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881,950 shares
ARDEN REALTY, INC.
(a Maryland corporation)
Common Stock, $.01 par value per share
UNDERWRITING AGREEMENT
February 12 1998
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Arden Realty, Inc., a Maryland corporation (the "Company"), proposes to
sell 881,950 shares (the "Stock") of the Company's Common Stock (the "Common
Stock") par value $.01 per share to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the "Underwriter"). This
is to confirm the agreement between the Company, Arden Realty, Limited
Partnership, a Maryland limited partnership (the "Operating Partnership"), and
the Underwriter concerning the purchase of the Stock from the Company by the
Underwriter.
1. Representations, Warranties and Agreements of the Company and
the Operating Partnership. The Company and the Operating Partnership, jointly
and severally, represent, warrant and agree as follows:
(a) A registration statement on Form S-3 (File No.
333-44141) and Amendment No. 1 thereto, with respect to the Stock
has (i) been prepared by the Company in conformity with the
requirements of the United States Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the United States Securities
Commission (the "Commission") thereunder, (ii) been filed with
the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such registration
statement and each amendment thereto have been delivered by the
Company to you. As used in this Agreement, "Effective Time" means
the date and the time as of which such registration statement, 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; "Registration Statement" means such
registration statement, as amended at the Effective Time,
including any documents incorporated by reference therein at such
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time and all information contained in the final prospectus filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 7(a) hereof and deemed to
be a part of the registration statement as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and
Regulations; and "Prospectus" shall mean such final prospectus,
as first filed with the Commission pursuant to paragraph (1) or
(4) of Rule 424(b) of the Rules and Regulations. Reference made
herein to the Prospectus shall be deemed to refer to and include
any documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, as of the date of the
Prospectus, as the case may be, and any reference to any
amendment or supplement to the Prospectus shall be deemed to
refer to and include any document filed under the United States
Securities Exchange Act of 1934 (the "Exchange Act") after the
date of the Prospectus, as the case may be, and incorporated by
reference in the Prospectus, and any reference to any amendment
to the Registration Statement shall be deemed to include any
annual report of the Company filed with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act after the Effective
Time that is incorporated by reference in the Registration
Statement. Any registration statement (including any amendment or
supplement thereto or information which is deemed part thereof)
filed by the Company to register additional shares of Common
Stock of the Company under rule 462(b) of the Rules and
Regulations ("Rule 462(b) Registration Statement") shall be
deemed a part of the Registration Statement. Any prospectus
(including any amendment or supplement thereto or information
which is deemed to be a part thereof) included in a Rule 462(b)
Registration Statement and any term sheet as contemplated by Rule
434 of the Rules and Regulations (a "Term Sheet") shall be deemed
to be part of the Prospectus. The Commission has not issued any
order preventing or suspending the use of any Preliminary
Prospectus.
(b) 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 filed with the Commission, as the case may be,
conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will
not, as of the applicable effective date (as to the Registration
Statement and any amendment thereto) 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, and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) 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
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therein, in light of the circumstances under which they were
made, not misleading; provided that no representation or
warranty is made 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
Company by or on behalf of the Underwriter concerning the
Underwriter specifically for inclusion therein.
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents
so filed and incorporated by reference in the Prospectus, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
(d) The Company is a corporation duly incorporated 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 corporate 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
Prospectus and to enter into and perform its obligations under
this Agreement to which it is a party. The Company is duly
qualified or registered as a foreign corporation and is in good
standing in California and is in good standing in each other
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 operations,
business or prospects of the Company, the Operating Partnership
and their subsidiaries taken as a whole (a "Material Adverse
Effect").
(e) The Operating Partnership is a limited partnership
duly formed and existing under and by virtue of the laws of the
State of
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Maryland and is in good standing with 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 Prospectus and to enter into and perform its
obligations under this Agreement. The Operating Partnership is
duly qualified or registered as a foreign partnership and is in
good standing in California and is in good standing in each other
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.
The Company is the sole general partner of the Operating
Partnership and, immediately after the Delivery Date will be the
sole general partner of the Operating Partnership and will own
approximately _______% of all outstanding partnership interests
in the Operating Partnership.
(f) Each of the subsidiaries (as defined in Section 14) of
the Company and/or the Operating Partnership has been duly
organized and is a validly existing corporation or limited
partnership, as the case may be, in good standing in California
and is in good standing 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 the Operating Partnership and Arden
Realty Finance, L.P.) is a "significant subsidiary," as such term
is defined in Rule 405 of the Rules and Regulations.
