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EOP OPERATING LIMITED PARTNERSHIP
(a Delaware limited partnership)
$360,000,000 8.10% Notes due August 1, 2010
UNDERWRITING AGREEMENT
August 2, 2000
BANC OF AMERICA SECURITIES LLC
ON BEHALF OF THE UNDERWRITERS LISTED ON SCHEDULE A HERETO
c/o BANC OF AMERICA SECURITIES LLC
9 West 57th Street
New York, New York 10019
Dear Ladies and Gentlemen:
EOP Operating Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), confirms its agreement with the Underwriters listed on
SCHEDULE A hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as provided in Section 10 hereof), for whom
Banc of America Securities LLC is acting as representative (in such capacity,
the "Representative"), with respect to the sale by the Operating Partnership and
the purchase by the Underwriters, acting severally and not jointly, of
$360,000,000 aggregate principal amount of 8.10% Notes due August 1, 2010 (the
"Securities"). The Securities will be issued pursuant to an indenture dated as
of September 2, 1997 (such indenture, as supplemented, the "Indenture"), between
the Operating Partnership and State Street Bank and Trust Company, as trustee
(the "Trustee"). The Securities will be issued in book-entry form only to Cede &
Co. as nominee of The Depository Trust Company ("DTC") pursuant to a letter
agreement, to be dated as of the Closing Time (as defined in Section 2(c)) (the
"DTC Agreement"), among the Operating Partnership, the Trustee and DTC. Unless
the context otherwise requires, as used herein, "you" and "your" shall mean the
parties to whom this Underwriting Agreement (this "Agreement") is addressed.
Capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Prospectus (as defined below) relating to the
Securities.
The Operating Partnership understands that the Underwriters
propose to make a public offering of the Securities as soon as the
Representative deems advisable after this Agreement has been executed.
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The Operating Partnership has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333-58689) covering the registration of debt securities, including the
Securities, under the Securities Act of 1933, as amended (the "1933 Act"),
including the related preliminary prospectus or prospectuses. Promptly after
execution and delivery of this Agreement, the Operating Partnership will prepare
and file a prospectus supplement relating to the Securities in accordance with
the provisions of Rule 424(b) ("Rule 424(b)") of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"). Any prospectus
supplement relating to the Securities that omitted certain pricing information
and was used after the effectiveness of such registration statement and prior to
the execution and delivery of this Agreement and the prospectus contained in
such registration statement are collectively referred to herein as a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus and the prospectus supplement
relating to the Securities, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first
furnished to the Underwriters for use in connection with confirming sales of the
Securities, are collectively referred to herein as the "Prospectus." For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus or the Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "set forth" or
"stated" in the Registration Statement, any preliminary prospectus or the
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), which is incorporated by reference in the Registration
Statement, such preliminary prospectus or the Prospectus, as the case may be.
The "Company" shall mean Equity Office Properties Trust, a
Maryland real estate investment trust, which is the general partner of the
Operating Partnership.
Section 1. REPRESENTATIONS AND WARRANTIES OF THE OPERATING PARTNERSHIP.
(a) The Operating Partnership represents and warrants to each
Underwriter as of the date hereof and as of the Closing Time, and agrees with
each Underwriter, as follows:
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(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Operating
Partnership meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Operating Partnership, are contemplated by
the Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing Time, the
Registration Statement and any amendments thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the Trust Indenture Act of 1939, as amended (the "1939 Act") and
the rules and regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither the Prospectus
nor any amendments or supplements thereto, at the time the Prospectus or any
such amendment or supplement was issued and at the Closing Time, included or
will include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Operating Partnership
in writing by any Underwriter through the Representative expressly for use in
the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act Regulations, complied
when so filed in all material respects with the 1933 Act Regulations, and each
preliminary prospectus and the Prospectus delivered to the Underwriters for use
in connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or hereafter are
filed with the Commission, complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations or the 1934
Act and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), as applicable, and, when read together with the other information
in the Prospectus, at the time the Registration Statement became effective, at
the time the Prospectus was issued and at the Closing Time, did not and will not
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include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) INDEPENDENT ACCOUNTANTS. Each of Ernst & Young LLP and
PricewaterhouseCoopers LLP, the accounting firms that certified the financial
statements and supporting schedules included in the Registration Statement, is
an independent public accountant as required by the 1933 Act and the 1933 Act
Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included
in the Prospectus, together with the related schedules and notes, present fairly
the financial position of the respective entity or entities presented therein at
the respective dates indicated and the results of their operations for the
respective periods specified, and except as otherwise stated therein, said
financial statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis. The supporting
schedules included in the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The financial information and data
included in the Prospectus and the financial information and data included in
the Company's Current Report on Form 8-K dated July 5, 2000 present fairly the
information included therein and have been prepared on a basis consistent with
that of the books and records of the respective entities presented therein. The
Statements of Revenues and Certain Operating Expenses included in the Prospectus
for certain of the Properties (as defined below) present fairly the information
included therein and have been prepared on a basis consistent with that of the
books and records of the respective entities presented therein. Pro forma
financial information included in the Prospectus has been prepared in accordance
with the applicable requirements of Rules 11-01 and 11-02 of Regulation S-X
under the 1933 Act, and the necessary pro forma adjustments have been properly
applied to the historical amounts in the compilation of such information, and
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(v) NO MATERIAL ADVERSE CHANGE. Since the respective dates as
of which information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, assets, or
business affairs of the Operating Partnership and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Change"), (B) no casualty loss or condemnation or other
adverse event with respect to any Property has occurred that would result in a
Material Adverse Effect (as defined below), (C) there have been no transactions
or acquisitions entered into by the Operating Partnership or any of its
subsidiaries, other than those arising in the ordinary course of business, which
are material with respect to the Operating Partnership and its subsidiaries
considered as one enterprise, (D) except as described in the Registration
Statement and the Prospectus and except
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for regular quarterly distributions on the partnership interests of the
Operating Partnership, there has been no distribution of any kind declared,
paid or made by the Operating Partnership with respect to its partnership
interests, and (E) there has been no material change in the partnership
interests of the Operating Partnership, or any material increase in the
indebtedness of the Operating Partnership.
