto and a statement similar to the
statement referred to in the penultimate paragraph of Exhibit B hereto. In
giving its opinion, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 Company, the Operating Partnership, the
Subsidiaries or the Predecessor Entities, (B) as to the qualification and good
standing of each of the Company, the Operating Partnership, the Subsidiaries or
Predecessor Entities 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
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27
to counsel for the Underwriters, and (C) as to certain matters of law, upon the
opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ given pursuant to Section 5(b) above.
(d) Accuracy of Registration Statement and Prospectus. At the Closing
Time, (i) the Registration Statement and the Prospectus shall contain all
statements that are required to be stated therein in accordance with the 1933
Act and the 1933 Act Regulations and in all material respects shall conform to
the requirements of the 1933 Act and the 1933 Act Regulations, and neither the
Registration Statement nor the Prospectus shall contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and no
action, suit or proceeding at law or in equity shall be pending or, to the
knowledge of the Company or the Operating Partnership, threatened against such
entity or any Property which would be required to be set forth in the
Prospectus other than as set forth therein, (ii) there shall not have been,
since the respective dates as of which information is given in the Prospectus,
any Material Adverse Change, (iii) no proceedings shall be pending or, to the
knowledge of the Company or the Operating Partnership, threatened against such
entity, any Subsidiary or any Predecessor Entity before or by any federal,
state or other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding might result in any Material Adverse
Change, other than as set forth in the Prospectus, (iv) no stop order
suspending the effectiveness of the Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been instituted or, to
the knowledge of the Company or the Operating Partnership, threatened by the
Commission or by the state securities authority of any jurisdiction, and (v)
the Representatives shall have received, at the Closing Time, a Certificate of
the Chief Executive Officer or the President of the Company and the Operating
Partnership, and the chief financial or chief accounting officer of each such
entity, dated as of the Closing Time, evidencing compliance with the provisions
of this subsection (d), stating that 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 stating that the conditions precedent set forth in this
Section 5 have been satisfied or waived.
(e) Accountant's Comfort Letter. At the time of execution of this
Agreement, the Representatives shall have received from Ernst & Young a letter
dated such date, in form and substance satisfactory to the Representatives, to
the effect that: (i) they are independent public accountants with respect to
the Company and Equity Office Predecessors (as defined in the financial
statements included in the Registration Statement) as required by the 1933 Act
and the 1933 Act Regulations; (ii) it is their opinion that the financial
statements and supporting schedules included in the Registration Statement and
covered by their opinions therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations; (iii) they have performed limited procedures, not constituting an
audit, including a reading of the
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28
latest available interim financial statements of the Company and the Equity
Office Predecessors, a reading of the minute books of the Company, inquiries of
officials of the Company responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter, and on
the basis of such limited procedures nothing came to their attention that
caused them to believe that (A) the unaudited financial statements and
supporting schedules of the Equity Office Predecessors included in the
Registration Statement do not comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations or are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements included in the Registration Statement, (B) the unaudited
operating data and balance sheet data of the Company and the Equity Office
Predecessor, set forth in the Prospectus under the caption "Selected Combined
Financial Data" were not determined on a basis substantially consistent with
that used in determining the corresponding amounts in the audited financial
statements included in the Registration Statement, (C) the necessary pro forma
financial information included in the Registration Statement was not prepared
in accordance with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations with respect to pro forma financial information or was
not determined on a basis substantially consistent with that of the audited
financial statements included in the Registration Statement or that the pro
forma adjustments have not been properly applied to the historical amounts in
the compilation of such information or (D) at a specified date not more than
five days prior to the date of this Agreement, there has been any change in the
partners' and owners' equity (deficit) of the Equity Office Predecessors or any
increase in notes payable of the Equity Office Predecessors, as compared with
the amounts shown in the March 31, 1997 balance sheet of the Company included
in the Registration Statement or, during the period from March 31, 1997 to a
specified date not more than five days prior to the date of this Agreement,
there were any decreases, as compared with the corresponding period in the
preceding year, in combined total revenues of the Equity Office Predecessors
except in all instances for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or may occur
or as may be specified in such letter; and (iv) in addition to the examination
referred to in their opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial and statistical information which are included in the Registration
Statement and Prospectus and which are specified by the Representatives, and
have found such amounts, percentages and financial and statistical information
to be in agreement with the relevant accounting, financial and other records of
the Company identified in such letter. Any exception will be identified in
such letter.
