Exhibit 1.1
EXECUTION COPY
CARRAMERICA REALTY OPERATING
PARTNERSHIP, L.P.
(a Delaware limited
partnership)
Debt Securities
UNDERWRITING
AGREEMENT
December 8, 2005
J.P. MORGAN SECURITIES
INC.
UBS SECURITIES LLC
c/o J.P. Morgan Securities
Inc.
270 Park Avenue
New York, New York
10017-2070
Ladies and Gentlemen:
CarrAmerica Realty Operating
Partnership, L.P., a Delaware limited partnership (the
“Operating Partnership”), may from time to time offer
in one or more series its unsecured debt securities (“Debt
Securities”) with an aggregate public offering price of up to
$1,000,000,000 (or its equivalent in another currency based on the
exchange rate at the time of sale) in amounts, at prices and on
terms to be determined at the time of offering. The Debt Securities
may be offered, separately or together, in separate series in
amounts, at prices and on terms to be set forth in one or more
Prospectus Supplements as hereinafter defined. The Debt Securities
will be issued under one or more indentures, as amended or
supplemented (each, an “Indenture”), between the
Operating Partnership and a trustee (a “Trustee”). The
Debt Securities may be guaranteed (the “Guarantees”) as
to payments of principal, interest and premium, if any, by one or
both of CarrAmerica Realty Corporation, a Maryland corporation (the
“Company”) or CarrAmerica Realty, L.P., a Delaware
limited partnership (“CarrAmerica L.P.” and together
with the Company, the “Guarantors”). Each series of
Debt Securities may vary as to aggregate principal amount, maturity
date, interest rate or formula and timing of payments thereof,
redemption or repayment provisions, conversion provisions and any
other variable terms which the Indenture contemplates may be set
forth in the Debt Securities as issued from time to time. As used
herein, “the Representatives,” unless the context
otherwise requires, shall mean the parties to whom this Agreement
is addressed together with the other parties, if any, identified in
the applicable Terms Agreement (as hereinafter defined) as
additional co-managers with respect to Underwritten Securities (as
hereinafter defined) purchased pursuant thereto.
Whenever the Operating Partnership
determines to make an offering of Debt Securities through the
Representatives or through an underwriting syndicate managed by the
Representatives, the Operating Partnership will enter into an
agreement (the “Terms Agreement”) providing for the
sale of such Debt Securities (the “Underwritten
Securities”) to, and the purchase and offering thereof by,
the Representatives and such other underwriters, if any, selected
by the Representatives as have authorized the Representatives to
enter into such Terms Agreement on their behalf (the
“Underwriters,” which term shall include the
Representatives whether acting alone in the sale of the
Underwritten Securities or as a member of an underwriting syndicate
and any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to the offering of
Underwritten Securities shall specify the amount of Underwritten
Securities to be issued, the names of the Underwriters
participating in such offering (subject to substitution as provided
in Section 10 hereof), the amount of Underwritten Securities
which each such Underwriter severally agrees to purchase, the names
of such of the Representatives or such other Underwriters acting as
co-managers, if any, in connection with such offering, the price at
which the Underwritten Securities are to be purchased by the
Underwriters from the Operating Partnership, the
initial public offering price, if any, of the
Underwritten Securities, the time and place of delivery and payment
and any other variable terms of the Underwritten Securities
(including, but not limited to, current ratings, denominations,
interest rates or formulas, interest payment dates, maturity dates
and conversion, redemption or repayment provisions applicable to
the Underwritten Securities). The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of
an exchange of any standard form of written telecommunication
between the Representatives and the Operating Partnership. Each
offering of Underwritten Securities through the Representatives or
through an underwriting syndicate managed by the Representatives
will be governed by this Agreement, as supplemented by the
applicable Terms Agreement.
The Operating Partnership and the
Guarantors have filed with the Securities and Exchange Commission
(the “Commission”) a registration statement on Form S-3
(No. 333-114049) for the registration of the Debt Securities and
the Guarantees under the Securities Act of 1933, as amended (the
“1933 Act”), and the offering thereof from time to time
in accordance with Rule 430A or Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the “1933
Act Regulations”), and the Operating Partnership and the
Guarantors have filed such amendments thereto as may have been
required prior to the execution of the applicable Terms Agreement.
