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EXHIBIT 1.1
1,303,965 SHARES
ARDEN REALTY, INC.
(A MARYLAND CORPORATION)
COMMON STOCK, $.01 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
February 18 1998
X.X. XXXXXXX & SONS, INC.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Dear Sirs:
Arden Realty, Inc., a Maryland corporation (the "Company"), proposes to
sell 1,303,965 shares (the "Stock") of the Company's Common Stock (the "Common
Stock") par value $.01 per share to X.X. Xxxxxxx, Inc. (the "Underwriter"). This
is to confirm the agreement between the Company, Arden Realty, Limited
Partnership, a Maryland limited partnership (the "Operating Partnership"), and
the Underwriter concerning the purchase of the Stock from the Company by the
Underwriter.
1. Representations, Warranties and Agreements of the Company
and the Operating Partnership. The Company and the Operating Partnership,
jointly and severally, represent, warrant and agree as follows:
(a) A registration statement on Form S-3 (File No.
333-44141) and Amendment No. 1 thereto, with respect to the
Stock has (i) been prepared by the Company in conformity with
the requirements of the United States Securities Act of 1933,
as amended (the "Securities Act"), and the rules and
regulations (the "Rules and Regulations") of the United States
Securities Commission (the "Commission") thereunder, (ii) been
filed with the Commission under the Securities Act and (iii)
become effective under the Securities Act. Copies of such
registration statement and each amendment thereto have been
delivered by the Company to you. As used in this Agreement,
"Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective
Time; "Registration Statement" means such registration
statement, as amended at the Effective Time, including any
documents incorporated by reference therein at such time and
all information contained in the final prospectus filed with
the Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 7(a) hereof and deemed
to be a part of the registration statement as of the Effective
Time pursuant
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to paragraph (b) of Rule 430A of the Rules and Regulations;
and "Prospectus" shall mean such final prospectus, as first
filed with the Commission pursuant to paragraph (1) or (4) of
Rule 424(b) of the Rules and Regulations. Reference made
herein to the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as
of the date of the Prospectus, as the case may be, and any
reference to any amendment or supplement to the Prospectus
shall be deemed to refer to and include any document filed
under the United States Securities Exchange Act of 1934 (the
"Exchange Act") after the date of the Prospectus, as the case
may be, and incorporated by reference in the Prospectus, and
any reference to any amendment to the Registration Statement
shall be deemed to include any annual report of the Company
filed with the Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act after the Effective Time that is
incorporated by reference in the Registration Statement. Any
registration statement (including any amendment or supplement
thereto or information which is deemed part thereof) filed by
the Company to register additional shares of Common Stock of
the Company under rule 462(b) of the Rules and Regulations
("Rule 462(b) Registration Statement") shall be deemed a part
of the Registration Statement. Any prospectus (including any
amendment or supplement thereto or information which is deemed
to be a part thereof) included in a Rule 462(b) Registration
Statement and any term sheet as contemplated by Rule 434 of
the Rules and Regulations (a "Term Sheet") shall be deemed to
be part of the Prospectus. The Commission has not issued any
order preventing or suspending the use of any Preliminary
Prospectus.
(b) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they
become effective or are filed with the Commission, as the case
may be, conform in all material respects to the requirements
of the Securities Act and the Rules and Regulations and do not
and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and as of the
applicable filing date (as to the Prospectus and any amendment
or supplement thereto) 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, in
light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is
made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and
in conformity with written information furnished to the
Company by or on behalf of the Underwriter concerning the
Underwriter specifically for inclusion therein.
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission
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thereunder, and none of such documents 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; and any further documents
so filed and incorporated by reference in the Prospectus, when
such documents become effective or are filed with the
Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder 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.
(d) The Company is a corporation duly incorporated
and existing under and by virtue of the laws of the State of
Maryland and is in good standing with the State Department of
Assessments and Taxation of Maryland (the "SDAT") with
corporate power to own, lease and operate its properties, to
conduct the business in which it is engaged or proposes to
engage as described in the Prospectus and to enter into and
perform its obligations under this Agreement to which it is a
party. The Company is duly qualified or registered as a
foreign corporation and is in good standing in California and
is in good standing in each other jurisdiction in which such
qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or be
registered or to be in good standing in such other
jurisdiction would not result in a material adverse effect on
the consolidated financial position, results of operations,
business or prospects of the Company, the Operating
Partnership and their subsidiaries taken as a whole (a
"Material Adverse Effect").
(e) The Operating Partnership is a limited
partnership duly formed and existing under and by virtue of
the laws of the State of Maryland and is in good standing with
the SDAT with partnership power to own, lease and operate its
properties, to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus and to enter
into and perform its obligations under this Agreement. The
Operating Partnership is duly qualified or registered as a
foreign partnership and is in good standing in California and
is in good standing in each other jurisdiction in which such
qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or be
registered or to be in good standing in such other
jurisdiction would not result in a Material Adverse Effect.
The Company is the sole general partner of the Operating
Partnership and, immediately after the Delivery Date will be
the sole general partner of the Operating Partnership and will
own approximately _______% of all outstanding partnership
interests in the Operating Partnership.
(f) Each of the subsidiaries (as defined in Section
14) of the Company and/or the Operating Partnership has been
duly organized and is a validly existing corporation or
limited partnership, as the case may be, in good standing in
California and is in good standing in each other jurisdiction
in which qualification
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or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure so to qualify or be registered or to
be in good standing in such other jurisdiction would not
result in a Material Adverse Effect; each subsidiary has all
power and authority necessary to own or hold its respective
properties and to conduct the businesses in which it is
engaged; and none of the subsidiaries (other than the
Operating Partnership and Arden Realty Finance, L.P.) is a
"significant subsidiary," as such term is defined in Rule 405
of the Rules and Regulations.
(g) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform in all
material respects to the description thereof contained in the
Prospectus; all of the issued partnership interests of the
Operating Partnership (the "Partnership Interests") have been
duly and validly authorized and issued and are fully paid and,
with respect to the Partnership Interests owned by the Company
are owned directly by the Company, free and clear of all
liens, encumbrances, equities or claims; and all of the issued
shares of capital stock or partnership interests, as the case
may be, of each subsidiary of the Company or the Operating
Partnership have been duly and validly authorized and issued
and are fully paid and non-assessable (solely with respect to
corporate subsidiaries) and are owned directly or indirectly
by the Company or the Operating Partnership, free and clear of
all liens, encumbrances equities or claims.
