<PAGE>
As filed with the Securities and Exchange Commission on February 5, 1998
Registration No. 333-45405
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
Form S-4
REGISTRATION STATEMENT
Under
The Securities Act of 1933
______________
PUBLIC STORAGE PROPERTIES XI, INC.
(Exact name of registrant as specified in its charter)
California
(State or other jurisdiction of incorporation or organization)
95-4300881 6798
(I.R.S. Employer Identification No.) (Primary Standard Industrial
Classification Code Number)
<TABLE>
<S> <C>
701 Western Avenue HARVEY LENKIN
Glendale, California 91201-2397 Public Storage Properties XI, Inc.
(818) 244-8080 701 Western Avenue
(Address, including zip code, and Glendale, California 91201-2397
telephone number, including area code, (818) 244-8080
of registrant's principal executive offices) (Name, address, including zip code, and telephone
number, including area code, of agent for service)
</TABLE>
______________
Copies to:
DAVID GOLDBERG, ESQ.
Public Storage Properties XI, Inc.
701 Western Avenue
Glendale, California 91201-2397
______________
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this
Registration Statement.
______________
If the only 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 any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
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. [ ] _______________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
Proposed Proposed
Amount Offering Maximum Maximum
to be Price Aggregate Amount of
Title of Each Class of Securities to be Registered Registered Per Share Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock Series A, $.01 par value per share 16,288,000 shares(1) (1) (1) $82,496(1)(2)
==================================================================================================================================
</TABLE>
(1) This Registration Statement relates to the proposed merger of American
Office Park Properties, Inc. ("AOPP") into the Registrant and the
conversion of shares of common stock of AOPP into either cash (as to up to
20% of the outstanding shares of common stock of AOPP) or common stock
series A of the Registrant. At the merger, there will be a maximum of
13,802,870.83 shares of common stock of AOPP outstanding. The book
<PAGE>
value of the common stock of AOPP at September 30, 1997 was $20.26 per
share. The maximum number of shares of Registrant to be issued in the
merger is 16,288,000. The exact number of shares of common stock of the
Registrant to be issued in the merger cannot be determined at this time.
(2) Calculated in accordance with rule 457(f)(2) under the Securities Act of
1933. $32,668 of the registration fee was previously paid in connection
with the Registrant's preliminary proxy materials and $49,828 was
previously paid in connection with the initial filing on February 2, 1998.
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>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS, OFFICERS AND AGENTS.
The Company's Articles of Incorporation provide that the Company may
indemnify the agents of the Company to the maximum extent permitted under
California law. See Article VIII of the Amended and Restated Articles of
Incorporation (Exhibit 3.1) and Article VII of the Amended and Restated By-Laws
(Exhibit 3.3) which are incorporated herein by this reference. In May 1991, the
Company also entered into indemnity agreements with its management and non-
management directors and executive officers. The agreements permit the Company
to indemnify directors and executive officers to the maximum extent permitted
under California law and prohibit the Company from terminating its
indemnification obligations as to acts or omissions of any director or executive
officer occurring before the termination. The indemnification and limitations
on liability permitted by the amendment to the Articles of Incorporation and the
agreements are subject to the limitations set forth by California law. The
Company believes the indemnification agreements will assist it in attracting and
retaining qualified individuals to serve as directors and executive officers of
the Company.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS: See Exhibit Index contained herein.
(b) FINANCIAL STATEMENT SCHEDULES:
See Index to Financial Statement Schedules in registrant's Annual
Report on Form 10-K for the year ended December 31, 1996 and incorporated herein
by reference.
All other financial statement schedules are omitted since the
required information is not present or not present in amounts sufficient to
require submission of the schedule, or because the information required is
included in the consolidated financial statements or the notes thereto.
ITEM 22. UNDERTAKINGS.
The undersigned Registrant hereby undertakes as follows:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
and of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
S-1
<PAGE>
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs 3.(i) and 3.(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
4. That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
5. That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus
will contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other Items of the applicable form.
6. That every prospectus (i) that is filed pursuant to paragraph (1)
immediately preceding, or (ii) that purports to meet the requirements of section
10(a)(3) of the Act and is used in connection with an offering of securities
subject to Rule 415, will be filed as a part of an amendment to the registration
statement and will not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
7. To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this form,
within one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of
the registration statement through the date of responding to the request.
