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Exhibit 1.1
EQUITY OFFICE PROPERTIES TRUST
(A MARYLAND REAL ESTATE INVESTMENT TRUST)
__________ ____% SERIES C CUMULATIVE REDEEMABLE PREFERRED SHARES
(PAR VALUE $0.01 PER SHARE) (LIQUIDATION PREFERENCE $25.00 PER SHARE)
UNDERWRITING AGREEMENT
_______________, 1998
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_____________, 1998
Xxxxxx Xxxxxxx & Co.
Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Brothers Inc
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Equity Office Properties Trust, a Maryland real estate investment trust
(the "Company"), proposes to issue and sell to the several Underwriters named
in Schedule I hereto (the "Underwriters") ______________ ____% Series C
Cumulative Redeemable Preferred Shares, par value $0.01 per share, liquidation
preference $25.00 per share (the "Firm Shares"). The Company also proposes to
issue and sell to the several Underwriters not more than an additional
______________ ____% Series C Cumulative Redeemable Preferred Shares, par
value $0.01 per share, liquidation preference $25.00 per share (the "Additional
Shares") if and to the extent that you, as Managers of the offering, shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such Additional Shares granted to the Underwriters in Section 2 hereof. The
Firm Shares and the Additional Shares are hereinafter collectively referred to
as the "Shares".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-11 (No. 333-51597), including
a prospectus, relating to the Shares. Such registration statement (as
amended, if applicable), in the form in which it became effective, including
the information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act of 1933,
as amended (the "Securities Act"), is hereinafter referred to as the
"Registration Statement"; the prospectus in the form first delivered for use in
confirming sales of Shares is hereinafter referred to as the "Prospectus". If
the Company has filed an abbreviated registration statement to register
additional ___% Series C Cumulative Redeemable Preferred Shares pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement.
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The Company is the managing general partner of EOP Operating Limited
Partnership, a Delaware limited partnership (the "Operating Partnership"). The
Company owns all of its assets and conducts substantially all of its business
through the Operating Partnership and its subsidiaries.
1. Representations and Warranties of the Company and the
Operating Partnership. The Company and the Operating Partnership represent and
warrant to the Underwriters, as of the date hereof, as of the Closing Date (as
defined below), and as of the Option Closing Date (as defined below) (each, a
"Representation Date"), as follows:
(a) Compliance with Registration Requirements. At the time
the Registration Statement became effective and at each Representation
Date, the Registration Statement (and any amendment thereto) complied,
complies and will comply in all material respects with the
requirements of the Securities Act and did not, does not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus (and any
amendment or supplement thereto), at each Representation Date,
complies and will comply in all material respects with the
requirements of the Securities Act does not and will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any
Underwriter through Xxxxxx Xxxxxxx & Co. Incorporated expressly for
use in the Registration Statement or the Prospectus.
Each of the preliminary prospectus and the prospectus filed as
part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with
the Securities Act and each preliminary prospectus and the prospectus
delivered to the Underwriters for use in connection with the offering
of the Shares was identical to the electronically transmitted copies
thereof filed with the Commission pursuant XXXXX, except to the extent
permitted by Regulation S-T.
(b) No Stop Order or Proceedings. No stop order suspending
the effectiveness of the Registration Statement or any part thereof
has been issued and no proceeding for that purpose has been instituted
or, to the knowledge of the Company, is contemplated by the Commission
or by the state securities authority of any jurisdiction. No order
preventing or suspending the use of the Prospectus has been issued and
no proceeding for that purpose has been instituted or, to the
knowledge of the Company, is contemplated by the Commission or by the
state securities authority of any jurisdiction.
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(c) Independent Accountants. Each of Ernst & Young LLP and
Coopers & Xxxxxxx L.L.P., the accounting firms that certified the
financial statements and supporting schedules included in the
Prospectus, is an independent public accountant as required by the
Securities Act and the applicable rules and regulations thereunder (the
"Securities Act Regulations").
(d) Financial Statements. The financial statements
(including the notes thereto) included in the Registration Statement
and the Prospectus present fairly the financial position of the
respective entity or entities presented therein at the respective dates
indicated and the results of their operations for the respective
periods specified, and except as otherwise stated therein, said
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis.