(g) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of stock
of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and conform in all material
respects to the description thereof contained in the Prospectus;
all of the issued partnership interests of the Operating
Partnership (the "Partnership Interests") have been duly and
validly authorized and issued and are fully paid and, with
respect to the Partnership Interests owned by the Company are
owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims; and all of the issued shares
of capital stock or partnership interests, as the case may be,
of each subsidiary of the Company or the Operating Partnership
have been duly and validly authorized and issued and are fully
paid and non-assessable (solely with respect to corporate
subsidiaries) and are owned directly or indirectly by the
Company or the Operating
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Partnership, free and clear of all liens, encumbrances equities
or claims.
(h) The shares of the Stock to be issued and sold by the
Company to the Underwriter hereunder have been duly and validly
authorized and, when issued and delivered against payment
therefor as provided herein will be duly and validly issued,
fully paid and non-assessable; and the Stock will conform in all
material respects to the description thereof contained in the
Prospectus.
(i) The limited Partnership Interests in the Operating
Partnership (the "Units") to be issued to the Company have been
duly authorized for issuance by the Operating Partnership and at
the Delivery Date will be validly issued and fully paid.
Immediately after the Delivery Date, _________ Units will be
issued and outstanding. All outstanding Units have been offered
and sold in compliance with all applicable laws (including,
without limitation, federal and state securities laws).
(j) None of the Company, the Operating Partnership or any
of their subsidiaries is in violation of its charter, by-laws,
certificate of limited partnership, articles of organization,
operating agreement or partnership agreement, as the case may be,
and none of the Company, the Operating Partnership or any of
their subsidiaries is in default in the performance or observance
of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which such entity is a party or by which such
entity may be bound, or to which any of the property or assets of
such entity is subject, except for such defaults that would not
have a Material Adverse Effect.
(k) This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership.
(l) The execution, delivery and performance of this
Agreement by the Company and the Operating Partnership and the
consummation of the transactions contemplated hereby will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company, the Operating
Partnership or any of their subsidiaries is a party or by which
the Company, the Operating Partnership or any of their
subsidiaries is bound or to which any of the property or assets
of the Company, the Operating Partnership or any of their
subsidiaries is subject (except for such conflicts, breaches,
violations or defaults that, individually or in the aggregate,
would not
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have a Material Adverse Effect); nor will such actions result in
any violation of the provisions of the charter, by-laws or
partnership agreement of the Company, the Operating Partnership
or any of their subsidiaries or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, the Operating Partnership or any
of their subsidiaries or any of the properties, assets or
businesses owned by them; and except for (a) the registration of
the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state and foreign
securities laws in connection with the purchase and distribution
of the Stock by the Underwriter, (b) consents, approvals,
authorizations, orders, filings or registrations that will be
completed on or prior to the Delivery Date and (c) such
consents, approvals, authorizations, orders, filings or
registrations, the absence of which, individually or in the
aggregate would not have a Material Adverse Effect, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body or any other
person is required for the execution, delivery and performance
of this Agreement by the Company and the Operating Partnership
and the consummation of the transactions contemplated hereby.
(m) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and
any person granting such person the right to require the Company
to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by
such person or to require the Company 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 Company under the
Securities Act.
(n) Except as set forth in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any unissued
shares of the Stock to be issued and sold by the Company to the
Underwriter hereunder pursuant to the Company's charter or
by-laws or any agreement or other instrument.
(o) Except as described in the Prospectus, the Company has
not sold or issued any shares of Common Stock during the
six-month period preceding the date of the Prospectus, including
any sales pursuant to Rule 144A under, or Regulations D or S of,
the Securities Act, other than shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee
compensation plans or pursuant to outstanding options, warrants
or rights.
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(p) Since the date of the latest audited financial
statements included in the Prospectus and except as disclosed in
the Prospectus, (i) there has been no material adverse change in
the financial condition, results of operations or business of the
Company, the Operating Partnership or any of their 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
Company, the Operating Partnership or any of their subsidiaries
has occurred, (iii) there have been no transactions or
acquisitions entered into by the Company, the Operating
Partnership or any of their subsidiaries other than those in the
ordinary course of business, which are material with respect to
such entity and its subsidiaries taken as a whole, (iv) there
have been no material liabilities or obligations, direct or
contingent, incurred by the Company, the Operating Partnership or
any of their 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 Company on any class of its stock or by the
Operating Partnership with respect to its Partnership Interests,
(vi) there has been no material change in the stock of the
Company or the Partnership Interests of the Operating
Partnership, or any increase in the indebtedness of the Company,
the Operating Partnership or any of their subsidiaries and (vii)
there have been no securities issued or granted by the Company,
the Operating Partnership or any of their subsidiaries.
