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Exhibit 1.1
ARDEN REALTY LIMITED PARTNERSHIP
$200,000,000
5.20% NOTES DUE 2011
UNDERWRITING AGREEMENT
August 18, 2004
LEHMAN BROTHERS INC.
WACHOVIA CAPITAL MARKETS, LLC
DEUTSCHE BANK SECURITIES INC.
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Dear Sirs:
Arden Realty Limited Partnership, a Maryland limited
partnership
(the "Issuer"), the sole general partner of
which is Arden Realty, Inc., a
Maryland corporation (the "General
Partner"), proposes to issue and sell
$200,000,000 aggregate principal amount of
its 5.20% Notes due 2011 (the
"Notes") to you (the "Underwriters"). The
Notes will be issued pursuant to an
Indenture dated as of March 14, 2000 (the
"Indenture") between the Issuer and
The Bank of New York, as Trustee (the
"Trustee"). This agreement (this
"Agreement") is to confirm the agreement
concerning the purchase of the Notes
from the Issuer by the Underwriters.
1. Representations and Warranties. The Issuer represents and
warrants to, and agrees with, each
Underwriter that:
(a) The registration statement on Form S-3 (File No. 333-63918),
as
amended, with respect to the Notes (i) has
been prepared by the Issuer in
conformity with the requirements of the
Securities Act of 1933, as amended (the
"Securities Act"), and the rules and
regulations (the "Rules and Regulations")
of the Securities and Exchange Commission
(the "Commission") thereunder, (ii)
has been filed with the Commission under
the Securities Act, (iii) has become
effective under the Securities Act and is
not proposed to be amended or is
proposed to be amended by amendment or
post-effective amendment, and (iv) no
stop order suspending the effectiveness of
such registration statement or any
Rule 462(b) registration statement has been
issued under the Securities Act and
no proceedings for that purpose have been
instituted or are pending or, to the
knowledge of the Issuer, are contemplated
by the Commission. If the Issuer
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does not propose to amend such registration
statement, and if any post-effective
amendment to such registration statement
has been filed with the Commission
prior to the execution and delivery of this
Agreement, the most recent such
amendment has been declared effective by
the Commission. Copies of such
registration statement as amended to date
has been delivered by the Issuer to
you. For purposes of this Agreement,
"Effective Time" means the most recent date
and the time as of which registration
statement No. 333-63918, or the most
recent post-effective amendment thereto, if
any, was declared effective by the
Commission; "Effective Date" means the date
of the Effective Time; "Preliminary
Prospectus" means the prospectus included
in such registration statement, or
amendments thereof, before such
registration statement became effective under
the Securities Act and any prospectus filed
with the Commission by the Issuer
that omitted information required by Rule
430A or 434 of the Rules and
Regulations or other information to be
included upon pricing in a form of
prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and
Regulations ("Rule 424(b)"), that was used
after such effectiveness and prior to
the execution and delivery of this
Agreement; "Registration Statement" means
such registration statement, as amended at
the Effective Time, including any
documents incorporated by reference therein
and, if the Effective Date is on or
before the date of this Agreement, all
information contained in the final
prospectus filed with the Commission
pursuant to Rule 424(b) in accordance with
Section 4(a) hereof and deemed to be a part
thereof as of the Effective Time
pursuant to paragraph (b) of Rule 430A of
the Rules and Regulations;
"Prospectus" means the form of prospectus
relating to the Notes (including the
prospectus supplement), as first used to
confirm sales of the Notes; and
"described in the Prospectus" or "disclosed
in the Prospectus" means described
or disclosed, as applicable, in the
Prospectus or any document incorporated by
reference therein. If it is contemplated,
at the time this Agreement is
executed, that a registration statement
will be filed pursuant to Rule 462(b) of
the Rules and Regulations before the
offering of the Notes may commence, the
term "Registration Statement" as used in
this Agreement includes such
registration statement, as the same may be
amended from time to time. Reference
made herein to any Preliminary Prospectus
or the Prospectus shall be deemed to
refer to and include any documents
incorporated by reference therein as of the
date of such Preliminary Prospectus or
Prospectus, as the case may be, and any
reference to any amendment or supplement to
any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and
include any documents filed under the
Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after the date
of such Preliminary Prospectus or
Prospectus, as the case may be, and
incorporated by reference in such
Preliminary Prospectus or Prospectus. For
purposes of this Section 1, all references
to the Registration Statement, any
post-effective amendments thereto and the
Prospectus shall be deemed to include,
without limitation, any electronically
transmitted copies thereof, including,
without limitation, any copy filed with the
Commission pursuant to its
Electronic Data Gathering, Analysis, and
Retrieval system ("EDGAR"). The
Commission has not issued any order
preventing or suspending the use of any
Preliminary Prospectus or the
Prospectus.