The supporting schedules included in the Registration Statement and the
Prospectus present fairly the information required to be stated
therein. The financial information and data included in the
Registration Statement and the Prospectus present fairly the
information included therein and have been prepared on a basis
consistent with that of the books and records of the respective
entities presented therein. The Statements of Revenues and Certain
Operating Expenses included in the Registration Statement and the
Prospectus for certain of the Properties (as defined below) present
fairly the information included therein and have been prepared on a
basis consistent with that of the books and records of the respective
entities presented therein. Pro forma financial information included
in the Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of Rules 11-01 and 11-02 of
Regulation S-X under the Securities Act, and the necessary pro forma
adjustments have been properly applied to the historical amounts in the
compilation of such information, and, in the opinion of the Company,
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(e) No Material Adverse Change. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, assets, or business affairs of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Change"), (B) no
casualty loss or condemnation or other adverse event with respect to
any Property has occurred that would result in a Material Adverse
Effect (as defined below), (C) there have been no transactions or
acquisitions entered into by the Company or any of its subsidiaries,
other than those arising in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as
one enterprise, (D) except as described in the Registration Statement
and the Prospectus and except for regular quarterly distributions of
the Company (and corresponding distributions of the Operating
Partnership), there has been no distribution of any kind declared, paid
or made by the Company or the Operating Partnership with respect to its
partnership
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interests, and (E) there has been no material change in the partnership
interests of the Operating Partnership or any material increase in the
indebtedness of the Company.
(f) Good Standing of the Company. The Company has been duly
formed and is validly existing as a real estate investment trust in
good standing under the Maryland General Corporation Law (the "MGCL")
with trust power and authority to own, lease and operate any real
property or improvements thereon owned or leased by the Company or its
subsidiaries (each, a "Property" and, collectively, the "Properties"),
to conduct the business in which it is engaged or proposes to engage as
described in the Registration Statement and the Prospectus and to enter
into and perform its obligations under or contemplated under this
Agreement. The Company is duly qualified or registered as a foreign
real estate investment trust and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify, register
or be in good standing would not result in a material adverse effect on
the condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise (a "Material Adverse
Effect").
(g) Good Standing of the Subsidiaries. Each of the
"significant subsidiaries" of the Company listed on Schedule II to this
Agreement (collectively, the "Significant Subsidiaries") has been duly
organized and is validly existing as a partnership, corporation,
limited liability company or real estate investment trust in good
standing under the laws of its respective jurisdiction of organization,
with all power and authority to own, lease and operate its Properties,
and to conduct the business in which it is engaged or proposes to
engage as described in the Registration Statement and the Prospectus.
Each Significant Subsidiary is duly qualified or registered as a
foreign partnership, corporation, limited liability company, or real
estate investment trust, and is in good standing in each jurisdiction
in which the business conducted by such subsidiary is required and
permitted, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure, singly or in the
aggregate, to so qualify would not result in a Material Adverse Effect.
Each of the partnership or operating agreements of the Significant
Subsidiaries is in full force and effect.
(h) Capitalization of Company. The capitalization of the
Company is as set forth in the Registration Statement and the
Prospectus as of the date referenced therein. All of the Company's
common and preferred shares of beneficial interest outstanding at the
date hereof were duly authorized for issuance by the Company and are
validly issued and fully paid. None of such shares of beneficial
interest were issued in violation of preemptive or other similar rights
of any security holder of the Company. Such outstanding shares of
beneficial interest were offered and sold in compliance with all
applicable laws (including, without limitation, federal and state
securities laws).
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(i) Authorization of the Shares. The Shares have been duly
authorized and classified for issuance and sale to the Underwriters
pursuant to this Agreement. At or prior to the Closing Date, the
Company will have executed and filed Articles Supplementary ("Articles
Supplementary") to its Amendment and Restatement of Declaration of
Trust ("Declaration of Trust") establishing the terms of the Shares
with the State Department of Assessments and Taxation of Maryland (the
"SDAT") and, when the Shares are duly paid for and certificates
therefor are duly countersigned and delivered as provided herein, the
Shares will be validly issued, fully paid and nonassessable. The
issuance of the Shares is not subject to preemptive or similar rights.
The Shares conform and will in all material respects to the Articles
Supplementary and the description thereof contained in the Registration
Statement and the Prospectus.
(j) Absence of Defaults. Neither the Company nor any
Significant Subsidiary is in violation of its declaration of trust,
charter, by-laws, limited liability company agreement, certificate of
limited partnership or partnership agreement, as the case may be, and
neither the Company nor any of its 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 where a default
thereunder would not result in a Material Adverse Effect.