(q) The financial statements and pro forma financial
information (including all necessary pro forma adjustments and
including the related notes and supporting schedules) filed as
part of the Registration Statement or included in the Prospectus
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 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. The financial information set forth in
the Prospectus presents fairly the information shown therein and
has been prepared on an accounting basis consistent with such
financial statements and the books and records of the respective
entities presented therein. The pro forma financial statements
and other information included in the Prospectus have been
prepared in accordance with the applicable requirements of Rules
11-01 and 11-02 of Regulation S-X under the Securities Act, and
the necessary pro forma adjustments have been properly applied to
the historical amounts in the compilation of such information.
Other than the historical and pro forma financial statements (and
schedules)
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included therein, no other historical or pro forma financial
statements (or schedules) are required by the Securities Act or
the Rules and Regulations to be included in the Registration
Statement.
(r) Ernst & Young LLP, who have certified certain
financial statements included in the Registration Statement,
whose report appears in the Prospectus and who have delivered the
initial letter referred to in Section 7(g) hereof, are
independent public accountants as required by the Securities Act
and the Rules and Regulations during the periods covered by the
financial statements on which they reported contained in the
Prospectus.
(s) (i) The Company, the Operating Partnership and their
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 Prospectus or
such as would not materially affect the value of such property
and do not materially interfere with the use made and proposed to
be made of such property by the Company, the Operating
Partnership and their subsidiaries (except for such real
property, buildings and personal property as are described in
subparagraph (ii) below); and (ii) all real property, buildings
and personal property held under lease by the Company, the
Operating Partnership and their subsidiaries are held by them
under valid, existing and enforceable leases in each case free
and clear of all liens, encumbrances and defects except such as
are described in the Prospectus, and such exceptions as are not
material and do not materially interfere with the use made and
proposed to be made of such property and buildings by the
Company, the Operating Partnership and their subsidiaries.
(t) Except as described in the Prospectus, the Company,
the Operating Partnership and their 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.
(u) The Company, the Operating Partnership and their
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 ▇▇▇▇ 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,
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which conflict (if the subject of any unfavorable decision,
ruling or finding) would result in a Material Adverse Effect.
(v) Except as described in the Prospectus, there are no
legal or governmental proceedings pending to which the Company,
the Operating Partnership or any of their subsidiaries is a party
or of which any property or assets of the Company, the Operating
Partnership or any of their subsidiaries is the subject which, if
determined adversely to the Company, the Operating Partnership or
any of their subsidiaries, would have a Material Adverse Effect;
and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others.
(w) The Company is organized 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 meet the
requirements for taxation as a real estate investment trust under
the Code for its taxable periods beginning or otherwise including
the period after the Effective Date. All statements in the
Prospectus regarding the Company's qualification as a REIT are
true, complete and correct in all material respects.
(x) The conditions for use of Form S-3, as set forth in
the General Instructions thereto, have been satisfied.
(y) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits
to the Registration Statement by the Securities Act or by the
Rules and Regulations which have not been described in the
Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations.
(z) No relationship, direct or indirect, exists between or
among the Company, the Operating Partnership or any of their
subsidiaries on the one hand, and the directors, officers,
stockholders, limited partners, customers or suppliers of any of
such entities on the other hand, which is required to be
described in the Prospectus which is not so described.
(aa) There is (i) no material unfair labor practice
complaint pending against the Company, the Operating Partnership
or any of their subsidiaries nor, to the best knowledge of the
Company, 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
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any collective bargaining agreement is so pending against the
Company, the Operating Partnership or any of their subsidiaries
or, to the best knowledge of the Company, threatened against any
of them, and (ii) no material strike, labor dispute, slowdown or
stoppage pending against the Company, the Operating Partnership
or any of their subsidiaries nor, to the best knowledge of the
Company, threatened against the Company, the Operating
Partnership or any of their subsidiaries which in any case would
have a Material Adverse Effect.
(ab) The Company, the Operating Partnership and their
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 Company, the
Operating Partnership or any of their subsidiaries would have any
liability; the Company, the Operating Partnership or any of their
subsidiaries has not incurred and does not expect 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 Code including the regulations and published
interpretations thereunder; and each "pension plan" for which the
Company, the Operating Partnership or any of their 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.