(vi) GOOD STANDING OF THE OPERATING PARTNERSHIP. The Operating
Partnership has been duly formed and is validly existing as a limited
partnership in good standing under the Delaware Revised Uniform Limited
Partnership Act (the "Delaware Act") with partnership power and authority to
own, lease and operate any real property or improvements thereon owned or leased
by the Operating Partnership or its subsidiaries (each individually, a
"Property" and collectively, the "Properties"), to conduct the business in which
it is engaged or proposes to engage as described in the Registration Statement
and the Prospectus and to enter into and perform its obligations under or
contemplated under this Agreement. The Operating Partnership is duly qualified
or registered as a foreign partnership and is in good standing in each
jurisdiction in which such qualification or registration is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify, register or be in good standing would
not result in a material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or business prospects of
the Operating Partnership and the its subsidiaries considered as one enterprise
(a "Material Adverse Effect").
(vii) GOOD STANDING OF THE SUBSIDIARIES. Each of the
subsidiaries of the Operating Partnership listed on SCHEDULE C to this Agreement
(collectively, the "Significant Subsidiaries"), if any, has been duly
organized and is validly existing as a partnership, corporation, limited
liability company or real estate investment trust in good standing under the
laws of its respective jurisdiction of organization, with all power and
authority to own, lease and operate its Properties and to conduct the
business in which it is engaged or proposes to engage as described in the
Registration Statement and the Prospectus. Each of the subsidiaries of the
Operating Partnership is duly qualified or registered as a foreign
partnership, corporation, limited liability company, or real estate
investment trust and is in good standing in each jurisdiction in which the
business conducted by such subsidiary is required and permitted, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure, singly or in the aggregate, to so qualify would not
result in a Material Adverse Effect. Each of the partnership or operating
agreements of the Significant Subsidiaries is in full force and effect.
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(viii) CAPITALIZATION OF OPERATING PARTNERSHIP. The
capitalization of the Operating Partnership is as set forth in the Prospectus as
of the date referenced therein. All of the partnership interests outstanding at
the date hereof were duly authorized for issuance by the Operating Partnership
and are validly issued and fully paid. The outstanding partnership interests
were offered and sold in compliance with all applicable laws (including, without
limitation, federal and state securities laws).
(ix) AUTHORIZATION OF THE INDENTURE. The Indenture has been
duly authorized, executed and delivered by the Operating Partnership, and
assuming due authorization, execution and delivery by the Trustee, constitutes a
valid and binding obligation of the Operating Partnership, enforceable against
the Operating Partnership in accordance with its terms, except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and (B) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(x) AUTHORIZATION OF THE SECURITIES. The Securities have been
duly authorized by the Operating Partnership and, at the Closing Time, will have
been duly executed by the Operating Partnership and, when authenticated, issued
and delivered in the manner provided for in the Indenture and delivered against
payment of the purchase price therefor as provided in this Agreement, will
constitute valid and binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability, and the Securities will be in the form contemplated by, and
entitled to the benefits of, the Indenture.
(xi) DESCRIPTION OF THE SECURITIES AND THE INDENTURE. The
Securities and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the Prospectus and will be
in substantially the respective forms filed or incorporated by reference, as the
case may be, as exhibits to the Registration Statement.
(xii) ABSENCE OF DEFAULTS. Neither the Operating Partnership
nor any Significant Subsidiary is in violation of its declaration of trust,
charter, by-laws, limited liability company agreement, certificate of limited
partnership or partnership agreement, as the case may be, and neither the
Operating Partnership nor any Significant Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which such entity is a party or by which such entity may be
bound, or to which any of the property or assets of such entity is subject,
except where a default thereunder would not result in a Material Adverse Effect.
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(xiii) ABSENCE OF CONFLICTS. The execution and delivery of
this Agreement and the Indenture, the performance of the obligations set forth
herein or therein, and the consummation of the transactions contemplated hereby
or thereby or in the Prospectus (including the issuance and sale of the
Securities by the Operating Partnership) will not result in the creation of any
lien, charge or encumbrance upon the Properties or conflict with or constitute a
breach or violation by the Operating Partnership or any of its subsidiaries, or
default under, (A) any material contract, indenture, mortgage, loan agreement,
note, lease, joint venture or partnership agreement or other instrument or
agreement to which such entity is a party or by which they, any of them, any of
their respective assets or any Property may be bound or subject, (B) the
declaration of trust, the charter, by-laws, certificate of limited partnership,
partnership agreement, or limited liability company agreement, as the case may
be, of such entity or (C) any applicable law, rule, order, administrative
regulation or administrative or court decree, except in the cases of clauses (A)
and (C) for such liens, charges, encumbrances, conflicts, breaches, violations
or defaults as would not result in a Material Adverse Effect.
(xiv) AUTHORIZATION OF AGREEMENT. The Operating Partnership
has the requisite power and authority under its organizational documents to
enter into this Agreement, and this Agreement has been duly authorized, executed
and delivered by the Operating Partnership.
