<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 18, 1997
REGISTRATION NO. 333-40401
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
AMENDMENT
NO. 1 TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
EOP OPERATING LIMITED PARTNERSHIP
(Exact name of registrant as specified in its governing instrument)
<TABLE>
<S> <C> <C>
DELAWARE 6798 36-4156801
(State of (Primary Standard (I.R.S. Employer
Organization) Industrial Identification
Classification Code Number)
Number)
</TABLE>
EQUITY OFFICE PROPERTIES TRUST
(Exact name of registrant as specified in its governing instrument)
<TABLE>
<S> <C> <C>
MARYLAND 6798 36-4151656
(State of (Primary Standard (I.R.S. Employer
Organization) Industrial Identification
Classification Code Number)
Number)
</TABLE>
------------------------------
TWO NORTH RIVERSIDE PLAZA, SUITE 2200
CHICAGO, ILLINOIS 60606
(Address of principal executive offices)
STANLEY M. STEVENS
CHIEF LEGAL COUNSEL
TWO NORTH RIVERSIDE PLAZA, SUITE 2200
CHICAGO, ILLINOIS 60606
(Name and address of agent for service)
------------------------------
Copies to:
J. WARREN GORRELL, JR.
JAMES E. SHOWEN
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
GILBERT G. MENNA, P.C.
KATHRYN I. MURTAGH
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
Explanatory Note: This Amendment No. 1 is only to file Exhibits 8.1, 8.2,
23.4 and 23.5.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly
caused this Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Chicago,
State of Illinois on November 18, 1997.
EOP Operating Limited Partnership
By: Equity Office Properties Trust,
as Managing General Partner
By: /s/ TIMOTHY H. CALLAHAN
---------------------------------
Timothy H. Callahan
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities indicated as of the 18th day of November, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ TIMOTHY H. CALLAHAN President, Chief Executive Officer and Trustee
- ---------------------------------------------------
Timothy H. Callahan
* Chief Financial Officer (principal financial
- --------------------------------------------------- officer and principal accounting officer)
Richard Kincaid
* Chairman of the Board of Trustees
- ---------------------------------------------------
Samuel Zell
* Trustee
- ---------------------------------------------------
Sheli Z. Rosenberg
Trustee
- ---------------------------------------------------
Thomas E. Dobrowski
* Trustee
- ---------------------------------------------------
James D. Harper, Jr.
Trustee
- ---------------------------------------------------
Peter Linneman
Trustee
- ---------------------------------------------------
Jerry M. Reinsdorf
* Trustee
- ---------------------------------------------------
William M. Goodyear
* Trustee
- ---------------------------------------------------
David K. McKown
*/s/ TIMOTHY H. CALLAHAN
- ---------------------------------------------------
By: Timothy H. Callahan
As: Attorney-In-Fact
</TABLE>
II-4
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly
caused this Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Chicago,
State of Illinois on November 18, 1997.
Equity Office Properties Trust
By: /s/ TIMOTHY H. CALLAHAN
------------------------------------
Timothy H. Callahan
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities indicated as of the 18th day of November, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ TIMOTHY H. CALLAHAN President, Chief Executive Officer and Trustee
- ---------------------------------------------------
Timothy H. Callahan
* Chief Financial Officer (principal financial
- --------------------------------------------------- officer and principal accounting officer)
Richard Kincaid
* Chairman of the Board of Trustees
- ---------------------------------------------------
Samuel Zell
* Trustee
- ---------------------------------------------------
Sheli Z. Rosenberg
Trustee
- ---------------------------------------------------
Thomas E. Dobrowski
* Trustee
- ---------------------------------------------------
James D. Harper, Jr.
Trustee
- ---------------------------------------------------
Peter Linneman
Trustee
- ---------------------------------------------------
Jerry M. Reinsdorf
* Trustee
- ---------------------------------------------------
William M. Goodyear
* Trustee
- ---------------------------------------------------
David K. McKown
*/s/ TIMOTHY H. CALLAHAN
- ---------------------------------------------------
By: Timothy H. Callahan
As: Attorney-In-Fact
</TABLE>
II-5
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE NO.