(ac) The Company, the Operating Partnership and their
subsidiaries have filed all 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 Company, the Operating
Partnership or any of their subsidiaries which has had (nor does
the Company have any knowledge of any tax deficiency which,
individually or in the aggregate, if determined adversely to the
Company, the Operating Partnership or any of their subsidiaries
would have) a Material Adverse Effect.
(ad) The Company, the Operating Partnership and their
subsidiaries (i) make and keep books and records which are
accurate in all material respects and (ii) maintain internal
accounting controls which provide reasonable assurance that (A)
transactions are executed
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in accordance with management's authorization, (B) transactions
are recorded as necessary to permit preparation of their
financial statements and to maintain accountability for their
assets, (C) access to their assets is permitted only in
accordance with management's authorization and (D) the reported
accountability for their assets is compared with existing assets
at reasonable intervals.
(ae) None of the Company, the Operating Partnership or any
of their subsidiaries is in violation in any respect of any law,
ordinance, governmental rule, permit, license, regulation or
court decree to which it or its property or assets may be subject
or has failed to obtain any 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 for such violations and failures to obtain that,
individually or in the aggregate, would not have a Material
Adverse Effect.
(af) None of the Company, the Operating Partnership or any
of their subsidiaries, nor any director, officer, agent, employee
or other person associated with or acting on behalf of the
Company, the Operating Partnership or any of their subsidiaries,
has used any corporate 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
corporate funds; violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful
payment.
(ag) Except as disclosed in the 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 Company,
the Operating Partnership or any of their subsidiaries (or, to
the knowledge of the Company, any of their predecessors in
interest or any other person) at, upon or from any of the
property now or previously owned or leased by the Company, the
Operating Partnership or any of their 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,
singularly or in the aggregate with all 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
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substances by the Company, the Operating Partnership or any of
their subsidiaries (or, to the knowledge of the Company, any of
their 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;
(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
Company, the Operating Partnership or any of their subsidiaries
or with respect to which the Company, the Operating Partnership
or any of their subsidiaries have knowledge, except for any such
spill, discharge, leak, emission, injection, escape, placement,
dumping or release which would not have, singularly or in the
aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, placements, dumpings and releases, a
Material Adverse 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. There are no underground storage tanks located on or
in any of the properties owned or leased by the Company, the
Operating Partnership or any of their subsidiaries except such
tanks, individually or in the aggregate, the existence of which
would not have a Material Adverse Effect.
(ah) None of the Company, the Operating Partnership or any
of their subsidiaries is an "investment company" within the
meaning of such term under the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission
thereunder.
(ai) The Stock has been approved for listing on the New
York Stock Exchange subject to official notice of issuance.
(aj) None of the Company, the Operating Partnership or any
of their subsidiaries, or any of their directors, officers or
controlling persons, has taken or will take, directly or
indirectly, any action resulting in a violation of Regulation M
under the Exchange Act, or designed to cause or result in, or
that has constituted or that reasonably might be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Stock.
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(ak) Except as described in the Prospectus, the Operating
Partnership is not currently prohibited, directly or indirectly,
from paying any dividends or distributions to the Company to the
extent permitted by applicable law, from making any other
distribution on the Operating Partnership's partnership
interests, from repaying to the Company any loans or advances to
the Operating Partnership from the Company or from transferring
any of the Operating Partnership's property or assets to the
Company.
(al) The Company, the Operating Partnership and their
subsidiaries are currently in substantial compliance with all
presently applicable provisions of the Americans with
Disabilities Act and no failure of the Company, the Operating
Partnership or any of their subsidiaries to comply with all
presently applicable provisions of the Americans with
Disabilities Act, individually or in the aggregate, would result
in a Material Adverse Effect.
2. Purchase of the Stock by the Underwriter. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 881,950 shares of the
Stock to the Underwriter, and the Underwriter agrees to purchase that number of
shares of the Stock. The price for the Stock shall be $26.896875 per share.
The Company shall not be obligated to deliver any of the
Stock to be delivered on the Delivery Date (as hereinafter defined) except upon
payment for all the Stock to be purchased on the Delivery Date as provided
herein.
3. Offering of Stock by the Underwriter. The Company understands
that the Underwriter intends to deposit the Stock with the trustee of The Equity
Focus Trusts REIT Portfolio Series 1998-A (the "Trust"), a registered unit
investment trust under the Investment Company Act of 1940, as amended, in
exchange for units in the Trust. The Underwriter is acting as sponsor and
depositor of the Trust and is therefore considered an affiliate of the Trust.