(b) If the Effective Date is on or before the date of this
Agreement, (i) the Registration Statement
conforms, and the Prospectus and any
further amendments or supplements to the
Registration Statement or the
Prospectus will when they become effective
or are first used to confirm sales of
the Notes, as the case may be, conform to
the requirements of the Securities Act
and the Rules and Regulations, (ii) the
Registration Statement and any amendment
thereto does not and will not, as of the
applicable effective date, contain any
untrue statement of a material fact or omit
to state any material fact required
to be stated therein or
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necessary to make the statements therein,
in light of the circumstances under
which they were made, not misleading and
(iii) the Prospectus and any amendment
or supplement thereto will not, as of the
first date of its use to confirm sales
of the Notes, contain any untrue statement
of a material fact or omit to state
any material fact required to be stated
therein or necessary in order to make
the statements therein, in light of the
circumstances under which they were
made, not misleading. If the Effective Date
is after the date of this Agreement,
(i) the Registration Statement and the
Prospectus and any further amendments or
supplements thereto will, when they become
effective or are first used to
confirm sales of the Notes, as the case may
be, conform to the requirements of
the Securities Act and the Rules and
Regulations, (ii) the Registration
Statement and any amendment thereto will
not, as of the applicable effective
date, contain any untrue statement of a
material fact or omit to state any
material fact required to be stated therein
or necessary to make the statements
therein, in light of the circumstances
under which they were made, not
misleading, and (iii) the Prospectus and
any amendment or supplement thereto
will not, as of the date on which the
Prospectus and any amendment or supplement
thereto is first used to confirm sales of
the Notes, contain any untrue
statement of a material fact or omit to
state any material fact required to be
stated therein or necessary in order to
make the statements therein, in light of
the circumstances under which they were
made, not misleading. Notwithstanding
the foregoing, the Issuer makes no
representation or warranty as to information
contained in or omitted from the
Registration Statement or the Prospectus in
reliance upon, and in conformity with,
written information furnished to the
Issuer by you, expressly for inclusion
therein. There is no contract or document
required to be described in the
Registration Statement or the Prospectus, or to
be filed as an exhibit to the Registration
Statement or to a document
incorporated by reference into the
Registration Statement, which is not
described or filed as required.
(c) The market-related data and estimates included in the
Registration Statement or Prospectus (or
any supplement or amendment thereto)
are based on or derived from sources which
the Issuer believes to be reliable
and accurate.
(d) The Issuer is a limited partnership duly formed and
existing
under and by virtue of the laws of the
State of Maryland and is in good standing
with the State Department of Assessments
and Taxation of Maryland (the "SDAT")
with partnership power to own, lease and
operate its properties, to conduct the
business in which it is engaged or proposes
to engage as described in the
Registration Statement or Prospectus and to
enter into and perform its
obligations under this Agreement. The
Issuer 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 so to
qualify or be registered or to be in good
standing in such other jurisdiction
would not result in a material adverse
effect on the consolidated financial
position, results of operation, business or
prospects of the Issuer and its
subsidiaries, taken as a whole (a "Material
Adverse Effect"). The General
Partner is the sole general partner of the
Issuer, and, immediately after the
Closing Date, will be the sole general
partner of the Issuer and as of June 30,
2004 owned approximately 97.5% of all
outstanding common units of partnership
interest of the Issuer.
(e) Each of the subsidiaries (as defined in Section 13 hereof)
of
the Issuer has been duly organized and is a
validly existing partnership or
limited liability company in good
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standing under the laws of its jurisdiction
of organization and in each other
jurisdiction in which qualification or
registration is required, whether by
reason of the ownership or leasing of
property or the conduct of business,
except where the failure so to qualify or
be registered or to be in good
standing in such other jurisdiction would
not result in a Material Adverse
Effect. Each subsidiary has all power and
authority necessary to own or hold its
respective properties and to conduct the
businesses in which it is engaged; and
none of the subsidiaries (other than Arden
Realty Finance Partnership, L.P.,
Arden Realty Finance III LLC, Arden Realty
Finance IV LLC, Arden Realty Finance
V LLC and Arden Realty Finance VI LLC) is a
"significant subsidiary," as such
term is defined in Rule 405 of the Rules
and Regulations.