(k) Absence of Conflicts. The execution and delivery of this
Agreement, the performance of the obligations set forth herein, and the
consummation of the transactions contemplated hereby or in the
Prospectus, including the issuance and sale of the Shares to the
Underwriters, by the Company will not result in the creation of any
lien, charge or encumbrance upon the Properties or conflict with or
constitute a breach or violation by the Company or any of its
subsidiaries, or default under, (A) any material contract, indenture,
mortgage, loan agreement, note, lease, joint venture or partnership
agreement or other instrument or agreement to which such entity is a
party or by which they, any of them, any of their respective assets or
any Property may be bound or subject; (B) the declaration of trust,
charter, by-laws, certificate of limited partnership, partnership
agreement, or limited liability company agreement, as the case may be,
of such entity; or (C) any applicable law, rule, order, administrative
regulation or administrative or court decree, except in the cases of
clauses (A) and (C) for such liens, charges, encumbrances, conflicts,
breaches, violations or defaults as would not result in a Material
Adverse Effect.
(l) Authorization of Agreement. The Company has the
requisite power and authority under its organizational documents to
enter into this Agreement, and this Agreement has been duly authorized,
executed and delivered by the Company.
(m) Absence of Proceedings. There is no action, suit or
proceeding before or brought by any court or governmental agency or
body, domestic or foreign, now
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pending, or, to the knowledge of the Company, threatened against or
affecting the Company, any Significant Subsidiary, any Property or any
officer or trustee of the Company that, if determined adversely to the
Company, any Significant Subsidiary, any Property or any such officer
or trustee, might (A) result in any Material Adverse Effect or (B)
materially and adversely affect the consummation of the transactions
contemplated by this Agreement. There are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened to
which the Company or any of its subsidiaries is a party or to which any
of their respective assets, properties or operations is the subject
that are required to be described in the Registration Statement and the
Prospectus that are not so described. The aggregate of all pending
legal or governmental proceedings to which the Company or any
subsidiary of the Company is a party or of which any of their
respective assets, properties or operations is the subject which are
not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(n) Investment Company Act. Neither the Company nor any
Significant Subsidiary is, or as of the Closing Date or the Option
Closing Date will be, required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
(o) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, the
trademarks, service marks, trade names, or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and no such entity has received any
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or
of any facts or circumstances which would render Intellectual Property
invalid or inadequate to protect the interest of such entities therein,
and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in
the aggregate, would result in a Material Adverse Effect.
(p) Absence of Further Requirements. All authorizations,
approvals and consents of any court or governmental authority or agency
that are necessary in connection with the offering, issuance or sale of
the Shares hereunder or the consummation of the other transactions
contemplated by this Agreement, except such as may be required under
the securities, blue sky or real estate syndication laws of various
states in connection with such offer, issuance and sale.
(q) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, or local regulatory agencies or bodies
necessary to conduct the business now conducted by them, or proposed to
be conducted by them, as described in the Registration Statement and
the Prospectus, except where the failure to possess any such
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Governmental Licenses would not have a Material Adverse Effect. The
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are valid
and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not result in a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect.
(r) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, which may reasonably be expected
to result in a Material Adverse Effect.
(s) Title to Property. (A) With respect to the Properties in
which the Operating Partnership owns, directly or indirectly, all of
the ownership interests therein, the Operating Partnership or its
subsidiaries have good and marketable fee simple title to the land
underlying such Properties (or, to the extent described in the
Registration Statement and the Prospectus, a valid leasehold estate in
such land) and (except for the Property known as "500 Orange") good and
marketable title to the improvements thereon and all other assets that
are required for the effective operation of such Properties in the
manner in which they currently are operated, subject, however, to
existing mortgages on such Properties, to utility easements serving
such Properties, to liens of ad valorem taxes not due and payable as of
the Closing Date (or which are being contested pursuant to applicable
law), to zoning and similar governmental land use matters affecting
such Properties that are consistent with the current uses of such
Properties, to matters of title not adversely affecting marketability
of title to such Properties, other statutory liens not due and payable
as of the Closing Date, title matters that may be material in
character, amount or extent but which do not materially detract from
the value, or interfere with the use of, the Properties or otherwise
materially impair the business operations being conducted or proposed
to be conducted thereon, tenant leases, service marks and trade names
used in connection with such Properties, ground leases and ownership by
others of certain items of equipment and other items of personal
property that are not material to the conduct of business operations at
such Properties; (B) with respect to the Properties in which the
Operating Partnership owns, directly or indirectly, less than all of