(xv) ABSENCE OF PROCEEDINGS. There is no action, suit or
proceeding before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Operating
Partnership, threatened against or affecting the Operating Partnership, the
Company, any Significant Subsidiary, any Property or any officer or trustee of
the Company that, if determined adversely to the Operating Partnership, the
Company, any Significant Subsidiary, any Property or any such officer or
trustee, might (A) result in any Material Adverse Effect or (B) materially and
adversely affect the consummation of the transactions contemplated by this
Agreement. There are no legal or governmental proceedings pending or, to the
knowledge of the Operating Partnership, threatened to which the Operating
Partnership or any significant subsidiary is a party or to which any of their
respective assets, properties or operations is the subject that are required to
be described in the Prospectus that are not so described. The aggregate of all
pending legal or governmental proceedings to which the Operating Partnership,
the Company or any Significant Subsidiary is a party or of which any of their
respective assets, properties or operations is the subject which are not
described in the Prospectus, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material Adverse
Effect.
(xvi) ACCURACY OF EXHIBITS. There are no contracts or
documents which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
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(xvii) INVESTMENT COMPANY ACT. Neither the Operating
Partnership nor any Significant Subsidiary is, or at the Closing Time will be,
required to be registered under the Investment Company Act of 1940, as amended
(the "1940 Act").
(xviii) POSSESSION OF INTELLECTUAL PROPERTY. The Operating
Partnership and its subsidiaries own or possess, or can acquire on reasonable
terms, the trademarks, service marks, trade names, or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and no such entity has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of such entities therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xix) ABSENCE OF FURTHER REQUIREMENTS. All authorizations,
approvals and consents of any court or governmental authority or agency that are
necessary in connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the other transactions contemplated by this
Agreement or the Indenture have been obtained, except such as have been already
obtained or as may be required under the securities, blue sky or real estate
syndication laws of various states in connection with such offer, issuance and
sale.
(xx) POSSESSION OF LICENSES AND PERMITS. The Operating
Partnership and its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, or local regulatory agencies or bodies
necessary to conduct the business now conducted by them, or proposed to be
conducted by them, as described in the Prospectus, except where the failure to
possess any such Governmental License would not have a Material Adverse Effect.
The Operating Partnership and its subsidiaries are in compliance with the terms
and conditions of all such Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, result in a Material Adverse
Effect. All of the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in a
Material Adverse Effect. Neither the Operating Partnership nor any of its
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
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(xxi) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Operating Partnership or any of its subsidiary exists or, to
the knowledge of the Operating Partnership, is imminent, which may reasonably be
expected to result in a Material Adverse Effect.
(xxii) TITLE TO PROPERTY. (A) With respect to the Properties
in which the Operating Partnership owns, directly or indirectly, all of the
ownership interest therein, the Operating Partnership or its subsidiaries have
good and marketable fee simple title to the land underlying such Properties (or,
to the extent described in the Prospectus, a valid leasehold estate in such
land) and (except for the Property known as "500 Orange") good and marketable
title to the improvements thereon and all other assets that are required for the
effective operation of such Properties in the manner in which they currently are
operated, subject, however, to existing mortgages on such Properties, to utility
easements serving such Properties, to liens of ad valorem taxes not due and
payable as of the Closing Time (or which are being contested pursuant to
applicable law), to zoning and similar governmental land use matters affecting
such Properties that are consistent with the current uses of such Properties, to
matters of title not adversely affecting marketability of title to such
Properties, other statutory liens not due and payable as of the Closing Time,
title matters that may be material in character, amount or extent but which do
not materially detract from the value, or interfere with the use, of the
Properties or otherwise materially impair the business operations being
conducted or proposed to be conducted thereon, tenant leases, service marks and
trade names used in connection with such Properties, ground leases and ownership
by others of certain items of equipment and other items of personal property
that are not material to the conduct of business operations at such Properties;
(B) with respect to the Properties in which the Operating Partnership owns,
directly or indirectly, less than all of the ownership interest (the "Joint
Venture Properties"), the Operating Partnership or its subsidiaries have good
and marketable title to such ownership interests and the respective entities
owning the Joint Venture Properties have good and marketable title to such
interests in the Joint Venture Properties and good and marketable title to the
improvements thereon and all other assets that are required for the effective
operation of such Properties in the manner in which they currently are operated,
subject to the exceptions set forth in clause (A) above; (C) the ground leases
under which the applicable subsidiaries of the Operating Partnership lease the
land on which certain Properties are located are in full force and effect, and
each of such subsidiaries is not in default in respect of any of the terms or
provisions of such leases and neither the Operating Partnership nor any such
subsidiary has not received notice of the assertion of any claim by anyone
adverse to such subsidiaries' rights as lessees under such leases, or affecting
or questioning such subsidiaries' right to the continued possession or use of
the Property under such leases or of a default under such leases; (D) all liens,
charges, encumbrances, claims, or restrictions on or affecting any of the
Properties and the assets of the Operating Partnership or any of its
subsidiaries are disclosed in the Prospectus, subject to the exceptions set
forth in clause (A) above; (E) neither any subsidiary of the Operating
Partnership nor any tenant of any of the Properties is in default
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under any of the leases pursuant to which the Operating Partnership or any of
its subsidiaries, as lessor, leases its Property (and the Operating
Partnership does not know of any event which, but for the passage of time or
the giving of notice, or both, would constitute a default under any of such
leases) other than such defaults and unmatured events of default that would
not result in a Material Adverse Effect; (F) except for such rights of first
refusal as may be contained in the agreements related to the Joint Venture
Properties, no person has an option or right of first refusal to purchase all
or part of any Property or any interest therein; (G) each of the Properties
complies with all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and laws relating
to access to the Properties), except if and to the extent disclosed in the
Prospectus and except for such failures to comply that would not individually
or in the aggregate result in a Material Adverse Effect; (H) there is in full
force and effect insurance coverages for the assets of the Properties that
are commercially reasonable for such types of assets, and neither the
Operating Partnership nor any of its subsidiaries has received from any
insurance company notice of any material defects or deficiencies affecting
the insurability of any such assets (including the Properties); and (I)
neither the Operating Partnership nor any of its subsidiaries has any
knowledge of any pending or threatened condemnation proceedings, zoning
change, or other similar proceeding or action that will in any manner affect
the size of, use of, improvements on, construction on or access to the
Properties, except such proceedings or actions as are disclosed in the
Prospectus or that would not have a Material Adverse Effect.