(f) All of the issued partnership interests (the "Partnership
Interests") of the Issuer have been duly
and validly authorized and issued and
are fully paid and, with respect to the
Partnership Interests owned by the
General Partner, are owned directly by the
General Partner, free and clear of
all liens, encumbrances, equities or
claims; all outstanding Partnership
Interests have been offered and sold in
compliance with all applicable laws
(including, without limitation, federal and
state securities laws); and all of
the issued partnership or membership
interests, as the case may be, of each
subsidiary of the Issuer have been duly and
validly authorized and issued, and
are fully paid and are owned directly or
indirectly by the Issuer, free and
clear of all liens, encumbrances, equities
or claims.
(g)
The second amended and restated limited partnership agreement
of
the Issuer (the "Partnership Agreement")
has been duly authorized, executed and
delivered by the General Partner on behalf
of the Issuer and constitutes the
valid agreement thereof, enforceable in
accordance with its terms, subject to
the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization,
moratorium and other similar laws relating
to or affecting creditors' rights
generally and general equitable principles
(whether considered in a proceeding
in equity or at law); and the execution,
delivery and performance of the
Partnership Agreement and each amendment
thereto did not at the time of
execution and delivery constitute a breach
of, or default under any material
contract, lease or other instrument to
which the Issuer was a party or by which
its properties have been bound or any law,
administrative regulation or
administrative or court decree in force at
the time. The Partnership Agreement
conforms in all material respects to the
description thereof contained in the
Registration Statement and Prospectus.
(h) The Issuer has all requisite partnership power and authority
to
execute, deliver and perform its
obligations under this Agreement.
(i) This Agreement has been duly authorized, executed and
delivered
by the Issuer.
(j) The Indenture has been duly and validly authorized, executed
and
delivered by the Issuer, and constitutes a
valid and binding obligation of the
Issuer, enforceable against the Issuer in
accordance with its terms, subject to
the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization,
moratorium and other similar laws relating
to or affecting creditors' rights
generally and general equitable principles
(whether considered in a proceeding
in equity or at law). The Indenture
conforms in all material respects to the
requirements of the Trust Indenture Act of
1939, as amended (the "TIA"), and the
rules and regulations of the Commission
applicable to an indenture which is
qualified thereunder. The Indenture
conforms
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in all material respects to the description
thereof contained in the
Registration Statement and Prospectus.
(k) The Notes have been duly and validly authorized by the
Issuer,
and when duly executed by the Issuer in
accordance with the terms of the
Indenture and, assuming due authentication
of the Notes by the Trustee, upon
delivery to the Underwriters against
payment therefor in accordance with the
terms hereof, will have been validly issued
and delivered, and will constitute
valid and binding obligations of the
Issuer, will be in the form contemplated
by, and entitled to the benefits of, the
Indenture, and enforceable against the
Issuer in accordance with their terms,
subject to the effects of bankruptcy,
insolvency, fraudulent conveyance,
reorganization, moratorium and other similar
laws relating to or affecting creditors'
rights generally and general equitable
principles (whether considered in a
proceeding in equity or at law). The Notes
will conform in all material respects to
the description thereof contained in
the Registration Statement and Prospectus.
Such Notes will be senior unsecured
obligations of the Issuer, and rank on a
parity with all existing and future
senior unsecured indebtedness of the
Issuer.
(l) Neither the Issuer nor any of its subsidiaries is (i) in
violation of its charter, by-laws,
certificate of limited partnership, articles
of organization, operating agreement or
partnership agreement, as the case may
be, (ii) in default, and no event has
occurred which, with notice or lapse of
time or both, would constitute such a
default, in the due performance or
observance of any term, obligation,
agreement, covenant or condition contained
in any contract, indenture, mortgage, deed
of trust, loan agreement, note, lease
or other agreement or instrument to which
it is a party or by which it is bound
or to which any of its properties or assets
is subject, or (iii) in violation of
any law, ordinance, governmental rule,
regulation or court decree to which it or
its property or assets may be subject or
has failed to obtain any material
license, permit, certificate, franchise or
other governmental authorization or
permit necessary to the ownership of its
property or to the conduct of its
business except, in the case of clauses
(ii) and (iii) for such defaults,
violations or failures to obtain that would
not, singly or in the aggregate,
have a Material Adverse Effect.