8. Except as permitted by General Instruction H to Form S-4 (in a
transaction not covered by General Instruction I), to supply by means of a post-
effective amendment all information concerning a transaction, and the company
being acquired involved therein, that was not the subject of and included in the
registration statement when it became effective.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions described under Item 20
above, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
S-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Glendale, State of
California, on the 5th day of February, 1998.
PUBLIC STORAGE PROPERTIES XI, INC.
By: B. WAYNE HUGHES
----------------------------------------
B. Wayne Hughes, Chairman of the Board
Each person whose signature appears below hereby authorizes B. Wayne Hughes
and Harvey Lenkin, and each of them, as attorney-in-fact, to sign on his behalf,
individually and in each capacity stated below, any amendment, including post-
effective amendments to this Registration Statement, and to file the same, with
all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
B. WAYNE HUGHES Chairman of the Board, Chief Executive February 5, 1998
___________________ Officer and Director (principal executive
B. Wayne Hughes officer)
DAVID P. SINGELYN Vice President and Chief Financial February 5, 1998
___________________ Officer (principal financial officer and
David P. Singelyn principal accounting officer)
VERN O. CURTIS Director February 5, 1998
________________
Vern O. Curtis
JACK D. STEELE Director February 5, 1998
________________
Jack D. Steele
</TABLE>
S-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
2.1 Amended and Restated Agreement and Plan of Reorganization among
Registrant, American Office Park Properties, Inc. ("AOPP") and Public
Storage, Inc. ("PSI") dated as of December 17, 1997 (filed as Appendix
A to the Proxy Statement and Prospectus).
3.1 Amended and Restated Articles of Incorporation. Filed with Registrant's
Annual Report on Form 10-K for the year ended December 31, 1991 and
incorporated herein by reference.
3.2 Certificate of Amendment of Articles of Incorporation. Filed with
Registrant's Annual Report on Form 10-K for the year ended December 31,
1992 and incorporated herein by reference.
3.3 Amended and Restated Bylaws, as amended. Previously filed.
5.1 Opinion on legality. Previously filed.
8.1 Opinion on tax matters. Filed herewith.
10.1 Amended Management Agreement dated February 21, 1995 between Registrant
and Public Storage Management, Inc. Filed with Registrant's Annual
Report on Form 10-K for the year ended December 31, 1994 and
incorporated herein by reference.
10.2 Amended Management Agreement dated February 21, 1995 between Registrant
and Public Storage Commercial Properties Group, Inc. Filed with
Registrant's Annual Report on Form 10-K for the year ended December 31,
1994 and incorporated herein by reference.
10.3 Amendment to Amended Management Agreement dated August 8, 1995 among
Registrant, Public Storage Management, Inc. and Storage Equities, Inc.
Filed with Registrant's Quarterly Report on Form 10-Q for the period
ended September 30, 1995 and incorporated herein by reference.
10.4 Amended Management Agreement between Storage Equities, Inc. and Public
Storage Commercial Properties Group, Inc. dated as of February 21,
1995. Filed with PSI's Annual Report on Form 10-K for the year ended
December 31, 1994 and incorporated herein by reference.
10.5 Revolving Note and Loan Agreement between Registrant and The First
National Bank of Boston dated December 29, 1995. Filed with
Registrant's Annual Report on Form 10-K for the year ended December 31,
1995 and incorporated herein by reference.
10.6 Revolving Loan by PSI to American Office Park Properties, L.P. (the
"Operating Partnership") dated as of December 16, 1997. Previously
filed.
*10.7 AOPP's 1997 Stock Option and Incentive Plan (filed as Appendix F to
the Proxy Statement and Prospectus).
10.8 Amended and Restated Agreement of Limited Partnership of the Operating
Partnership. Previously filed.
10.9 Merger and Contribution Agreement dated as of December 23, 1997 among
Acquiport Two Corporation, Acquiport Three Corporation, New York State
Common Retirement Fund, the Operating Partnership, AOPP and AOPP
Acquisition Corp. Three. Previously filed.
10.10 Agreement Among Shareholders and Company dated as of December 23, 1997
among Acquiport Two Corporation, AOPP, the Operating Partnership and
PSI. Previously filed.