(xxiii) ENVIRONMENTAL LAWS. Except as disclosed in the
Prospectus or as would not have a Material Adverse Effect: (A) each Property,
including, without limitation, the Environment (as defined below) associated
with such Property, is free of any Hazardous Substance (as defined below) in
violation of any Environmental Law (as defined below) applicable to such
Property, except for Hazardous Substances that would not result in a Material
Adverse Effect; (B) neither the Operating Partnership nor any of its
subsidiaries has during the period of its ownership caused or suffered to occur
any Release (as defined below) of any Hazardous Substance into the Environment
on, in, under or from any Property in violation of any Environmental Law
applicable to such Property, and no condition exists on, in, under or, to the
knowledge of the Operating Partnership or any of its subsidiaries adjacent to,
any Property that could result in the incurrence of material liabilities or any
material violations of any Environmental Law applicable to such Property, or
give rise to the imposition of any Lien (as defined below) under any
Environmental Law; (C) neither the Operating Partnership nor any of its
subsidiaries is engaged in or intends to engage in any manufacturing at the
Properties that (1) requires the use, handling, transportation, storage,
treatment or disposal of any Hazardous Substance (other than cleaning solvents
and similar materials and other than insecticides and herbicides that are used
in the ordinary course of operating the Properties and in compliance with all
applicable Environmental Laws) or (2) requires permits or is otherwise regulated
pursuant to any Environmental Law; (D) neither the Operating Partnership nor any
of its subsidiaries has received any notice of a claim under or pursuant to any
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Environmental Law applicable to a Property or under common law pertaining to
Hazardous Substances on or originating from any Property; (E) neither the
Operating Partnership nor any of its subsidiaries has received any notice from
any Governmental Authority (as defined below) claiming any violation of any
Environmental Law that is uncured or unremediated as of the date hereof; and (F)
no Property is included or, to the knowledge of the Operating Partnership nor
any of its subsidiaries, proposed for inclusion on the National Priorities List
issued pursuant to CERCLA (as defined below) by the United States Environmental
Protection Agency (the "EPA") or on the Comprehensive Environmental Response,
Compensation, and Liability Information System database maintained by the EPA,
and has not otherwise been identified by the EPA as a potential CERCLA removal,
remedial or response site or included or, to the knowledge of the Operating
Partnership, proposed for inclusion on, any similar list of potentially
contaminated sites pursuant to any other applicable Environmental Law nor has
the Operating Partnership nor any of its subsidiaries received any written
notice from the EPA or any other Governmental Authority proposing the inclusion
of any Property on such list; and (G) there are no underground storage tanks
located on or in any Property which have not been disclosed to the
Representative.
As used herein, the term "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste, toxic or dangerous
substance, pollutant, solid waste or similarly designated materials, including,
without limitation, oil, petroleum or any petroleum-derived substance or waste,
asbestos or asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation or any constituent
of any such substance, pollutant or waste, including any such substance,
pollutant or waste identified or regulated under any Environmental Law
(including, without limitation, materials listed in the United States Department
of Transportation Optional Hazardous Material Table, 49 C.F.R. Section 172.101,
as heretofore amended, or in the EPA's List of Hazardous Substances and
Reportable Quantities, 40 C.F.R. Part 302, as heretofore amended); "Environment"
shall mean any surface water, drinking water, ground water, land surface,
subsurface strata, river sediment, buildings, structures, and ambient workplace
and indoor air; "Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section
9601 et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. Section 6901, et seq.), the Clean Air Act, as amended (42
U.S.C. Section 7401, et seq.), the Clean Water Act, as amended (33 U.S.C.
Section 1251, et seq.), the Toxic Substances Control Act, as amended (15 U.S.C.
Section 2601, et seq.), the Occupational Safety and Health Act of 1970, as
amended (29 U.S.C. Section 651, et seq.), the Hazardous Materials Transportation
Act, as amended (49 U.S.C. Section 1801, et seq.), and all other federal, state
and local laws, ordinances, regulations, rules, orders, decisions and permits
relating to the protection of the environment or of human health from
environmental effects; "Governmental Authority" shall mean any federal, state or
local governmental office, agency or authority having the duty or authority to
promulgate, implement or enforce any Environmental Law; "Lien"
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shall mean, with respect to any Property, any mortgage, deed
of trust, pledge, security interest, lien, encumbrance, penalty, fine, charge,
assessment, judgment or other liability in, on or affecting such Property; and
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, emanating or
disposing of any Hazardous Substance into the Environment, including, without
limitation, the abandonment or discard of barrels, containers, tanks (including,
without limitation, underground storage tanks) or other receptacles containing
or previously containing any Hazardous Substance or any release, emission,
discharge or similar term, as those terms are defined or used in any
Environmental Law.
(xxiv) TAX COMPLIANCE. Each of the Operating Partnership and
its subsidiaries has filed all federal, state, and local income tax returns
which have been required to be filed and has paid all taxes required to be paid
and any other assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good faith, and except in
any case in which the failure to so file or pay would not have a Material
Adverse Effect.
(xxv) NO PRICE MANIPULATION. Neither the Operating Partnership
nor any of its Significant Subsidiaries, nor any of their directors, officers or
controlling persons, has taken or will take, directly or indirectly, any action
designed to cause or result under the 1934 Act, or otherwise in, or which has
constituted or which reasonably might be expected to constitute, the unlawful
stabilization or manipulation of the price of any security of the Operating
Partnership to facilitate the sale or resale of the Securities.