(m) The execution, delivery and performance of this Agreement by
the
Issuer, compliance by the Issuer with all
provisions hereof, and the
consummation of the transactions
contemplated hereby will not (i) conflict with
or result in a breach or violation of any
of the terms or provisions of, or
constitute a default under, any contract,
indenture, mortgage, deed of trust,
loan agreement, note, lease or other
agreement or instrument to which the Issuer
or any of its subsidiaries is a party or by
which the Issuer or any of its
subsidiaries is bound or to which any of
the property or assets of the Issuer or
any of its subsidiaries is subject, that
would have, singly or in the aggregate,
a Material Adverse Effect, (ii) result in
any violation of the provisions of the
certificate of limited partnership,
partnership agreement, certificate of
formation, limited liability company
agreement or other organizational document
of the Issuer or any of its subsidiaries,
(iii) result in the violation of any
statute or any order, rule or regulation of
any court or governmental agency or
body having jurisdiction over the Issuer or
any of its subsidiaries or any of
their respective properties, assets or
businesses, that would have, singly or in
the aggregate, a Material Adverse Effect,
(iv) result in the imposition of or
creation of (or the obligation to create or
impose) a lien, encumbrance, equity
or claim under, any agreement or instrument
to which the Issuer or any of its
subsidiaries is a party or by which the
Issuer or any
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of its subsidiaries or any of their
respective property is bound, except where
such lien, encumbrance, equity or claim
would not have a Material Adverse Effect
or (v) result in the termination,
suspension or revocation of any Authorization
(as defined below) of the Issuer or any of
its subsidiaries or result in any
other impairment of the rights of the
holder of any such Authorization as would
not have, singly or in the aggregate, a
Material Adverse Effect; and except as
have been or will be obtained by the
Closing Date, qualification of the
Indenture under the TIA and compliance with
the securities and Blue Sky laws of
various jurisdictions, no consent,
approval, authorization or order of, or
filing or registration with, any such court
or governmental agency or body is
required for the execution, delivery and
performance of this Agreement and the
transactions contemplated hereby by the
Issuer, compliance by the Issuer with
all provisions hereof and thereof and the
consummation of the transactions
contemplated hereby and thereby.
(n) Except as described in the Registration Statement and
Prospectus, there are no legal or
governmental proceedings pending, or to the
knowledge of the Issuer threatened, to
which the Issuer or any of its
subsidiaries is, or to the knowledge of the
Issuer could be, a party or of which
any property or assets of the Issuer or any
of its subsidiaries is or could be
the subject which, if determined adversely
to the Issuer or any of its
subsidiaries, would, singly or in the
aggregate, have a Material Adverse Effect;
and to the best of the Issuer's knowledge,
no such proceedings are threatened or
contemplated by governmental authorities or
threatened by others.