Such registration statement (as amended, if applicable) has been
declared effective by the Commission and an Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the
“1939 Act”). Such registration statement and the base
prospectus constituting a part thereof (including in each case the
information, if any, deemed to be part thereof pursuant to Rule
430A(b) of the 1933 Act Regulations) (the “Base
Prospectus”), and any preliminary prospectus supplement (a
“Preliminary Prospectus Supplement”), and the final
prospectus supplement (a “Prospectus Supplement”),
relating to a particular offering of Underwritten Securities
pursuant to Rule 415 of the 1933 Act Regulations, including all
documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the 1933 Act, the Securities
Exchange Act of 1934, as amended (the “1934 Act”) or
otherwise, are collectively referred to herein as the
“Registration Statement”. The term
“Prospectus” means the Prospectus Supplement relating
to a particular offering of Underwritten Securities and first filed
with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations together with the Base Prospectus; provided that if any
revised Prospectus shall be provided to the Representatives by the
Operating Partnership for use in connection with the offering of
Underwritten Securities which differs from the Prospectus on file
at the Commission at the time the Registration Statement becomes
effective (whether or not such revised prospectus is required to be
filed by the Operating Partnership pursuant to Rule 424(b) of the
1933 Act Regulations), the term “Prospectus” shall
refer to each such revised prospectus from and after the time it is
first provided to the Representatives for such use; provided
, further , that a Prospectus Supplement shall be deemed to
have supplemented the Prospectus only with respect to the offering
of Underwritten Securities to which it relates. Any registration
statement (including any supplement thereto or information which is
deemed part thereof) filed by the Operating Partnership and the
Guarantors under Rule 462(b) of the 1933 Act Regulations (a
“Rule 462(b) Registration Statement”) shall be deemed
to be part of the Registration Statement. Any prospectus (including
any amendment or supplement thereto or information which is deemed
part thereof) included in the Rule 462(b) Registration Statement
shall be deemed to be part of the Prospectus. All references in
this Agreement to financial statements and schedules and other
information which is “contained,”
“included” or “stated” in the Registration
Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial
statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration
Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is or is deemed to
be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. For purposes of this Agreement, all
references to the Registration Statement, any preliminary
prospectus, Preliminary Prospectus Supplement, Prospectus or
Prospectus Supplement or any Issuer Free Writing Prospectus or any
amendment or supplement to the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System.
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The term “Subsidiary”
means a corporation, a partnership or a limited liability company,
a majority of the outstanding voting stock, partnership or
membership interests, as the case may be, of which is owned or
controlled, directly or indirectly, by the Operating
Partnership.
At or prior to the time specified in
the applicable Terms Agreement when sales of the Underwritten
Securities were first made (the “Time of Sale”), the
Operating Partnership has prepared the information designated in
the applicable Terms Agreement as the “Time of Sale
Information” (collectively, the “Time of Sale
Information”).
1. Representations and Warranties of the
Operating Partnership .
(a) The Operating Partnership
represents and warrants to the Representatives, as of the date
hereof, and to the Representatives and each other Underwriter named
in the applicable Terms Agreement, as of the date thereof (in each
case, a “Representation Date”), as follows:
(i) The Registration Statement and
the Prospectus, at the time the Registration Statement became
effective, complied, and as of each Representation Date will
comply, in all material respects with the requirements of the 1933
Act Regulations and, at the time any Debt Securities are issued,
will comply with the 1939 Act and the rules and regulations
thereunder (the “1939 Act Regulations”). The
Preliminary Prospectus Supplement, at the time of filing thereof,
complied in all material respects with the requirements of the 1933
Act Regulations and did not contain 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. The Registration
Statement, at the time the Registration Statement became effective
and at the time of filing of the Operating Partnership’s most
recent Annual Report on Form 10-K, did not, and as of each
Representation Date, 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. The Prospectus, as of the date hereof does not, and as
of each Representation Date and Closing Time (as hereinafter
defined) (unless the term “Prospectus” refers to a
prospectus which has been provided to the Representatives by the
Operating Partnership for use in connection with an offering of
Underwritten Securities which differs from the Prospectus on file
at the Commission at the time the Registration Statement became
effective, in which case at the time it was first provided to the
Representatives for such use) will not, include an untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided , however , that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Operating Partnership in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement or
Prospectus or to that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification on
Form T-1 under the 1939 Act (the “Statement of
Eligibility”) of a Trustee under an Indenture; and
provided further , that the foregoing representations and
warranties are given on the basis that any statement contained in a
document incorporated or deemed to be incorporated in the
Registration Statement, the Time of Sale Information or the
Prospectus prior to the Time of Sale shall be deemed not to be
contained in the Registration Statement, Time of Sale Information
or the Prospectus if such statement has been modified or superseded
by any subsequent statement in the Registration Statement, Time of
Sale
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Information or the Prospectus. If a
Rule 462(b) Registration Statement is required in connection with
the offering and sale of the Securities, the Operating Partnership
has complied or will comply with the requirements of Rule 111 under
the 1933 Act Regulations relating to the payment of filing fees
therefor.