(xxvi) PLAN ASSETS. The assets of the Operating Partnership
and its subsidiaries do not constitute "plan assets" under the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereof.
(xxvii) REGULATIONS G, T, U AND X. None of the transactions
contemplated by this Agreement (including, without limitation, the use of the
proceeds from the sale of the Securities) will violate or result in a violation
of Section 7 of the 1934 Act, or any regulation promulgated thereunder,
including, without limitation, Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System.
(xxviii) PARTNERSHIP CLASSIFICATION. The Operating Partnership
and each of the Significant Subsidiaries that are partnerships are properly
classified as partnerships, and not as corporations or as associations taxable
as corporations, for federal income tax purposes throughout the period from July
11, 1997 through the date hereof, or, in the case of any Significant Subsidiary
partnerships that have terminated, through the date of termination of such
Significant Subsidiary partnerships.
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(xxix) CROSS DEFAULTS. The mortgages and deeds of trust
encumbering the properties and assets described in general in the Prospectus are
not convertible and are not cross-defaulted or cross-collateralized to any
property not owned by the Operating Partnership or any of its subsidiaries; and,
except as disclosed in the Prospectus, neither the Operating Partnership nor any
of its subsidiaries holds participating interests in such mortgages and deeds of
trust.
(b) Any certificate signed by any officer of the Company, on
behalf of the Operating Partnership, and delivered to the Representative or
to counsel for the Underwriters shall be deemed a representation and warranty
by the Operating Partnership to each Underwriter as to the matters covered
thereby.
Section 2. SALE AND DELIVERY; CLOSING.
(a) SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions set forth
herein, the Operating Partnership agrees to sell to each Underwriter, severally
and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Operating Partnership, at the price set forth in SCHEDULE B,
the aggregate principal amount of Securities set forth in SCHEDULE A opposite
the name of such Underwriter, plus any additional principal amount of Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) PAYMENT. Payment of the purchase price for, and delivery
of certificates for, the Securities shall be made at the offices of Brown & Wood
LLP, One World Trade Center, New York, New York 10048-0557, or at such other
place as shall be agreed upon by the Representative and the Operating
Partnership, at 9:00 A.M. (New York City time) on the third business day after
the date hereof (unless postponed in accordance with the provisions of Section
10), or such other time not later than ten business days after such date as
shall be agreed upon by the Representative and the Operating Partnership (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Operating Partnership by wire
transfer of immediately available funds to a bank account designated by the
Operating Partnership, against delivery to the Representative for the respective
accounts of the Underwriters of certificates for the Securities to be purchased
by them. It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has agreed to
purchase. Banc of America Securities LLC, individually and not as representative
of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Securities to be purchased by any Underwriter whose funds
have not been received by the Closing Time, but such payment shall not relieve
such Underwriter from its obligations hereunder.
(c) DENOMINATIONS; REGISTRATION. The Securities shall be in
book-entry form only and shall be represented by global certificates in such
denominations and registered in such names as the Representative may request in
writing at least two full business days before the Closing Time. The Securities
will be made available for examination and packaging by the
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Representative in The City of New York not later than 10:00
A.M. (New York City time) on the business day prior to the Closing Time.
Section 3. COVENANTS OF THE OPERATING PARTNERSHIP. The
Operating Partnership covenants with each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. During the period when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities, the Operating
Partnership will notify the Representative immediately, and confirm the notice
in writing, (i) when any post-effective amendment to the Registration Statement
shall become effective, or any amendment or supplement to the Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Operating Partnership will promptly effect the filings necessary pursuant to
Rule 424(b) and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. During the period when the
Prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, the Operating Partnership will give the Representative notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Representative with copies of any
such documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Operating
Partnership has furnished or will deliver to the Representative and counsel for
the Underwriters, without charge, conformed copies of the Registration Statement
as originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein) and conformed copies of all
consents and certificates of experts, and will also deliver to the
Representative, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR.
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(d) DELIVERY OF PROSPECTUSES. The Operating Partnership has
delivered to each Underwriter, without charge, as many copies of each
preliminary prospectus, if any, as such Underwriter reasonably requested, and
the Operating Partnership hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Operating Partnership will furnish to each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Operating
Partnership will comply with the 1933 Act and the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations
so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Operating Partnership, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Operating Partnership will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Operating Partnership will
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) STATE LAW. The Operating Partnership will use its best
efforts, in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions, including real estate syndication laws, as the Representative may
designate and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Registration Statement
and any Rule 462(b) Registration Statement; provided, however, that the
Operating Partnership shall not be obligated to file any general consent to
service of process or to qualify as a foreign limited partnership or as a dealer
in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Securities have
been so qualified, the Operating Partnership will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b) Registration
Statement. The Operating Partnership will also supply the Underwriters with such
information as is necessary for the determination of the legality of the
Securities for investment under the laws of such jurisdictions as the
Underwriters may request.
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(g) RULE 158. The Operating Partnership will timely file such
reports pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings statement
for the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Operating Partnership will use the
net proceeds received by it from the sale of the Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(i) REPORTING REQUIREMENTS. The Operating Partnership, during
the period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
(j) DTC. The Operating Partnership shall use its reasonable
best efforts in cooperation with the Underwriters to permit the Securities to be
eligible for clearance and settlement through DTC.
(k) RATINGS. The Operating Partnership will use its reasonable
best efforts to enable Standard & Poor's Ratings Services ("S&P") and Moody's
Investors Service, Inc. ("Moody's") to provide their respective credit ratings
of the Securities.
(l) NOTIFICATION OF CERTAIN EVENTS. Prior to the Closing Time,
the Operating Partnership will notify the Representative in writing immediately
if any event occurs that renders any of the representations and warranties of
the Operating Partnership contained herein inaccurate or incomplete.
Section 4. PAYMENT OF FEES AND EXPENSES.
(a) EXPENSES. The Operating Partnership will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment and
supplement thereto, (ii) the preparation and delivery to the Underwriters of
this Agreement, any Agreement among Underwriters, the Indenture, and such other
documents as may be required in connection with the offering, purchase, sale and
delivery of the Securities, including any global securities, (iii) the
preparation, issuance and delivery of the Securities, including any global
Securities, (iv) the fees and disbursements of the Operating Partnership's
counsel, accountants, and other advisors or agents (including transfer agents
and registrars), (v) the qualification of the Securities under state securities
laws and real estate syndication laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of a blue sky memorandum
(the "Blue Sky Memorandum") and any amendment or supplement thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus and the Prospectus and any amendments or supplements thereto, (vii)
any fees charged by nationally recognized statistical rating organizations for
the rating of the Securities, (viii) the fees and expenses of the Trustee,
including the reasonable fees and disbursements of counsel for the Trustee, in
connection with
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the Indenture and the Securities, (ix) all expenses and listing fees incurred in
connection with the clearance and settlement of the Securities through DTC and
(x) all expenses and listing fees incurred in connection with the application to
obtain CUSIP numbers for the Securities.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated
by the Representative in accordance with the provisions of Section 5 hereof, the
Operating Partnership shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
several obligations of the Underwriters hereunder are subject to the accuracy,
as of the date hereof and as of the Closing Time, of the representations and
warranties of the Operating Partnership contained in Section 1(a) hereof, to the
performance by the Operating Partnership of its covenants and other obligations
hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement has become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters.
(b) (i) At the Closing Time, you shall have received the
favorable opinion, dated as of the Closing Time, of Hogan & Hartson L.L.P.,
counsel for the Operating Partnership, in form and substance satisfactory to
you, to the effect set forth in EXHIBIT A hereto.
(ii) At the Closing Time, the Representative shall have
received the favorable opinion, dated as of the Closing Time, of Brown & Wood
LLP, counsel for the Underwriters, with respect to the matters set forth in
Items (1) (as to formation, valid existence and good standing only), (2), (3),
(4), (5), (6), (7) and (13) of EXHIBIT A hereto and a statement similar to the
statement referred to in the last paragraph of EXHIBIT A hereto.
In giving their opinions required by Section 5(b)(i) and (ii),
each of Hogan & Hartson L.L.P. and Brown & Wood LLP may rely, (A) as to all
matters of fact, upon certificates and written statements of officers and
employees of and accountants for each of the Operating Partnership or the
Significant Subsidiaries and (B) as to the qualification and good standing of
each of the Operating Partnership or the Significant Subsidiaries to do business
in any state or jurisdiction, upon certificates of appropriate government
officials or opinions of counsel in such jurisdictions, which opinions shall be
in form and substance reasonably satisfactory to counsel for the Underwriters.
(c) At the Closing Time, there shall not have been, since the
respective dates as of which information is given in the Prospectus, any
Material Adverse Change, and you shall have received a certificate of the Chief
Executive Officer and the chief financial or chief accounting officer of the
Company, on behalf of the Operating Partnership, dated as of the Closing Time,
evidencing compliance with the provisions of this subsection (c), stating that
(i) there has been no Material Adverse Change, (ii) the representations and
warranties set forth in
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Section 1(a) hereof are accurate as though expressly made at and as of the
Closing Time, and (iii) the conditions precedent set forth in this Section 5
have been satisfied or waived and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or, to such
officer's knowledge, are contemplated by the Commission.
(d) (i) At the time of execution of this Agreement, you shall
have received from Ernst & Young, LLP a letter dated such date, in form and
substance satisfactory to you, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the related financial statements and financial information contained
in the Registration Statement and the Prospectus.
(ii) At the time of execution of this Agreement, you shall
have received from PricewaterhouseCoopers LLP a letter dated such date, in form
and substance satisfactory to you, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the related financial statements and financial information contained
in the Registration Statement and the Prospectus.
(e) (i) At the Closing Time, you shall have received from
Ernst & Young LLP a letter dated as of the Closing Time to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection
(d)(i) of this Section 5, except that the "specified date" referred to shall be
a date not more than three days prior to the Closing Time. Any exception will be
identified in such letter.
(ii) At the Closing Time, you shall have received from
PricewaterhouseCoopers LLP a letter dated as of the Closing Time to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (d)(ii) of this Section 5, except that the "specified date" referred
to shall be a date not more than three days prior to the Closing Time. Any
exception will be identified in such letter.
(f) At the Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Operating Partnership in connection with the
issuance of the Securities as herein contemplated shall be satisfactory in form
and substance to you and counsel for the Underwriters.
(g) At or prior to the Closing Time, the Securities shall be
rated at least Baa1 by Moody's and BBB+ by S&P and the Operating Partnership
shall have delivered to the Representative evidence reasonably satisfactory to
the Representative confirming that the Securities have such ratings; and since
the date of the Agreement, there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the Operating Partnership's other
debt securities or the Company's preferred shares of beneficial interest by any
"nationally recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
securities rating organization shall have publicly announced that it has under
surveillance or review any rating of the Securities or
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any of the Operating Partnership's other debt securities or the Company's
preferred shares of beneficial interest.
(h) If any condition specified in this Section 5 shall not
have been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by you by notice to the Operating Partnership at any time at or prior
to the Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Sections 4 and except that
Sections 6, 7, 8 and 13 shall survive any such termination and remain in full
force and effect.
Section 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Operating Partnership
agrees to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, and any director, officer, employee or affiliate
thereof, as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the
Operating Partnership; and
(iii) against any and all expense whatsoever
(including, without limitation, the reasonable fees and
disbursements of counsel chosen by the Representative),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii)
above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information
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furnished to the Operating Partnership by any Underwriter through the
Representative expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) INDEMNIFICATION OF THE OPERATING PARTNERSHIP. Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Operating Partnership, and each person, if any, who controls the Operating
Partnership within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, and any trustee, officer, employee or affiliate thereof, against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 6, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information concerning
such Underwriter furnished to the Operating Partnership through the
Representative by or on behalf of such Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected by
the Representative, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the
Operating Partnership. An indemnifying party may participate at its own expense
in the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any
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settlement of the nature contemplated by Section 6(a)(iii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Section 7. CONTRIBUTION. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 hereof is for any reason held to be unenforceable by
the indemnified parties although applicable in accordance with its terms, the
Operating Partnership, on the one hand, and the Underwriters, on the other,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Operating Partnership and the Underwriters, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the discounts and commissions appearing on the cover page of the
Prospectus bears to the price to investors appearing thereon and the Operating
Partnership is responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each trustee of the Company, and each person, if any, who
controls the Operating Partnership within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Operating Partnership. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the principal
amount of Securities set forth opposite their respective names in SCHEDULE A
hereto and not joint.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities purchased and sold by it to
purchasers exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission in the Prospectus.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company, on behalf of the
Operating Partnership, submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriters or any controlling person, or by or on behalf of the Operating
Partnership or any controlling person, and shall survive delivery of the
Securities to the Underwriters.
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Section 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice
to the Operating Partnership, at any time at or prior to the Closing Time, (i)
if there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Prospectus, any Material Adverse
Change, (ii) if there has occurred any material adverse change in the financial
markets in the United States or any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial, or
economic conditions, in each case, the effect of which is such as to make it, in
the Representative's reasonable judgment, impracticable to market the Securities
or enforce contracts for the sale of the Securities, (iii) if trading in any of
the Company's shares of beneficial interest or the Operating Partnership's debt
securities has been suspended by the Commission or the New York Stock Exchange,
or if trading generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq Stock Market has been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by either of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc., or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either federal, New York, Delaware or Maryland authorities.
(b) If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party
except as provided in Sections 4 and 10 hereof and provided further that
Sections 4, 6, 7, 8 and 13 hereof shall survive such termination and remain in
full force and effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Securities to be
purchased hereunder, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective purchase obligations hereunder bear to the
purchase obligations of all non-defaulting Underwriters.
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be purchased
hereunder, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
22
<PAGE>
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Operating
Partnership shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term " Underwriter" includes any person substituted for an
Underwriter under this Section 10.
Section 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at 100 North Tryon Street,
Charlotte, North Carolina, 28255, attention of Lynn T. McConnell; and notices to
the Operating Partnership shall be directed to it at Two North Riverside Plaza,
Suite 2100, Chicago, IL 60606, attention of Stanley M. Stevens, Chief Legal
Counsel.
Section 12. PARTIES. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Operating Partnership and their respective successors and the
controlling persons and officers and trustees referred to in Sections 6 and 7
and their successors, heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties hereto and
their respective successors and said controlling persons and officers and
directors and their successors, heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 14. COUNTERPARTS. This Agreement may be executed in
one or more counterparts and, if executed in more than one counterpart, the
executed counterparts shall constitute a single instrument.
Section 15. EFFECT OF HEADINGS. The Article, Section and
Sub-Section headings herein are for convenience only and shall not affect the
construction hereof.
* * * * *
23
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement please sign and return to the Operating Partnership a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters and the Operating Partnership in
accordance with its terms.
Very truly yours,
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust, its
General Partner
By: /s/ Stanley M. Stevens
--------------------------------------------
Name: Stanley M. Stevens
Title: Executive Vice President and
Chief Legal Officer
Confirmed and Accepted,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
FOR THEMSELVES AND AS THE REPRESENTATIVE OF THE
OTHER UNDERWRITERS NAMED IN SCHEDULE A HERETO
By: /s/ Lily Chang
---------------------------------------
Name: Lily Chang
Title: Principal
24
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
UNDERWRITER PRINCIPAL AMOUNT
----------- ----------------
<S> <C>
Banc of America Securities LLC................... $117,000,000
Lehman Brothers Inc.............................. $117,000,000
Chase Securities Inc............................. $63,000,000
Salomon Smith Barney Inc......................... $63,000,000
----------------
Total............................ $360,000,000
----------------
</TABLE>
Sch-A1
<PAGE>
SCHEDULE B
EOP Operating Limited Partnership
$360,000,000 8.10% Notes due August 1, 2010
1. The initial public offering price of the Securities shall be
99.787% of the aggregate principal amount thereof, plus accrued interest, if
any, from August 7, 2000.
2. The purchase price to be paid by the Underwriters for the
Securities shall be 99.137% of the aggregate principal amount thereof.
3. The interest rate on the shall be 8.10% per annum.
4. The Securities will mature on August 1, 2010, unless redeemed
at the option of the Operating Partnership at the redemption price.
Sch B-1
<PAGE>
SCHEDULE C
SIGNIFICANT SUBSIDIARIES
None
Sch C-1
<PAGE>
EXHIBIT A
Opinion of Hogan & Hartson L.L.P.
(1) The Operating Partnership is a limited partnership formed and validly
existing and in good standing under the laws of the State of Delaware and has
the partnership power and partnership authority under the limited partnership
agreement of the Operating Partnership (the "Partnership Agreement") and the
Delaware Revised Uniform Limited Partnership Act (the "Delaware Act") to own,
lease and operate its current properties, to conduct the business in which it is
engaged or proposes to engage as described in the Prospectus and to enter into
and perform its obligations under the Underwriting Agreement and the Indenture
(collectively, the "Listed Agreements"), and the Securities. The Operating
Partnership is qualified or registered as a foreign limited partnership and is
in good standing under the laws of the States listed on APPENDIX A hereto as of
the respective dates of the certificates received from such States.