the ownership interest (the "Joint Venture Properties"), the Company or
its subsidiaries have good and marketable title to such ownership
interests and the respective entities owning the Joint Venture
Properties have good and marketable title to such interests in the
Joint Venture Properties and good and marketable title to the
improvements thereon and all other assets that are required for the
effective operation of such Properties in the manner in which they
currently are operated, subject to the exceptions set forth in clause
(A) above; (C) the ground leases under which the applicable
subsidiaries of the
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Operating Partnership lease the land on which certain Properties are
located are in full force and effect, and each of such subsidiaries is
not in default in respect of any of the terms or provisions of such
leases and neither the Company nor any such subsidiary has received
notice of the assertion of any claim by anyone adverse to such
subsidiaries' rights as lessees under such leases, or affecting or
questioning such subsidiaries' right to the continued possession or use
of the Property under such leases or of a default under such leases;
(D) all liens, charges, encumbrances, claims, or restrictions on or
affecting any of the Properties and the assets of the Company or any of
its subsidiaries are disclosed in the Registration Statement and the
Prospectus, subject to the exceptions set forth in clause (A) above;
(E) neither any subsidiary of the Company nor any tenant of any of the
Properties is in default under any of the leases pursuant to which the
Operating Partnership or any of its subsidiaries, as lessor, leases its
Property (and the Company does not know of any event which, but for the
passage of time or the giving of notice, or both, would constitute a
default under any of such leases) other than such defaults and
unmatured events of default that would not result in a Material Adverse
Effect; (F) except for such rights of first refusal as may be contained
in the agreements related to the Joint Venture Properties, no person
has an option or right of first refusal to purchase all or part of any
Property or any interest therein; (G) each of the Properties complies
with all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and laws
relating to access to the Properties), except if and to the extent
disclosed in the Registration Statement and the Prospectus and except
for such failures to comply that would not individually or in the
aggregate result in a Material Adverse Effect; (H) there is in full
force and effect insurance coverage for the assets of the Properties
that are commercially reasonable for such types of assets, and neither
the Company nor any of its subsidiaries has received from any insurance
company notice of any material defects or deficiencies affecting the
insurability of any such assets (including the Properties); and (I)
neither the Company nor any of its subsidiaries has any knowledge of
any pending or threatened condemnation proceedings, zoning change, or
other similar proceeding or action that will in any manner affect the
size of, use of, improvements on, construction on or access to the
Properties, except such proceedings or actions as are disclosed in the
Registration Statement and the Prospectus or that would not have a
Material Adverse Effect.
(t) Environmental Laws. Except as disclosed in the
Registration Statement and the Prospectus or as would not have a
Material Adverse Effect, (A) each Property, including, without
limitation, the Environment (as defined below) associated with such
Property, is free of any Hazardous Substance (as defined below) in
violation of any Environmental Law (as defined below) applicable to
such Property, except for Hazardous Substances that would not result in
a Material Adverse Effect; (B) neither the Company nor any of its
subsidiaries has during the period of its ownership caused or suffered
to occur any Release (as defined below) of any Hazardous Substance into
the Environment on, in, under or from any Property in violation of any
Environmental Law applicable to such Property, and no condition exists
on, in, under or, to the knowledge of the Company or any of its
subsidiaries, adjacent to, any Property that
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could result in the incurrence of material liabilities or any material
violations of any Environmental Law applicable to such Property, or
give rise to the imposition of any Lien (as defined below) under any
Environmental Law; (C) neither the Company nor any of its subsidiaries
is engaged in or intends to engage in any manufacturing at the
Properties that (1) requires the use, handling, transportation,
storage, treatment or disposal of any Hazardous Substance (other than
cleaning solvents and similar materials and other than insecticides and
herbicides that are used in the ordinary course of operating the
Properties and in compliance with all applicable Environmental Laws) or
(2) requires permits or is otherwise regulated pursuant to any
Environmental Law; (D) neither the Company nor any of its subsidiaries
has received any notice of a claim under or pursuant to any
Environmental Law applicable to a Property or under common law
pertaining to Hazardous Substances on or originating from any Property;
(E) neither the Company nor any of its subsidiaries has received any
notice from any Governmental Authority (as defined below) claiming any
violation of any Environmental Law that is uncured or unremediated as
of the date hereof; (F) no Property is included or, to the knowledge of
the Company or any of its subsidiaries, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA (as defined below)
by the United States Environmental Protection Agency (the "EPA") or on
the Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA, and has not
otherwise been identified by the EPA as a potential CERCLA removal,
remedial or response site or included or, to the knowledge of the
Company or any of its subsidiaries, proposed for inclusion on, any
similar list of potentially contaminated sites pursuant to any other
applicable Environmental Law nor has the Company or any of its
subsidiaries received any written notice from the EPA or any other
Governmental Authority proposing the inclusion of any Property on such
list; and (G) there are no underground storage tanks located on or in
any Property which have not been disclosed to the Underwriters.