(ii) The Time of Sale Information,
at the Time of Sale did not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Operating Partnership makes no representation and warranty with
respect to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Operating Partnership in writing by such Underwriter through
the Representatives expressly for use in such Time of Sale
Information. No statement of material fact included in the
Prospectus has been omitted from the Time of Sale Information and
no statement of material fact included in the Time of Sale
Information that is required to be included in the Prospectus has
been omitted therefrom.
(iii) Other than any Preliminary
Prospectus Supplement and the Prospectus, the Operating Partnership
(including its agents and representatives, other than the
Underwriters in their capacity as such) has not made, used or
referred to or authorized any other person to make, use or refer
to, and will not make, use or refer to, or authorize any person to
make, use or refer to, any “written communication” (as
defined in Rule 405 under the 1933 Act) that constitutes an offer
to sell or solicitation of an offer to buy the Underwritten
Securities (each such communication by the Operating Partnership or
its agents and representatives (other than a communication referred
to in clause (i) below) an “Issuer Free Writing
Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the 1933 Act or Rule 134 under the 1933 Act or (ii) the
documents listed on an annex to the applicable Terms Agreement and
other written communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied
in all material respects with the requirements of Rules 163 and 433
of the 1933 Act Regulations, has been filed in accordance with Rule
433 of the 1933 Act Regulations (to the extent required thereby)
and, when taken together with the Preliminary Prospectus Supplement
filed prior to the first use of such Issuer Free Writing
Prospectus, did not, and at the Closing Date will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in any Issuer Free
Writing Prospectus.
(iv) The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement, the Prospectus, the Preliminary Prospectus Supplement
or, to the extent any other Time of Sale Information incorporates
or is deemed to incorporate documents by reference, such other Time
of Sale Information, pursuant to Item 12 of Form S-3 under the
1933 Act, at the time they were filed with the Commission, complied
in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission under the 1934 Act (the
“1934 Act Regulations”), and did not include 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, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the
Prospectus or the Time of Sale Information, when such documents
become effective or are filed with the Commission, as the case may
be, will comply in all material respects with the requirements of
the
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1933 Act or the Exchange Act, as
applicable, and will not contain any 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, in the light of the
circumstances under which they were made, not
misleading.
(v) The accountants who certified
the financial statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement, the
Time of Sale Information and the Prospectus are an independent
registered public accounting firm with respect to the Operating
Partnership and the Guarantors within the applicable rules and
regulations adopted by the Commission and the Public Accounting
Oversight Board (United States) and as required by the 1933
Act.
