Exhibit 1.1
EOP OPERATING LIMITED PARTNERSHIP
(a Delaware limited partnership)
$500,000,000 8.375% Notes due March 15, 2006
UNDERWRITING AGREEMENT
March 16, 2000
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
ON BEHALF OF THE UNDERWRITERS LISTED ON SCHEDULE A HEREOF
c/o ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
EOP Operating Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), confirms its agreement with ▇.▇. ▇▇▇▇▇▇ Securities
Inc. ("▇.▇. ▇▇▇▇▇▇") on behalf of the Underwriters listed on Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as provided in Section 10 hereof), for whom ▇.▇. ▇▇▇▇▇▇ is acting as
representative (in such capacity, the "Representative"), with respect to the
sale by the Operating Partnership and the purchase by the Underwriters, acting
severally and not jointly, of $500,000,000 aggregate principal amount of 8.375%
Notes due March 15, 2006 (the "Securities"). The Securities will be issued
pursuant to an indenture dated as of September 2, 1997 (such indenture, as
supplemented, the "Indenture"), between the Operating Partnership and State
Street Bank and Trust Company, as trustee (the "Trustee"). The Securities will
be issued in book-entry form only to Cede & Co. as nominee of The Depository
Trust Company ("DTC") pursuant to a letter agreement, to be dated as of the
Closing Time (as defined in Section 2(c)) (the "DTC Agreement"), among the
Operating Partnership, the Trustee and DTC. Unless the context otherwise
requires, as used herein, "you" and "your" shall mean the parties to whom this
Underwriting Agreement (this "Agreement") is addressed. Capitalized terms used
herein without definition shall have the meanings assigned to such terms in the
Prospectus (as defined below) relating to the Securities.
The Operating Partnership understands that the Underwriters
propose to make a public offering of the Securities as soon as the
Representative deems advisable after this Agreement has been executed.
The Operating Partnership has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(No. 333-58689) covering
the registration of debt securities, including the Securities, under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses. Promptly after execution and delivery of
this Agreement, the Operating Partnership will prepare and file a prospectus
supplement relating to the Securities in accordance with the provisions of Rule
424(b) ("Rule 424(b)") of the rules and regulations of the Commission under the
1933 Act (the "1933 Act Regulations"). Any prospectus supplement relating to the
Securities that omitted certain pricing information and was used after the
effectiveness of such registration statement and prior to the execution and
delivery of this Agreement and the prospectus contained in such registration
statement are collectively referred to as herein as a "preliminary prospectus."
Such registration statement, including the exhibits thereto, schedules thereto,
if any, and the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, at the time it became effective, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final
prospectus and the prospectus supplement relating to the Securities, including
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the form first furnished to the Underwriters for use in
connection with confirming sales of the Securities, are collectively referred to
herein as the "Prospectus." For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus or the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "set forth" or
"stated" in the Registration Statement, any preliminary prospectus or the
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), which is incorporated by reference in the Registration
Statement, such preliminary prospectus or the Prospectus, as the case may be.
The "Company" shall mean Equity Office Properties Trust, a
Maryland real estate investment trust, which is the managing general partner of
the Operating Partnership.
The Company has entered into an Agreement and Plan of Merger,
dated February 11, 2000 (as the same may have been or may hereafter be amended
or supplemented from time to time, the "Merger Agreement"), with Cornerstone
Properties Inc. ("Cornerstone"), pursuant to which Cornerstone will merge with
and into the Company (the "Merger") and Cornerstone Properties Limited
Partnership, a Delaware limited partnership of which Cornerstone is the sole
general partner will merge with and into the Operating Partnership (the
"Partnership Merger"). The Company will be the surviving entity in the Merger
and the Operating Partnership will be the surviving entity in the Partnership
Merger.
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SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE OPERATING PARTNERSHIP.
(a) The Operating Partnership represents and warrants to each
Underwriter as of the date hereof and as of the Closing Time, and agrees with
each Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Operating
Partnership meets the requirements for use of Form S-3 under the 1933
Act. The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Operating
Partnership, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing
Time, the Registration Statement and any amendments thereto complied
and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the Trust Indenture Act of
1939, as amended (the "1939 Act") and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Neither the Prospectus nor
any amendments or supplements thereto, at the time the Prospectus or
any such amendment or supplement was issued and at the Closing Time,
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Operating Partnership in writing by any Underwriter through the
Representative expressly for use in the Registration Statement or
Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act
Regulations, complied when so filed in all material respects with the
1933 Act Regulations, and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with
this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, when they became effective or at the time they were
or hereafter are
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filed with the Commission, complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), as applicable, and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the
Prospectus was issued and at the Closing Time, did not and will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(iii) INDEPENDENT ACCOUNTANTS. Ernst & Young LLP, the
accounting firm that certified the financial statements and supporting
schedules included in the Registration Statement, is an independent
public accountant as required by the 1933 Act and the 1933 Act
Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the respective entity or entities presented therein at the respective
dates indicated and the results of their operations for the respective
periods specified, and except as otherwise stated therein, said
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis.
The supporting schedules included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The financial information and data included in the Prospectus
and the financial information and data included in the Company's
Current Report on Form 8-K dated March 15, 2000 present fairly the
information included therein and have been prepared on a basis
consistent with that of the books and records of the respective
entities presented therein. The Statements of Revenues and Certain
Operating Expenses included in the Prospectus for certain of the
Properties (as defined below) present fairly the information included
therein and have been prepared on a basis consistent with that of the
books and records of the respective entities presented therein.
(v) NO MATERIAL ADVERSE CHANGE. Since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, assets, or business affairs of the Operating Partnership
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse
Change"), (B) no casualty loss or condemnation or other adverse event
with respect to any Property has occurred that would result in a
Material Adverse Effect (as defined below), (C) there have been no
transactions or acquisitions entered into by the Operating Partnership
or any of its subsidiaries, other than those arising in the ordinary
course of business, which are material with respect to the Operating
Partnership and its subsidiaries considered as one enterprise, (D)
except as described in the Registration Statement and the Prospectus
and except
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for regular quarterly distributions on the partnership interests of the
Operating Partnership, there has been no distribution of any kind
declared, paid or made by the Operating Partnership with respect to its
partnership interests, and (E) there has been no material change in the
partnership interests of the Operating Partnership, or any material
increase in the indebtedness of the Operating Partnership.
(vi) GOOD STANDING OF THE OPERATING PARTNERSHIP. The Operating
Partnership has been duly formed and is validly existing as a limited
partnership in good standing under the Delaware Revised Uniform Limited
Partnership Act (the "Delaware Act") with partnership power and
authority to own, lease and operate any real property or improvements
thereon owned or leased by the Operating Partnership or its
subsidiaries (each individually, a "Property" and collectively, the
"Properties"), to conduct the business in which it is engaged or
proposes to engage as described in the Registration Statement and the
Prospectus and to enter into and perform its obligations under or
contemplated under this Agreement. The Operating Partnership is duly
qualified or registered as a foreign partnership and is in good
standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify, register or be in good standing would not result in a material
adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the
Operating Partnership and the its subsidiaries considered as one
enterprise (a "Material Adverse Effect").
(vii) GOOD STANDING OF THE SUBSIDIARIES. Each of the
subsidiaries of the Operating Partnership listed on SCHEDULE C to this
Agreement (collectively, the Significant Subsidiaries"), if any, has
been duly organized and is validly existing as a partnership,
corporation, limited liability company or real estate investment trust
in good standing under the laws of its respective jurisdiction of
organization, with all power and authority to own, lease and operate
its Properties and to conduct the business in which it is engaged or
proposes to engage as described in the Registration Statement and the
Prospectus. Each of the subsidiaries of the Operating Partnership is
duly qualified or registered as a foreign partnership, corporation,
limited liability company, or real estate investment trust and is in
good standing in each jurisdiction in which the business conducted by
such subsidiary is required and permitted, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure, singly or in the aggregate, to so qualify would not
result in a Material Adverse Effect. Each of the partnership or
operating agreements of the Significant Subsidiaries is in full force
and effect.
(viii) CAPITALIZATION OF OPERATING PARTNERSHIP. The
capitalization of the Operating Partnership is as set forth in the
Prospectus as of the date referenced therein. All of the partnership
interests outstanding at the date hereof were duly authorized for
issuance by the Operating Partnership and are validly issued and fully
paid. The outstanding partnership interests were offered
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and sold in compliance with all applicable laws (including, without
limitation, federal and state securities laws).
(ix) MERGER AGREEMENT. The Merger Agreement has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, each of the Company and the Operating Partnership,
enforceable against each of the Company and the Operating Partnership
in accordance with its terms, except as (A) the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and (B) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(x) AUTHORIZATION OF THE INDENTURE. The Indenture has been
duly authorized, executed and delivered by the Operating Partnership,
and assuming due authorization, execution and delivery by the Trustee,
constitutes a valid and binding obligation of the Operating
Partnership, enforceable against the Operating Partnership in
accordance with its terms, except as (A) the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and (B) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(xi) AUTHORIZATION OF THE SECURITIES. The Securities have been
duly authorized by the Operating Partnership and, at the Closing Time,
will have been duly executed by the Operating Partnership and, when
authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor
as provided in this Agreement, will constitute valid and binding
obligations of the Operating Partnership, enforceable against the
Operating Partnership in accordance with their terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability, and the Securities will be in the form contemplated by,
and entitled to the benefits of, the Indenture.
(xii) DESCRIPTION OF THE SECURITIES AND THE INDENTURE. The
Securities and the Indenture will conform in all material respects to
the respective statements relating thereto contained in the Prospectus
and will be in substantially the respective forms filed or incorporated
by reference, as the case may be, as exhibits to the Registration
Statement.
(xiii) ABSENCE OF DEFAULTS. Neither the Operating Partnership
nor any Significant Subsidiary is in violation of its declaration of
trust, charter, by-laws, limited liability company agreement,
certificate of limited partnership or partnership agreement, as the
case may be, and neither the Operating Partnership nor any Significant
Subsidiary is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
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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. The execution and delivery of this
Agreement and the Indenture, the performance of the obligations set
forth herein or therein, and the consummation of the transactions
contemplated hereby or thereby or in the Prospectus (including the
issuance and sale of the Securities by the Operating Partnership) will
not result in the creation of any lien, charge or encumbrance upon the
Properties or conflict with or constitute a breach or violation by the
Operating Partnership or any of its subsidiaries, or default under,
(A) any material contract, indenture, mortgage, loan agreement, note,
lease, joint venture or partnership agreement or other instrument or
agreement to which such entity is a party or by which they, any of
them, any of their respective assets or any Property may be bound or
subject, (B) the declaration of trust, the charter, by-laws,
certificate of limited partnership, partnership agreement, or limited
liability company agreement, as the case may be, of such entity or
(C) any applicable law, rule, order, administrative regulation or
administrative or court decree, except in the cases of clauses (A) and
(C) for such liens, charges, encumbrances, conflicts, breaches,
violations or defaults as would not result in a Material Adverse
Effect.
(xv) AUTHORIZATION OF AGREEMENT. The Operating Partnership has
the requisite power and authority under its organizational documents to
enter into this Agreement, and this Agreement has been duly authorized,
executed and delivered by the Operating Partnership.
(xvi) ABSENCE OF PROCEEDINGS. There is no action, suit or
proceeding before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Operating Partnership, threatened against or affecting the Operating
Partnership, the Company, any Significant Subsidiary, any Property or
any officer or trustee of the Company that, if determined adversely to
the Operating Partnership, the Company, any Significant Subsidiary, any
Property or any such officer or trustee, might (A) result in any
Material Adverse Effect or (B) materially and adversely affect the
consummation of the transactions contemplated by this Agreement. There
are no legal or governmental proceedings pending or, to the knowledge
of the Operating Partnership, threatened to which the Operating
Partnership or any significant subsidiary is a party or to which any of
their respective assets, properties or operations is the subject that
are required to be described in the Prospectus that are not so
described. The aggregate of all pending legal or governmental
proceedings to which the Operating Partnership, the Company or any
Significant Subsidiary is a party or of which any of their respective
assets, properties or operations is the subject which are not described
in the Prospectus, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material
Adverse Effect.
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(xvii) ACCURACY OF EXHIBITS. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xviii) INVESTMENT COMPANY ACT. Neither the Operating
Partnership nor any Significant Subsidiary is, or at the Closing Time
will be, required to be registered under the Investment Company Act of
1940, as amended (the "1940 Act").
(xix) POSSESSION OF INTELLECTUAL PROPERTY. The Operating
Partnership and its subsidiaries own or possess, or can acquire on
reasonable terms, the trademarks, service marks, trade names, or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and no such entity has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of such entities therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xx) ABSENCE OF FURTHER REQUIREMENTS. All authorizations,
approvals and consents of any court or governmental authority or agency
that are necessary in connection with the offering, issuance or sale of
the Securities hereunder or the consummation of the other transactions
contemplated by this Agreement or the Indenture have been obtained,
except such as have been already obtained or as may be required under
the securities, blue sky or real estate syndication laws of various
states in connection with such offer, issuance and sale.
(xxi) POSSESSION OF LICENSES AND PERMITS. The Operating
Partnership and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, or
local regulatory agencies or bodies necessary to conduct the business
now conducted by them, or proposed to be conducted by them, as
described in the Prospectus, except where the failure to possess any
such Governmental License would not have a Material Adverse Effect. The
Operating Partnership and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, result
in a Material Adverse Effect. All of the Governmental Licenses are
valid and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not result in a Material Adverse
Effect. Neither the Operating Partnership nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such
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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.
(xxii) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Operating Partnership or any of its subsidiary exists
or, to the knowledge of the Operating Partnership, is imminent, which
may reasonably be expected to result in a Material Adverse Effect.
(xxiii) TITLE TO PROPERTY. (A) With respect to the Properties
in which the Operating Partnership owns, directly or indirectly, all of
the ownership interest therein, the Operating Partnership or its
subsidiaries have good and marketable fee simple title to the land
underlying such Properties (or, to the extent described in the
Prospectus, a valid leasehold estate in such land) and (except for the
Property known as "500 Orange") good and marketable title to the
improvements thereon and all other assets that are required for the
effective operation of such Properties in the manner in which they
currently are operated, subject, however, to existing mortgages on such
Properties, to utility easements serving such Properties, to liens of
ad valorem taxes not due and payable as of the Closing Time (or which
are being contested pursuant to applicable law), to zoning and similar
governmental land use matters affecting such Properties that are
consistent with the current uses of such Properties, to matters of
title not adversely affecting marketability of title to such
Properties, other statutory liens not due and payable as of the Closing
Time, title matters that may be material in character, amount or extent
but which do not materially detract from the value, or interfere with
the use, of the Properties or otherwise materially impair the business
operations being conducted or proposed to be conducted thereon, tenant
leases, service marks and trade names used in connection with such
Properties, ground leases and ownership by others of certain items of
equipment and other items of personal property that are not material to
the conduct of business operations at such Properties; (B) with respect
to the Properties in which the Operating Partnership owns, directly or
indirectly, less than all of the ownership interest (the "Joint Venture
Properties"), the Operating Partnership or its subsidiaries have good
and marketable title to such ownership interests and the respective
entities owning the Joint Venture Properties have good and marketable
title to such interests in the Joint Venture Properties and good and
marketable title to the improvements thereon and all other assets that
are required for the effective operation of such Properties in the
manner in which they currently are operated, subject to the exceptions
set forth in clause (A) above; (C) the ground leases under which the
applicable subsidiaries of the Operating Partnership lease the land on
which certain Properties are located are in full force and effect, and
each of such subsidiaries is not in default in respect of any of the
terms or provisions of such leases and neither the Operating
Partnership nor any such subsidiary has not received notice of the
assertion of any claim by anyone adverse to such subsidiaries' rights
as lessees under such leases, or affecting or questioning such
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
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Operating Partnership or any of its subsidiaries are disclosed in the
Prospectus, subject to the exceptions set forth in clause (A) above;
(E) neither any subsidiary of the Operating Partnership nor any tenant
of any of the Properties is in default under any of the leases pursuant
to which the Operating Partnership or any of its subsidiaries, as
lessor, leases its Property (and the Operating Partnership does not
know of any event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such leases)
other than such defaults and unmatured events of default that would not
result in a Material Adverse Effect; (F) except for such rights of
first refusal as may be contained in the agreements related to the
Joint Venture Properties, no person has an option or right of first
refusal to purchase all or part of any Property or any interest
therein; (G) each of the Properties complies with all applicable codes,
laws and regulations (including, without limitation, building and
zoning codes, laws and regulations and laws relating to access to the
Properties), except if and to the extent disclosed in the Prospectus
and except for such failures to comply that would not individually or
in the aggregate result in a Material Adverse Effect; (H) there is in
full force and effect insurance coverages for the assets of the
Properties that are commercially reasonable for such types of assets,
and neither the Operating Partnership nor any of its subsidiaries has
received from any insurance company notice of any material defects or
deficiencies affecting the insurability of any such assets (including
the Properties); and (I) neither the Operating Partnership nor any of
its subsidiaries has any knowledge of any pending or threatened
condemnation proceedings, zoning change, or other similar proceeding or
action that will in any manner affect the size of, use of, improvements
on, construction on or access to the Properties, except such
proceedings or actions as are disclosed in the Prospectus or that would
not have a Material Adverse Effect.
(xxiv) ENVIRONMENTAL LAWS. Except as disclosed in the
Prospectus or as would not have a Material Adverse Effect: (A) each
Property, including, without limitation, the Environment (as defined
below) associated with such Property, is free of any Hazardous
Substance (as defined below) in violation of any Environmental Law (as
defined below) applicable to such Property, except for Hazardous
Substances that would not result in a Material Adverse Effect; (B)
neither the Operating Partnership nor any of its subsidiaries has
during the period of its ownership caused or suffered to occur any
Release (as defined below) of any Hazardous Substance into the
Environment on, in, under or from any Property in violation of any
Environmental Law applicable to such Property, and no condition exists
on, in, under or, to the knowledge of the Operating Partnership or any
of its subsidiaries adjacent to, any Property that could result in the
incurrence of material liabilities or any material violations of any
Environmental Law applicable to such Property, or give rise to the
imposition of any Lien (as defined below) under any Environmental Law;
(C) neither the Operating Partnership nor any of its subsidiaries is
engaged in or intends to engage in any manufacturing at the Properties
that (1) requires the use, handling, transportation, storage, treatment
or disposal of any Hazardous Substance (other than cleaning solvents
and similar materials and other than insecticides and herbicides that
are used in the ordinary
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course of operating the Properties and in compliance with all
applicable Environmental Laws) or (2) requires permits or is otherwise
regulated pursuant to any Environmental Law; (D) neither the Operating
Partnership nor any of its subsidiaries has received any notice of a
claim under or pursuant to any Environmental Law applicable to a
Property or under common law pertaining to Hazardous Substances on or
originating from any Property; (E) neither the Operating Partnership
nor any of its subsidiaries has received any notice from any
Governmental Authority (as defined below) claiming any violation of any
Environmental Law that is uncured or unremediated as of the date
hereof; and (F) no Property is included or, to the knowledge of the
Operating Partnership nor any of its subsidiaries, proposed for
inclusion on the National Priorities List issued pursuant to CERCLA (as
defined below) by the United States Environmental Protection Agency
(the "EPA") or on the Comprehensive Environmental Response,
Compensation, and Liability Information System database maintained by
the EPA, and has not otherwise been identified by the EPA as a
potential CERCLA removal, remedial or response site or included or, to
the knowledge of the Operating Partnership, proposed for inclusion on,
any similar list of potentially contaminated sites pursuant to any
other applicable Environmental Law nor has the Operating Partnership
nor any of its subsidiaries received any written notice from the EPA or
any other Governmental Authority proposing the inclusion of any
Property on such list; and (G) there are no underground storage tanks
located on or in any Property which have not been disclosed to the
Representative.
As used herein, the term "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste, toxic or
dangerous substance, pollutant, solid waste or similarly designated
materials, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCBs, pesticides, explosives, radioactive materials,
dioxins, urea formaldehyde insulation or any constituent of any such
substance, pollutant or waste, including any such substance, pollutant
or waste identified or regulated under any Environmental Law
(including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49
C.F.R. 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.),
11
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.
(xxv) TAX COMPLIANCE. Each of the Operating Partnership and
its subsidiaries has filed all federal, state, and local income tax
returns which have been required to be filed and has paid all taxes
required to be paid and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except, in all cases, for any such tax, assessment, fine or penalty
that is being contested in good faith, and except in any case in which
the failure to so file or pay would not have a Material Adverse Effect.
(xxvi) NO PRICE MANIPULATION. Neither the Operating
Partnership nor any of its Significant Subsidiaries, nor any of their
directors, officers or controlling persons, has taken or will take,
directly or indirectly, any action designed to cause or result under
the 1934 Act, or otherwise in, or which has constituted or which
reasonably might be expected to constitute, the unlawful stabilization
or manipulation of the price of any security of the Operating
Partnership to facilitate the sale or resale of the Securities.
(xxvii) PLAN ASSETS. The assets of the Operating Partnership
and its subsidiaries do not constitute "plan assets" under the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereof.
(xxviii) REGULATIONS G, T, U AND X. None of the transactions
contemplated by this Agreement (including, without limitation, the use
of the proceeds from the sale of the Securities) will violate or result
in a violation of Section 7 of the 1934 Act, or any regulation
promulgated thereunder, including, without limitation, Regulations G,
T, U and X of the Board of Governors of the Federal Reserve System.
(xxix) PARTNERSHIP CLASSIFICATION. The Operating Partnership
and each of the Significant Subsidiaries that are partnerships are
properly classified as partnerships, and not as corporations or as
associations taxable as corporations,
12
for federal income tax purposes throughout the period from July 11,
1997 through the date hereof, or, in the case of any Significant
Subsidiary partnerships that have terminated, through the date of
termination of such Significant Subsidiary partnerships.
(xxx) CROSS DEFAULTS. The mortgages and deeds of trust
encumbering the properties and assets described in general in the
Prospectus are not convertible and are not cross-defaulted or
cross-collateralized to any property not owned by the Operating
Partnership or any of its subsidiaries; and, except as disclosed in the
Prospectus, neither the Operating Partnership nor any of its
subsidiaries holds participating interests in such mortgages and deeds
of trust.
(b) Any certificate signed by any officer of the Company, on behalf of
the Operating Partnership, and delivered to the Representative or to counsel for
the Underwriters shall be deemed a representation and warranty by the Operating
Partnership to each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY; CLOSING.
(a) SECURITIES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions set forth herein, the
Operating Partnership agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Operating Partnership, at the price set forth in Schedule B, the
aggregate principal amount of Securities set forth in Schedule A opposite the
name of such Underwriter, plus any additional principal amount of Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of ▇▇▇▇▇ & ▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other
place as shall be agreed upon by the Representative and the Operating
Partnership, at 9:00 A.M. (New York City time) on the third business day after
the date hereof (unless postponed in accordance with the provisions of Section
10), or such other time not later than ten business days after such date as
shall be agreed upon by the Representative and the Operating Partnership (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Operating Partnership by wire transfer of
immediately available funds to a bank account designated by the Operating
Partnership, against delivery to the Representative for the respective accounts
of the Underwriters of certificates for the Securities to be purchased by them.
It is understood that each Underwriter has authorized the Representative, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. ▇.▇. ▇▇▇▇▇▇,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time, but such payment shall not relieve such Underwriter from its obligations
hereunder.
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(c) DENOMINATIONS; REGISTRATION. The Securities shall be in book-entry
form only and shall be represented by global certificates in such denominations
and registered in such names as the Representative may request in writing at
least two full business days before the Closing Time. The Securities will be
made available for examination and packaging by the Representative in The City
of New York not later than 10:00 A.M. (New York City time) on the business day
prior to the Closing Time.
SECTION 3. COVENANTS OF THE OPERATING PARTNERSHIP. The Operating
Partnership covenants with each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
During the period when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, the Operating Partnership
will notify the Representative immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement shall become
effective, or any amendment or supplement to the Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Operating Partnership will promptly effect the filings necessary pursuant to
Rule 424(b) and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. During the period when the Prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, the Operating Partnership will give the Representative notice of its
intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Representative with copies of any
such documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Operating Partnership has
furnished or will deliver to the Representative and counsel for the
Underwriters, without charge, conformed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein) and conformed copies of all
consents and certificates of experts, and will also deliver to the
Representative, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. The copies of the
14
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇.
(d) DELIVERY OF PROSPECTUSES. The Operating Partnership has delivered
to each Underwriter, without charge, as many copies of each preliminary
prospectus, if any, as such Underwriter reasonably requested, and the Operating
Partnership hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Operating Partnership will furnish to each Underwriter,
without charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Operating
Partnership will comply with the 1933 Act and the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations
so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Operating Partnership, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Operating Partnership will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Operating Partnership will
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) STATE LAW. The Operating Partnership will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other
jurisdictions, including real estate syndication laws, as the Representative may
designate and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Registration Statement
and any Rule 462(b) Registration Statement; provided, however, that the
Operating Partnership shall not be obligated to file any general consent to
service of process or to qualify as a foreign limited partnership or as a dealer
in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Securities have
been so qualified, the Operating Partnership will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b) Registration
15
Statement. The Operating Partnership will also supply the Underwriters with such
information as is necessary for the determination of the legality of the
Securities for investment under the laws of such jurisdictions as the
Underwriters may request.
(g) RULE 158. The Operating Partnership will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Operating Partnership will use the net
proceeds received by it from the sale of the Securities in the manner specified
in the Prospectus under "Use of Proceeds."
(i) REPORTING REQUIREMENTS. The Operating Partnership, during the
period when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
(j) DTC. The Operating Partnership shall use its reasonable best
efforts in cooperation with the Underwriters to permit the Securities to be
eligible for clearance and settlement through DTC.
(k) RATINGS. The Operating Partnership will use its reasonable best
efforts to enable Standard & Poor's Ratings Services ("S&P") and ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's") to provide their respective credit ratings
of the Securities.
(l) NOTIFICATION OF CERTAIN EVENTS. Prior to the Closing Time, the
Operating Partnership will notify the Representative in writing immediately if
any event occurs that renders any of the representations and warranties of the
Operating Partnership contained herein inaccurate or incomplete.
SECTION 4. PAYMENT OF FEES AND EXPENSES.
(a) EXPENSES. The Operating Partnership will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
preparation and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment and
supplement thereto, (ii) the preparation and delivery to the Underwriters of
this Agreement, any Agreement among Underwriters, the Indenture, and such other
documents as may be required in connection with the offering, purchase, sale and
delivery of the Securities, including any global securities, (iii) the
preparation, issuance and delivery of the Securities, including any global
Securities, (iv) the fees and disbursements of the Operating Partnership's
counsel, accountants, and other advisors or agents (including transfer agents
and registrars), (v) the qualification of the Securities under state securities
laws and real estate syndication laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of a blue sky memorandum
(the "Blue Sky Memorandum") and any amendment or supplement thereto, (vi) the
printing and delivery to the
16
Underwriters of copies of each preliminary prospectus and the Prospectus and any
amendments or supplements thereto, (vii) any fees charged by nationally
recognized statistical rating organizations for the rating of the Securities,
(viii) the fees and expenses of the Trustee, including the reasonable fees and
disbursements of counsel for the Trustee, in connection with the Indenture and
the Securities, (ix) all expenses and listing fees incurred in connection with
the clearance and settlement of the Securities through DTC and (x) all expenses
and listing fees incurred in connection with the application to obtain CUSIP
numbers for the Securities.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 hereof, the
Operating Partnership shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters hereunder are subject to the accuracy, as of the
date hereof and as of the Closing Time, of the representations and warranties of
the Operating Partnership contained in Section 1(a) hereof, to the performance
by the Operating Partnership of its covenants and other obligations hereunder,
and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters.
(b) (i) At the Closing Time, you shall have received the favorable
opinion, dated as of the Closing Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for
the Operating Partnership, in form and substance satisfactory to you, to the
effect set forth in Exhibit A hereto.
(ii) At the Closing Time, the Representative shall have
received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇
& Wood LLP, counsel for the Underwriters, with respect to the matters
set forth in Items (1) (as to formation, valid existence and good
standing only), (3), (4), (5), (7), (8), (9) and (15) of EXHIBIT A
hereto and a statement similar to the statement referred to in the last
paragraph of EXHIBIT A hereto.
In giving their opinions required by Section 5(b)(i) and (ii), each of
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. and ▇▇▇▇▇ & Wood LLP may rely, (A) as to all matters of
fact, upon certificates and written statements of officers and employees of and
accountants for each of the Operating Partnership or the Significant
Subsidiaries and (B) as to the qualification and good standing of each of the
Operating Partnership or the Significant Subsidiaries to do business in any
state or jurisdiction, upon certificates of appropriate government officials or
opinions of counsel in such jurisdictions, which opinions shall be in form and
substance reasonably satisfactory to counsel for the Underwriters.
17
(c) At the Closing Time, there shall not have been, since the
respective dates as of which information is given in the Prospectus, any
Material Adverse Change, and you shall have received a certificate of the Chief
Executive Officer and the chief financial or chief accounting officer of the
Company, on behalf of the Operating Partnership, dated as of the Closing Time,
evidencing compliance with the provisions of this subsection (c), stating that
(i) there has been no Material Adverse Change, (ii) the representations and
warranties set forth in Section 1(a) hereof are accurate as though expressly
made at and as of the Closing Time, and (iii) the conditions precedent set forth
in this Section 5 have been satisfied or waived and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or, to such
officer's knowledge, are contemplated by the Commission.
(d) At the time of execution of this Agreement, you shall have received
from Ernst & Young, LLP a letter dated such date, in form and substance
satisfactory to you, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(e) At the Closing Time, you shall have received from Ernst & Young LLP
a letter dated as of the Closing Time to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d)(i) of this
Section 5, except that the "specified date" referred to shall be a date not more
than three days prior to the Closing Time. Any exception will be identified in
such letter.
(f) At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Operating Partnership in connection with the
issuance of the Securities as herein contemplated shall be satisfactory in form
and substance to you and counsel for the Underwriters.
(g) At or prior to the Closing Time, the Securities shall be rated at
least Baa1 by ▇▇▇▇▇'▇ and BBB+ by S&P and the Operating Partnership shall have
delivered to the Representative evidence reasonably satisfactory to the
Representative confirming that the Securities have such ratings; and since the
date of the Agreement, there shall not have occurred a downgrading in the rating
assigned to the Securities or any of the Operating Partnership's other debt
securities or the Company's preferred shares of beneficial interest by any
"nationally recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
securities rating organization shall have publicly announced that it has under
surveillance or review any rating of the Securities or any of the Operating
Partnership's other debt securities or the Company's preferred shares of
beneficial interest.
(h) If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by you by notice to the Operating Partnership at any time at or prior to the
Closing Time, and such termination shall be
18
without liability of any party to any other party except as provided in Sections
4 and except that Sections 6, 7, 8 and 13 shall survive any such termination and
remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Operating Partnership agrees
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, and any director, officer, employee or affiliate
thereof, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Operating Partnership; and
(iii) against any and all expense whatsoever (including,
without limitation, the reasonable fees and disbursements of counsel
chosen by the Representative), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by any Underwriter through the Representative expressly for use in
the Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) INDEMNIFICATION OF THE OPERATING PARTNERSHIP. Each Underwriter,
severally and not jointly, agrees to indemnify and hold harmless the Operating
Partnership, and each
19
person, if any, who controls the Operating Partnership within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, and any trustee,
officer, employee or affiliate thereof, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section 6, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information concerning such Underwriter furnished to the
Operating Partnership through the Representative by or on behalf of such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representative, and,
in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the Operating Partnership. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(iii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
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SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Operating
Partnership, on the one hand, and the Underwriters, on the other, shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Operating
Partnership and the Underwriters, as incurred, in such proportions that the
Underwriters are responsible for that portion represented by the percentage that
the discounts and commissions appearing on the cover page of the Prospectus
bears to the price to investors appearing thereon and the Operating Partnership
is responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each trustee of the Company, and each person, if any, who controls the Operating
Partnership within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Operating
Partnership. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the principal amount of Securities
set forth opposite their respective names in Schedule A hereto and not joint.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities purchased and sold by it to purchasers exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission in the Prospectus.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company, on behalf of the
Operating Partnership, submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriters or any controlling person, or by or on behalf of the Operating
Partnership or any controlling person, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice to the
Operating Partnership, at any time at or prior to the Closing Time, (i) if there
has been, since the date of this Agreement or since the respective dates as of
which information is given in the Prospectus, any Material Adverse Change, (ii)
if there has occurred any material adverse change in the financial markets in
the United States or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial, or economic conditions, in
each case, the effect of which is such as to make it, in the Representative's
reasonable judgment, impracticable to market the
21
Securities or enforce contracts for the sale of the Securities, (iii) if trading
in any of the Company's shares of beneficial interest or the Operating
Partnership's debt securities has been suspended by the Commission or the New
York Stock Exchange, or if trading generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq Stock Market has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by either of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc.,
or any other governmental authority, or (iv) if a banking moratorium has been
declared by either federal, New York, Delaware or Maryland authorities.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except as
provided in Sections 4 and 10 hereof and provided further that Sections 4, 6, 7,
8 and 13 hereof shall survive such termination and remain in full force and
effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be purchased
hereunder, the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective purchase obligations hereunder bear to the purchase obligations of
all non-defaulting Underwriters.
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
hereunder, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or the Operating Partnership shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term "
Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Section 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard
22
form of telecommunication. Notices to the Underwriters shall be directed to the
Representative at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of Fixed
Income Syndicate Department; and notices to the Operating Partnership shall be
directed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Legal Counsel.
Section 12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Operating Partnership and their respective successors and the controlling
persons and officers and trustees referred to in Sections 6 and 7 and their
successors, heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and their
respective successors and said controlling persons and officers and directors
and their successors, heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
Section 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES OF DAY REFER
TO NEW YORK CITY TIME.
Section 14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall constitute a single instrument.
Section 15. EFFECT OF HEADINGS. The Article, Section and Sub-Section
headings herein are for convenience only and shall not affect the construction
hereof.
* * * * *
23
If the foregoing is in accordance with your understanding of our
agreement please sign and return to the Operating Partnership a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters and the Operating Partnership in
accordance with its terms.
Very truly yours,
EOP OPERATING LIMITED
PARTNERSHIP
By: Equity Office Properties Trust
Managing General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Legal Officer
Confirmed and Accepted,
as of the date first above written:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
FOR THEMSELVES AND AS THE REPRESENTATIVE OF THE
OTHER UNDERWRITERS NAMED IN SCHEDULE A HERETO
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SCHEDULE A
UNDERWRITER PRINCIPAL AMOUNT
----------- ----------------
▇.▇. ▇▇▇▇▇▇ Securities Inc......................... $137,500,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ 137,500,000
Incorporated...........................
▇▇▇▇▇▇▇, Sachs & Co................................ 62,500,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated................. 62,500,000
Banc of America Securities LLC..................... 20,000,000
Chase Securities Inc............................... 20,000,000
▇▇▇▇▇▇ Brothers Inc................................ 20,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc........................... 20,000,000
Warburg Dillon Read LLC............................ 20,000,000
Total.............................. $500,000,000
------------
Sch A-1
SCHEDULE B
EOP Operating Limited Partnership
$500,000,000 8.375% Notes due March 15, 2006
1. The initial public offering price of the Securities shall be
99.864% of the aggregate principal amount thereof, plus accrued interest, if
any, from March 21, 2000.
2. The purchase price to be paid by the Underwriters for the
Securities shall be 99.239% of the aggregate principal amount thereof.
3. The interest rate on the shall be 8.375% per annum.
4. The Securities will mature on March 15, 2006, unless redeemed
at the option of the Operating Partnership at the redemption price.
Sch B-1
SCHEDULE C
SIGNIFICANT SUBSIDIARIES
None
Sch C-1
EXHIBIT A
Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
(1) The Operating Partnership is a limited partnership formed and
validly existing and in good standing under the laws of the State of Delaware
and has the partnership power and partnership authority under the limited
partnership agreement of the Operating Partnership (the "Partnership Agreement")
and the Delaware Revised Uniform Limited Partnership Act (the "Delaware Act") to
own, lease and operate its current properties, to conduct the business in which
it is engaged or proposes to engage as described in the Prospectus and to enter
into and perform its obligations under the Underwriting Agreement and the
Indenture (collectively, the "Listed Agreements"), and the Securities. The
Operating Partnership is qualified or registered as a foreign limited
partnership and is in good standing under the laws of the States listed on
APPENDIX A hereto as of the respective dates of the certificates received from
such States. The Company is the managing general partner of the Operating
Partnership. As of March 20, 2000 there were ___ Units outstanding and the
Company held of record _______ Units, as reflected in the Partnership Agreement.
(2) All of the outstanding units of partnership interest ("Units") of
the Operating Partnership have been duly authorized for issuance by the
Operating Partnership to the holders thereof, and assuming receipt of the
capital contributions specified in the Partnership Agreement, are validly issued
and fully paid.
(3) The Securities have been duly authorized by the Operating
Partnership. The Securities, when issued and authenticated in the manner
provided for in the Indenture and delivered against payment in accordance with
the Underwriting Agreement, will be entitled to the benefits of the Indenture,
and will constitute valid and legally binding obligations of the Operating
Partnership, enforceable against the Operating Partnership in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
(including, without limitation, the effect of statutory and other law regarding
fraudulent conveyances, fraudulent transfers and preferential transfers) and as
may be limited by the exercise of judicial discretion and the application of
principles of equity, including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of whether enforcement
is considered in a proceeding at law or in equity).
(4) The Underwriting Agreement has been duly authorized, executed and
delivered by the Operating Partnership.
(5) The Indenture has been duly authorized, executed and delivered by
the Operating Partnership and (assuming due authorization,
A-1
execution and delivery thereof by the other parties thereto) constitutes a valid
and binding agreement of the Operating Partnership, enforceable against the
Operating Partnership in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights (including, without limitation, the effect of statutory and
other law regarding fraudulent conveyances, fraudulent transfers and
preferential transfers) and as may be limited by the exercise of judicial
discretion and the application of principles of equity, including, without
limitation, requirements of good faith, fair dealing, conscionability and
materiality (regardless of whether such agreement is considered in a proceeding
at law or in equity) and except that a waiver of rights under any usury law may
be unenforceable.
(6) The Merger Agreement has been duly authorized, executed and
delivered by, and is a valid and binding agreement of, each of the Company and
the Operating Partnership, enforceable against each of the Company and the
Operating Partnership in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights (including, without limitation, the effect of statutory and
other law regarding fraudulent conveyances, fraudulent transfers and
preferential transfers) and as may be limited by the exercise of judicial
discretion and the application of principles of equity, including, without
limitation, requirements of good faith, fair dealing, conscionability and
materiality (regardless of whether such agreement is considered in a proceeding
at law or in equity) and except that a waiver of rights under any usury law may
be unenforceable.
(7) The Indenture has been duly qualified under the ▇▇▇▇ ▇▇▇.
(8) The Securities and the Indenture conform in all material respects
to the descriptions thereof contained in the Prospectus.
(9) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(10) The execution, delivery and performance as of the date hereof by
the Operating Partnership of the Listed Agreements and the issuance and sale of
the Securities do not (i) violate the Delaware Act or the Partnership Agreement,
(ii) to such counsel's knowledge, violate any applicable law, rule, regulation,
order, judgment or decree of any Delaware agency or court, or (iii) breach or
constitute a default under any agreement or contract listed on APPENDIX B
hereto.
A-2
(11) The Registration Statement, including any Rule 462(b) Registration
Statement, and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement and
Prospectus, excluding the documents incorporated by reference therein, as of
their respective effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom, and the
Trustee's Statement of Eligibility on Form T-1 (the "Form T-1"), as to which
such counsel need express no opinion), complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(12) The documents incorporated by reference in the Registration
Statement and the Prospectus (other than the financial statements and supporting
schedules included therein or omitted therefrom, as to which such counsel need
express no opinion), when they became effective or were filed with the
Commission , as the case may be, complied as to form in all material respects
with the requirements of the 1933 Act or the 1934 Act, as applicable, and the
rules and regulations of the Commission thereunder.
(13) Neither the Operating Partnership nor any Significant Subsidiary
is or after giving effect to the issuance of the Securities and the application
of the net proceeds therefrom as described in the Prospectus will be, as of the
date hereof, an "investment company" within the meaning of the 1940 Act.
(14) No consent, approval, authorization or order of, or filing or
registration with, the Commission or any Delaware court or governmental agency
or body is required to be obtained or made by the Operating Partnership for the
issuance of the Securities or the performance as of the date hereof of the
obligations contained in the Securities and the Listed Agreements by the
Operating Partnership.
(15) The information in the Prospectus under the captions "Description
of Notes," "Description of Debt Securities" and "Plan of Distribution" to the
extent that such information constitutes matters of law or legal conclusions,
has been reviewed by us and is correct in all material respects
(16) The Operating Partnership is classified as a partnership, and is
not taxed as a corporation or association taxable as a corporation, for Federal
income tax purposes throughout the period from July 7, 1997 through the date
hereof.
The opinions as to enforceability expressed in Paragraphs (3) and (5)
above shall be understood to mean only that if there is a default in performance
of an obligation, (i) if a failure to pay or other damage can be shown and (ii)
if the defaulting party can be brought into a court which will hear the case and
apply the governing law, then, subject to the availability of defenses, and to
A-3
the exceptions set forth in Paragraphs (3), (5) and (6) above, the court will
provide a money damage (or perhaps injunctive or specific performance) remedy.
In giving its opinion required by Section 5(b)(i), such counsel shall
additionally state that no facts have come to their attention which cause such
counsel to believe that (i) the Registration Statement or any amendment thereto
(except for the Form T-1, as to which such counsel need make no statement), at
the time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(except for the Form T-1, as to which such counsel need make no statement), at
the time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (ii) there are any
legal or governmental proceedings pending or threatened against the Operating
Partnership that are required to be disclosed in the Prospectus, other than
those disclosed therein, or (iii) there are any contracts or documents of a
character required to be described in the Prospectus that are not described or
referred to therein; provided that in making the foregoing statements (which
shall not constitute an opinion), such counsel need not express any views as to
the financial statements and supporting schedules and other financial
information and data included in or omitted from the Prospectus. In making the
foregoing statement, such counsel may state that such statement is based upon
such counsel's participation in conferences with officers and other
representatives of the Operating Partnership, representatives of the independent
public accountants for the Operating Partnership and with you and your
representatives during the course of the preparation of the Registration
Statement and the Prospectus.
A-4
APPENDIX A
States Requiring Registration by or
Qualification of the Operating Partnership
as a Foreign Limited Partnership
A-1
APPENDIX B
Material Agreements and Contracts
of the Operating Partnership
B-1