- ----------- ---------------------- --------
<S> <C> <C> <C>
3.1* -- Amended and Restated Declaration of Trust of EOP
3.2+ -- Bylaws of EOP
3.3+ -- Form of Articles Supplementary for the 8.98% Series A
Cumulative Redeemable Preferred Shares of Beneficial
Interest of EOP
5.1+ -- Opinion of Hogan & Hartson L.L.P. regarding the validity of
the securities being registered
8.1 -- Opinion of Hogan & Hartson L.L.P. regarding certain tax
matters
8.2 -- Opinion of Goodwin, Procter & Hoar LLP regarding certain
federal income tax matters
9.1+ -- EOP Voting Agreement
9.2+ -- Beacon Voting Agreement
10.1* -- Form of Agreement of Limited Partnership of EOP Partnership
10.2* -- Form of Registration Rights Agreement between EOP and the
persons named therein
10.3* -- 1997 Shares Option and Share Award Plan
10.4* -- 1997 Non-Qualified Employee Share Purchase Plan
10.5* -- Noncompetition Agreement between EOP and Samuel Zell
10.6* -- Contribution Agreement
10.7+ -- Stock Purchase Agreement, dated as of September 14, 1997,
between certain holders of voting stock of Beacon Property
Management Corporation and Equity Office Properties
Management Corp.
10.8+ -- Stock Purchase Agreement, dated as of September 14, 1997,
between certain holders of voting stock of Beacon Design
Corporation and Equity Office Properties Management Corp.
10.9+ -- Stock Purchase Agreement, dated as of September 14, 1997,
between certain holders of voting stock of Beacon
Construction Company, Inc. and Equity Office Properties
Management Corp.
21.1* -- List of Subsidiaries
23.1+ -- Consent of Hogan & Hartson L.L.P. (included as part of
Exhibit 5.1)
23.2+ -- Consent of Ernst & Young LLP
23.3+ -- Consent of Coopers Lybrand L.L.P.
23.4 -- Consent of Hogan & Hartson L.L.P. (included as part of
Exhibit 8.1)
23.5 -- Consent of Goodwin, Procter & Hoar LLP (included as part of
Exhibit 8.2)
23.6+ -- Consent of Morgan Stanley Realty Incorporated
24.1+ -- Power of Attorney (included in the Signature Pages at pages
II-4 and II-5)
27.1+ -- Financial Data Schedule
99.1+ -- Form of Proxy for Beacon Unitholders
99.2+ -- Form of Letter to Beacon Unitholders
99.3+ -- Form of Notice to Beacon Unitholders
99.4+ -- Consent of Alan M. Leventhal to be Named as a Trustee
99.5+ -- Consent of Edwin N. Sidman to be Named as a Trustee
</TABLE>
- -------------------------
* Included as an exhibit to Form S-11 Registration Statement of Equity Office
Properties Trust, File No. 333-26629, and incorporated herein by reference.
+ Previously filed.
II-6
<PAGE> 1
EXHIBIT 8.1
HOGAN & HARTSON L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
November 18, 1997
Equity Office Properties Trust
Two North Riverside Plaza
Chicago, Illinois 60606
Beacon Properties Corporation
50 Rowes Wharf
Boston, Massachusetts 02110
Ladies and Gentlemen:
We have acted as counsel to Equity Office Properties Trust ("EOP"), a
Maryland real estate investment trust, in connection with the execution and
delivery of the Agreement and Plan of Merger (the "Merger Agreement") dated as
of September 15, 1997, by and among EOP, EOP Operating Limited Partnership
("EOP Partnership"), a Delaware limited partnership, Beacon Properties
Corporation ("Beacon"), a Maryland corporation, and Beacon Properties, L.P.
("Beacon Partnership"), a Delaware limited partnership, whereby Beacon will
merge with and into EOP (the "Merger"). This opinion letter is being furnished
to you, pursuant to Sections 6.2(d) and 6.3(d) of the Merger Agreement, in
connection with (i) the Registration Statement on Form S-4, containing the
Joint Proxy Statement/Prospectus of Beacon and EOP addressed to holders of
Common Stock of Beacon (the "Common Share Joint Proxy Statement/Prospectus"),
(ii) the Registration Statement on Form S-4, containing the Joint Proxy
Statement/Prospectus of Beacon and EOP addressed to holders of Class A
Preferred Stock of Beacon (the "Preferred Share Proxy Statement/Prospectus"),
and (iii) the Registration Statement on Form S-4 containing the Proxy
Statement/Prospectus of Beacon Partnership (the "Beacon Partnership Proxy
Statement," together with the Common Share Joint Proxy Statement/Prospectus and
the Preferred Share Joint Proxy Statement/Prospectus, the "Registration
Statements"), each filed with the Securities and Exchange Commission on
October 25, 1997, as amended through the
<PAGE> 2
Equity Office Properties Trust
Beacon Properties Corporation
November 18, 1997
Page 2
date hereof. Unless otherwise defined herein or the context hereof otherwise
requires, each term used herein with initial capitalized letters has the
meaning given to such term in the Registration Statements.