10.11 Amendment to Agreement Among Shareholders and Company dated as of
January 21, 1998 among Acquiport Two Corporation, AOPP, the Operating
Partnership and PSI. Previously filed.
</TABLE>
S-4
<PAGE>
<TABLE>
<C> <S>
10.12 Non-Competition Agreement dated as of December 23, 1997 among PSI,
AOPP, the Operating Partnership and Acquiport Two Corporation.
Previously filed.
**10.13 Employment Agreement between AOPP and Ronald L. Havner, Jr. dated as
of December 23, 1997. Previously filed.
**10.14 Employment Agreement between AOPP and Mary Jayne Howard dated as of
December 23, 1997. Previously filed.
10.15 Common Stock Purchase Agreement dated as of January 23, 1998 among
AOPP and the Investors signatory thereto. Previously filed.
10.16 Registration Rights Agreement dated as of January 30, 1998 among AOPP
and the Investors signatory thereto. Previously filed.
23.1 Consent of Ernst & Young LLP. Previously filed.
23.2 Consent of Coopers & Lybrand L.L.P. Previously filed.
23.3 Consent of KPMG Peat Marwick LLP. Previously filed.
23.4 Consent of David Goldberg (included in Exhibit 5.1).
23.5 Consent of Hogan & Hartson L.L.P. (included in Exhibit 8.1).
23.6 Consent of The Nicholson Group, Ltd. Previously filed.
23.7 Consent of Charles R. Wilson & Associates, Inc. Previously filed.
23.8 Consent of Jefferies & Company, Inc. Previously filed.
99.1 Proxy card. Previously filed.
99.2 Cash Election Form. Previously filed.
99.3 Real Estate Appraisal Report by The Nicholson Group, Ltd. dated August
1, 1997 (filed as Appendix B-1 to the Proxy Statement and Prospectus).
99.4 Real Estate Appraisal Report by Charles R. Wilson & Associates, Inc.
dated April 30, 1997 (filed as Appendix B-2 to the Proxy Statement and
Prospectus).
99.5 Opinion of Jefferies & Company, Inc. dated February 2, 1998 (filed as
Appendix C to the Proxy Statement and Prospectus).
</TABLE>
_______________
* Compensatory benefit plan.
** Management contract.
S-5
<PAGE>
Exhibit 8.1
[LETTERHEAD OF HOGAN & HARTSON L.L.P.]
February 5, 1998
Public Storage Properties XI, Inc.
701 Western Ave., Suite 200
Glendale, California 91201-2397
Ladies and Gentlemen:
This opinion is being delivered to you in accordance with Section
8.1.7 of the Amended and Restated Agreement and Plan of Reorganization (the
"Agreement") dated as of December 17, 1997, by and among Public Storage
Properties XI, Inc., a California corporation ("PSP11"), American Office Park
Properties, Inc., a California corporation ("AOPP") and Public Storage, Inc.
("PSI"). Pursuant to the Agreement, AOPP will merge with and into PSP11 (the
"Merger"). We have acted as legal counsel to PSP11 in connection with the
Merger. As you know, we also serve as counsel to AOPP and its principal
stockholder, Public Storage, Inc., with respect to various matters.
Except as otherwise provided, capitalized terms referred to herein
have the meanings set forth in the Agreement and in the Proxy Statement and
Prospectus filed with the Securities and Exchange Commission on or about the
date of delivery of this opinion (the "Proxy Statement and Prospectus"). All
section references, unless otherwise indicated, are to the Internal Revenue Code
of 1986, as amended (the "Code").
In connection with the preparation of this opinion, we have examined
and with your consent relied upon (without any independent investigation or
review thereof) the following documents (including all exhibits and schedules
thereto):
1. The Agreement;
2. Representations made to us by PSP11 ("PSP11 Management
Representation Letter");
3. Representations made to us by AOPP and American Office Park
Properties, L.P., a California limited partnership ("AOPP, L.P.") (the "AOPP
Management Representation Letter," together with the PSP11 Management
Representation Letter, the "Management Representation Letters");
<PAGE>
4. The Proxy Statement and Prospectus;
5. The Amended and Restated Agreement of Limited Partnership of
AOPP, L.P. dated January 1, 1997, as amended through the date hereof;
6. The Amended and Restated Articles of Incorporation of AOPP dated
as of December 30, 1996, as amended through the date hereof; and
7. The Agreement of Contribution and Merger dated December 23, 1997,
by and among AOPP, New York State Common Retirement Fund, Acquiport Two
Corporation, Acquiport Three Corporation and AOPP Acquisition Corp. Three (the
"NY Common Transaction");
8. The Common Stock Purchase Agreement, dated January 23, 1998, by
and among AOPP, ABKB/La Salle Securities Limited Partnership, Harvard Private
Capital Realty, Inc., Cohen & Steers Capital Management, Inc., Morgan Stanley
Asset Management, certain Fidelity entities and Stanford University (the "Equity
Investment Transaction");
9. Such other instruments and documents related to the formation,
organization and operation of PSP11 and AOPP or to the consummation of the
Merger and the transactions contemplated thereby as we have deemed necessary or
appropriate.