(h) The shares of the Stock to be issued and sold by
the Company to the Underwriter hereunder have been duly and
validly authorized and, when issued and delivered against
payment therefor as provided herein will be duly and validly
issued, fully paid and non-assessable; and the Stock will
conform in all material respects to the description thereof
contained in the Prospectus.
(i) The limited Partnership Interests in the
Operating Partnership (the "Units") to be issued to the
Company have been duly authorized for issuance by the
Operating Partnership and at the Delivery Date will be validly
issued and fully paid. Immediately after the Delivery Date,
_________ Units will be issued and outstanding. All
outstanding Units have been offered and sold in compliance
with all applicable laws (including, without limitation,
federal and state securities laws).
(j) None of the Company, the Operating Partnership or
any of their subsidiaries is in violation of its charter,
by-laws, certificate of limited partnership, articles of
organization, operating agreement or partnership agreement, as
the case may be, and none of the Company, the Operating
Partnership or any of their subsidiaries 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
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any of the property or assets of such entity is subject,
except for such defaults that would not have a Material
Adverse Effect.
(k) This Agreement has been duly authorized, executed
and delivered by the Company and the Operating Partnership.
(l) The execution, delivery and performance of this
Agreement by the Company and the Operating Partnership and the
consummation of the transactions contemplated hereby will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company, the Operating
Partnership or any of their subsidiaries is a party or by
which the Company, the Operating Partnership or any of their
subsidiaries is bound or to which any of the property or
assets of the Company, the Operating Partnership or any of
their subsidiaries is subject (except for such conflicts,
breaches, violations or defaults that, individually or in the
aggregate, would not have a Material Adverse Effect); nor will
such actions result in any violation of the provisions of the
charter, by-laws or partnership agreement of the Company, the
Operating Partnership or any of their subsidiaries or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Company, the Operating Partnership or any of their
subsidiaries or any of the properties, assets or businesses
owned by them; and except for (a) the registration of the
Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state and
foreign securities laws in connection with the purchase and
distribution of the Stock by the Underwriter, (b) consents,
approvals, authorizations, orders, filings or registrations
that will be completed on or prior to the Delivery Date and
(c) such consents, approvals, authorizations, orders, filings
or registrations, the absence of which, individually or in the
aggregate would not have a Material Adverse Effect, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or
body or any other person is required for the execution,
delivery and performance of this Agreement by the Company and
the Operating Partnership and the consummation of the
transactions contemplated hereby.
(m) Except as disclosed in the Prospectus, there are
no contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Securities Act.
(n) Except as set forth in the Prospectus, there are
no preemptive or other rights to subscribe for or to purchase,
nor any restriction upon the voting or transfer of, any
unissued shares of the Stock to be issued and sold by the
Company
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to the Underwriter hereunder pursuant to the Company's charter
or by-laws or any agreement or other instrument.
(o) Except as described in the Prospectus, the
Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under,
or Regulations D or S of, the Securities Act, other than
shares issued pursuant to employee benefit plans, qualified
stock option plans or other employee compensation plans or
pursuant to outstanding options, warrants or rights.
(p) Since the date of the latest audited financial
statements included in the Prospectus and except as disclosed
in the Prospectus, (i) there has been no material adverse
change in the financial condition, results of operations or
business of the Company, the Operating Partnership or any of
their subsidiaries, whether or not arising in the ordinary
course of business, (ii) no material casualty loss or material
condemnation or other adverse event with respect to any
business or property of the Company, the Operating Partnership
or any of their subsidiaries has occurred, (iii) there have
been no transactions or acquisitions entered into by the
Company, the Operating Partnership or any of their
subsidiaries other than those in the ordinary course of
business, which are material with respect to such entity and
its subsidiaries taken as a whole, (iv) there have been no
material liabilities or obligations, direct or contingent,
incurred by the Company, the Operating Partnership or any of
their subsidiaries, other than liabilities and obligations
which were incurred in the ordinary course of business, (v)
there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its
stock or by the Operating Partnership with respect to its
Partnership Interests, (vi) there has been no material change
in the stock of the Company or the Partnership Interests of
the Operating Partnership, or any increase in the indebtedness
of the Company, the Operating Partnership or any of their
subsidiaries and (vii) there have been no securities issued or
granted by the Company, the Operating Partnership or any of
their subsidiaries.
(q) The financial statements and pro forma financial
information (including all necessary pro forma adjustments and
including the related notes and supporting schedules) filed as
part of the Registration Statement or included in the
Prospectus present fairly the financial condition and results
of operations of the entities purported to be shown thereby,
at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the
periods involved and all adjustments necessary for a fair
presentation of results for such periods have been made. The
financial information set forth in the Prospectus presents
fairly the information shown therein and has been prepared on
an accounting basis consistent with such financial statements
and the books and records of the respective entities presented
therein. The pro forma financial statements and other
information included in the Prospectus have been prepared in
accordance with the applicable requirements of Rules 11-01 and
11-02 of Regulation S-X under the Securities Act, and the
necessary pro forma adjustments have been properly
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applied to the historical amounts in the compilation of such
information. Other than the historical and pro forma financial
statements (and schedules) included therein, no other
historical or pro forma financial statements (or schedules)
are required by the Securities Act or the Rules and
Regulations to be included in the Registration Statement.
(r) Ernst & Young LLP, who have certified certain
financial statements included in the Registration Statement,
whose report appears in the Prospectus and who have delivered
the initial letter referred to in Section 7(g) hereof, are
independent public accountants as required by the Securities
Act and the Rules and Regulations during the periods covered
by the financial statements on which they reported contained
in the Prospectus.