(f) Accountant's Letter at Closing Time. At the Closing Time, the
Representatives shall have received from Ernst & Young a letter dated as of the
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29
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 five days prior to
the Closing Time and, if the Company has elected to rely upon Rule 430A of the
1933 Act Regulations, to the further effect that they have carried out
procedures as specified in clause (iv) of subsection (d) of this Section 5 with
respect to certain amounts, percentages and financial information specified by
the Representatives and deemed to be a part of the Registration Statement
pursuant to Rule 430A(b) and have found such amounts, percentages and financial
information to be in agreement with the records specified in such clause (iv).
Any exception will be identified in such letter.
(g) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Shares as herein contemplated and related proceedings,
or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained, and
all proceedings taken by the Company in connection with the issuance and sale
of the Shares as herein contemplated shall be satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(h) Approval of Listing. At or prior to the Closing Time, the Common
Shares shall have been duly listed, subject to official notice of issuance, on
the New York Stock Exchange.
(i) No Objection. At or prior to the Closing Time, the NASD has confirmed
that it has not raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(j) Lock-Up Agreements. At the date of this Agreement, the
Representatives shall have received Lock-Up Agreements substantially in the
form of Exhibit C hereto from each person or entity who will hold Common Shares
(other than the Shares) or Units at the Closing Time.
(k) Consents to Consolidation. At or prior to the Closing Time, all
necessary consents to the Consolidation (including the transactions
contemplated by the Memorandum) shall have been obtained.
(l) Closing of Consolidation. At or prior to the Closing Time, the
closing of the Consolidation and the contribution by the Predecessor Entities
to the Operating Partnership of their interests in the Properties and the
Management Business shall have occurred.
(m) Over-Allotment Option. In the event the Underwriters exercise their
option provided in Section 2(b) hereof to purchase all or any portion of the
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30
Option Shares, the representations and warranties of the Company and the
Operating Partnership contained herein and the statements in any certificates
furnished by the Company and the Operating Partnership hereunder shall be true
and correct as of each Date of Delivery, and the Representatives shall have
received:
(i) A certificate of the Chief Executive Officer or the
President of the Company and the Operating Partnership and the
chief financial or chief accounting officer of each such entity,
dated such Date of Delivery, confirming that the certificate
delivered at the Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery.
(ii) The favorable opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, P.C.
counsel for each of the Company and the Operating Partnership, in
form and substance satisfactory to counsel for such Underwriters,
dated such Date of Delivery, relating to the Option Shares and
otherwise to the same effect as the opinion and statement required
by Section 5(b) hereof.
(iii) The favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for
the Underwriters, dated such Date of Delivery, relating to the
Option Shares and otherwise to the same effect as the opinion and
statement required by Section 5(c) hereof.
(iv) A letter from Ernst & Young, in form and substance
satisfactory to the Representatives, dated such Date of Delivery,
substantially the same in scope and substance as the letter
furnished to the Representatives pursuant to Section 5(f) hereof,
except that the "specified date" in the letter furnished pursuant
to this Section 5(m)(iv) shall be a date not more than five days
prior to such Date of Delivery.
(n) Termination of Agreement. 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 the Representatives by notice to the
Company at any time at or prior to the Closing Time or Date of Delivery, and
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof.
Section 6. Indemnification.