As used herein, the term "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste, toxic or
dangerous substance, pollutant, solid waste or similarly designated
materials, including without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCBs, pesticides, explosives, radioactive materials,
dioxins, urea formaldehyde insulation or any constituent of any such
substance, pollutant or waste, including any such substance, pollutant
or waste identified or regulated under any Environmental Law
(including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49
C.F.R. Section 172.101, as heretofore amended, or in the EPA's List of
Hazardous Substances and Reportable Quantities, 40 C.F.R. Part 302, as
heretofore amended); "Environment" shall mean any surface water,
drinking water, ground water, land surface, subsurface strata, river
sediment, buildings, structures, and ambient workplace and indoor air;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C.
Section 9601, et seq.) ("CERCLA"), the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. Section 6901, et seq.),
the Clean Air Act, as amended (42 U.S.C. Section 7401, et
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seq.), the Clean Water Act, as amended (33 U.S.C. Section 1251, et
seq.), the Toxic Substances Control Act, as amended (15 U.S.C. Section
2601, et seq.), the Occupational Safety and Health Act of 1970, as
amended (29 U.S.C. Section 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Section 1801, et seq.), and
all other federal, state and local laws, ordinances, regulations,
rules, orders, decisions and permits relating to the protection of the
environment or of human health from environmental effects;
"Governmental Authority" shall mean any federal, state or local
governmental office, agency or authority having the duty or authority
to promulgate, implement or enforce any Environmental Law; "Lien" shall
mean, with respect to any Property, any mortgage, deed of trust,
pledge, security interest, lien, encumbrance, penalty, fine, charge,
assessment, judgment or other liability in, on or affecting such
Property; and "Release" shall mean any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, emanating or disposing of any Hazardous Substance
into the Environment, including, without limitation, the abandonment or
discard of barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance or any release, emission,
discharge or similar term, as those terms are defined or used in any
Environmental Law.
(u) Tax Compliance. Each of the Company and its subsidiaries
has filed all federal, state, and local income tax returns which have
been required to be filed and has paid all taxes required to be paid
and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except, in all
cases, for any such tax, assessment, fine or penalty that is being
contested in good faith, and except in any case in which the failure to
so file or pay would not have a Material Adverse Effect.
(v) Taxation as an REIT. The Company has operated since its
initial public offering and intends to continue to operate in such a
manner as to qualify to be taxed as a "real estate investment trust"
under the Internal Revenue Code of 1986, as amended (the "Code").
(w) No Price Manipulation. Neither the Company nor any of
its Significant Subsidiaries, nor any of their trustees, directors,
officers or controlling persons, has taken or will take, directly or
indirectly, any action designed to cause or result under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise in,
or which has constituted or which reasonably might be expected to
constitute, the unlawful stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Shares.
(x) Plan Assets. The assets of the Company and
its subsidiaries do not constitute "plan assets" under the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereof.
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(y) Cross Defaults. The mortgages and deeds of trust
encumbering the properties and assets described in general in the
Registration Statement and the Prospectus are not convertible and are
not cross-defaulted or cross-collateralized to any property not owned
by the Company or any of its subsidiaries, and, except as disclosed in
the Registration Statement and the Prospectus, neither the Company nor
any of its subsidiaries holds participating interests in such mortgages
and deeds of trust.
(z) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $______ a share (the "Purchase Price") plus accumulated
dividends, if any, to the Closing Date.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to ___________
Additional Shares at the Purchase Price plus accumulated dividends, if any, to
the Closing Date. If you, on behalf of the Underwriters, elect to exercise such
option, you shall so notify the Company in writing not later than 30 days after
the date of this Agreement, which notice shall specify the number of Additional
Shares to be purchased by the Underwriters and the date on which such shares are
to be purchased. Such date may be the same as the Closing Date but not earlier
than the Closing Date nor later than ten business days after the date of such
notice. Additional Shares may be purchased as provided in Section 4 hereof
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. If any Additional Shares are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
you may determine) that bears the same proportion to the total number of
Additional Shares to be purchased as the number of Firm Shares set forth in
Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
The Company hereby agrees that, during the period beginning on the date
hereof and continuing to and including 30 days from the date hereof, it will
not, without prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend or otherwise transfer or dispose of, directly or indirectly, any
Shares, any other equity securities of the Company which are substantially
similar to the Shares (other than any securities of the Company which are
convertible into common shares of beneficial interest of the Company) or any
securities convertible into or exercisable or exchangeable for Shares or any
other equity securities of the Company which are substantially
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similar to the Shares (other than any securities of the Company which are
convertible into common shares of beneficial interest of the Company) or (ii)
enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of any Shares, any other
equity securities of the Company which are substantially similar to the Shares
(other than any securities of the Company which are convertible into common
shares of beneficial interest of the Company), whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of Shares or
such other securities, in cash or otherwise. The restrictions described in the
previous sentence do not apply to the sale of Shares to the Underwriters.