(s) (i) The Company, the Operating Partnership and
their subsidiaries have good and marketable title in fee
simple to all real property and own all personal property
purported to be owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are
described in the Prospectus or such as would not materially
affect the value of such property and do not materially
interfere with the use made and proposed to be made of such
property by the Company, the Operating Partnership and their
subsidiaries (except for such real property, buildings and
personal property as are described in subparagraph (ii)
below); and (ii) all real property, buildings and personal
property held under lease by the Company, the Operating
Partnership and their subsidiaries are held by them under
valid, existing and enforceable leases in each case free and
clear of all liens, encumbrances and defects except such as
are described in the Prospectus, and such exceptions as are
not material and do not materially interfere with the use made
and proposed to be made of such property and buildings by the
Company, the Operating Partnership and their subsidiaries.
(t) Except as described in the Prospectus, the
Company, the Operating Partnership and their subsidiaries
carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective
properties and as is customary for companies engaged in
similar businesses in similar industries.
(u) The Company, the Operating Partnership and their
subsidiaries own, possess or can acquire on reasonable terms,
adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of their
respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and
have not received any notice of any claim of conflict with,
any such rights of others, which conflict (if the subject of
any unfavorable decision, ruling or finding) would result in a
Material Adverse Effect.
(v) Except as described in the Prospectus, there are
no legal or governmental proceedings pending to which the
Company, the Operating
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Partnership or any of their subsidiaries is a party or of
which any property or assets of the Company, the Operating
Partnership or any of their subsidiaries is the subject which,
if determined adversely to the Company, the Operating
Partnership or any of their subsidiaries, would have a
Material Adverse Effect; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(w) The Company is organized in conformity with the
requirements for qualification as a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the
"Code"), and its proposed method of operation will enable it
to meet the requirements for taxation as a real estate
investment trust under the Code for its taxable periods
beginning or otherwise including the period after the
Effective Date. All statements in the Prospectus regarding the
Company's qualification as a REIT are true, complete and
correct in all material respects.
(x) The conditions for use of Form S-3, as set forth
in the General Instructions thereto, have been satisfied.
(y) There are no contracts or other documents which
are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been described
in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(z) No relationship, direct or indirect, exists
between or among the Company, the Operating Partnership or any
of their subsidiaries on the one hand, and the directors,
officers, stockholders, limited partners, customers or
suppliers of any of such entities on the other hand, which is
required to be described in the Prospectus which is not so
described.
(aa) There is (i) no material unfair labor practice
complaint pending against the Company, the Operating
Partnership or any of their subsidiaries nor, to the best
knowledge of the Company, threatened against any of them
before the National Labor Relations Board or any state or
local labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the
Company, the Operating Partnership or any of their
subsidiaries or, to the best knowledge of the Company,
threatened against any of them, and (ii) no material strike,
labor dispute, slowdown or stoppage pending against the
Company, the Operating Partnership or any of their
subsidiaries nor, to the best knowledge of the Company,
threatened against the Company, the Operating Partnership or
any of their subsidiaries which in any case would have a
Material Adverse Effect.
(ab) The Company, the Operating Partnership and their
subsidiaries are in compliance in all material respects with
all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder
("ERISA"); no "reportable
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event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company,
the Operating Partnership or any of their subsidiaries would
have any liability; the Company, the Operating Partnership or
any of their subsidiaries has not incurred and does not expect
to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Code including the regulations and
published interpretations thereunder; and each "pension plan"
for which the Company, the Operating Partnership or any of
their subsidiaries would have any liability that is intended
to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which would cause the
loss of such qualification, except for such noncompliance,
reportable events, liabilities, or failures to qualify that
would not result in a Material Adverse Effect.
(ac) The Company, the Operating Partnership and their
subsidiaries have filed all federal, state and local income
and franchise tax returns required to be filed through the
date hereof and have paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Company, the
Operating Partnership or any of their subsidiaries which has
had (nor does the Company have any knowledge of any tax
deficiency which, individually or in the aggregate, if
determined adversely to the Company, the Operating Partnership
or any of their subsidiaries would have) a Material Adverse
Effect.
(ad) The Company, the Operating Partnership and their
subsidiaries (i) make and keep books and records which are
accurate in all material respects and (ii) maintain internal
accounting controls which provide reasonable assurance that
(A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to
permit preparation of their financial statements and to
maintain accountability for their assets, (C) access to their
assets is permitted only in accordance with management's
authorization and (D) the reported accountability for their
assets is compared with existing assets at reasonable
intervals.
(ae) None of the Company, the Operating Partnership
or any of their subsidiaries is in violation in any respect of
any law, ordinance, governmental rule, permit, license,
regulation or court decree to which it or its property or
assets may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its
property or to the conduct of its business except for such
violations and failures to obtain that, individually or in the
aggregate, would not have a Material Adverse Effect.
(af) None of the Company, the Operating Partnership
or any of their subsidiaries, nor any director, officer,
agent, employee or other person associated with or acting on
behalf of the Company, the Operating Partnership or any of
their subsidiaries, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any
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direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated
or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(ag) Except as disclosed in the Prospectus (i) there
has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous
substances by the Company, the Operating Partnership or any of
their subsidiaries (or, to the knowledge of the Company, any
of their predecessors in interest or any other person) at,
upon or from any of the property now or previously owned or
leased by the Company, the Operating Partnership or any of
their subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit
or which would require any removal, remedial or other response
action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or
response action which would not have, singularly or in the
aggregate with all such violations and response actions, a
Material Adverse Effect; (ii) there has been no storage,
disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes,
hazardous wastes or hazardous substances by the Company, the
Operating Partnership or any of their subsidiaries (or, to the
knowledge of the Company, any of their predecessors in
interest) at or upon any property owned by anyone else in
violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require any
removal, remedial or other response action under any
applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or response action
which would not have, singularly or in the aggregate with all
such violations and response actions, a Material Adverse
Effect; (iii) there has been no material spill, discharge,
leak, emission, injection, escape, placement, dumping or
release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes,
solid wastes, hazardous wastes or hazardous substances due to
or caused by the Company, the Operating Partnership or any of
their subsidiaries or with respect to which the Company, the
Operating Partnership or any of their subsidiaries have
knowledge, except for any such spill, discharge, leak,
emission, injection, escape, placement, dumping or release
which would not have, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections,
escapes, placements, dumpings and releases, a Material Adverse
Effect. The terms "hazardous wastes," "toxic wastes,"
"hazardous substances" and "medical wastes" shall have the
meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental
protection. There are no underground storage tanks located on
or in any of the properties owned or leased by the Company,
the Operating Partnership or any of their subsidiaries except
such tanks, individually or in the aggregate, the existence of
which would not have a Material Adverse Effect.