(a) Indemnification of Underwriters. Each of the Company and the
Operating Partnership agrees, jointly and severally, to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
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31
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), 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; provided, however, that neither the
Company nor the Operating Partnership shall be required under this
subsection (i) to indemnify any Underwriter with respect to any
loss, liability, claim, damage or expense to the extent such loss,
liability, claim, damage or expense arises out of any untrue
statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information
furnished to the Company by any Underwriter, or concerning such
Underwriter furnished to the Company through the Representatives by
or on behalf of any Underwriter, expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto).
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of the Consolidation
(including the transactions contemplated by the Memorandum) or the
performance by any Representatives in any capacity of services in
connection therewith; provided, however, that neither the Company
nor the Operating Partnership shall be required under this
subsection (ii) to indemnify any Underwriter with respect to any
loss, liability, claim, damage or expense to the extent that such
loss, liability, claim, damage or expense is found in a final
judgment by a court of competent jurisdiction to have resulted from
such Underwriter's bad faith or gross negligence in performing the
services described above;
(iii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
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32
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 (i) or (ii) above, if such settlement is
effected with the written consent of the Company and the Operating
Partnership; and
(iv) against any and all expense whatsoever (including,
without limitation, the fees and disbursements of counsel chosen by
the Representatives) 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 (i) or (ii) above, to the extent that any
such expense is not paid under subsection (i), (ii) or (iii) above.
(b) Indemnification of Company, Directors, and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company and the
Operating Partnership, and each person, if any, who controls the Company or
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 subsections (a)(i), (iii) and (iv) 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 Company by any
Underwriter, or concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of any Underwriter, expressly for use in
the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto). The Company acknowledges that the
statements set forth in the last paragraph of the cover page, in the paragraph
regarding stabilization on the inside cover page and in the first, third and
sixth paragraphs under the caption "Underwriting" in the Prospectus constitute
the only information furnished in writing by or on behalf of any Underwriter
expressly for use in the Registration Statement (or any amendment thereto) 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
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33
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. 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.
(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)(ii) 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 Company and 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
Company and the Operating Partnership and the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the
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34
percentage that the underwriting discount appearing on the cover page of the
Prospectus bears to the initial public offering price appearing thereon and the
Company and the Operating Partnership are responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation
(within the meaning of section 11(f) of the ▇▇▇▇ ▇▇▇) 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 trustee of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company or the Operating Partnership
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company and the Operating Partnership.
The Underwriters' obligations to contribute pursuant to this Section 7 are
several in proportion to their respective underwriting commitments and not
joint. For purposes of this Section 7, the Company and the Operating
Partnership shall be deemed one party and jointly and severally liable for any
obligations hereunder.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers
of the Company or 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 Underwriter or any controlling person, or by or on
behalf of the Company or the Operating Partnership, and shall survive delivery
of the Shares to the Underwriters.
Section 9. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time or Date of Delivery, (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 Representatives' reasonable judgment, impracticable to market the Shares or
enforce contracts for the sale of the Shares, (iii) if trading in the Common
Shares 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
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35
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 NASD or any other governmental
authority, or (iv) if a banking moratorium has been declared by either federal,
New York or Maryland authorities, or (v) pursuant to Section 10(b) below.
(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 1,
4, 6, 7, and 8 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 Shares which it or they are obligated to purchase under this Agreement and
the Pricing Agreement (the "Defaulted Shares"), the Representatives 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 Shares in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, the Representatives
shall not have completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case
may be, of Defaulted Shares does not exceed 10% of the number of
aggregate principal amount, as the case may be, of Shares to be
purchased on such date pursuant to this Agreement, the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations under the Agreement
bear to the underwriting obligations of all non-defaulting
Underwriters.