The Underwriter is also acting as an underwriter in the
concurrent offering for which it will receive customary compensation.
4. Delivery of and Payment for the Stock. Delivery of and payment
for the Stock shall be made at the office of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M., New York City time,
on the third full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the Underwriter
and the Company. This date and time are sometimes referred to as the "Delivery
Date." On the Delivery Date, the Company shall deliver or cause to be delivered
certificates representing the Stock to the Underwriter for the account of the
Underwriter against payment to or upon the order of the Company of the purchase
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price by wire transfer of federal same-day funds to an account or accounts
previously designated in writing to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. by the Company. Time shall
be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of the Underwriter hereunder.
Upon delivery, the Stock shall be registered in such names and in such
denominations as the Underwriter shall request in writing not less than two full
business days prior to the Delivery Date. For the purpose of expediting the
checking and packaging of the certificates for the Stock, the Company shall make
the certificates representing the Stock available for inspection by the
Underwriter in New York, New York, not later than 2:00 P.M., New York City time,
on the business day prior to the Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Underwriter and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Securities Act;
to make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the last
Delivery Date except as permitted herein; to advise the
Underwriter, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish the
Underwriter with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of
the Stock; to advise the Underwriter, promptly after it receives
notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of the
Prospectus, of the suspension of the qualification of the Stock
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of
the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of Prospectus or
suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal.
(b) To furnish promptly to the Underwriter and to counsel
for the Underwriter a signed copy of the Registration Statement
as originally filed with the Commission, and each amendment
thereto
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filed with the Commission, including all consents and
exhibits filed therewith.
(c) To deliver promptly to the Underwriter such number of
the following documents as the Underwriter shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto
(in each case excluding exhibits other than this Agreement), (ii)
each of the Prospectus and any amended or supplemented
Prospectus, and (iii) any document incorporated by reference in
the Prospectus (excluding exhibits thereto); and, if the delivery
of a prospectus is required at any time after the Effective Time
in connection with the offering or sale of the Stock or any other
securities relating thereto and if at such time any events shall
have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary to
amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in
order to comply with the Securities Act or the Exchange Act, to
notify the Underwriter and, upon its request, to file such
document and to prepare and furnish without charge to the
Underwriter and to any dealer in securities as many copies as the
Underwriter may from time to time reasonably request of an
amended or supplemented Prospectus which will correct such
statement or omission or effect such compliance, and in case the
Underwriter is required to deliver a prospectus in connection
with sales of any of the Stock at any time nine months or more
after the Effective Time, upon request of the Underwriter but at
the expense of the Underwriter, to prepare and deliver to the
Underwriter as many copies as the Underwriter may reasonably
request of an amended or supplemented prospectus complying with
Section 10(a)(3) of the Securities Act.
(d) To file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to
the Prospectus that may, in the reasonable judgment of the
Company or the Underwriter, be required by the Securities Act or
requested by the Commission.
(e) Prior to filing with the Commission any amendment to
the Registration Statement or supplement to the Prospectus, any
document incorporated by reference in the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
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furnish a copy thereof to the Underwriter and counsel for the
Underwriter and obtain the consent of the Underwriter to the
filing.
(f) As soon as practicable after the Effective Date but in
any event not later than 45 days after the end of the Company's
fiscal quarter in which the first anniversary date of the
Effective Date occurs, to make generally available to the
Company's security holders and to deliver to the Underwriter an
earning statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including, at the option of
the Company, Rule 158).
(g) For a period of five years following the Effective
Date, to furnish to the Underwriter copies of all materials
furnished by the Company to its security holders and all public
reports and all reports and financial statements furnished by the
Company to the principal national securities exchange upon which
the Common Stock may be listed pursuant to requirements of or
agreements with such exchange or to the Commission pursuant to
the Exchange Act or any rule or regulation of the Commission
thereunder.
(h) Prior to the Effective Date, to apply for the listing
of the Stock on the New York Stock Exchange, and to use its best
efforts to complete that listing, subject only to official notice
of issuance, prior to the Delivery Date.
(i) To apply the net proceeds from the sale of the Stock
being sold by the Company as set forth in the Prospectus.
(j) To take such steps as shall be necessary to ensure
that neither the Company, the Operating Partnership nor any
subsidiary shall become an "investment company" within the
meaning of such term under the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission
thereunder.