3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$________ per share (the "Public Offering Price") plus accumulated dividends, if
any, to the Closing Date and to certain dealers selected by you at a price that
represents a concession not in excess of $________ per share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $_________ per share, to any Underwriter
or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be
made to the Company in Federal or other funds immediately available in New York
City against delivery of such Firm Shares for the respective accounts of the
several Underwriters at 10:00 a.m., New York City time, on ____________, 1998,
or at such other time on the same or such other date, not later than
___________, 19__,(1) as shall be designated in writing by you. The time and
date of such payment are hereinafter referred to as the "Closing Date".
Payment for any Additional Shares shall be made by to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or on such other date, in any event not later than
_____________, 19__,(2) as shall be designated in writing by you. The time and
date of such payment are hereinafter referred to as the "Option Closing Date".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the
_______________
(1) Insert date 5 business days after date inserted in accordance with note
6 above.
(2) Insert date 10 business days after the expiration of the green shoe
option.
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transfer of the Shares to the Underwriters duly paid, against payment of the
Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Firm Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Firm Shares on the
Closing Date are subject to the condition that the Registration Statement shall
have been declared effective on or prior to the date hereof, and no stop order
suspending the effectiveness of the Registration Statement or any part thereof
has been issued and no proceeding for that purpose has been instituted or, to
the knowledge of the Company, is contemplated by the Commission or by the state
securities authority of any jurisdiction.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, assets or business
affairs of the Company and its subsidiaries considered as one
enterprise from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in
the Prospectus.
(b) The Underwriters shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in Section 5(a)(i)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
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(c) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx & Xxxxxxx L.L.P., outside counsel for the Company,
dated the Closing Date, in form and substance satisfactory to you, to
the effect that is set forth in Exhibit A hereto.
The opinion of Xxxxx & Xxxxxxx L.L.P. described in Section 5(c) above
shall be rendered to the Underwriters at the request of the Company and shall so
state therein.
(d) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx & Wood LLP, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in items (1) (first
sentence only), (3), (4), (7), (8) and (11) (insofar as it relates to
the description of the Shares) of Exhibit A hereto and a statement
similar to the statement referred to in clause (i) and (ii) of the last
paragraph of Exhibit A hereto.
(e) The Underwriters shall have received, on each of the date
hereof and on the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from Ernst & Young LLP and Coopers & Xxxxxxx L.L.P.,
independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the Option Closing Date
of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares and other matters related to the issuance of the Additional Shares.
6. Covenants of the Company and the Operating Partnership. Each
of the Company and the Operating Partnership covenants with each Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company will use its best efforts to cause the Registration
Statement to become effective as promptly as possible and will notify the
Underwriters immediately, and confirm the notice in writing, of (i) the
effectiveness of the Registration Statement and any amendment thereto (including
any post-effective amendment), (ii) the receipt of any comments from the
Commission, (iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any such stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
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(b) Filing of Amendments. The Company will give each
Underwriter notice of its intention to file or prepare any amendment to the
Registration Statement (including any post-effective amendment) or any amendment
or supplement to the Prospectus, will furnish the Underwriters with copies of
any such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such amendment
or supplement or use any such prospectus to which the Underwriters or counsel
for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company will
deliver to each Underwriter, as soon as available, one signed copy of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) and
will also deliver to the Underwriters as many conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(excluding exhibits) as the Underwriters may reasonably request.
(d) Delivery of Prospectus. The Company will deliver to each
Underwriter, from time to time during the period when the Prospectus is required
to be delivered under the Securities Act or the Exchange Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request.
(e) Continued Compliance with Securities Laws. If any event
shall occur or condition exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters, to amend or supplement the Prospectus
in order to make the Prospectus not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is delivered
to a purchaser, not misleading, or in order to otherwise comply with the
applicable law, the Company will forthwith prepare an amendment of or supplement
to the Prospectus (in form and substance reasonably satisfactory to counsel for
the Underwriters) so that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time it is
delivered to a purchaser, not misleading, or so that the Prospectus will comply
with applicable laws.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the Shares for
offering and sale under the applicable securities laws and real estate
syndication laws of such states and other jurisdictions of the United States as
the Underwriters may designate; provided, however, that the Company shall not be
obligated to (i) file any general consent to service of process, (ii) qualify as
a foreign corporation in any jurisdiction in which it is not so qualified or
(iii) take any action that would subject it to income taxation in any such
jurisdiction. In each jurisdiction in which the Shares have been so qualified,
the Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration Statement.
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(g) Earnings Statement. The Company will make generally
available to its security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 of the Securities Act) covering a
12-month period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of the
Registration Statement.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Shares in the manner specified in the
Prospectus under the caption "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect
the listing of the Shares on the New York Stock Exchange, Inc. (the "NYSE").