(b) if the number or aggregate principal amount, as the case
may be, of Defaulted Shares exceeds 10% of the number or aggregate
principal amount, as the case may be, of Shares to be purchased on
such date pursuant to this Agreement, such Agreement (or, with
respect to the Underwriters' exercise of any applicable
over-allotment option for the purchase of Option Shares on a Date
of Delivery after the Closing Time, the obligations of the
Underwriters to purchase, and the Company to sell, such Option
Shares on such Date of Delivery) 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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36
In the event of any such default which does not result in (i) a
termination of this Agreement or (ii) in the case of a Date of Delivery after
the Closing Time, a termination of the obligations of the Underwriters and the
Company with respect to the related Option Shares, as the case may be, either
the Representatives and the Company shall have the right to postpone the
Closing Time or the relevant Date of Delivery, as the case may be 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.
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 Representatives c/o Merrill ▇▇▇▇▇ at
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters, North Tower, World Financial Center, New
York, New York 10281-1305, attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Director; notices to
either the Company or the Operating Partnership shall be directed to it at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Chief Legal Counsel.
Section 12. Parties. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the parties hereto and thereto and
their respective successors. Nothing expressed or mentioned in this Agreement
or the Pricing Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters and the Company 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 the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing 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 Shares from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the Pricing
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, Section and Sub-Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
- 36 -
37
If the foregoing is in accordance with your understanding of our agreement
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters, the Company and the Operating Partnership in accordance with
its terms.
Very truly yours,
EQUITY OFFICE PROPERTIES TRUST
By:_____________________________
EOP OPERATING LIMITED
PARTNERSHIP
By: Equity Office Properties Trust
General Partner
By:_______________________________
Confirmed and Accepted,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ & CO.
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BY: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ____________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
For themselves and as Representatives of the other
Underwriters named in Schedule 1 hereto
- 37 -
38
H & H DRAFT
SCHEDULE 1
Number of
Underwriter Initial Shares
------------------------------------- --------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇.▇. ▇▇▇▇▇▇ & Co.
Prudential Securities Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Total
==============
39
H&H DRAFT
SCHEDULE 2
FORMATION DOCUMENTS
1. Contribution Agreements by and among the Operating Partnership and [______]
dated _________, 1997
2. Merger Agreements, dated ________, 1997, by and between the Operating
Partnership and each of
(a) ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity Partners Limited Partnership
(b) ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity Partners Limited Partnership II
(c) ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity Partners Limited Partnership
III
(d) ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity Partners Limited Partnership IV
(e) Equity Office Properties, L.L.C.
(f) Equity Office Holdings, L.L.C.
(g) Equity Group Investments, Inc.
3. Escrow Agreements, dated ________, 1997, by and between the [Operating
Partnership] and each of
(a) ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity Partners Limited Partnership
(b) ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity Partners Limited Partnership II
(c) ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity Partners Limited Partnership
III
(d) ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity Partners Limited Partnership IV
4. Agreement of Limited Partnership of the Operating Partnership
5. Non-Competition Agreement between the Company and ▇▇. ▇▇▇▇, dated as of
________, 1997
6. Registration Rights Agreement
40
H&H DRAFT
SCHEDULE 3
LIST OF PREDECESSOR ENTITIES
▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity Partners Limited Partnership
▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity Partners Limited Partnership II
▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity Partners Limited Partnership III
▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity Partners Limited Partnership IV
Equity Office Properties, L.L.C.
Equity Office Holdings, L.L.C.
41
EXHIBIT A
15,000,000 SHARES
EQUITY OFFICE PROPERTIES TRUST
(a Maryland real estate investment trust)
Common Shares of Beneficial Interest
($.01 Par Value Per Share)
PRICING AGREEMENT
________________, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ & CO.
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Ladies and Gentlemen:
Reference is made to the Purchase Agreement, dated _____________, 1997
(the "Purchase Agreement"), relating to the purchase by the several
Underwriters named in Schedule A thereto, for whom ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ Brothers Inc., ▇.▇. ▇▇▇▇▇▇ & Co.,
Prudential Securities Incorporated and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. are acting as
Representatives (the "Representatives"), of the above Common Shares (the
"Shares") of Equity Office Properties Trust (the "Company").