BASES FOR OPINIONS
The opinions set forth in this letter are based on relevant current
provisions of the Internal Revenue Code of 1986, as amended (the "Code"),
Treasury Regulations thereunder (including proposed and temporary Treasury
Regulations), and interpretations of the foregoing as expressed in court
decisions, the legislative history, and administrative determinations
(including its practices and policies in issuing private letter rulings, which
are not binding on the Internal Revenue Service (the "IRS") except with respect
to a taxpayer that receives such a ruling), all as of the date hereof. These
provisions and interpretations are subject to changes, which may or may not be
retroactive in effect, that might result in material modifications of our
opinions. Our opinion does not foreclose the possibility of a contrary
determination by the IRS or a court of competent jurisdiction, or of a contrary
position by the IRS or the Treasury Department in regulations or rulings issued
in the future. In this regard, although we believe that our opinions set forth
herein will be sustained if challenged, an opinion of counsel with respect to
an issue is not binding on the IRS or the courts, and is not a guarantee that
the IRS will not assert a contrary position with respect to such issue or that
a court will not sustain such a position asserted by the IRS.
In rendering the following opinions, we have examined such statutes,
regulations, records, certificates and other documents as we have considered
necessary or appropriate as a basis for such opinions, including the following:
(1) each of the Registration Statements, as amended to the date hereof; (2)
the Amended and Restated Agreement of Limited Partnership of the EOP
Partnership, dated as of July 3, 1997, as amended to the date hereof; (3) the
Articles of Amendment and Restatement of Declaration of Trust of EOP dated as
of July 8, 1997, as amended to the date hereof (the "Declaration of Trust");
(4) the agreements of limited partnership, as amended to the date hereof, of
each of the Opportunity Partnerships; (5) the form of partnership agreement or
limited liability company operating agreement, as applicable, used by EOP
Partnership and/or the Opportunity Partnerships to organize and operate the
partnerships and limited liability companies in which one or more of the
Opportunity Partnerships owns an interest (collectively, the "Partnership
Subsidiaries"); (6) the articles of organization and stock ownership records of
each corporation in which one or more of EOP Partnership, the Opportunity
Partnerships or Beacon Partnership owns stock, directly or indirectly
(collectively, the "Corporate Entities"); (7) the articles of incorporation and
by-laws and stock ownership information for the Management Corporation, the
Services Corp., Lakeview Health Club Corp.,
<PAGE> 3
Equity Office Properties Trust
Beacon Properties Corporation
November 18, 1997
Page 3
Beacon Management Company, Beacon Design Company and Beacon Construction
Company; (8) the Merger Agreement; (9) the opinion of counsel received by
Beacon and EOP from Goodwin, Proctor & Hoar LLP, dated November 17, 1997, to
the effect that Beacon has qualified for taxation as a REIT since its taxable
year ended December 31, 1994, and will continue to so qualify through the
Effective Time of the Merger, and that Beacon Partnership, at all times since
the first day of Beacon's taxable year ended December 31, 1994, has been
treated as a partnership for federal income tax purposes and will continue to
be so treated through the Effective Time of the Partnership Merger (the
"Goodwin Procter Opinion"); (10) other necessary documents; and (11) the facts
as we have deemed necessary to render the opinions set forth in this letter.
The opinions set forth in this letter also are premised on certain written
representations of (i) each of the ZML REITs and each of the Opportunity
Partnerships contained in a letter to us dated July 7, 1997, which letter was
reconfirmed to us by EOP, as the successor to the ZML REITs, on November 17,
1997, regarding the assets, operations and activities of each of the ZML REITs
prior to July 11, 1997; (ii) EOP and the Operating Partnership contained in a
letter to us dated November 17, 1997, regarding the assets, operations and
activities of EOP and the Operating Partnership in the past and as to the
contemplated assets, operations and activities of EOP in the future; and (iii)
Beacon and Beacon Partnership contained in a letter to us, dated as of November
17, 1997, regarding the assets, operations and activities of Beacon and Beacon
Partnership (collectively, the "Management Representation Letters").
For purposes of rendering our opinion, we have not made an independent
investigation or audit of the facts set forth in any of the above-referenced
documents, including the Registration Statements and the Management
Representation Letters. We consequently have relied upon representations in
the Management Representation Letters that the information presented in such
documents or otherwise furnished to us is accurate and complete in all material
respects. We are not, however, aware of any material facts or circumstances
contrary to, or inconsistent with, the representations we have relied upon as
described herein, or other assumptions set forth herein.
Moreover, we have assumed that, insofar as relevant to the opinions set
forth herein, (i) each of the ZML REITs, the Opportunity Partnerships, the
Partnership Subsidiaries, and the Corporate Entities in which an Opportunity
Partnership owns an interest have been operated in the manner described in the
relevant partnership agreement, articles (or certificate) of incorporation,
declaration of trust or other organizational documents; (ii) each of EOP, the
EOP Partnership, the Opportunity Partnerships, the Partnership Subsidiaries,
and the Corporate Entities have been and will be operated in the manner
described in the relevant partnership agreement, declaration of trust, articles
(or certificate) of incorporation, or other organizational documents and in the
Registration Statements; (iii) as represented by EOP, there are no
<PAGE> 4
Equity Office Properties Trust
Beacon Properties Corporation
November 18, 1997
Page 4
agreements or understandings between EOP or the EOP Partnership, on the one
hand, and Equity Office Holdings L.L.C., the entity that owns 100% of the
voting stock of the Management Corporation, or the Management Corporation
itself, on the other, that are inconsistent, or will be inconsistent, with
Equity Office Holdings L.L.C. being considered to be both the record and
beneficial owner of more than 90% of the outstanding voting stock of the
Management Corporation, and with ZML Partners Limited Partnership being
considered to be both the record and beneficial owner of more than 90% of the
outstanding voting stock of Lakeview Health Club Corp. (and following the
Merger, with the Management Corporation being considered to be both the record
and beneficial owner of more than 90% of the outstanding voting stock of each
of Beacon Management Company, Beacon Design Company, and Beacon Construction
Company); (iv) as represented by Beacon, for the period prior to the effective
time of the Merger, any services provided to tenants of the properties owned by
Beacon are and have been services which are "usually or customarily rendered"
in connection with the rental of space for occupancy only, unless provided by
an entity that qualifies as an "independent contractor" within the meaning of
Section 856(d)(3) of the Code from whom Beacon derives no income, and, as
represented by EOP, EOP will take measures to ensure that, commencing with the
effective time of the Merger, any services provided to the tenants of the
properties previously owned by Beacon will either be "usually or customarily
rendered" as described above or provided by an entity that qualifies as an
independent contractor; and (v) EOP is a validly organized and duly
incorporated real estate investment trust under the laws of the State of
Maryland, Beacon is validly organized and duly incorporated under the laws of
the State of Maryland, each of the Corporate Entities are validly organized and
duly incorporated corporations under the laws of the state in which they were
purported to be organized (as applicable), EOP Partnership is a duly organized
and validly existing limited partnership under the laws of the State of
Delaware, Beacon Partnership is a duly organized and validly existing limited
partnership under the laws of the State of Delaware, each of the Opportunity
Partnerships is a duly organized and validly existing limited partnership under
the laws of the State of Illinois, and each of the Partnership Subsidiaries is
a duly organized and validly existing partnership or limited liability company,
as the case may be, under the applicable laws of the state in which they were
purported to be organized.
In our review, we have assumed that all of the representations and
statements set forth in the documents that we reviewed (including the
Management Representation Letters) are true and correct, and all of the
obligations imposed by any such documents on the parties thereto, including
obligations imposed under the Declaration of Trust of EOP, have been and will
continue to be performed or satisfied in accordance with their terms. We also
have assumed the genuineness of all signatures, the proper execution of all
documents, the authenticity of all documents submitted to us as originals, the
conformity to originals of documents submitted to us as copies, and the
authenticity of the originals from which any copies were made.
<PAGE> 5
Equity Office Properties Trust
Beacon Properties Corporation
November 18, 1997
Page 5
Finally, insofar as the continued qualification of EOP as a REIT following
the Merger depends upon the assets and operations of Beacon and Beacon
Partnership acquired from Beacon as a result of the Merger and/or Beacon's
organization and qualification as a REIT through the Effective Time of the
Merger, we have relied upon the Goodwin Procter Opinion.
OPINIONS
Based upon, subject to, and limited by the assumptions and qualifications
set forth herein, we are of the opinion as follows:
1. EOP is organized, as of the date hereof, in conformity with the
requirements for qualification and taxation as a real estate investment trust
("REIT") under the Code, and EOP's proposed method of operation (as described
in the Management Representation Letters), including for periods following the
Merger, should enable EOP to continue to meet the requirements for
qualification and taxation as a REIT for periods following the date hereof,
including periods following the Effective Time of the Merger.
2. EOP Partnership will be treated as a partnership for federal income
tax purposes and will not be subject to federal income tax as a corporation or
an association taxable as a corporation.
3. The discussion in the Beacon Partnership Proxy Statement under the
caption "FEDERAL INCOME TAX CONSIDERATIONS," to the extent that it discusses
matters of law or legal conclusions, is accurate in all material respects.
4. The discussion in the Common Share Proxy Statement/Prospectus under
the caption "FEDERAL INCOME TAX CONSIDERATIONS--Tax Consequences of the Merger
to Beacon Shareholders, Beacon and EOP", to the extent that it discusses matters
of law or legal conclusions, is accurate in all material respects, and the
discussion in balance of the section under the caption "FEDERAL INCOME TAX
CONSIDERATIONS" in the Common Share Proxy Statement/Prospectus, to the extent
such discussion discusses matters of law or legal conclusions and is related to
the federal income tax treatment of EOP or the federal income tax consequences
of owning Common Shares of EOP, is accurate in all material respects.
5. The discussion in the Preferred Share Proxy Statement/Prospectus
under the caption "FEDERAL INCOME TAX CONSIDERATIONS--Tax Consequences of the
Merger to Beacon Shareholders, Beacon and EOP", to the extent that it discusses
matters of law
<PAGE> 6
Equity Office Properties Trust
Beacon Properties Corporation
November 18, 1997
Page 6
or legal conclusions, is accurate in all material respects, and the discussion
in balance of the section under the caption "FEDERAL INCOME TAX CONSIDERATIONS"
in the Preferred Share Proxy Statement/Prospectus, to the extent such
discussion discusses matters of law or legal conclusions and is related to the
federal income tax treatment of EOP or the federal income tax consequences of
owning Preferred Shares of EOP, is accurate in all material respects.
We assume no obligation to advise you of any changes in our opinion or of
any new developments in the application or interpretation of the federal income
tax laws subsequent to the Effective Time of the Merger. EOP's qualification
and taxation as a REIT depend upon both (i) the satisfaction in the past by
Beacon and the ZML REITs of the requirements for qualification and taxation as
a REIT and (ii) EOP's ability to meet on a continuing basis, through actual
annual operating and other results, the various requirements under the Code, as
described in the Registration Statements with regard to, among other things,
the sources of its gross income, the composition of its assets, the level of
its distributions to shareholders, and the diversity of its stock ownership.
Hogan & Hartson L.L.P. has relied upon representations of EOP, Beacon, and the
ZML REITs with respect to these matters (including those set forth in the
Management Representation Letters) and will not review EOP's compliance with
these requirements on a continuing basis. Accordingly, no assurance can be
given that the actual results of EOP's operations, the sources of its income,
the nature of its assets, the level of its distributions to shareholders and
the diversity of its share ownership for any given taxable year will satisfy
the requirements under the Code for qualification and taxation as a REIT.
We hereby consent to the filing of this opinion letter as an Exhibit to
each of the Registration Statements and to the reference to Hogan & Hartson
L.L.P. under the captions "Legal Matters" and "Federal Income Tax
Considerations" in each of the Registration Statements. In giving this
consent, we do not thereby admit that we are an "expert" within the meaning of
the Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
--------------------------
Hogan & Hartson L.L.P.