(o)
Except as disclosed in the Registration Statement and
Prospectus: (i) there has been no storage,
disposal, generation, manufacture,
refinement, transportation, handling or
treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous
substances by the Issuer or any of its
subsidiaries (or, to the knowledge of the
Issuer, by any of its predecessors in
interest or any other person) at, upon or
from any of the property now or
previously owned or leased by the Issuer or
its subsidiaries, in violation of
any applicable law, ordinance, rule,
regulation, order, judgment, decree or
permit or which would require any removal,
remedial or other response action
under any applicable law, ordinance, rule,
regulation, order, judgment, decree
or permit, except for any violation or
response action which would not have,
singly or in the aggregate, together with
all other such violations and response
actions, a Material Adverse Effect; (ii)
there has been no storage, disposal,
generation, manufacture, refinement,
transportation, handling or treatment of
toxic wastes, medical wastes, hazardous
wastes or hazardous substances by the
Issuer or any of its subsidiaries (or, to
the knowledge of the Issuer, by any of
its predecessors in interest) at or upon
any property owned by anyone else in
violation of any applicable law, ordinance,
rule, regulation, order, judgment,
decree or permit or which would require any
removal, remedial or other response
action under any applicable law, ordinance,
rule, regulation, order, judgment,
decree or permit, except for any violation
or response action which would not
have, singularly or in the aggregate with
all such violations and response
actions, a Material Adverse Effect; and
(iii) there has been no material spill,
discharge, leak, emission, injection,
escape, placement, dumping or release of
any kind onto such property or into the
environment surrounding such property of
any toxic wastes, medical wastes, solid
wastes, hazardous wastes or hazardous
substances due to or caused by the Issuer
or any of its subsidiaries or with
respect to which the Issuer or any of its
subsidiaries has knowledge, except for
any such spill, discharge, leak, emission,
injection, escape, placement, dumping
or release which would not have, singly or
in the aggregate, together with all
other such spills, discharges, leaks,
emissions, injections, escapes,
placements, dumpings and releases, a
Material Adverse
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Effect. The terms "hazardous wastes,"
"toxic wastes," "hazardous substances" and
"medical wastes" shall have the meanings
specified in any applicable local,
state, federal and foreign laws or
regulations with respect to environmental
protection. Except as disclosed in the
Registration Statement and Prospectus,
there are no underground storage tanks
located on or in any of the properties
owned or leased by the Issuer or any of its
subsidiaries except such tanks,
individually or in the aggregate, the
existence of which would not have a
Material Adverse Effect.
(p) The Issuer and its subsidiaries are in compliance in all
material respects with all presently
applicable provisions of the Employee
Retirement Income Security Act of 1974, as
amended, including the regulations
and published interpretations thereunder
("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect
to any "pension plan" (as defined in
ERISA) for which the Issuer or any of its
subsidiaries would have any liability;
none of the Issuer or any of its
subsidiaries has incurred and nor expects to
incur liability under (i) Title IV of ERISA
with respect to termination of, or
withdrawal from, any "pension plan", or
(ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended,
including the regulations and
published interpretations thereunder (the
"Code"); and each "pension plan" for
which the Issuer or any of its subsidiaries
would have any liability that is
intended to be qualified under Section
401(a) of the Code is so qualified in all
material respects, and nothing has
occurred, whether by action or by failure to
act, which would cause the loss of such
qualification, except for such
noncompliance, reportable events,
liabilities or failures to qualify that would
not result in a Material Adverse
Effect.
(q) Each of the Issuer and its subsidiaries has such permits,
licenses, consents, exemptions, franchises,
authorizations and other approvals
(each, an "Authorization") of, and has made
all filings with and notices to, all
governmental or regulatory authorities and
self-regulatory organizations and all
courts and other tribunals, including,
without limitation, under any applicable
environmental laws, as are necessary to
own, lease, license and operate its
respective properties and to conduct its
business, except where the failure to
have any such Authorization or to make any
such filing or notice would not,
singly or in the aggregate, have a Material
Adverse Effect. Each such
Authorization is valid and in full force
and effect, and each of the Issuer and
its subsidiaries is in compliance with all
the terms and conditions thereof and
with the rules and regulations of the
authorities and governing bodies having
jurisdiction with respect thereto; and no
event has occurred (including, without
limitation, the receipt of any notice from
any authority or governing body)
which allows or, after notice or lapse of
time or both, would allow, revocation,
suspension or termination of any such
Authorization or results or, after notice
or lapse of time or both, would result in
any other impairment of the rights of
the holder of any such Authorization; and
such Authorizations contain no
restrictions that are unduly burdensome to
the Issuer or any of its
subsidiaries; except where such failure to
be valid and in full force and effect
or to be in compliance, or the occurrence
of any such event or the presence of
any such restriction would not, singly or
in the aggregate, have a Material
Adverse Effect.
(r) (i) The Issuer and its subsidiaries have good and
marketable
title in fee simple to all real property
and own all personal property purported
to be owned by them, in each case free and
clear of all liens, encumbrances and
defects, except such as are described in
the Registration Statement and
Prospectus, or such as would not materially
affect the value of such property
and do not have a Material Adverse Effect;
and (ii) all real property, buildings
and personal property held under lease by
the Issuer and its subsidiaries are
held by them under valid,
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existing and enforceable leases, in each
case free and clear of all liens,
encumbrances and defects, except such as
are described in the Registration
Statement or Prospectus, and such
exceptions as would not have a Material
Adverse Effect.