In connection with rendering this opinion, we have assumed or obtained
representations (and, with your consent, are relying thereon, without any
independent investigation or review thereof) that:
1. All information contained in each of the documents we have
examined and relied upon in connection with the preparation of this opinion is
accurate, all copies are accurate, and all signatures are genuine. We have also
assumed that there has been (or will be by the Effective Time of the Merger) due
execution and delivery of all documents where due execution and delivery are
prerequisites to the effectiveness thereof.
2. The Merger will be consummated in accordance with, and will
qualify as a statutory merger under, applicable state law.
3. The continuity of interest requirement as specified in Treas.
Reg. (S) 1.368-1(b) and as interpreted in certain Internal Revenue Service
rulings and federal judicial decisions will be satisfied.
4. Any representation or statement made "to the knowledge" or "to
the best of the knowledge" or similarly qualified is correct without such
qualification.
2
<PAGE>
5. The Merger will be consummated in accordance with the Agreement
and as described in the Proxy Statement and Prospectus (including satisfaction
of all covenants and conditions to the obligations of the parties without
amendment or waiver thereof); each of PSP11 and AOPP will comply with all
reporting obligations with respect to the Merger required under the Code and the
Treasury Regulations thereunder; and the Agreement and all other documents and
instruments referred to therein or in the Proxy Statement and Prospectus are
valid and binding in accordance with their terms.
6. AOPP will make an election to be taxed as a REIT for its taxable
year ended December 31, 1997, and will not revoke such election for its short
taxable year ending at the Effective Time of the Merger.
7. As of December 31, 1997, AOPP did not have any undistributed
"earnings and profits" (as defined for purposes of Section 857(a)(2) of the
Code) that were accumulated in a taxable year of AOPP, Acquiport Two
Corporation, or any other "C corporation" prior to December 31, 1997.
Based upon and subject to the foregoing, as well as the limitations
set forth below, it is our opinion that:
(1) for federal income tax purposes, the Merger will constitute a
"reorganization" as defined in Section 368(a) of the Code and, as such, (i)
neither PSP11 nor AOPP will recognize taxable gain as a result of the Merger and
(ii) PSP11 Shareholders and AOPP Shareholders who do not receive any cash in
connection with the Merger (including the receipt of cash as a result of the
cash election with respect to their PSP11 shares) will not recognize taxable
gain as a result of the Merger;
(2) each of PSP11 and AOPP was organized and has operated in
conformity with the requirements for qualification as a REIT under Sections 856
through 860 of the Code for its taxable year ending December 31, 1997, and,
based on its proposed method of operation following the Merger as described in
the Proxy Statement and Prospectus and the PSP11 Management Representation
Letter, PSP11 will continue to meet the requirements for qualification as a
REIT;
(3) American Office Park Properties L.P., a California limited
partnership, will be treated as a partnership for federal income tax purposes;
and
(4) the discussion under the heading "Federal Income Tax
Considerations" in the Proxy Statement and Prospectus, to the extent that it
describes matters of law or legal conclusions, is correct in all material
respects.
In addition to the assumptions set forth above, this opinion is
subject to the exceptions, limitations and qualifications set forth below:
3
<PAGE>
1. This opinion represents and is based upon our best judgment
regarding the application of relevant current provisions of the Code and
interpretations of the foregoing as expressed in existing court decisions,
administrative determinations (including the IRS's practices and procedures in
issuing private letter rulings, which are not binding on the IRS except with
respect to the taxpayer that receives such a ruling) and published rulings and
procedures all as of the date hereof. An opinion of counsel merely represents
counsel's best judgment with respect to the probable outcome on the merits and
is not binding on the Internal Revenue Service or the courts. There can be no
assurance that positions contrary to our opinions will not be taken by the IRS,
or that a court considering the issues would not hold contrary to such opinions.