<PAGE> 1
EXHIBIT 8.2
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109-2881
November 18, 1997
Beacon Properties Corporation
50 Rowes Wharf
Boston, MA 02110
Equity Office Properties Trust
Two North Riverside Plaza, 22nd Floor
Chicago, IL 60606
Re: Certain Federal Income Tax Matters
Ladies and Gentlemen:
This opinion is delivered to you in our capacity as counsel to Beacon
Properties Corporation, a Maryland corporation ("Beacon"), in connection with
(i) the registration statement on Form S-4 (the "Common Share Registration
Statement") filed by Equity Office Properties Trust, a Maryland real estate
investment trust ("EOP"), with the Securities and Exchange Commission relating
to the proposed merger (the "Merger") of Beacon with and into EOP pursuant to
an Agreement and Plan of Merger dated September 15, 1997 by and among Beacon,
Beacon Properties, L.P. ("Beacon Partnership"), EOP and EOP Operating Limited
Partnership, (the "Merger Agreement"), and the issuance of common shares of EOP
in connection with the Merger, (ii) the registration statement on Form S-4 (the
"Preferred Share Registration Statement") filed by EOP relating to the Merger
and the issuance of preferred shares of EOP in the Merger, and (iii) the
registration statement on Form S-4 (the "Partnership Registration Statement")
filed by EOP Operating Limited Partnership and EOP relating to the proposed
merger of the Beacon Partnership into EOP Operating Limited Partnership (the
"Partnership Merger") and the issuance of units of limited partnership of the
EOP Operating Partnership in connection with the Partnership Merger. The
Common Share Registration Statement, the Preferred Share Registration Statement
and the Partnership Registration Statement are referred to collectively herein
as the "Registration Statements." This opinion relates to Beacon's
qualification for federal income tax purposes as a real estate investment trust
("REIT") under the Internal Revenue Code of 1986, as amended (the "Code"), the
status of the Beacon Partnership as a partnership for federal income tax
purposes for periods prior to the Merger and the accuracy of certain portions
of the Registration Statements.
<PAGE> 2
Beacon Properties Corporation
Equity Office Properties Trust
November 18, 1997
Page 2
In rendering the following opinion, we have examined the Registration
Statements, the Articles of Incorporation and Bylaws of Beacon, the Merger
Agreement, the agreement of limited partnership of the Beacon Partnership and
such other records, certificates and documents as we have deemed necessary or
appropriate for purposes of rendering the opinion set forth herein. The
foregoing documents, including the Registration Statements, are referred to
herein as the "Documents." We also have relied upon the representations of
Beacon and the Beacon Partnership regarding the manner in which Beacon and the
Beacon Partnership and their affiliates have been and will be owned and
operated prior to the Merger. We have neither independently investigated nor
verified such representations, and we assume that such representations are
true, correct and complete and that all representations made "to the best of
the knowledge and belief" of any person(s) or party(ies) or with similar
qualification are and will be true, correct and complete as if made without such
qualification and that no action will occur from the date hereof until the
Merger that is inconsistent with such representations. We are not, however,
aware of any material facts or circumstances that are contrary to or
inconsistent with such representations or assumptions in a manner that would
adversely affect the opinion set forth herein. We assume that the Merger and
related transactions contemplated by the Documents will be consummated in
accordance with the Documents and as described in the Registration Statements
(including satisfaction of all covenants and conditions to the obligations of
the parties without amendment or waiver thereof) insofar as is relevant to the
opinion contained herein and that all entities have operated and will operate in
accordance with applicable laws and the terms and conditions of applicable
documents prior to the Merger. We also assume that EOP will timely mail, on
behalf of Beacon for Beacon's final taxable year ending with the Merger,
shareholder demand letters that comply with the requirements of Treasury
Regulation Section 1.857-8, and that EOP will maintain (in a manner prescribed
by such regulation) such records of Beacon as are necessary for Beacon to
comply with the requirements of Treasury Regulation Section 1.857-8 and Section
857(a)(2) of the Code (as in effect for tax years beginning before August 5,
1997). In addition, we have relied on certain additional facts and assumptions
described below.