(ah) None of the Company, the Operating Partnership
or any of their subsidiaries is an "investment company" within
the meaning of such term under
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the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder.
(ai) The Stock has been approved for listing on the
New York Stock Exchange subject to official notice of
issuance.
(aj) None of the Company, the Operating Partnership
or any of their subsidiaries, or any of their directors,
officers or controlling persons, has taken or will take,
directly or indirectly, any action resulting in a violation of
Regulation M under the Exchange Act, or designed to cause or
result in, or that has constituted or that reasonably might be
expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the
sale or resale of the Stock.
(ak) Except as described in the Prospectus, the
Operating Partnership is not currently prohibited, directly or
indirectly, from paying any dividends or distributions to the
Company to the extent permitted by applicable law, from making
any other distribution on the Operating Partnership's
partnership interests, from repaying to the Company any loans
or advances to the Operating Partnership from the Company or
from transferring any of the Operating Partnership's property
or assets to the Company.
(al) The Company, the Operating Partnership and their
subsidiaries are currently in substantial compliance with all
presently applicable provisions of the Americans with
Disabilities Act and no failure of the Company, the Operating
Partnership or any of their subsidiaries to comply with all
presently applicable provisions of the Americans with
Disabilities Act, individually or in the aggregate, would
result in a Material Adverse Effect.
2. Purchase of the Stock by the Underwriter. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 1,303,965 shares of
the Stock to the Underwriter, and the Underwriter agrees to purchase that number
of shares of the Stock. The price for the Stock shall be $26.96 per share.
The Company shall not be obligated to deliver any of the
Stock to be delivered on the Delivery Date (as hereinafter defined) except upon
payment for all the Stock to be purchased on the Delivery Date as provided
herein.
3. Offering of Stock by the Underwriter. The Company
understands that the Underwriter intends to deposit the Stock with the trustee
of a newly formed unit investment trust (the "Trust"), a registered unit
investment trust under the Investment Company Act of 1940, as amended, in
exchange for units in the Trust. The Underwriter is acting as sponsor and
depositor of the Trust and is therefore considered an affiliate of the Trust.
4. Delivery of and Payment for the Stock. Delivery of and
payment for the Stock shall be made at the office of X.X. Xxxxxxx, Inc., Xxx
Xxxxx Xxxxxxxxx Xxxxxx, Xx. Xxxxx, XX 00000, at 8:00 A.M., New York City time,
on the second full business day following the
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date of this Agreement or at such other date or place as shall be determined by
agreement between the Underwriter and the Company. This date and time are
sometimes referred to as the "Delivery Date." On the Delivery Date, the Company
shall deliver or cause to be delivered certificates representing the Stock to
the Underwriter for the account of the Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer of federal
same-day funds to an account or accounts previously designated in writing to
X.X. Xxxxxxx, Inc. by the Company. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of the Underwriter hereunder. Upon delivery, the Stock shall
be registered in such names and in such denominations as the Underwriter shall
request in writing not less than two full business days prior to the Delivery
Date. For the purpose of expediting the checking and packaging of the
certificates for the Stock, the Company shall make the certificates representing
the Stock available for inspection by the Underwriter in New York, New York, not
later than 2:00 P.M., New York City time, on the business day prior to the
Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by
the Underwriter and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than the
Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule
430A(a)(3) under the Securities Act; to make no further
amendment or any supplement to the Registration Statement or
to the Prospectus prior to the last Delivery Date except as
permitted herein; to advise the Underwriter, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Underwriter with copies thereof;
to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Stock;
to advise the Underwriter, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of the
Prospectus, of the suspension of the qualification of the
Stock for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or
suspending the use of Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) To furnish promptly to the Underwriter and to
counsel for the Underwriter a signed copy of the Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all
consents and exhibits filed therewith.
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(c) To deliver promptly to the Underwriter such
number of the following documents as the Underwriter shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than
this Agreement), (ii) each of the Prospectus and any amended
or supplemented Prospectus, and (iii) any document
incorporated by reference in the Prospectus (excluding
exhibits thereto); and, if the delivery of a prospectus is
required at any time after the Effective Time in connection
with the offering or sale of the Stock or any other securities
relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it
shall be necessary to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Underwriter
and, upon its request, to file such document and to prepare
and furnish without charge to the Underwriter and to any
dealer in securities as many copies as the Underwriter may
from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or
omission or effect such compliance, and in case the
Underwriter is required to deliver a prospectus in connection
with sales of any of the Stock at any time nine months or more
after the Effective Time, upon request of the Underwriter but
at the expense of the Underwriter, to prepare and deliver to
the Underwriter as many copies as the Underwriter may
reasonably request of an amended or supplemented prospectus
complying with Section 10(a)(3) of the Securities Act.
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or
any supplement to the Prospectus that may, in the reasonable
judgment of the Company or the Underwriter, be required by the
Securities Act or requested by the Commission.
(e) Prior to filing with the Commission any amendment
to the Registration Statement or supplement to the Prospectus,
any document incorporated by reference in the Prospectus or
any Prospectus pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Underwriter and
counsel for the Underwriter and obtain the consent of the
Underwriter to the filing.
(f) As soon as practicable after the Effective Date
but in any event not later than 45 days after the end of the
Company's fiscal quarter in which the first anniversary date
of the Effective Date occurs, to make generally available to
the Company's security holders and to deliver to the
Underwriter an earning statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule
158).
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(g) For a period of five years following the
Effective Date, to furnish to the Underwriter copies of all
materials furnished by the Company to its security holders and
all public reports and all reports and financial statements
furnished by the Company to the principal national securities
exchange upon which the Common Stock may be listed pursuant to
requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder.
(h) Prior to the Delivery Date, to apply for the
listing of the Stock on the New York Stock Exchange, and to
use its best efforts to complete that listing, subject only to
official notice of issuance, prior to the Delivery Date.