(vi) The financial statements
(including the notes thereto) included in, or incorporated by
reference into, the Registration Statement, the Time of Sale
Information and the Prospectus present fairly in all material
respects 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; except as otherwise stated in the Registration
Statement, the Time of Sale Information and Prospectus, the
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis; the supporting schedules included or incorporated by
reference in the Registration Statement, the Time of Sale
Information and the Prospectus present fairly in all material
respects the information required to be stated therein; and the
Operating Partnership’s ratios of earnings to fixed charges
(actual and, if any, pro forma) included in the Prospectus under
the captions “Ratios of Earnings to Fixed Charges” and
in Exhibit 12.1 to the Registration Statement have been calculated
in compliance with Item 503(d) of Regulation S-K of the
Commission. The financial information and data included in the
Registration Statement, the Time of Sale Information and the
Prospectus present fairly in all material respects the information
included therein and have been prepared on a basis consistent with
that of the financial statements included or incorporated by
reference in the Registration Statement, the Time of Sale
Information and the Prospectus and the books and records of the
respective entities presented therein. Pro forma financial
information included in or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus, if any, has been prepared in accordance with the
applicable requirements of the 1933 Act, the 1933 Act Regulations
and guidelines of the American Institute of Certified Public
Accountants with respect to pro forma financial information and
includes all adjustments necessary to present fairly in all
material respects the pro forma financial position of the
respective entity or entities presented at the respective dates
indicated (if such financial position is presented) and the results
of operations for the respective periods specified.
(vii) No stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no proceeding for that purpose has been instituted
or, to the knowledge of the Operating Partnership, threatened by
the Commission or by the state securities authority of any
jurisdiction. No order preventing or suspending the use of any
Preliminary Prospectus Supplement or the Prospectus has been issued
and no proceeding for that purpose has been instituted or, to the
knowledge of the Operating Partnership threatened by the Commission
or by the state securities authority of any
jurisdiction.
(viii) Since the respective dates as
of which information is given in the Registration Statement, the
Time of Sale Information 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, business affairs or business prospects of the Company and
its consolidated subsidiaries considered as one enterprise, or of
the Operating Partnership and the Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business; (B) no
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material casualty loss or material
condemnation or other material adverse event with respect to any of
the interests held directly or indirectly in any of the real
properties owned, directly or indirectly, by the Operating
Partnership or any Subsidiary (the “Properties”) or any
entity directly or indirectly wholly or partially owned by the
Operating Partnership or any Subsidiary has occurred;
(C) there have been no acquisitions or transactions entered
into by the Operating Partnership or any Subsidiary, other than
those in the ordinary course of business, which are material with
respect to such entities or would result, upon consummation, in any
material inaccuracy in the representations contained in
Section 1(a)(vi) above; (D) except for distributions by
the Operating Partnership with respect to its partnership interests
(“Units”), there has been no distribution of any kind
declared, paid or made by the Operating Partnership with respect to
the Units; and (E) with the exception of transactions in
connection with the Company’s stock and Unit options,
dividend reinvestment plans, the issuance of Units in connection
with the acquisition of real or personal property, or changes in
the partnership interest of the Operating Partnership in connection
with any repurchases by the Company of its common stock, there has
been no change in the partnership interests of the Operating
Partnership and no increase in the consolidated indebtedness of the
Operating Partnership that is material to the Operating Partnership
and the Subsidiaries, considered as one enterprise.
(ix) The Company has been duly
formed, and is validly existing and in good standing as a
corporation under the laws of Maryland with corporate power and
authority to conduct the business in which it is engaged or
proposes to engage and to own, lease and operate its properties as
described in the Prospectus and to enter into and perform its
obligations, if any, under this Agreement, the Terms Agreement and
any Indenture.
(x) The Operating Partnership has
been duly formed, and is validly existing and in good standing as a
limited partnership under the laws of Delaware with partnership
power and authority to conduct the business in which it is engaged
or proposes to engage and to own, lease and operate its properties
as described in the Prospectus and to enter into and perform its
obligations under this Agreement, the Terms Agreement and any
Indenture.
(xi) CarrAmerica L.P. has been duly
formed, and is validly existing and in good standing as a limited
partnership under the laws of Delaware with partnership power and
authority to conduct the business in which it is engaged or
proposes to engage and to own, lease and operate its properties as
described in the Prospectus and to enter into and perform its
obligations, if any, under this Agreement, the Terms Agreement and
any Indenture.
(xii) Each of the Subsidiaries has
been duly formed, and is validly existing and in good standing as a
corporation, partnership or a limited liability company under the
laws of its jurisdiction of organization, with limited liability
company, partnership or corporate power and authority to conduct
the business in which it is engaged or proposes to engage and to
own, lease and operate its properties as described in the
Prospectus.