42
Pursuant to Section 2 of the Purchase Agreement, the Company agrees with
each Underwriter as follows:
1. The initial public offering price per share for the Shares,
determined as provided in said Section 2, shall be $_____.
2. The purchase price per share for the Shares to be paid by
the several Underwriters shall be $______, being an amount equal to
the initial public offering price set forth above less $_____ per
share.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
EQUITY OFFICE PROPERTIES TRUST
By:___________________________
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ & CO.
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BY: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: __________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
For themselves and as Representatives of the other
Underwriters named in Schedule 1 hereto
43
EXHIBIT B
(1) The Company has been duly organized and is validly
existing as a real estate investment trust with transferable
shares of beneficial interest and is in good standing under
the laws of the State of Maryland with all power and
authority to hold its properties, 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 Purchase Agreement, the Pricing Agreement and the
Formation Documents to which it is a party. The Company is
duly qualified as a foreign entity in each jurisdiction in
which the business conducted by the Company is required and
permitted, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
to so qualify or be in good standing would not result in a
Material Adverse Effect.
(2) 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 its Properties, to conduct the
business in which it is engaged or proposes to engage as
described in the Prospectus and to enter into and perform its
obligations under the Purchase Agreement and the Formation
Documents to which it is a party. The Operating Partnership
is duly qualified or registered as a foreign partnership and
is in good standing in each jurisdiction in which the
business conducted by the Operating Partnership is required
and permitted after the completion of the Consolidation,
except where the failure to so qualify or be in good standing
would not result in a material Adverse Effect. The Company
is the sole general partner of the Operating Partnership and,
immediately after the Closing Time, will be the sole general
partner of the Operating Partnership and will be the holder
of ____________ Units, or approximately ___________ percent
(____%) of the Units in the Partnership.
(3) As of the Closing Time, each of the Subsidiaries has
been duly organized and is validly existing as a partnership,
corporation, limited liability company, or real estate
investment trust in good standing under the laws of its
respective jurisdiction of organization, with all power and
authority to own, lease and operate its Properties, to
conduct the business in which it is engaged or proposes to
engage as described in the
44
Prospectus, and to enter into and perform its obligations
under the Formation Documents to which it is a party. Each
of the Subsidiaries 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 the
Operating Partnership is required and permitted, whether by
reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify would not
result in a Material Adverse Effect. Each of the partnership
or member agreements of the Subsidiaries is in full force and
effect.
(4) Each of the Predecessor Entities has been duly
formed and is validly existing as a partnership, corporation,
or real estate investment trust in good standing under the
laws of its state of formation, with power and authority to
own, lease and operate its properties, to conduct the
business in which it is engaged and to enter into and perform
its respective obligations under the Formation Documents to
which it is a party. Each Predecessor Entity is duly
qualified or registered to transact business 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 would not result in a Material Adverse Effect.
(5) The numbers of authorized, issued and outstanding
shares of beneficial interest of the Company as of March 31,
1997 were as set forth in the Prospectus under
"Capitalization" and "Shares of Beneficial Interest," and the
issued and outstanding Common Shares have been duly
authorized and validly issued, are fully paid and
non-assessable and will have been offered and sold in
compliance with all applicable federal and state laws
(including, without limitation, federal and state securities
laws) and, to the knowledge of counsel, all foreign laws. No
shares of capital shares of beneficial interest of the
Company are reserved for any purpose except in connection
with (i) Consolidation, (ii) the Employee Plans of the
Company as described in the Prospectus, and (iii) the
possible issuance of Common Shares upon the redemption of
Units pursuant to the Partnership Agreement. Except for
Units and Common Shares issuable upon the exercise of options
as described in the Prospectus, there are no outstanding
securities convertible into or exchangeable for any shares of
beneficial interest of the Company and no outstanding
options, rights (preemptive or
45
otherwise) or warrants to purchase or to subscribe for such
shares or any other securities of the Company.