(i) To apply the net proceeds from the sale of the
Stock being sold by the Company as set forth in the
Prospectus.
(j) To take such steps as shall be necessary to
ensure that neither the Company, the Operating Partnership nor
any subsidiary shall become an "investment company" within the
meaning of such term under the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission
thereunder.
6. Expenses. The Company agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Stock and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), the Prospectus and any
amendment or supplement to the Prospectus or any document incorporated by
reference therein, all as provided in this Agreement; (d) the costs of printing,
photocopying and distributing this Agreement and any other related documents in
connection with the offering, purchase, sale and delivery of the Stock; (e) the
fees and expenses (including reasonable attorneys' fees) incident to securing
any required review by the National Association of Securities Dealers, Inc. of
the terms of sale of the Stock; (f) any applicable listing or other fees; (g)
the fees and expenses of the Company's accountants and the fees and expenses of
counsel (including local and special counsel) for the Company; and (h) all other
costs and expenses incident to the performance of the obligations of the Company
under this Agreement; provided that, except as provided in this Section 6 and in
Section 10 the Underwriter shall pay their own costs and expenses, including the
costs and expenses of their counsel, any transfer taxes on the Stock which they
may sell and the expenses of advertising any offering of the Stock made by the
Underwriter.
7. Conditions of Underwriter's Obligations. The obligations of
the Underwriter hereunder are subject to the accuracy, when made and on the
Delivery Date, of the representations and warranties of the Company and the
Operating Partnership contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
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(a) The Prospectus shall have been timely filed with
the Commission in accordance with Section 5(a); no stop order
suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) The Underwriter shall not have discovered and
disclosed to the Company on or prior to the Delivery Date that
the Registration Statement or any amendment thereto contains
an untrue statement of a fact which, in the opinion of Xxxxx &
Xxxxxxx L.L.P., counsel for the Underwriter, is material or
omits to state a fact which, in the opinion of such counsel,
is material and is required to be stated therein or is
necessary to make the statements therein not misleading or
that the Prospectus and any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion
of Xxxxx & Xxxxxxx L.L.P., counsel for the Underwriter, is
material or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein
or is necessary to make the statements, in light of the
circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Stock, the Registration Statement and the
Prospectus, and all other legal matters and agreements
relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material
respects to counsel for the Underwriter, and the Company shall
have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon
such matters.
(d) Xxxxxx & Xxxxxxx shall have furnished to the
Underwriter its written opinion, as counsel to the Company,
addressed to the Underwriter and dated the Delivery Date, in
form and substance reasonably satisfactory to the Underwriter,
to the effect that:
(i) Arden Realty Finance Partnership, L.P.
("Arden Realty LP") is a limited partnership duly
formed and existing under and by virtue of the laws
of the State of California and is in good standing
with the Secretary of State of California. Arden
Realty LP has full power as a limited partnership to
conduct its business as described in the Prospectus.
Arden Realty Finance, Inc. ("Arden Realty Inc.") is a
corporation duly incorporated and existing under and
by virtue of the laws of the State of California and
is in good standing with the Secretary of State of
California. Arden Realty Inc. has full corporate
power to conduct its business as described in the
Prospectus. The Company is duly qualified as a
foreign corporation to transact business and is in
good standing in State of California. The Operating
Partnership is duly qualified as a foreign
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limited partnership to transact business and is in
good standing in the State of California.
(ii) All of the issued stock or partnership
interests of the Operating Partnership and of each of
the subsidiaries are, to the knowledge of such
counsel based solely on an officer's certificate,
owned by the Company free and clear of all liens,
encumbrances, equities or claims;
(iii) Except as set forth in the Prospectus,
there are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the
voting or transfer of, any shares of the Stock
pursuant to any agreement or other instrument to
which the Company is a party known to such counsel;
(iv) Except as set forth in the Prospectus,
there are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the
voting or transfer of, any Units pursuant to any
agreement or other instrument to which the Operating
Partnership is a party known to such counsel;
(v) To such counsel's knowledge based solely
on an officer's certificate and review of attorney
letters furnished to the Company's independent public
accountants in connection with their audit of
financial statements, and other than as set forth in
the Prospectus, there are no legal or governmental
proceedings pending to which the Company, the
Operating Partnership or any of their subsidiaries is
a party or of which any property or assets of the
Company, the Operating Partnership or any of their
subsidiaries is the subject which, if determined
adversely to the Company, the Operating Partnership
or any of their subsidiaries, would have a Material
Adverse Effect; and, to such counsel's knowledge,
based solely on an officer's certificate, no such
proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(vi) The Registration Statement was declared
effective under the Securities Act as of the date and
time specified in such opinion, the Prospectus was
filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date
specified therein and no stop order suspending the
effectiveness of the Registration Statement has been
issued and, to the knowledge of such counsel, no
proceeding for that purpose is pending or threatened
by the Commission;
(vii) The Registration Statement at the date
it became effective and at the date of any amendment
thereto made by the Company prior to such Delivery
Date (other than the financial statements and related
schedules and other financial and statistical
information and data (collectively, "Financial Data")
included therein, as to which such counsel
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need express no opinion) complied, and the Prospectus
as of its date and at the date of any supplement
thereto made by the Company prior to such Delivery
Date (other than the Financial Data, as to which
counsel need express no opinion) complied as to form
in all material respects with the requirements of the
Securities Act and the Rules and Regulations, and the
documents incorporated by reference in the Prospectus
and any further amendment or supplement to any such
incorporated document made by the Company prior to
such Delivery Date (other than the Financial Data, as
to which counsel need express no opinion) complied as
to form in all material respects with the
requirements of the Securities Act or the Exchange
Act, as applicable, and the respective rules and
regulations thereunder;
(viii) The statements contained in the
Prospectus under the caption "Federal Income Tax
Considerations" and "Risk Factors -- Potential
Adverse Consequences of Failure to Qualify as a REIT"
and "Risk Factors -- Other Tax Liabilities," insofar
as they describe federal statutes, rules and
regulations, have been reviewed by such counsel, are
correct in all material respects, and present fairly
the information required to be disclosed therein.