In rendering the opinion set forth herein, we have assumed (i) the
genuineness of all signatures on documents we have examined, (ii) the
authenticity of all documents submitted to us as originals, (iii) the
conformity to the original documents of all documents submitted to us as
copies, (iv) the conformity of final documents to all documents submitted to us
as drafts, (v) the authority and capacity of the individual or individuals who
executed any such documents on behalf of any person, (vi) the accuracy and
completeness of all records made available to us and (vii) the factual accuracy
of all representations, warranties and other
<PAGE> 3
Beacon Properties Corporation
Equity Office Properties Trust
November 18, 1997
Page 3
statements made by all parties. We also have assumed, without investigation,
that all documents, certificates, warranties and covenants on which we have
relied in rendering the opinions set forth below and that were given or dated
earlier than the date of this letter continue to remain accurate, insofar as
relevant to the opinions set forth herein, from such earlier date through and
including the date of this letter.
The discussion and conclusions set forth below are based upon the
Code, the Income Tax Regulations and Procedure and Administration Regulations
promulgated thereunder, all as of the date hereof, and existing administrative
and judicial interpretations thereof, all of which are subject to change.
Future changes in applicable law may cause the federal income tax treatment of
Beacon and the Beacon Partnership to be materially and adversely different from
that described below.
Based upon and subject to the foregoing, we are of the opinion that:
1. Beacon has been organized and operated in conformity
with the requirements for qualification as a REIT under the Code
beginning with Beacon's first taxable year ended December 31,
1994 and for all subsequent taxable years (or portion thereof)
through the date hereof, and Beacon's proposed method of
operation, as described in the representations referred to
above, will enable Beacon to continue to meet the requirements
for qualification and taxation as a REIT under the Code for the
period beginning after the date hereof through Beacon's short
taxable year ending with the Merger.
2. At all times during (i) Beacon's first taxable year ended
December 31, 1994 and (ii) the period beginning January 1, 1995
and ending with the Partnership Merger (as defined in the Merger
Agreement) the Beacon Partnership has been and will be treated
as a partnership for federal income tax purposes and not as a
corporation or association taxable as a corporation.
3. The discussion set forth in each of the Common Share
Registration Statement and the Preferred Share Registration
Statement under the caption "FEDERAL INCOME TAX CONSIDERATIONS
-- Tax Consequences of the Merger to Beacon Shareholders,
Beacon, and EOP" and "-- Pre-Merger Distributions" and the
discussion set forth in the Partnership Registration Statement
under the caption "FEDERAL INCOME TAX CONSIDERATIONS --
Summary," "-- Tax Consequences of the Partnership Merger," "--
Effect of Subsequent
<PAGE> 4
Beacon Properties Corporation
Equity Office Properties Trust
November 18, 1997
Page 4
Events," and "-- Tax Treatment of Partners Who Hold EOP
Partnership Units After the Partnership Merger," to the
extent that it discusses matters of law or legal conclusions,
is accurate in all material respects.
* * *
We express no opinion herein other than those expressly set forth
herein. You should recognize that our opinion is not binding on the Internal
Revenue Service (the "IRS") and that the IRS may disagree with the opinion
contained herein. Although we believe that our opinion will be sustained if
challenged, there can be no assurance that this will be the case.
We consent to being named as counsel to Beacon in the Registration
Statements, to the references in the Registration Statements to our firm and to
the inclusion of a copy of this opinion letter as an exhibit to each of the
Registration Statements. In giving such consent, however, we do not thereby
admit that we are an "expert" within the meaning of the Securities Act of 1933,
as amended. We further consent to reliance on this opinion by Hogan & Hartson
L.L.P. for purposes of its opinion, to be delivered to EOP and Beacon in
connection with the Registration Statements and filed as an exhibit to each of
the Registration Statements, to the effect that the organization and proposed
method of operation of EOP following the Merger will enable EOP to continue to
meet the requirements for qualification and taxation as a REIT following the
Merger, provided that such reliance is authorized by us only to the extent that
such opinion of Hogan & Hartson L.L.P. is affected by the assets and operations
acquired by EOP from Beacon in the Merger or by Beacon's qualification as a REIT
through the effective time of the Merger. This opinion is being furnished to
you solely for the purpose of being included as an exhibit to the Registration
Statements and for the use by Hogan & Hartson L.L.P. described in the preceding
sentence. This opinion may not be used or relied upon for any other purpose
without our prior written consent.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