(6) The Initial Shares have been duly authorized for
issuance and sale to the Underwriters pursuant to this
Agreement, and when issued and delivered by the Company
pursuant to the Purchase Agreement against payment of the
consideration set forth in the Pricing Agreement, will be
validly issued, fully paid and non-assessable. The terms of
the Common Shares conform to all statements and descriptions
related thereto contained in the Prospectus. The form of
share certificate evidencing the Common Shares is in due and
proper form and complies with all applicable legal
requirements. The issuance of the Shares is not subject to
any preemptive or other similar rights.
(7) The Units issued in connection with the
Consolidation, including, without limitation, the Units
issued to the Company, have been duly authorized for issuance
by the Operating Partnership to the holders thereof, and when
issued and delivered by the Operating Partnership pursuant to
the Contribution Agreement against payment of the
consideration set forth therein, will be validly issued,
fully paid and non-assessable. The Units were offered and
sold at or prior to the Closing Time in compliance with all
applicable federal and state laws (including, without
limitation, federal and state securities laws) and, to the
knowledge of counsel, all foreign laws. The terms of the
Units conform to all statements and descriptions related
thereto contained in the Prospectus.
(8) To the knowledge of counsel, none of the Company,
the Operating Partnership, any Subsidiary or any Predecessor
Entity is in violation of its declaration of trust, charter,
by-laws, certificate of limited partnership or partnership or
limited liability company agreement, as the case may be, and
none of the Company, the Operating Partnership, any
Subsidiary or any Predecessor Entity is in default in the
performance or observance of any 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 have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets or business
affairs of the Company, the Operating Partnership, the
46
Subsidiaries and the Predecessor Entities considered as one
enterprise (a "Material Adverse Effect").
(9) The Purchase Agreement, the Pricing Agreement and
each of the Formation Documents was duly and validly
authorized, executed and delivered by the Company, the
Operating Partnership, each Subsidiary and each Predecessor
Entity, as applicable, and, assuming due authorization,
execution and delivery by any other party thereto, is a valid
and binding agreement of such party, enforceable against such
party in accordance with its terms, except as such
enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar
laws affecting the rights and remedies of creditors
generally, (2) subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and (3) in the case of the
provisions of the Purchase Agreement and the [Registration
Rights Agreement] pertaining to indemnity and contribution,
limited under applicable securities laws and public policy.
(10) The execution and delivery of the Purchase
Agreement, the Pricing Agreement, and the Formation
Documents, the performance of the obligations set forth
therein, and the consummation of the transactions
contemplated thereby or in the Prospectus by the Company, the
Operating Partnership, the Subsidiaries and the Predecessor
Entities, as applicable, did not, do not and will not
conflict with or constitute a breach or violation of, or
default under: (a) any of the Formation Documents; (b) to
the knowledge of counsel, assuming the application of the
proceeds of the Offering to discharge certain loan
obligations as set forth under "Use of Proceeds" in the
Prospectus, any contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership
agreement or other instrument or agreement to which the
Company, the Operating Partnership, any Subsidiary or any
Predecessor Entity is a party or by which they or any of them
or any of their respective properties or other assets or any
Property may be bound or subject, except for (i) contracts or
other agreements that are terminable at will or are
terminable by the other party thereto on not more than 30
days' notice and (ii) operating, service, equipment or other
similar contracts entered into in the ordinary course,
provided that any contract or agreement excepted in (i)
above, and the contracts excepted in (ii) above, are not
material to the condition, financial or
47
otherwise, or the earnings, assets, business affairs or
business prospects of the contract party; (c) the declaration
of trust, charter, by-laws, limited liability company
agreement, certificate of limited partnership or partnership
agreement, as the case may be, of the Company, the Operating
Partnership, any Subsidiary or any Predecessor Entity; or (d)
to the knowledge of counsel, any applicable law, rule, order,
administrative regulation or administrative or court decree,
except that no opinion is expressed under this clause (d) as
to this Agreement or the Pricing Agreement with respect to
federal, state or foreign securities laws.