(s) The Issuer and its subsidiaries own, possess or can acquire
on
reasonable terms, adequate rights to use
all material patents, patent
applications, trademarks, service marks,
trade names, trademark registrations,
service mark registrations, copyrights and
licenses necessary for the conduct of
their respective businesses, and have no
reason to believe that the conduct of
their respective businesses will conflict
with, and have not received any notice
of any claim of conflict with, any such
rights of others, which conflict (if the
subject of an unfavorable decision, ruling
or finding), would result in a
Material Adverse Effect.
(t) Ernst & Young LLP, who have certified certain financial
statements incorporated by reference or
included in the Registration Statement
and Prospectus, whose report appears
therein, and who have delivered the initial
letter referred to in Section 5(h) hereof,
are independent public accountants as
required by the Securities Act and the
Rules and Regulations.
(u) The historical financial statements (including the related
notes
and supporting schedules) included or
incorporated by reference in the
Registration Statement and Prospectus (and
any amendment or supplement thereto)
present fairly the financial condition and
results of operations of the entities
purported to be shown thereby, at the dates
and for the periods indicated, and
have been prepared in conformity with
generally accepted accounting principles
of the United States applied on a
consistent basis throughout the periods
involved and all adjustments necessary for
a fair presentation of results for
such periods have been made; and the
financial and statistical information and
data set forth in the Registration
Statement or Prospectus (and any amendment or
supplement thereto) present fairly the
information and data shown therein and
have been prepared on a basis consistent
with such financial statements and the
books and records of the respective
entities presented therein. No other
financial statements (or schedules) of the
Issuer, or any predecessor of the
Issuer, are required by the Securities Act
to be included or incorporated by
reference in the Registration Statement or
the Prospectus.
(v) Neither the Issuer nor any of its subsidiaries is and,
after
giving effect to the offering and sale of
the Notes and the application of the
net proceeds thereof as described in the
Registration Statement and Prospectus,
will be an "investment company" or a
company "controlled" by an "investment
company" within the meaning of the
Investment Company Act of 1940, as amended,
and the rules and regulations of the
Commission thereunder.
(w) Except as described in the Registration Statement and
Prospectus, there are no contracts,
agreements or understandings between the
Issuer and any person granting such person
the right to require the Issuer to
file a registration statement under the
Securities Act with respect to any
securities of the Issuer owned or to be
owned by such person or to require the
Issuer to include such securities in the
securities registered pursuant to the
Registration Statement or in any securities
being registered pursuant to any
other registration statement filed by the
Issuer under the Securities Act.
(x) Neither the Issuer nor any of its subsidiaries, nor any
agent
thereof acting on behalf of them, has
taken, and none of them will take, any
action that might cause this
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Agreement or the issuance or sale of the
Notes to violate Regulation T (12
C.F.R. Part 220), Regulation U (12 C.F.R.
Part 221) or Regulation X (12 C.F.R.
Part 224) of the Board of Governors of the
Federal Reserve System.
(y) No "nationally recognized statistical rating organization"
as
such term is defined for purposes of Rule
436(g)(2) of the Rules and Regulations
(i) has imposed (or has informed the Issuer
that it is considering imposing) any
condition (financial or otherwise) on the
Issuer's retaining any rating assigned
to the Issuer, or any securities of the
Issuer or (ii) has indicated to the
Issuer that it is considering (a) the
downgrading, suspension, or withdrawal of,
or any review for a possible change that
does not indicate the direction of the
possible change in, any rating so assigned
or (b) any change in the outlook for
any rating of the Issuer or any securities
of the Issuer.
(z) Since the date of the latest audited financial statements
included or incorporated by reference in
the Registration Statement and
Prospectus and except as disclosed in the
Registration Statement and Prospectus,
(i) there has been no material adverse
change in the financial condition,
results of operations or business of the
Issuer or any of its subsidiaries,
whether or not arising in the ordinary
course of business, (ii) no material
casualty loss or material condemnation or
other adverse event with respect to
any business or property of the Issuer or
any of its subsidiaries has occurred,
(iii) there have been no transactions or
acquisitions entered into by the Issuer
or any of its subsidiaries other than those
in the ordinary course of business,
which are material with respect to the
Issuer and its subsidiaries taken as a
whole, (iv) there have been no material
liabilities or obligations, direct or
contingent, incurred by the Issuer or any
of its subsidiaries, other than
liabilities and obligations which were
incurred in the ordinary course of
business, (v) there has been no dividend or
distribution of any kind declared,
paid or made by the Issuer with respect to
its Partnership Interests, (vi) there
has been no material change in the
Partnership Interests of the Issuer, or any
increase in the indebtedness of the Issuer
or any of its subsidiaries, and (vii)
there have been no securities issued or
granted by Issuer or any of its
subsidiaries.
(aa) There is (i) no material unfair labor practice complaint
pending against the Issuer or any of its
subsidiaries or, to the best knowledge
of the Issuer, threatened against any of
them before the National Labor
Relations Board or any state or local labor
relations board, and no significant
grievance or significant arbitration
proceeding arising out of or under any
collective bargaining agreement is so
pending against the Issuer or any of its
subsidiaries or, to the best knowledge of
the Issuer, threatened against any of
them, and (ii) no material strike, labor
dispute, slowdown or stoppage pending
against the Issuer or any of its
subsidiaries or, to the best knowledge of the
Issuer, threatened against the Issuer or
any of its subsidiaries which in any
case would have a Material Adverse
Effect.
(bb) Each of the Issuer and its subsidiaries (i) makes and
keeps
accurate books and records and (ii)
maintains internal accounting controls which
provide reasonable assurance that (A)
transactions are executed in accordance
with management's authorization, (B)
transactions are recorded as necessary to
permit preparation of its financial
statements and to maintain accountability
for its assets, (C) access to its assets is
permitted only in accordance with
management's authorization, and (D) the
reported accountability for its assets
is compared with existing assets at
reasonable intervals.
9
<PAGE>
(cc) The Issuer and its subsidiaries have filed all material
federal, state and local income and
franchise tax returns required to be filed
through the date hereof, and have paid all
taxes due thereon, and no tax
deficiency has been determined adversely to
the Issuer or any of its
subsidiaries which has had (nor does the
Issuer have any knowledge of any tax
deficiency which, individually or in the
aggregate, if determined adversely to
the Issuer or any of its subsidiaries,
would have) a Material Adverse Effect.
(dd) The Issuer and each of its subsidiaries that is a
partnership
or limited liability company are properly
classified as partnerships or as
disregarded entities, and not as
corporations or as associations taxable as
corporations or "publicly traded
partnerships", for Federal income tax purposes
throughout the period from May 20, 1996
through the date hereof, or, in the case
of such subsidiaries that were formed or
have terminated during such period,
from the date of formation through the date
of termination of such subsidiaries.
(ee) Beginning with its taxable year ended December 31, 1996,
the
General Partner has been organized and
operated in conformity with requirements
for qualification as a REIT, and its
proposed method of operation will enable it
to continue to meet the requirements for
qualification and taxation as a REIT
under the Code.
(ff) The Indenture has
been qualified under the TIA.
(gg) Each certificate signed by any officer of the General
Partner
of the Issuer and delivered to the
Underwriters or counsel for the Underwriters
shall be deemed to be a representation and
warranty by the Issuer to the
Underwriters as to the matters covered
thereby.
(hh) Except as described in the Registration Statement and
Prospectus, the Issuer and each of its
subsidiaries carry, or are covered by,
insurance in such amounts and covering such
risks as is adequate for the conduct
of their respective businesses and the
value of their respective properties and
as is customary for companies engaged in
similar businesses in similar
industries in similar geographic
locations.
(ii) There are no contracts or other documents which are required
to
be described in the Registration Statement
and Prospectus which have not been
described in the Registration Statement and
Prospectus.
(jj) No material relationship, direct or indirect, exists between
or
among the Issuer or any of its subsidiaries
on the one hand, and the directors,
officers, partners, stockholders, customers
or suppliers of the Issuer or any of
its subsidiaries on the other hand, which
is required to be described in the
Registration Statement and Prospectus which
is not so described.
(kk) None of the Issuer or any of its subsidiaries, or any
director,
officer, agent, employee or other person
associated with, or acting on behalf
of, the Issuer or any of its subsidiaries,
has used any partnership funds for
any unlawful contribution, gift,
entertainment or other unlawful expense
relating to political activity; made any
direct or indirect unlawful payment to
any foreign or domestic government official
or employee from partnership funds;
violated or is in violation of any prov