(ix) To such counsel's knowledge, there are
no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits
to the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been
described or filed as exhibits to the Registration
Statement;
(x) The issuance and sale of the shares of
Stock being delivered on such Delivery Date by the
Company and the compliance by the Company and the
Operating Partnership with all of the provisions of
this Agreement by the Company and the Operating
Partnership will not conflict with or result in a
breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other
agreement or instrument filed as an exhibit to the
Registration Statement except for such conflicts,
breaches, violations or defaults that, individually
or in the aggregate, would not have a Material
Adverse Effect, nor will such actions result in any
violation of the provisions of the charter or by-laws
of Arden Realty Inc. or the Agreement of Limited
Partnership of Arden Realty LP or any statute or any
order, rule or regulation known to such counsel of
any court or governmental agency or body having
jurisdiction over these subsidiaries or any of their
properties or assets;
(xi) To such counsel's knowledge based
solely on a certificate from an officer of the
Company, other than as disclosed in the Prospectus,
there are no contracts, agreements or understandings
between the Company and any person granting such
person the right to require the
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Company to file a registration statement under the
Securities Act with respect to any securities of the
Company owned or to be owned by such person or to
require the Company to include such securities in the
securities registered pursuant to the Registration
Statement or in any securities being registered
pursuant to any other registration statement filed by
the Company under the Securities Act; and
(xii) Neither the Company, the Operating
Partnership nor any of their subsidiaries is an
"investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(xiii) The Company has been and is organized
in conformity with the requirements for qualification
as a "real estate investment trust" under the
Internal Revenue Code of 1986, as amended (the
"Code"), and its method of operation has enabled, and
its proposed method of operation will enable, the
Company to meet the requirements for qualification
and taxation as a "real estate investment trust"
under the Code beginning with the Company's taxable
year ended December 31, 1996.
In rendering such opinion, such counsel may state that its
opinion, as applicable, is limited to matters governed by the
federal securities and tax laws of the United States of
America, and the corporate and partnership laws of the State
of California. Such counsel shall also have furnished to the
Underwriter a written statement, addressed to the Underwriter
and dated the Delivery Date, in form and substance
satisfactory to the Underwriter, to the effect that (x) such
counsel has acted as counsel to the Company in connection with
the preparation of the Registration Statement and participated
in conferences with certain officers and representatives of
the Company and the Operating Partnership, representatives of
Ernst & Young LLP and the Underwriter at which the
Registration Statement and the Prospectus and related matters
were discussed and (y) during the course of such counsel's
participation (relying as to factual matters as to materiality
to a large extent upon the statements of officers and other
representatives of the Company), no facts have come to the
attention of such counsel which led it to believe that (i) the
Registration Statement (other than the Financial Data as to
which such counsel need make no statement), as of the
Effective Date, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein
not misleading, or (ii) the Prospectus as of the Delivery Date
(other than the Financial Data as to which such counsel need
make no statement) contains any untrue statement of a material
fact or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading. The foregoing opinion and statement may be
qualified by a statement to the effect that such counsel does
not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration
Statement or the Prospectus and has not made any independent
judgment, check or verification thereof except to the extent
set forth in paragraph (viii) above.
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In addition, in rendering any such opinion, such counsel may
rely, as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the
Company.
(e) Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx shall have furnished to
the Underwriter its written opinion, as Maryland counsel to the Company and the
Operating Partnership, addressed to the Underwriter and dated the Delivery Date,
in form and substance reasonably satisfactory to the Underwriter, to the effect
that:
(i) The Company is a corporation duly incorporated and
existing under and by virtue of the laws of the State of Maryland and
is in good standing with the SDAT. The Company has full corporate power
to conduct its business substantially as described in the Prospectus;
(ii) The Operating Partnership is a limited partnership duly
formed and existing under and by virtue of the laws of the State of
Maryland and is in good standing with the SDAT. The Operating
Partnership has full power as a limited partnership to conduct its
business substantially as described in the Prospectus;
(iii) The Company has an authorized capitalization as set
forth in the line items "Preferred Stock" and "Common Stock" under the
caption "Capitalization" in the Prospectus, and all of the issued
shares of stock of the Company (including the shares of Stock being
delivered on such Delivery Date) have been duly and validly authorized
and, assuming receipt of consideration therefor as provided in the
resolutions authorizing issuance thereof of the board of directors of
the Company, are validly issued, and fully paid and non-assessable and
conform in all material respects to the description thereof contained
in the Prospectus under the caption "Description of Capital Stock;" and
all of the issued partnership interests of the Operating Partnership
have been duly and validly authorized, assuming receipt of
consideration therefor as provided in the resolutions authorizing
issuance thereof of the board of directors of the Company, as general
partner of the Operating Partnership, are fully paid and (except as set
forth in the Prospectus) are owned of record by the Company;
(iv) Except as set forth in the Prospectus, there are no
preemptive or other rights under the Maryland General Corporation Law
to subscribe for or to purchase, nor any restriction upon the voting or
transfer of, any shares of the Stock pursuant to the Company's charter
or by-laws (except as set forth in Article VII of the charter);
(v) Except as set forth in the Prospectus, there are no
preemptive or other rights under the Maryland Revised Uniform Limited
Partnership Act to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, any Units pursuant to the Operating
Partnership Agreement;
(vi) The information in the Prospectus under the caption
"Description of Capital Stock" to the extent that it constitutes
matters of Maryland law or legal conclusions, has been reviewed by such
counsel and is correct in all material respects;
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and the statements contained in the Prospectus under the heading
"Certain Provisions of Maryland Law and the Company's Charter and
Bylaws," insofar as they describe Maryland statutory law are correct in
all material respects;
(vii) This Agreement has been duly authorized, executed and,
so far as is known to such counsel, delivered by the Company and the
Operating Partnership;
(viii) The issuance and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the compliance by
the Company and the Operating Partnership with all of the provisions of
this Agreement by the Company and the Operating Partnership will not
result in any violation of the provisions of the charter or by-laws of
the Company or the Agreement of Limited Partnership of the Operating
Partnership or any Maryland statute or any order, rule or regulation
known to such counsel of any Maryland court or governmental agency or
body of the State of Maryland having jurisdiction over the Company or
the Operating Partnership or any of their properties or assets; and,
except for (a) the registration of the Stock under the Securities Act,
such consents, approvals, authorizations, registrations or
qualifications as may be required under applicable state and foreign
securities laws in connection with the purchase and distribution of the
Stock by the Underwriter, (b) consents, approvals, authorizations,
orders, filings or registrations that will be completed on or prior to
the Closing Date and (c) such consents, approvals, authorizations,
orders, filing or registrations, the absence of which, individually or
in the aggregate would not have a Material Adverse Effect, no consent,
approval, authorization or order of, or filing or registration with,
any such Maryland court or governmental agency or body of the State of
Maryland is required for the execution, delivery and performance of
this Agreement by the Company and the Operating Partnership; and
(ix) The terms of the Units conform in all material respects
to all statements and descriptions related thereto contained in the
Prospectus under the caption "Partnership Agreement."
In rendering such opinion, such counsel may state that its
opinion, as applicable, is limited to matters governed by the federal securities
and tax laws of the United States of America and the corporate and partnership
laws of the State of Maryland.
(f) The Underwriter shall have received from Xxxxx &
Xxxxxxx L.L.P., counsel for the Underwriter, such opinion or
opinions, dated such Delivery Date, with respect to the
issuance and sale of the Stock, the Registration Statement,
the Prospectus and other related matters as the Underwriter
may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the
Underwriter shall have received from Ernst & Young LLP a
letter, in form and substance satisfactory to the Underwriter,
addressed to the Underwriter and dated the date
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hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission and (ii) stating, as of the date hereof (or,
with respect to matters involving changes or developments
since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more
than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial
information and other matters ordinarily covered by
accountants' "comfort letters" to the Underwriter in
connection with registered public offerings.
(h) With respect to the letter of Ernst & Young LLP
referred to in the preceding paragraph and delivered to the
Underwriter concurrently with the execution of this Agreement
(the "initial letter"), the Company shall have furnished to
the Underwriter a letter (the "bring-down letter") of such
accountants, addressed to the Underwriter and dated such
Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the
bring-down letter), the conclusions and findings of such firm
with respect to the financial information and other matters
covered by the initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in
the initial letter.
(i) The Company shall have furnished to the
Underwriter a certificate, dated the Delivery Date, of its
Chairman of the Board, its President or a Vice President and
its chief financial officer stating on behalf of the Company
that:
(i) The representations, warranties and
agreements of the Company and the Operating
Partnership in Section 1 are true and correct as of
such Delivery Date; the Company has complied with all
its agreements contained herein; and the conditions
set forth in Sections 7(a) and 7(j) have been
fulfilled; and
(ii) They have carefully examined the
Registration Statement and the Prospectus and, in
their opinion (A) as of the Effective Date, the
Registration Statement did not include any untrue
statement of a material fact and did not omit to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading, (B) the Prospectus as of the Delivery
Date did not include any untrue statement of a
material fact and did not omit to state a material
fact required to be stated therein or necessary to
make the statements therein, in light of the
circumstances under which they were made, not
misleading and (C) since the Effective Date no event
has occurred which should have been set forth
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in a supplement or amendment to the Registration Statement or
the Prospectus.
(j) (i) Neither the Company, the Operating
Partnership nor any of their subsidiaries shall have sustained
since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any
loss or interference with their business from fire, explosion,
flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated
in the Prospectus or (ii) since such date there shall not have
been any change in the stock, partnership interests or
long-term debt of the Company, the Operating Partnership or
any of their subsidiaries or any change, or any development
involving a prospective change in, or affecting the general
affairs, management, financial position, stockholders' equity,
partners' equity or results of operations of the Company, the
Operating Partnership and their subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is, in the judgment of the Underwriter, so
material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the
delivery of the Stock being delivered on such Delivery Date on
the terms and in the manner contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock
Exchange, Inc. or the American Stock Exchange, Inc. or on the
Nasdaq Stock Market, Inc., or trading in any securities of the
Company on any exchange or on the Nasdaq Stock Market, Inc.,
shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by federal, New York or
California authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war
by the United States or (iv) there shall have occurred such a
material adverse change in general economic, political or
financial conditions (or the effect of international
conditions on the financial markets in the United States shall
be such) as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the units
of the Trust to the public or to enforce contracts for the
sale of units in the Trust.
(l) The New York Stock Exchange, Inc. shall have
approved the Stock for listing, subject only to official
notice of issuance.
(m) The Company shall have delivered to the
Underwriter under separate cover at or prior to the Delivery
Date any and all officers' and other certificates delivered by
the Company, the Operating Partnership, their subsidiaries or
its affiliates to Xxxxxx & Xxxxxxx, Xxxxxxx Xxxxx Xxxxxxx &
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Ingersoll and Ernst & Young LLP on which such firms relied in
rendering opinions.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriter.
8. Indemnification and Contribution.
(a) The Company and the Operating Partnership,
jointly and severally, shall indemnify and hold harmless the Underwriter, its
officers and employees and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Stock), to which the Underwriter, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained (A) in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (B) in any blue sky application or other
document prepared or executed by the Company (or based upon any written
information furnished by the Company) specifically for the purpose of qualifying
any or all of the Stock under the securities laws of any state or other
jurisdiction (any such application, document or information being hereinafter
called a "Blue Sky Application"), (ii) the omission or alleged omission to state
in any Preliminary Prospectus, the Registration Statement or the Prospectus, or
in any amendment or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or failure to act or any alleged act or
failure to act by the Underwriter in connection with, or relating in any manner
to, the Stock or the offering contemplated hereby, and which is included as part
of or referred to in any loss, claim, damage, liability or action arising out of
or based upon matters covered by clause (i) or (ii) above (provided that the
Company and the Operating Partnership shall not be liable under this clause
(iii) to the extent that is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such acts or failures to act undertaken or omitted to
be taken by the Underwriter through its gross negligence or willful misconduct)
and shall reimburse the Underwriter and each such officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Underwriter, officer, employee or controlling person
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company and the Operating Partnership shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any such
amendment or supplement, or in any Blue Sky Application, in reliance upon and in
conformity with written information specified in Section 8(e) furnished to the
Company through the Underwriter by or on behalf of the Underwriter specifically
for inclusion therein; provided further, that the foregoing indemnity with
respect to any Preliminary Prospectus shall not inure to the benefit of the
Underwriter from whom the person asserting any
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such loss, claim, damage or liability purchased the Stock which is the subject
thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) at or prior to the confirmation of the sale of such
Stock to such person in any case where such delivery is required by the
Securities Act and the untrue statement or omission of a material fact contained
in such Preliminary Prospectus was corrected in the Prospectus (or the
Prospectus as supplemented). The foregoing indemnity agreement is in addition to
any liability which the Company or the Operating Partnership may otherwise have
to any Underwriter or to any officer, employee or controlling person of that
Underwriter.
(b) The Underwriter shall indemnify and hold
harmless the Company, the Operating Partnership, each of their respective
officers and employees, each of the Company's directors (including any person
who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company), and each person, if any, who controls the
Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any such director, officer, employee or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information specified in Section 8(e) furnished to the
Company through the Underwriter by or on behalf of the Underwriter specifically
for inclusion therein, and shall reimburse the Company and any such director,
officer, employee or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which the Underwriter may otherwise have to the Company or any such
director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume
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the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Underwriter shall have the right to employ a single counsel to represent
jointly the Underwriter and it's officers, employees and controlling persons who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriter against the Company or the Operating
Partnership under this Section 8 if, in the reasonable judgment of the
Underwriter, it is advisable for the Underwriter and it's officers, employees
and controlling persons to be jointly represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by the
Company and the Operating Partnership. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld or delayed), settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld or delayed), but if settled with the
consent of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this
Section 8 shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Operating Partnership on the one hand and the
Underwriter on the other hand from the offering of the Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Operating Partnership on the one hand and the Underwriter on the other hand
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Operating Partnership on the one hand and the Underwriter on the other hand with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Stock purchased under this Agreement
(before deducting expenses) received by the Company and the Operating
Partnership, on the one hand, and the total underwriting discounts and
commissions received by the Underwriter with respect to the shares of the Stock
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the shares of the Stock under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information
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supplied by the Company and the Operating Partnership or the Underwriter, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. For purposes of
the preceding two sentences, the net proceeds deemed to be received by the
Company shall be deemed to be also for the benefit of the Operating Partnership
and information supplied by the Company shall also be deemed to have been
supplied by the Operating Partnership. The Company, the Operating Partnership
and the Underwriter agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d) shall be
deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Stock underwritten by it and distributed to the public was offered to the
public exceeds the amount of any damages which the Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. 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.
(e) The Underwriter confirms and the Company and the
Operating Partnership acknowledge that the statements with respect to the public
offering of the Stock by the Underwriter set forth on the cover page of, the
legend concerning stabilization on the inside front cover page of, and under the
caption "Underwriting" in the Prospectus are correct and constitute the only
information concerning the Underwriter furnished in writing to the Company and
the Operating Partnership by or on behalf of the Underwriter specifically for
inclusion in the Registration Statement and the Prospectus.
9. Termination. The obligations of the Underwriter hereunder
may be terminated by the Underwriter by notice given to and received by the
Company prior to delivery of and payment for the Stock if, prior to that time,
any of the events described in Sections 7(j) or 7(k), shall have occurred or if
the Underwriter shall decline to purchase the Stock for any reason permitted
under this Agreement.
10. Reimbursement of the Underwriter's Expenses. If the
Company shall fail to tender the Stock for delivery to the Underwriter by reason
of any failure, refusal or inability on the part of the Company or the Operating
Partnership to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company or the Operating Partnership is not fulfilled (other
than the conditions set forth in Section 7(k)), the Company and the Operating
Partnership will reimburse the Underwriter for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the
Underwriter in connection with this Agreement and the proposed purchase of the
Stock, and upon demand the Company and the Operating Partnership shall pay the
full amount thereof to the Underwriter.
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11. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent
by mail, telex or facsimile transmission to X.X. Xxxxxxx,
Inc., Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: Syndicate (Fax: (000) 000-0000);
(b) if to the Company or to the Operating
Partnership, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Xxxxxxx X. Xxxxx
(Fax: (000) 000-0000);
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriter, the Company
and the Operating Partnership. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company and the
Operating Partnership contained in this Agreement shall also be deemed to be for
the benefit of the person or persons, if any, who control the Underwriter or the
Independent Underwriter within the meaning of Section 15 of the Securities Act
and (B) the indemnity agreement of the Underwriter contained in Section 8(b) of
this Agreement shall be deemed to be for the benefit of officers, employees and
directors of the Company and the Operating Partnership, (including persons named
in the Registration Statement with their consent as about to become a director
of the Company) and any person controlling the Company within the meaning of
Section 13 of the Securities Act. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred to in this
Section 12, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Operating Partnership and the
Underwriter contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Stock and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
14. Definition of the Terms "Business Day" and "Subsidiary."
For purposes of this Agreement, (a) "business day" means any day on which the
New York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations and, when used in
reference to subsidiaries of the Company or the Operating Partnership, includes
the entities listed on Schedule 1.
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15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
16. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement among the Company,
the Operating Partnership and the Underwriter, please indicate your acceptance
in the space provided for that purpose below.
Very truly yours,
ARDEN REALTY, INC.
By:
----------------------------------
Name:
Title:
ARDEN REALTY LIMITED PARTNERSHIP, the
Operating Partnership
By: Arden Realty, Inc., its General
Partner
By:
----------------------------------
Name:
Title:
Accepted:
X.X. XXXXXXX & SONS, INC.
By:
------------------------------
Name:
Title:
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SCHEDULE 1
SUBSIDIARIES
Arden Realty Finance, Inc., a California corporation
Arden Realty Finance Partnership, L.P., a California limited partnership
Arden Realty Finance II, Inc., a Maryland corporation
Activity Business Center, L.P.
000 Xxxxx Xxxxxxx, L.L.C., a California limited liability company
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