(j) Amendments to Prospectus. If, at the time that the
Registration Statement becomes effective, any information shall have been
omitted therefrom in reliance upon Rule 430A under the Securities Act, then
immediately following the execution of this Agreement, the Company will prepare
and file or transmit for filing with the Commission, in accordance with such
Rule 430A and Rule 424(b) under the Securities Act, copies of the amended
Prospectus, or, if required by such Rule 430A, a post-effective amendment to the
Registration Statement (including the amended Prospectus), containing all
information so omitted.
(k) Price Stabilization or Manipulation. Except for the
authorization of actions permitted to be taken by the Underwriters as
contemplated herein or in the Prospectus, neither the Company nor the Operating
Partnership will (i) take, directly or indirectly, any action designed to cause
or to result in, or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares, (ii) sell, bid for or purchase the
Shares or pay any person any compensation for soliciting purchases of the Shares
or (iii) pay or agree to pay to any person any compensation for soliciting
another to purchase any other securities of the Company.
(l) Reports to Representatives. During the period from the
Closing Date until five years after the Closing Date, the Company will deliver
to the Underwriters, (i) promptly upon their becoming available, copies of all
current, regular and periodic reports of the Company mailed to its shareholders
or filed with any securities exchange or with the Commission or any governmental
authority succeeding to any of the Commission's functions, and (ii) such other
information concerning the Company or any of its subsidiaries may reasonably
request.
(m) Accuracy of Representations. Prior to the Closing Date,
the Company and the Operating Partnership will notify the Underwriters in
writing immediately if any event occurs that renders any of the representations
and warranties of the Company and the Operating Partnership contained herein
inaccurate or incomplete in any respect.
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(n) Expenses. Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, the Company
will pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 6(f) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., if required, (v) all fees and expenses
in connection with the preparation and filing of the registration statement on
Form 8-A relating to the Shares and all costs and expenses incident to listing
the Shares on the NYSE, (vi) the cost of printing certificates representing the
Shares, (vii) the costs and charges of any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, and (ix) all
other costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this Section. It
is understood, however, that except as provided in this Section, Section 7
entitled "Indemnity and Contribution", and the last paragraph of Section 9
below, the Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on resale of
any of the Shares by them and any advertising expenses connected with any offers
they may make.
7. Indemnity and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall
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have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through Xxxxxx Xxxxxxx & Co. Incorporated expressly for use
therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case
of parties indemnified pursuant to Section 7(a), and by the Company, in the case
of parties indemnified pursuant to Section 7(b). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such
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settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) To the extent the indemnification provided for in Section 7(a)
or 7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 7(d)(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
7(d)(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 7(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, 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 7, no Underwriter shall be
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required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such 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. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
8. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
NYSE, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and (b) in the case of any of the events specified in
clauses 8(a)(i) through 8(a)(iv), such event, singly or together with any other
such event, makes it, in your judgment, impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or
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Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case, either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. If, on
the Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
Additional Shares or (ii) purchase not less than the number of Additional Shares
that such non-defaulting Underwriters would have been obligated to purchase in
the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
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12. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
EQUITY OFFICE PROPERTIES TRUST
By:___________________________________
Name:
Title:
EOP OPERATING LIMITED PARTNERSHIP
By: EQUITY OFFICE PROPERTIES TRUST
As its Managing General Partner
By:__________________________________
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co.
Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Brothers Inc
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:_________________________________
Name:
Title:
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SCHEDULE I
Number of
Firm Shares
To Be
Underwriter Purchased
----------- ---------
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Brothers Inc
---------
Total . . . . . . . . . . . . . . . . =========
23
25
SCHEDULE II
Significant Subsidiaries
EOP Operating Limited Partnership
24
26
Exhibit A
(1) The Company is a real estate investment trust duly formed
and existing under and by virtue of the laws of the State of Maryland
and, as of ______________, is in good standing with the Maryland SDAT.
The Company has the power and authority under the Maryland REIT Law and
the Company's Declaration of Trust and the Bylaws to own, lease and
operate its properties and conduct its business as described in the
Registration Statement and the Prospectus.
(2) The authorized, issued and outstanding capital shares of
the Company, as of March 31, 1998, is set forth under the caption
"Capitalization" in the Registration Statement and the Prospectus. All
shares of beneficial interest of the Company shown as issued and
outstanding under said caption are duly authorized and, assuming the
receipt of consideration therefor as provided in resolutions of the
Company's Board of Trustees authorizing issuances thereof, are validly
issued, fully paid and nonassessable. To our knowledge, the Company has
not issued any outstanding securities convertible into or exchangeable
for, or outstanding options, warrants or other rights to purchase or
subscribe for, any shares of beneficial interest of the Company, except
as described in the Registration Statement and the Prospectus. No
holder of outstanding shares of beneficial interest of the Company has
any preemptive right under the Maryland REIT Law or the Declaration of
Trust or the Bylaws of the Company or, to our knowledge, any
contractual right to subscribe for any of such shares.