(2) The Securities have been duly authorized by the Operating
Partnership. The Securities, when issued and authenticated in the manner
provided for in the Indenture and delivered against payment in accordance with
the Underwriting Agreement, will be entitled to the benefits of the Indenture,
and will constitute valid and legally binding obligations of the Operating
Partnership, enforceable against the Operating Partnership in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
(including, without limitation, the effect of statutory and other law regarding
fraudulent conveyances, fraudulent transfers and preferential transfers) and as
may be limited by the exercise of judicial discretion and the application of
principles of equity, including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of whether enforcement
is considered in a proceeding at law or in equity).
(3) The Underwriting Agreement has been duly authorized, executed and
delivered by the Operating Partnership.
(4) The Indenture has been duly authorized, executed and delivered by the
Operating Partnership and (assuming due authorization, execution and delivery
thereof by the other parties thereto) constitutes a valid and binding agreement
of the Operating Partnership, enforceable against the Operating Partnership in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights (including,
without limitation, the effect of statutory and other law regarding fraudulent
conveyances, fraudulent transfers and preferential transfers) and as may be
limited by the exercise of judicial discretion and the application of principles
of equity, including, without limitation, requirements of good faith, fair
dealing, conscionability and materiality (regardless of whether such agreement
is considered in a proceeding at law or in equity) and except that a waiver of
rights under any usury law may be unenforceable.
(5) The Indenture has been duly qualified under the 1939 Act.
(6) The Securities and the Indenture conform in all material respects to
the descriptions thereof contained in the Prospectus.
A-1
<PAGE>
(7) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
(8) The execution, delivery and performance as of the date hereof by the
Operating Partnership of the Listed Agreements and the issuance and sale of the
Securities do not (i) violate the Delaware Act or the Partnership Agreement,
(ii) to such counsel's knowledge, violate any applicable law, rule, regulation,
order, judgment or decree of any Delaware agency or court, or (iii) breach or
constitute a default under any agreement or contract listed on APPENDIX B
hereto.
(9) The Registration Statement, including any Rule 462(b) Registration
Statement, and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement and
Prospectus, excluding the documents incorporated by reference therein, as of
their respective effective or issue dates (other than the financial statements
and supporting schedules and pro forma financial information included therein or
omitted therefrom, and the Trustee's Statement of Eligibility on Form T-1 (the
"Form T-1"), as to which such counsel need express no opinion), complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(10) The documents incorporated by reference in the Registration
Statement and the Prospectus (other than the financial statements and supporting
schedules and the pro forma financial information included therein or omitted
therefrom, as to which such counsel need express no opinion), when they became
effective or were filed with the Commission , as the case may be, complied as to
form in all material respects with the requirements of the 1933 Act or the 1934
Act , as applicable, and the rules and regulations of the Commission thereunder.
(11) The Operating Partnership is not, nor after giving effect to the
issuance of the Securities and the application of the net proceeds therefrom as
described in the Prospectus will be, as of the date hereof, an "investment
company" within the meaning of the 1940 Act.
(12) Except for such consents, approvals, authorizations, registrations
or qualifications as may be required under applicable state securities or real
estate syndication laws (as to which such counsel need express no opinion) in
connection with the offer and sale of the Securities, no consent, approval,
authorization or order of, or filing or registration with, the Commission or any
Delaware court or governmental agency or body is required to be obtained or made
by the Operating Partnership for the issuance of the Securities or the
performance as of the date hereof of the obligations contained in the Securities
and the Listed Agreements by the Operating Partnership.
(13) The information in the Prospectus under the captions "Description of
Notes," "Description of Debt Securities" and "Plan of Distribution," to the
extent that such information constitutes matters of law or legal conclusions,
has been reviewed by us and is correct in all material respects
A-2
<PAGE>
(14) The Operating Partnership is classified as a partnership, and is not
taxed as a corporation or association taxable as a corporation, for Federal
income tax purposes throughout the period from July 7, 1997 through the date
hereof.
The opinions as to enforceability expressed in Paragraphs (2) and (4)
above shall be understood to mean only that if there is a default in performance
of an obligation, (i) if a failure to pay or other damage can be shown and (ii)
if the defaulting party can be brought into a court which will hear the case and
apply the governing law, then, subject to the availability of defenses, and to
the exceptions set forth in Paragraphs (2) and (4) above, the court will provide
a money damage (or perhaps injunctive or specific performance) remedy.
In giving its opinion required by Section 5(b)(i), such counsel shall
additionally state that no facts have come to their attention which cause such
counsel to believe that (i) the Registration Statement or any amendment thereto
(except for the Form T-1, as to which such counsel need make no statement), at
the time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(except for the Form T-1, as to which such counsel need make no statement), at
the time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (ii) there are any
legal or governmental proceedings pending or threatened against the Operating
Partnership that are required to be disclosed in the Prospectus, other than
those disclosed therein, or (iii) there are any contracts or documents of a
character required to be described in the Prospectus that are not described or
referred to therein; provided that in making the foregoing statements (which
shall not constitute an opinion), such counsel need not express any views as to
the financial statements and supporting schedules and other financial
information and data included in or omitted from the 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 Operating Partnership, representatives
of the independent public accountants for the Operating Partnership and with you
and your representatives during the course of the preparation of the
Registration Statement and the Prospectus.
A-3
<PAGE>
APPENDIX A
States Requiring Registration by or
Qualification of the Operating Partnership
as a Foreign Limited Partnership
A-1
<PAGE>
APPENDIX B
Material Agreements and Contracts
of the Operating Partnership
B-1