PSP11 has not requested a ruling from the IRS (and no ruling will be sought) as
to any of the federal income tax consequences addressed in this opinion.
Furthermore, no assurance can be given that future legislative, judicial or
administrative changes, on either a prospective or retroactive basis, would not
adversely affect the accuracy of the opinion expressed herein. Nevertheless, we
undertake no responsibility to advise you of any new developments in the
application or interpretation of the federal income tax laws.
2. This letter addresses only the specific tax opinions set forth
above. This letter does not address any other federal, state, local or foreign
tax consequences that may result from the Merger or any other transaction
(including any transaction undertaken in connection with the Merger, including,
without limitation, the exchange by PSP11 of 13 mini-warehouse properties for 11
commercial properties owned by Public Storage, Inc. (the "Exchange") or the cash
election available to PSP11 shareholders as described in the Proxy Statement and
Prospectus ("Cash Election")). The transactions as to which we are not
expressing an opinion would not, however, affect the opinion set forth in
paragraph (2) above as to whether PSP11 will continue to meet the requirements
for qualification as a REIT following the Merger. In reaching the specific tax
opinions set forth above, we have taken into consideration the consequences of
the NY Common Transaction and the Equity Investment Transaction.
3. We express no opinion regarding, among other things, the tax
consequences of the Merger (including the opinion set forth above) as applied to
specific stockholders of PSP11 that may be relevant to particular classes of
PSP11 shareholders, such as dealers in securities, corporate shareholders
subject to the alternative minimum tax, foreign persons, and holders of shares
acquired upon exercise of stock options or in other compensatory transactions.
4. No opinion is expressed as to any transaction other than the
Merger as described in the Agreement or to any transaction whatsoever, including
the Merger, if all the transactions described in the Agreement are not
consummated in accordance with the terms of such Agreement and without waiver or
breach of
4
<PAGE>
any material provision thereof or if all of the representations, warranties,
statements and assumptions upon which we relied are not true and accurate at all
relevant times. In particular (although not limiting the foregoing), no opinion
is expressed as to the tax treatment of the Exchange or the Cash Election as to
PSP11, AOPP or any PSP11 shareholder or AOPP shareholder. Also, our opinion does
not address the impact, if any, of the Merger on the tax treatment of prior
transactions undertaken by AOPP or the AOPP shareholders, including, but not
limited to, the transaction pursuant to which an AOPP shareholder received his
or her AOPP Common Stock. In the event any one of the statements,
representations, warranties or assumptions upon which we have relied to issue
this opinion is incorrect, our opinion might be adversely affected and may not
be relied upon.
5. PSP11's qualification and taxation as a REIT depend upon both (i)
the satisfaction in the past by AOPP of the requirements for qualification and
taxation as a REIT and (ii) PSP11'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 Proxy Statement and Prospectus 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 (without any independent
investigation thereof) upon representations of PSP11 and AOPP with respect to
these matters (including those set forth in the Management Representation
Letters) and Hogan & Hartson L.L.P. has not conducted an audit or investigation
with respect to either PSP11's or AOPP's past compliance with respect to these
requirements and will not review PSP11's compliance with these requirements on a
continuing basis. Accordingly, no assurance can be given that the actual
results of PSP11 and AOPP's operations, the sources of their income, the nature
of their assets, the level of their distributions to shareholders and the
diversity of their share ownership for any given taxable year in the past or in
the future will satisfy the requirements under the Code for qualification and
taxation as a REIT. In this regard, the stock ownership limits set forth in
PSP11's Articles of Incorporation do not necessarily ensure that PSP11 will be
able to satisfy the requirement set forth in Section 856(a)(6) of the Code that
it not be closely held within the meaning of Section 856(h) of the Code for any
given taxable year.
We hereby consent to the filing of this opinion letter as Exhibit 8.1
to the Registration Statement and to the reference to this firm under the
captions "Summary - Federal Income Tax Matters," "Legal Opinions" and "Federal
Income Tax Considerations" in the Proxy Statement and Prospectus. In giving the
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.
5