(11) To the knowledge of counsel, 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 threatened against or affecting the Company,
the Operating Partnership, any Subsidiary, any Predecessor
Entity, any Property or any officer or trustee of the Company
that is required to be disclosed in the Registration
Statement (other than as disclosed therein) or that, if
determined adversely to the Company, the Operating
Partnership, any Subsidiary, any Predecessor Entity, any
Property or any such officer or trustee, could reasonably be
expected to materially and adversely affect the consummation
of the Consolidation. To the knowledge of counsel, all
descriptions in the Registration Statement of contracts and
other documents to which the Company, the Operating
Partnership any Subsidiary, or any Predecessor Entity is a
party are accurate in all material respects. To the
knowledge of counsel, there are no contracts or documents of
the Company, the Operating Partnership, any Subsidiary or any
Predecessor Entity which are required to be filed as exhibits
to the Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been filed as exhibits to the
Registration Statement.
(12) None of the Company, the Operating Partnership, any
Subsidiary or any Predecessor Entity is an "investment
company" within the meaning of the 1940 Act.
(13) All filings with, authorizations, approvals,
consents licenses, order registrations or qualification of
decrees of any court or governmental authority or agency that
are necessary in connection with the offering, issuance or
sale of the Shares under this Agreement or the consummation
of any other part of the Consolidation have been obtained,
except such as may be
48
required under the 1933 Act or the 1933 Act Regulations or
state securities or real estate syndication laws.
(14) The Registration Statement has been declared
effective under the 1933 Act and, to the knowledge of
counsel, 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.
(15) At the time the Registration Statement became
effective and at the Representation Date, the Registration
Statement (other than the financial statements and supporting
schedules included therein, as to which no opinion need be
rendered) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act
Regulations.
(16) [To the knowledge of counsel, there are no statutes
or regulations that are required to be described in the
Prospectus that are not described as required.]
In giving its opinion required by Section 5(b), such
counsel shall additionally state that nothing has come to the
attention of such counsel that causes it to believe that the
Registration Statement (except for financial statements and
schedules and other financial data included therein, as to
which counsel need make no statement), at the time such
Registration Statement became effective, at the
Representation Date or as of the date of such opinion,
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
the Prospectus (except for financial statements and schedules
and other financial data included therein, as to which
counsel need make no statement), as of its date, at the
Representation Date or as of the date of such opinion,
included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
In giving its opinion, such counsel 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
Company, the Operating Partnership, the Subsidiaries or the
Predecessor Entities and (B) as to the qualification and good
49
standing of each of the Company, the Operating Partnership,
the Subsidiaries or the Predecessor Entities to do business
in any 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.
50
EXHIBIT C
July ___, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ & CO.
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Equity Office Properties Trust and EOP Operating Limited Partnership
(collectively, the "Company")
Ladies and Gentlemen:
The undersigned, a security holder of the Company understands that ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇
▇▇▇▇▇"), ▇▇▇▇▇▇ Brothers Inc., ▇.▇. ▇▇▇▇▇▇ & Co., Prudential Securities
Incorporated, and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. propose to enter into a Purchase Agreement
(the "Purchase Agreement") with the Company providing for the public offering
(the "Offering") of common shares of beneficial interest, $.01 par value per
share ("Common Shares"), of Equity Office Properties Trust. In recognition of
the benefit that such an offering will confer upon the undersigned as a
security holder of the Company, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the undersigned
agrees with each of the several Underwriters named in the Purchase Agreement
that, during a period of one year from the date of the closing of the Offering,
the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
directly or indirectly (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option right or warrant for the sale of, or otherwise dispose of or
transfer any Common Shares or units of ownership interest in EOP Operating
Limited Partnership or any other security or other instrument which by its
terms is convertible into, exercisable or exchangeable for Common Shares,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or
51
any transaction that transfers in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Shares, whether any such swap
or transaction is to be settled by delivery of Common Shares or other
securities, in cash or otherwise.
Very truly yours,
By:_________________________
Name: