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EXHIBIT 1.1
EOP OPERATING LIMITED PARTNERSHIP
(a Delaware limited partnership)
$1,000,000,000
$200,000,000 6.375% Notes due 2002
$300,000,000 6.5% Notes due 2004
$500,000,000 6.8% Notes due 2009
UNDERWRITING AGREEMENT
January 21, 1999
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
on behalf of the Underwriters listed on Schedule A hereof
c/x XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
World Financial Center
North Tower
New York, New York 10281-1209
Dear Ladies and Gentlemen:
EOP Operating Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), confirms its agreement with Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") 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 Xxxxxxx Xxxxx is acting as
representative (in such capacity, the "Representative"), with respect to the
sale by the Operating Partnership and the purchase by the Underwriters, acting
severally and not jointly, of $200,000,000 aggregate principal amount of 6.375%
Notes due 2002 (the "2002 Notes"), $300,000,000 aggregate principal amount of
6.5% Notes due 2004 (the "2004 Notes") and $500,000,000 aggregate principal
amount of 6.8% Notes due 2009 (the "2009 Notes" and, together with the 2002
Notes and the 2004 Notes, 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
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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
("XXXXX").
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
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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.
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
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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
XXXXX, 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 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. Each of Ernst & Young LLP and
PricewaterhouseCoopers LLP, the accounting firms that certified the
financial statements and supporting schedules included in the
Registration Statement, is an independent public accountant as
required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the respective entity or entities presented therein at the respective
dates indicated and the results of their operations for the respective
periods specified, and except as otherwise stated therein, said
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis.
The supporting schedules included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The financial information and data included in the
Prospectus present fairly the information included therein and have
been prepared on a basis consistent with that of the books and records
of the respective entities presented therein. The Statements of
Revenues and Certain Operating Expenses included in the Prospectus for
certain of the Properties (as defined below) present fairly the
information included therein and have been prepared on a basis
consistent with that of the books and records of the respective
entities presented therein. Pro forma financial information included
in the Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of Rules 11-01 and 11-02
of Regulation S-X under the 1933 Act, and the necessary pro forma
adjustments have been properly applied to the historical amounts in
the compilation of such information, and, in the opinion of the
Operating Partnership,
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the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(v) No Material Adverse Change. Since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or
in the earnings, assets, or business affairs of the Operating
Partnership and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material Adverse
Change"), (B) no casualty loss or condemnation or other adverse event
with respect to any Property has occurred that would result in a
Material Adverse Effect (as defined below), (C) there have been no
transactions or acquisitions entered into by the Operating Partnership
or any of its subsidiaries, other than those arising in the ordinary
course of business, which are material with respect to the Operating
Partnership and its subsidiaries considered as one enterprise, (D)
except as described in the Registration Statement and the Prospectus
and except for regular quarterly distributions on the partnership
interests of the Operating Partnership, there has been no distribution
of any kind declared, paid or made by the Operating Partnership with
respect to its partnership interests, and (E) there has been no
material change in the partnership interests of the Operating
Partnership, or any material increase in the indebtedness of the
Operating Partnership.
(vi) Good Standing of the Operating Partnership. The Operating
Partnership has been duly formed and is validly existing as a limited
partnership in good standing under the Delaware Revised Uniform
Limited Partnership Act (the "Delaware Act") with partnership power
and authority to own, lease and operate any real property or
improvements thereon owned or leased by the Operating Partnership or
its subsidiaries (each individually, a "Property" and collectively,
the "Properties"), to conduct the business in which it is engaged or
proposes to engage as described in the Registration Statement and the
Prospectus and to enter into and perform its obligations under or
contemplated under this Agreement. The Operating Partnership is duly
qualified or registered as a foreign partnership and is in good
standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify, register or be in good standing would not
result in a material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or business
prospects of the Operating Partnership and the its subsidiaries
considered as one enterprise (a "Material Adverse Effect").
(vii) Good Standing of the Subsidiaries. Each of the
subsidiaries of the Operating Partnership listed on Schedule C to this
Agreement (collectively, the "Significant Subsidiaries"), if any, has
been duly organized and is validly
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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 and sold in
compliance with all applicable laws (including, without limitation,
federal and state securities laws).
(ix) Authorization of the Indenture. The Indenture has been
duly authorized, executed and delivered by the Operating Partnership,
and assuming due authorization, execution and delivery by the Trustee,
constitutes a valid and binding obligation of the Operating
Partnership, enforceable against the Operating Partnership in
accordance with its terms, except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(x) Authorization of the Securities. The Securities have been
duly authorized by the Operating Partnership and, at the Closing Time,
will have been duly executed by the Operating Partnership and, when
authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor
as provided in this Agreement, will constitute valid and binding
obligations of the Operating Partnership, enforceable against the
Operating Partnership in accordance with their terms, except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability, and the Securities will be in the form contemplated by,
and entitled to the benefits of, the Indenture.
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(xi) Description of the Securities and the Indenture. The
Securities and the Indenture will conform in all material respects to
the respective statements relating thereto contained in the Prospectus
and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(xii) Absence of Defaults. Neither the Operating Partnership
nor any Significant Subsidiary is in violation of its declaration of
trust, charter, by-laws, limited liability company agreement,
certificate of limited partnership or partnership agreement, as the
case may be, and neither the Operating Partnership nor any Significant
Subsidiary is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which such entity is a party or by which such entity may
be bound, or to which any of the property or assets of such entity is
subject, except where a default thereunder would not result in a
Material Adverse Effect.
(xiii) Absence of Conflicts. The execution and delivery of
this Agreement and the Indenture, the performance of the obligations
set forth herein or therein, and the consummation of the transactions
contemplated hereby or thereby or in the Prospectus (including the
issuance and sale of the Securities by the Operating Partnership) will
not result in the creation of any lien, charge or encumbrance upon the
Properties or conflict with or constitute a breach or violation by the
Operating Partnership or any of its subsidiaries, or default under,
(A) any material contract, indenture, mortgage, loan agreement, note,
lease, joint venture or partnership agreement or other instrument or
agreement to which such entity is a party or by which they, any of
them, any of their respective assets or any Property may be bound or
subject, (B) the declaration of trust, the charter, by-laws,
certificate of limited partnership, partnership agreement, or limited
liability company agreement, as the case may be, of such entity or (C)
any applicable law, rule, order, administrative regulation or
administrative or court decree, except in the cases of clauses (A) and
(C) for such liens, charges, encumbrances, conflicts, breaches,
violations or defaults as would not result in a Material Adverse
Effect.
(xiv) Authorization of Agreement. The Operating Partnership
has the requisite power and authority under its organizational
documents to enter into this Agreement, and this Agreement has been
duly authorized, executed and delivered by the Operating Partnership.
(xv) Absence of Proceedings. There is no action, suit or
proceeding before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Operating Partnership, threatened against or affecting the Operating
Partnership, the Company, any Significant Subsidiary, any Property or
any officer or trustee of the
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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.
(xvi) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xvii) Investment Company Act. Neither the Operating
Partnership nor any Significant Subsidiary is, or at the Closing Time
will be, required to be registered under the Investment Company Act of
1940, as amended (the "1940 Act").
(xviii) Possession of Intellectual Property. The Operating
Partnership and its subsidiaries own or possess, or can acquire on
reasonable terms, the trademarks, service marks, trade names, or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, and no such
entity has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances
which would render any Intellectual Property invalid or inadequate to
protect the interest of such entities therein, and which infringement
or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(xix) Absence of Further Requirements. All authorizations,
approvals and consents of any court or governmental authority or
agency that are necessary in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the other
transactions contemplated by this Agreement or the Indenture have been
obtained, except such as have been already obtained or as may be
required under the securities, blue sky or real estate syndication
laws of various states in connection with such offer, issuance and
sale.
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(xx) Possession of Licenses and Permits. The Operating
Partnership and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, or
local regulatory agencies or bodies necessary to conduct the business
now conducted by them, or proposed to be conducted by them, as
described in the Prospectus, except where the failure to possess any
such Governmental License would not have a Material Adverse Effect.
The Operating Partnership and its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the aggregate,
result in a Material Adverse Effect. All of the Governmental Licenses
are valid and in full force and effect, except where the invalidity of
such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not result in a Material
Adverse Effect. Neither the Operating Partnership nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xxi) Absence of Labor Dispute. No labor dispute with the
employees of the Operating Partnership or any of its subsidiary exists
or, to the knowledge of the Operating Partnership, is imminent, which
may reasonably be expected to result in a Material Adverse Effect.
(xxii) Title to Property. (A) With respect to the Properties
in which the Operating Partnership owns, directly or indirectly, all
of the ownership interest therein, the Operating Partnership or its
subsidiaries have good and marketable fee simple title to the land
underlying such Properties (or, to the extent described in the
Prospectus, a valid leasehold estate in such land) and (except for the
Property known as "500 Orange") good and marketable title to the
improvements thereon and all other assets that are required for the
effective operation of such Properties in the manner in which they
currently are operated, subject, however, to existing mortgages on
such Properties, to utility easements serving such Properties, to
liens of ad valorem taxes not due and payable as of the Closing Time
(or which are being contested pursuant to applicable law), to zoning
and similar governmental land use matters affecting such Properties
that are consistent with the current uses of such Properties, to
matters of title not adversely affecting marketability of title to
such Properties, other statutory liens not due and payable as of the
Closing Time, title matters that may be material in character, amount
or extent but which do not materially detract from the value, or
interfere with the use, of the Properties or otherwise materially
impair the business operations being conducted or proposed to be
conducted thereon, tenant leases, service marks and trade names used
in connection with such Properties, ground leases and ownership by
others of certain items of equipment and other items of personal
property that are not material to the conduct of business operations
at such Properties; (B) with respect to the Properties in which the
Operating
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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 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.
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(xxiii) Environmental Laws. Except as disclosed in the
Prospectus or as would not have a Material Adverse Effect: (A) each
Property, including, without limitation, the Environment (as defined
below) associated with such Property, is free of any Hazardous
Substance (as defined below) in violation of any Environmental Law (as
defined below) applicable to such Property, except for Hazardous
Substances that would not result in a Material Adverse Effect; (B)
neither the Operating Partnership nor any of its subsidiaries has
during the period of its ownership caused or suffered to occur any
Release (as defined below) of any Hazardous Substance into the
Environment on, in, under or from any Property in violation of any
Environmental Law applicable to such Property, and no condition exists
on, in, under or, to the knowledge of the Operating Partnership or any
of its subsidiaries adjacent to, any Property that could result in the
incurrence of material liabilities or any material violations of any
Environmental Law applicable to such Property, or give rise to the
imposition of any Lien (as defined below) under any Environmental Law;
(C) neither the Operating Partnership nor any of its subsidiaries is
engaged in or intends to engage in any manufacturing at the Properties
that (1) requires the use, handling, transportation, storage,
treatment or disposal of any Hazardous Substance (other than cleaning
solvents and similar materials and other than insecticides and
herbicides that are used in the ordinary course of operating the
Properties and in compliance with all applicable Environmental Laws)
or (2) requires permits or is otherwise regulated pursuant to any
Environmental Law; (D) neither the Operating Partnership nor any of
its subsidiaries has received any notice of a claim under or pursuant
to any Environmental Law applicable to a Property or under common law
pertaining to Hazardous Substances on or originating from any
Property; (E) neither the Operating Partnership nor any of its
subsidiaries has received any notice from any Governmental Authority
(as defined below) claiming any violation of any Environmental Law
that is uncured or unremediated as of the date hereof; and (F) no
Property is included or, to the knowledge of the Operating Partnership
nor any of its subsidiaries, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as defined below) by the
United States Environmental Protection Agency (the "EPA") or on the
Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA, and has not
otherwise been identified by the EPA as a potential CERCLA removal,
remedial or response site or included or, to the knowledge of the
Operating Partnership, proposed for inclusion on, any similar list of
potentially contaminated sites pursuant to any other applicable
Environmental Law nor has the Operating Partnership nor any of its
subsidiaries received any written notice from the EPA or any other
Governmental Authority proposing the inclusion of any Property on such
list; and (G) there are no underground storage tanks located on or in
any Property which have not been disclosed to the Representative.
As used herein, the term "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste, toxic or
dangerous
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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.
(xxiv) Tax Compliance. Each of the Operating Partnership and
its subsidiaries has filed all federal, state, and local income tax
returns which have been required to be filed and has paid all taxes
required to be paid and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and
payable, except, in all cases, for any such tax, assessment, fine or
penalty that is being contested in good faith, and except in any case
in which the failure to so file or pay would not have a Material
Adverse Effect.
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(xxv) No Price Manipulation. Neither the Operating Partnership
nor any of its Significant Subsidiaries, nor any of their directors,
officers or controlling persons, has taken or will take, directly or
indirectly, any action designed to cause or result under the 1934 Act,
or otherwise in, or which has constituted or which reasonably might be
expected to constitute, the unlawful stabilization or manipulation of
the price of any security of the Operating Partnership to facilitate
the sale or resale of the Securities.
(xxvi) Plan Assets. The assets of the Operating Partnership
and its subsidiaries do not constitute "plan assets" under the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereof.
(xxvii) Regulations G, T, U and X. None of the transactions
contemplated by this Agreement (including, without limitation, the use
of the proceeds from the sale of the Securities) will violate or
result in a violation of Section 7 of the 1934 Act, or any regulation
promulgated thereunder, including, without limitation, Regulations G,
T, U and X of the Board of Governors of the Federal Reserve System.
(xxviii)Partnership Classification. The Operating Partnership
and each of the Significant Subsidiaries that are partnerships are
properly classified as partnerships, and not as corporations or as
associations taxable as corporations, for federal income tax purposes
throughout the period from July 11, 1997 through the date hereof, or,
in the case of any Significant Subsidiary partnerships that have
terminated, through the date of termination of such Significant
Subsidiary partnerships.
(xxix) Cross Defaults. The mortgages and deeds of trust
encumbering the properties and assets described in general in the
Prospectus are not convertible and are not cross-defaulted or
cross-collateralized to any property not owned by the Operating
Partnership or any of its subsidiaries; and, except as disclosed in
the Prospectus, neither the Operating Partnership nor any of its
subsidiaries holds participating interests in such mortgages and deeds
of trust.
(b) Any certificate signed by any officer of the Company, on behalf of
the Operating Partnership, and delivered to the Representative or to counsel for
the Underwriters shall be deemed a representation and warranty by the Operating
Partnership to each Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions set forth herein, the
Operating Partnership agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and
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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 Brown & Wood
LLP, One World Trade Center, New York, New York 10048-0557, 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. Xxxxxxx
Xxxxx, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(c) Denominations; Registration. The Securities shall be in book-entry
form only and shall be represented by global certificates in such denominations
and registered in such names as the Representative may request in writing at
least two full business days before the Closing Time. The Securities will be
made available for examination and packaging by the Representative in The City
of New York not later than 10:00 A.M. (New York City time) on the business day
prior to the Closing Time.
Section 3. Covenants of the Operating Partnership. The Operating
Partnership covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
During the period when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, the Operating Partnership
will notify the Representative immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement shall become
effective, or any amendment or supplement to the Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of
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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 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 XXXXX.
(d) Delivery of Prospectuses. The Operating Partnership has delivered
to each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Operating
Partnership hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Operating Partnership will furnish to each Underwriter,
without charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, 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
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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
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.
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(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 Xxxxx'x
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 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
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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 Xxxxx & Xxxxxxx 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 Xxxxx & Wood LLP,
counsel for the Underwriters, with respect to the matters set forth in Items (1)
(as to formation, valid existence and good standing only), (3),(4),(5),(6),(7),
(8) and (14) of Exhibit A hereto and a statement similar to the statement
referred to in the last paragraph of Exhibit A hereto.
In giving their opinions required by Section 5(b)(i) and (ii), each of Xxxxx &
Xxxxxxx L.L.P. and Brown & 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.
(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) (i) At the time of execution of this Agreement, you shall have
received from Ernst & Xxxxx, LLP a letter dated such date, in form and substance
satisfactory to you, containing statements and information of the type
ordinarily
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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.
(ii) At the time of execution of this Agreement, you shall have
received from PricewaterhouseCoopers LLP a letter dated such date, in form and
substance satisfactory to you.
(e) (i) At the Closing Time, you shall have received from Xxxxx &
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.
(ii) At the Closing Time, you shall have received from
PricewaterhouseCoopers 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)(ii) of this Section 5.
(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 Moody's 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 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.
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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 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,
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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
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such as to make it, in the Representative's reasonable judgment, impracticable
to market the Securities or enforce contracts for the sale of the Securities,
(iii) if trading in any of the Company's shares of beneficial interest or the
Operating Partnership's debt securities has been suspended by the Commission or
the New York Stock Exchange, or if trading generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq Stock Market has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by such
system or by order of the Commission, the National Association of Securities
Dealers, Inc., or any other governmental authority, or (iv) if a banking
moratorium has been declared by either federal, New York, Delaware or Maryland
authorities.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except as
provided in Sections 4 and 10 hereof and provided further that Sections 4, 6, 7,
8 and 13 hereof shall survive such termination and remain in full force and
effect.
Section 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be purchased
hereunder, the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective purchase obligations hereunder bear to the purchase obligations of
all non-defaulting Underwriters.
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
hereunder, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
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.
23
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Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at World Financial Center,
North Tower, New York, New York 10281-1305, attention of Xxxxxxx Xxxxxx,
Managing Director; and notices to the Operating Partnership shall be directed to
it at Two North Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, attention of
Xxxxxxx X. Xxxxxxx, 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.
* * * * *
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If the foregoing is in accordance with your understanding of our
agreement please sign and return to the Operating Partnership a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters and the Operating Partnership in
accordance with its terms.
Very truly yours,
EOP OPERATING LIMITED
PARTNERSHIP
By: Equity Office Properties Trust
Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Confirmed and Accepted,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
For themselves and as the Representative of the
other Underwriters named in Schedule A hereto
By: /s/ Xxxx Xxxxxx
---------------------------
Authorized Signatory
25
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SCHEDULE A
Underwriter Aggregate Aggregate Aggregate
Principal Principal Principal
Amount of Amount of Amount of
2002 Notes 2004 Notes 2002 Notes
------------ ------------ ------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx $104,000,000 $156,000,000 $260,000,000
Incorporated.......................
Chase Securities Inc....................... 16,000,000 24,000,000 40,000,000
Xxxxxxx, Xxxxx & Co........................ 16,000,000 24,000,000 40,000,000
X.X. Xxxxxx Securities Inc. ............... 16,000,000 24,000,000 40,000,000
Xxxxxx Xxxxxxx & Co., Incorporated......... 16,000,000 24,000,000 40,000,000
NationsBanc Xxxxxxxxxx Securities LLC...... 16,000,000 24,000,000 40,000,000
Xxxxxxx Xxxxx Xxxxxx Inc................... 16,000,000 24,000,000 40,000,000
------------ ------------ ------------
Total.............................. $200,000,000 $300,000,000 $500,000,000
============ ============ ============
Sch A-1
27
SCHEDULE B
EOP Operating Limited Partnership
$1,000,000,000
$200,000,000 6.375% Notes due 2002
$300,000,000 6.5% Notes due 2004
$500,000,000 6.8% Notes due 2009
1. The initial public offering price of the 2002 Notes, the 2004 Notes
and the 2009 Notes shall be 99.862%, 99.727% and 99.554%, respectively, of the
aggregate principal amount thereof, plus accrued interest, if any, from January
26, 1999.
2. The purchase price to be paid by the Underwriters for the 2002
Notes, the 2004 Notes and the 2009 Notes shall be 99.412%, 99.127% and 98.904%,
respectively, of the aggregate principal amounts thereof.
3. The interest rate on the 2002 Notes, the 2004 Notes and the 2009
Notes shall be 6.375%, 6.5% and 6.8%, respectively, per annum.
4. The 2002 Notes will mature on January 15, 2002, the 2004 Notes will
mature on January 15, 2004 and the 2009 Notes will mature on January 15, 2009,
unless, in each case, redeemed at the option of the Operating Partnership at the
redemption price.
Sch B-1
28
SCHEDULE C
Significant Subsidiaries
None
Sch C-1
29
EXHIBIT A
Opinion of Xxxxx & Xxxxxxx 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 January ___, 1999 there were ___ Units outstanding and the
Company held of record _______ Units, as reflected in the Partnership
Agreement.
(2) All of the outstanding units of partnership interest
("Units") of the Operating Partnership have been duly authorized for
issuance by the Operating Partnership to the holders thereof, and
assuming receipt of the capital contributions specified in the
Partnership Agreement, are validly issued and fully paid.
(3) The Securities have been duly authorized by the
Operating Partnership. The Securities, when issued and authenticated
in the manner provided for in the Indenture and delivered against
payment in accordance with the Underwriting Agreement, will be
entitled to the benefits of the Indenture, and will constitute valid
and legally binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors' rights (including, without limitation, the effect of
statutory and other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers) and as may be limited by the
exercise of judicial discretion and the application of principles of
equity, including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of whether
enforcement is considered in a proceeding at law or in equity).
(4) The Underwriting Agreement has been duly authorized,
executed and delivered by the Operating Partnership.
A-1
30
(5) The Indenture has been duly authorized, executed and
delivered by the Operating Partnership and (assuming due
authorization, execution and delivery thereof by the other parties
thereto) constitutes a valid and binding agreement of the Operating
Partnership, enforceable against the Operating Partnership in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors' rights (including, without limitation, the effect of
statutory and other law regarding fraudulent conveyances, fraudulent
transfers and preferential transfers) and as may be limited by the
exercise of judicial discretion and the application of principles of
equity, including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of whether
such agreement is considered in a proceeding at law or in equity) and
except that a waiver of rights under any usury law may be
unenforceable.
(6) The Indenture has been duly qualified under the 1939
Act.
(7) The Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Prospectus.
(8) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933
Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule
424(b); and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending or
threatened by the Commission.
(9) The execution, delivery and performance as of the date
hereof by the Operating Partnership of the Listed Agreements and the
issuance and sale of the Securities do not (i) violate the Delaware
Act or the Partnership Agreement, (ii) to such counsel's knowledge,
violate any applicable law, rule, regulation, order, judgment or
decree of any Delaware agency or court, or (iii) breach or constitute
a default under any agreement or contract listed on Appendix B hereto.
(10) The Registration Statement, including any Rule 462(b)
Registration Statement, and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting
schedules included
A-2
31
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.
(11) The documents incorporated by reference in the
Registration Statement and the Prospectus (other than the financial
statements and supporting schedules included therein or omitted
therefrom, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission , as the case
may be, complied as to form in all material respects with the
requirements of the 1933 Act or the 1934 Act, as applicable, and the
rules and regulations of the Commission thereunder.
(12) Neither the Operating Partnership nor any Significant
Subsidiary is or after giving effect to the issuance of the Securities
and the application of the net proceeds therefrom as described in the
Prospectus will be, as of the date hereof, an "investment company"
within the meaning of the 1940 Act.
(13) No consent, approval, authorization or order of, or
filing or registration with, the Commission or any Delaware court or
governmental agency or body is required to be obtained or made by the
Operating Partnership for the issuance of the Securities or the
performance as of the date hereof of the obligations contained in the
Securities and the Listed Agreements by the Operating Partnership.
(14) The information in the Prospectus under the captions
"Description of Notes," "Description of Debt Securities" and "Plan of
Distribution" to the extent that such information constitutes matters
of law or legal conclusions, has been reviewed by us and is correct in
all material respects
(15) The Operating Partnership is classified as a
partnership, and is not taxed as a corporation or association taxable
as a corporation, for Federal income tax purposes throughout the
period from July 7, 1997 through the date hereof.
The opinions as to enforceability expressed in Paragraphs
(3) and (5) above shall be understood to mean only that if there is a
default in performance of an obligation, (i) if a failure to pay or
other damage can be shown and (ii) if the defaulting party can be
brought into a court which will hear the case and apply the governing
law, then, subject to the availability of defenses, and to the
exceptions set forth in Paragraphs (3) and (5) above, the court will
provide a money damage (or perhaps injunctive or specific performance)
remedy.
A-3
32
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
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Appendix A
States Requiring Registration by or
Qualification of the Operating Partnership
as a Foreign Limited Partnership
A-1
34
Appendix B
Material Agreements and Contracts
of the Operating Partnership
B-1