(xiii) The Operating Partnership,
the Subsidiaries and the Guarantors, if any, are each duly
qualified or registered as a foreign limited liability company,
partnership or corporation in good standing and authorized to do
business in each jurisdiction in which such qualification is
required whether by reason of the ownership, leasing or management
of property or the conduct of business, except where the failure to
so qualify would not have 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 Subsidiaries considered as one enterprise (a
“Material Adverse Effect”).
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(xiv) All the issued and outstanding
Units of the Operating Partnership have been duly authorized and
are validly issued and have been offered and sold in compliance
with all applicable laws (including, without limitation, federal,
state or foreign securities laws).
(xv) Except for transactions
described in the Prospectus and transactions in connection with
Unit options, there are no outstanding securities convertible into
or exchangeable for any Units of the Operating Partnership and no
outstanding options, rights (preemptive or otherwise) or warrants
to purchase or to subscribe for such shares, Units or other
securities of the Operating Partnership or the
Subsidiaries.
(xvi) The Underwritten Securities
and the related Guarantees, if any, are in the form contemplated by
the Indenture, have been duly authorized by the Operating
Partnership and the Guarantors, if any, for issuance and sale to
the Underwriters pursuant to this Agreement and, when executed,
authenticated, issued and delivered in the manner provided for in
this Agreement, any Terms Agreement and the applicable Indenture,
against payment of the consideration therefor specified in the
applicable Terms Agreement, such Underwritten Securities, together
with the Guarantees, if any, will constitute valid and legally
binding obligations of the Operating Partnership and the
Guarantors, if applicable, entitled to the benefits of the
Indenture and such Underwritten Securities and Guarantees will be
enforceable against the Operating Partnership and the Guarantors,
if applicable, in accordance with their terms; provided ,
however , that the enforceability of the foregoing may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting creditors’ rights generally and by general
equitable principles. Upon payment of the purchase price and
delivery of such Underwritten Securities in accordance herewith,
each of the Underwriters will receive good, valid and marketable
title to such Underwritten Securities, free and clear of all
security interests, mortgages, pledges, liens, encumbrances, claims
and equities. The terms of such applicable Underwritten Securities
and the related Guarantees, if any, conform in all material
respects to all statements and descriptions related thereto in the
Time of Sale Information and the Prospectus. Such Underwritten
Securities rank and the Guarantees, if any, rank and will rank, on
a parity with all unsecured indebtedness (other than subordinated
indebtedness) of the Operating Partnership in the case of the
Underwritten Securities, and the Guarantors, in the case of any
Guarantees, in each case that is outstanding on the Representation
Date or that may be incurred thereafter, and senior to all
subordinated indebtedness of the Operating Partnership in the case
of the Underwritten Securities, and the Guarantors, in the case of
any Guarantees, in each case that is outstanding on the
Representation Date or that may be incurred thereafter, except that
such Underwritten Securities and any Guarantees will be effectively
subordinated to the prior claims of each secured mortgage lender to
any specific Property or property of the Guarantors which secures
such lender’s mortgage.
(xvii) (A) This Agreement has
been duly and validly authorized, executed and delivered by the
Operating Partnership, and, assuming due authorization, execution
and delivery by the Representatives, is a valid and binding
agreement of the Operating Partnership, and (B) at the
Representation Date, the Terms Agreement will have been duly and
validly authorized, executed and delivered by the Operating
Partnership and the Guarantors, if any, and, assuming due
authorization, execution and delivery by the Representatives, will
be valid and binding agreements, enforceable in accordance with its
or their terms; provided , however , that the
enforceability of the foregoing may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting
creditors’ rights generally and by general equitable
principles.
(xviii) The Indenture (A) has
been duly qualified under the 1939 Act, will have been duly and
validly authorized, executed and delivered by the Operating
Partnership and the
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Guarantors, if any, prior to the
issuance of any applicable Underwritten Securities, and when
executed and delivered by the Trustee, will constitute a valid and
binding obligation of the Operating Partnership and the Guarantors,
if any, enforceable in accordance with its terms; provided ,
however , that the enforceability of the foregoing may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting creditors’ rights generally and by general
equitable principles; and (B) conforms in all material
respects to the description thereof in the Time of Sale Information
and the Prospectus.
(xix) None of the Operating
Partnership or any Subsidiary, or the Guarantors, if any, is in
violation of its charter, by-laws, certificate of limited
partnership, partnership agreement or operating agreement, as the
case may be, or 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 its property or assets is subject,
which violation or default separately or in the aggregate would
have a Material Adverse Effect.
(xx) The issuance of the
Underwritten Securities, the execution and delivery of this
Agreement, the applicable Terms Agreement and any Indenture and the
performance of the obligations set forth herein or therein by the
Operating Partnership and the Guarantors, if any, and the
consummation of the transactions contemplated hereby and thereby
will not (A) result in the creation of any lien, charge or
encumbrance upon the Properties or (B) conflict with or
constitute a breach or violation by the parties thereto of, or
default under, (1) any material contract, indenture, mortgage,
loan agreement, note, lease, joint venture or partnership agreement
or other instrument or agreement to which the Operating Partnership
or any Subsidiary, or the Guarantors, if any, is a party, or by
which they, any of them, any of their respective properties or
other assets or any Property (including, without limitation,
partnership and other interests in partnerships or other entities
which own direct or indirect interests therein) is or may be bound
or subject, (2) the charter, by-laws, certificate of limited
partnership, partnership agreement or other organizational
document, as the case may be, of the Operating Partnership or any
Subsidiary, or the Guarantors, if any, or (3) any applicable
law, rule, order, administrative regulation or administrative or
court decree, except with respect to (A) and (B)(1) and, with
respect to the Subsidiaries, (B)(2), as would not reasonably be
expected to have a Material Adverse Effect.
(xxi) There is no action, suit or
proceeding before or 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 Guarantors, any Subsidiary, any Property
or any officer or director of the foregoing that is required to be
disclosed in the Registration Statement (other than as disclosed
therein), and that, if determined adversely to the Operating
Partnership, the Guarantors, any Subsidiary, any Property, or any
such officer or director, would reasonably be expected to result in
any Material Adverse Effect, except as disclosed in the
Registration Statement, the Time of Sale Information or the
Prospectus, or which might materially and adversely affect the
consummation of this Agreement, the applicable Terms Agreement, the
Indenture, or the transactions contemplated herein and therein.
Except as disclosed in the Registration Statement, the Time of Sale
Information or the Prospectus, there is no pending legal or
governmental proceeding to which the Operating Partnership, the
Guarantors or any Subsidiary is a party or of which any of their
respective properties or assets or any Property (including, without
limitation, partnership and other interests in partnerships or
other entities which own direct or indirect interests therein), is
the subject, including ordinary routine litigation incidental to
the business or operations of the foregoing, that is or would
reasonably be expected to be, material to the condition, financial
or otherwise, or the earnings, assets, business affairs or business
prospects of the Operating Partnership and the Subsidiaries,
considered as one
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enterprise. There are no contracts
or documents of a character which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been filed as exhibits to the
Registration Statement.
(xxii) At all times beginning with
its taxable period ended December 31, 1993, the Company has
been, and upon the sale of the applicable Underwritten Securities,
the Company will continue to be, organized and operated in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as
amended (the “Code”), and its proposed method of
operation will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the
Code.
(xxiii) None of the Operating
Partnership or any Subsidiary is required to be registered under
the Investment Company Act of 1940, as amended (the “1940
Act”).
(xxiv) The Operating Partnership and
the other Subsidiaries own, possess or license the trademarks,
service marks and trade names (collectively, “proprietary
rights”) that are material to the businesses now operated or
proposed to be operated by them and that are currently employed or
proposed to be employed by them in connection with such businesses,
and none of the Operating Partnership or any of the Subsidiaries
has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any
such proprietary rights.
(xxv) All authorizations, approvals,
filings and consents of any court or government authority or agency
or other entity or person that are necessary in connection with the
offering, issuance or sale of the Underwritten Securities hereunder
by the Operating Partnership and the Guarantors have been obtained,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws with respect to the
Underwritten Securities.
(xxvi) Each of the Operating
Partnership and the Subsidiaries possesses such certificates,
authorizations or permits issued by the appropriate regulatory
agencies or bodies necessary to conduct the business now conducted
by it, except where the failure to so possess would not reasonably
be expected to have a Material Adverse Effect and none of the
Operating Partnership or any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or
otherwise, or the earnings, assets, business affairs or business
prospects of the Operating Partnership and the Subsidiaries
considered as one enterprise.
(xxvii) No material labor dispute
with the employees of the Operating Partnership or any Subsidiary
exists or, to the knowledge of the Operating Partnership is
imminent.
(xxviii) Except as disclosed in the
Time of Sale Information and the Prospectus, (A) to the
knowledge of the Operating Partnership, the Environment (as defined
below) at each Property is free of any Hazardous Substance (as
defined below) except for any Hazardous Substance that would not
reasonably be expected to have any material adverse effect on the
condition, financial or otherwise, or on the earnings, assets,
business affairs or business prospects of the Property, the
Operating Partnership and the Subsidiaries considered as one
enterprise; (B) none of the Operating Partnership or any
Subsidiary and, to the knowledge of the Operating Partnership, no
prior owner of any Property has 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 in an amount that
would reasonably be
9
expected to have a material adverse
effect on the condition, financial or otherwise, or on the
earnings, assets, business affairs or business prospects of any
Property, the Operating Partnership and the Subsidiaries considered
as one enterprise and no condition exists on, in or under any
Property or, to the knowledge of the Operating Partnership, any
property adjacent to any Property that could reasonably be expected
to result in the occurrence of material liabilities under, or any
material violations of, any Environmental Law (as defined below)
applicable to such Property, give rise to the imposition of any
Lien (as defined below) under any Environmental Law, or cause or
constitute an environmental hazard to any property, person or
entity; (C) none of the Operating Partnership or any
Subsidiary is engaged in or intends to engage in any manufacturing
or any other similar operations at any Property and, to the
knowledge of the Operating Partnership, no prior owner of any
Property engaged in any manufacturing or any similar operations at
any Property that (1) require the use, handling,
transportation, storage, treatment or disposal of any Hazardous
Substance (other than paints, stains, cleaning solvents,
insecticides, herbicides, or other substances that are used in the
ordinary course of operating any Property and in compliance with
all applicable Environmental Laws) or (2) require permits or
are otherwise regulated pursuant to any Environmental Law;
(D) none of the Operating Partnership or any Subsidiary and,
to the knowledge of the Operating Partnership, no prior owner of
any Property has received any notice of a claim under or pursuant
to any Environmental Law applicable to a Property or under common
law pertaining to Hazardous Substances on any Property or
pertaining to other property at which Hazardous Substances
generated at any Property have come to be located; (E) none of
the Operating Partnership or any Subsidiary and, to the best
knowledge of the Operating Partnership, no prior owner of any
Property 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 (1) is included or 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 as a potential CERCLA removal, remedial or
response site or (2) is included or proposed for inclusion on,
any similar list of potentially contaminated sites pursuant to any
other applicable Environmental Law nor has the Operating
Partnership or any Subsidiary received any written notice from the
EPA or any other Governmental Authority proposing the inclusion of
any Property on such list.
As used herein, “Hazardous
Substance” shall include any hazardous substance, hazardous
waste, toxic or dangerous substance, pollutant, asbestos-containing
materials, PCBs, pesticides, explosives, radioactive materials,
dioxins, urea formaldehyde insulation, pollutant or waste,
including any such substance, pollutant or waste identified, listed
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.
§ 172.101, as the same may now or hereafter be amended,
or in the EPA’s List of Hazardous Substances and Reportable
Quantities, 40 C.F.R. Part 3202, as the same may now or hereafter
be amended); “Environment” shall mean any surface
water, drinking water, ground water, land surface, subsurface
strata, river sediment, buildings and structures;
“Environmental Law” shall mean the Comprehensive
Environmental Response, Compensation and Liability Act, as amended
(42 U.S.C. § 9601, et seq. )
(“CERCLA”), the Resource Conservation Recovery Act, as
amended (42 U.S.C. § 6901, et seq. ),
the Clean Air Act, as amended (42 U.S.C. § 7401,
et seq. ), the Clean Water Act, as amended (33 U.S.C.
§ 1251, et seq. ), the Occupational Safety
and Health Act, as amended (15 U.S.C. § 2601, et
seq. ), the Toxic Substances Control Act, as amended (29
U.S.C. § 651, et seq. ), the Hazardous
Materials Transportation Act, as amended (49 U.S.C.
§ 5101, et seq. ), together with all rules,
regulations and orders promulgated thereunder and all other
federal, state and local laws, ordinances, rules, regulations and
orders relating to the protection of the environment from
environmental effects; “Governmental Authority” shall
mean any federal, state or local governmental office, agency or
authority having the duty
10
or authority to promulgate, implement or enforce
any Environmental Law; “Lien” shall mean, with respect
to any Property, any material 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.
(xxix) Each of the Operating
Partnership and the Subsidiaries has filed all federal, state,
local and foreign income and franchise tax returns which have been
required to be filed and each such tax return was filed on or prior
to the date on which such tax return was required to be filed or,
in lieu of such timely filings, each of the Operating Partnership
or the Subsidiaries, as the case may be, has duly and timely filed
such applications for extension as may be required to effect all
necessary extensions (such extensions having been obtained and
remaining in full force and effect) and has paid all taxes shown
thereon as due and payable 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
through appropriate proceedings and as to which appropriate
reserves have been established.
(xxx) There are no persons with
registration or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Operating Partnership under the 1933
Act.
(xxxi) Each of the Operating
Partnership and the Subsidiaries (or the partnership or other
entity owning the Property) has obtained title insurance insuring
good, marketable and lien free title to the Properties owned by
them (other than the Properties in which the applicable entity owns
less than a majority interest), subject only to customary easements
and encumbrances and other exceptions to title which do not
materially impair the operation, development or use thereof for the
purposes intended therefor as contemplated by the Prospectus on
each of such Properties.
(xxxii) Unless otherwise agreed to
by the Representatives, the Underwritten Securities will have an
investment grade rating from one or more nationally recognized
statistical rating organizations at the Time of Sale and at the
applicable Closing Time.
(xxxiii) Immediately following the
application of the proceeds of the sale of the Underwritten
Securities in the manner set forth in the Time of Sale Information
and the Prospectus, the mortgages and deeds of trust encumbering
the Properties and assets described in the Prospectus will not be
convertible and none of the partnerships or other entities owning
an interest in the Properties nor any person related to or
affiliated with such partnerships or other entities will hold a
participating interest therein and said mortgages and deeds of
trust will not be cross-defaulted or cross-collateralized with any
property not owned directly or indirectly by the Operating
Partnership or the Subsidiaries.
(xxxiv) Each of the Operating
Partnership and the Subsidiaries is insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses
in which they are engaged; and none of the Operating Partnership
and the Subsidiaries has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its businesses at a cost
that would not have a Material Adverse Effect, except as described
in or contemplated by the Registration Statement, the Time of Sale
Information and the Prospectus.
11
(xxxv) The Operating Partnership has
not taken and will not take, directly or indirectly, any action
prohibited by Regulation M under the 1934 Act.
(xxxvi) The assets of the Operating
Partnership do not constitute “plan assets” under the
Employee Retirement Income Security Act of 1974, as
amended.
(xxxvii) The Operating Partnership
and its consolidated subsidiaries maintains a system of internal
accounting and other controls sufficient to provide reasonable
assurances that (a) transactions are executed in accordance
with management’s general or specific authorizations,
(b) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets, (c) acquisition, disposition or other use of assets is
permitted only in accordance with management’s general or
specific authorization and (d) the recorded accounting for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(xxxviii) The Operating Partnership
has established and maintains disclosure controls and procedures
(as such term is defined in Rule 13a-15(e) under the Exchange Act);
such disclosure controls and procedures are designed to ensure that
material information relating to the Operating Partnership and its
consolidated subsidiaries is made known to the Operating
Partnership’s Chief Executive Officer and its Chief Financial
Officer by others within those entities, and, as of the end of the
Operating Par