(3) The Shares have been duly authorized by the Company for
issuance and sale pursuant to the Purchase Agreement. When issued and
sold to the Underwriters in accordance with the provisions of the
Purchase Agreement, the Shares will be validly issued, fully paid and
nonassessable under the Maryland REIT Law. The form of share
certificate evidencing the Shares complies with the applicable
requirements of the Maryland REIT Law. The terms of the Shares conform
in all material respects to the description thereof set forth under
"Series C Preferred Shares" in the Registration Statement and the
Prospectus. The issuance of the Shares is not subject to any
preemptive rights under the Maryland REIT Law or the Declaration of
Trust or the Bylaws of the Company or, to our knowledge, any
contractual right to subscribe for any Shares.
(4) The Purchase Agreement has been duly authorized, executed
and delivered by the Company and the Operating Partnership, and the
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Company has the power and authority under the Maryland REIT Law
and the Operating Partnership has the power and authority under the
Delaware Revised Uniform Limited Partnership to perform their
respective obligations thereunder.
(5) The execution and delivery of the Purchase Agreement and
the performance as of the date hereof by the Company and the Operating
Partnership of their respective obligations thereunder and the
consummation as of the date hereof of the transactions contemplated
thereby do not result in a violation of (i) in the case of the Company,
the Maryland REIT Law or its Declaration of Trust or Bylaws or (ii) in
the case of the Operating Partnership, the Delaware Revised Uniform
Limited Partnership, as amended, or its Agreement of Limited
Partnership, as amended.
(6) The Articles Supplementary relating to the Shares have
been filed for record with the Maryland SDAT pursuant to the Maryland
REIT Law, and the number of and the title, par value, liquidation
preference, ranking, distribution rate, distribution payment dates,
redemption provisions and other terms of the Shares have been set forth
therein.
(7) The Registration Statement has been declared effective by
the Commission and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued or proceedings therefor instituted or threatened.
(8) As of their respective effective or issue dates, the
Registration Statement (and any amendment thereto) and the Prospectus
(and any amendment or supplement thereto) (other than the financial
statements and schedules and other financial and statistical data
included therein or omitted therefrom) complied as to form in all
material respects with the Securities Act and the Securities Act
Regulations.
(9) Neither the Company nor the Operating Partnership is, or
upon consummation of the transactions contemplated by the Purchase
Agreement will be, an "investment company", as defined in the
Investment Company Act of 1940, as amended.
(10) All filings with, or authorizations, approvals, consents,
licenses, orders, registrations, qualifications or decrees of, any
court or governmental authority or agency that are necessary in
connection with the offering, issuance or sale of the Shares under this
Agreement or the performance by the Company and the Operating
Partnership of their respective obligations under the Purchase
Agreement have been
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obtained, except such as may be required under state securities or real
estate syndication laws.
(11) The statements in the Prospectus under the captions
"Series C Preferred Shares", "ERISA Considerations" and
"Underwriters", insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein.
(12) The discussion in the Prospectus under the caption
"Federal Income Tax Consequences," to the extent that it covers matters
of law or legal conclusions, is a correct summary of the matters
discussed therein as of the date hereof.
In giving its opinion, such counsel shall additionally state
that no facts have come to their attention which cause such counsel to
believe that (i) neither the Registration Statement nor any amendments
thereto, as of their respective effective dates or as of the date of
the Purchase Agreement, 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, (ii)
neither the Prospectus nor any amendments or supplements thereto, as
of their respective issue dates or as of the Closing Date, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, (iii) there are any legal or governmental proceedings
pending or threatened against the Company that are required to be
disclosed in the Registration Statement and the Prospectus, other
than those disclosed therein, or (iv) there are any contracts or
documents of a character required to be described in the Registration
Statement and the Prospectus that are not described or referred to the
rein; provided that in making the foregoing statements (which shall
not constitute an opinion) such counsel need not express any views as
to the financial statements and supporting schedules and other
financial and statistical information and data included in or omitted
from the Registration Statement or the Prospectus. In making the
foregoing statement, such counsel may state that such statement is
based upon such counsel's participation in conferences with officers
and other representatives of the Company, representatives of the
independent public accountants for the Company and with you and your
representatives during the course of the preparation of the
Registration Statement and the Prospectus.
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