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1,110,132 SHARES
ARDEN REALTY, INC.
(A MARYLAND CORPORATION)
COMMON STOCK, $.01 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
April 23, 1998
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentleman:
Arden Realty, Inc., a Maryland corporation (the "Company"), proposes to
sell 1,110,132 shares (the "Stock") of the Company's Common Stock (the "Common
Stock") par value $.01 per share to Xxxxxxx Xxxxx & Co. Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (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. The
Underwriter intends to deposit the Stock with the trustee of the Equity Investor
Fund Xxxxx & Steers Realty Majors Portfolio (A Unit Investment Trust) (the
"Trust"), a registered unit investment trust under the Investment Company Act of
1940, as amended, for which Xxxxxxx Xxxxx & Co. Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated acts as sponsor and depositor, in exchange for units in the
Trust.
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
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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 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,
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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 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,
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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 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
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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 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.
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(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 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 or business
prospects 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
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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 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
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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 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
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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
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
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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
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
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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 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.
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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 1,110,132 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 $26.8853 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 is advised by
you that the Underwriter proposes to deposit the Stock with the trustee of the
Trust, a registered unit investment trust under the Investment Company Act of
1940, as amended, for which Xxxxxxx Xxxxx & Co. Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated acts as sponsor and depositor, in exchange for units in the
Trust (the "Offering") as soon after the execution and delivery hereof as in the
judgment of the Underwriter is advisable (and, if necessary, any post-effective
amendment to the Registration Statement). 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 Xxxxxxx Xxxxx & Co. Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, on the fourth full business day following the 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 Xxxxxxx
Xxxxx & Co. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 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
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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.
(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
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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).
(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 Effective 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.
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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:
(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.
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(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 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
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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 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.
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(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 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.
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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.
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
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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; 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
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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 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
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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 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
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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 & Xxxxxxxxx and Xxxxx &
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,
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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 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,
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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; provided,
however, that if the defendants in any such action include both the indemnified
and indemnifying parties and the indemnified party shall have reasonably
concluded that there may be one or more legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties.
After notice from the indemnifying party to the indemnified party of its
election to assume 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 unless (i)
the indemnified party shall have employed separate counsel in accordance
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with the proviso in the last sentence of the immediately preceding paragraph (it
being understood, however, that in connection with such action the indemnifying
party shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Underwriter in the case of
paragraph (a) of this Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party. In addition, 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 and 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, 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.
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 this Section 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.
(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,
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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 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
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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.
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 Xxxxxxx Xxxxx & Co. Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxx Xxxxx, Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx,
Managing Director (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: (310)
274-6218);
provided, however, that any notice to the Underwriter pursuant to Section 8(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the Underwriter,
which address will be supplied to any other party hereto by the Underwriter upon
request. 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
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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.
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: /s/ XXXXX X. XXXXX
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Exec. V.P. CFO
ARDEN REALTY LIMITED PARTNERSHIP, the
Operating Partnership
By: Arden Realty, Inc., its General
Partner
By: /s/ XXXXX X. XXXXX
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Exec. V.P. CFO
Accepted:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ XXXX X. XXXXX
----------------------------------
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
31