6. Expenses. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Stock and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), the Prospectus and any
amendment or supplement to the Prospectus or any document incorporated by
reference therein, all as provided in this Agreement; (d) the costs of printing,
photocopying and distributing this Agreement and any other related documents in
connection with the offering, purchase, sale and delivery of the Stock; (e) the
fees and expenses (including
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reasonable attorneys' fees) incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of sale of the
Stock; (f) any applicable listing or other fees; (g) the fees and expenses of
the Company's accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; and (h) all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement; provided that, except as provided in this Section 6 and in Section 10
the Underwriter shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Stock which they may sell
and the expenses of advertising any offering of the Stock made by the
Underwriter.
7. Conditions of Underwriter's Obligations. The obligations of
the Underwriter hereunder are subject to the accuracy, when made and on the
Delivery Date, of the representations and warranties of the Company and the
Operating Partnership contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order
suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) The Underwriter shall not have discovered and
disclosed to the Company on or prior to the Delivery Date that
the Registration Statement or any amendment thereto contains an
untrue statement of a fact which, in the opinion of ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., counsel for the Underwriter, is material or omits
to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to
make the statements therein not misleading or that the Prospectus
and any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇
L.L.P., counsel for the Underwriter, is material or omits to
state a fact which, in the opinion of such counsel, is material
and is required to be stated therein or is necessary to make the
statements, in light of the circumstances under which they were
made, not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Stock, the Registration Statement and the
Prospectus, and all other legal matters and agreements relating
to this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all material respects to counsel
for the Underwriter, and the Company
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shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to
pass upon such matters.
(d) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have furnished to the
Underwriter its written opinion, as counsel to the Company,
addressed to the Underwriter and dated the Delivery Date, in form
and substance reasonably satisfactory to the Underwriter, to the
effect that:
(i) Arden Realty Finance Partnership, L.P. ("Arden
Realty LP") is a limited partnership duly formed and
existing under and by virtue of the laws of the State of
California and is in good standing with the Secretary of
State of California. Arden Realty LP has full power as a
limited partnership to conduct its business as described
in the Prospectus. Arden Realty Finance, Inc. ("Arden
Realty Inc.") is a corporation duly incorporated and
existing under and by virtue of the laws of the State of
California and is in good standing with the Secretary of
State of California. Arden Realty Inc. has full corporate
power to conduct its business as described in the
Prospectus. The Company is duly qualified as a foreign
corporation to transact business and is in good standing
in State of California. The Operating Partnership is duly
qualified as a foreign limited partnership to transact
business and is in good standing in the State of
California.
(ii) All of the issued stock or partnership
interests of the Operating Partnership and of each of the
subsidiaries are, to the knowledge of such counsel based
solely on an officer's certificate, owned by the Company
free and clear of all liens, encumbrances, equities or
claims;
(iii) Except as set forth in the Prospectus, there
are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer
of, any shares of the Stock pursuant to any agreement or
other instrument to which the Company is a party known to
such counsel;
(iv) Except as set forth in the Prospectus, there
are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer
of, any Units pursuant to any agreement or other
instrument to which the Operating Partnership is a party
known to such counsel;
(v) To such counsel's knowledge based solely on an
officer's certificate and review of attorney letters
furnished to the Company's independent public accountants
in connection
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with their audit of financial statements, and other than
as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company,
the Operating Partnership or any of their subsidiaries
is a party or of which any property or assets of the
Company, the Operating Partnership or any of their
subsidiaries is the subject which, if determined
adversely to the Company, the Operating Partnership or
any of their subsidiaries, would have a Material Adverse
Effect; and, to such counsel's knowledge, based solely
on an officer's certificate, no such proceedings are
threatened or contemplated by governmental authorities
or threatened by others.
(vi) The Registration Statement was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Prospectus was filed with
the Commission pursuant to the subparagraph of Rule 424(b)
of the Rules and Regulations specified in such opinion on
the date specified therein and no stop order suspending
the effectiveness of the Registration Statement has been
issued and, to the knowledge of such counsel, no
proceeding for that purpose is pending or threatened by
the Commission;
(vii) The Registration Statement at the date it
became effective and at the date of any amendment thereto
made by the Company prior to such Delivery Date (other
than the financial statements and related schedules and
other financial and statistical information and data
(collectively, "Financial Data") included therein, as to
which such counsel need express no opinion) complied, and
the Prospectus as of its date and at the date of any
supplement thereto made by the Company prior to such
Delivery Date (other than the Financial Data, as to which
counsel need express no opinion) complied as to form in
all material respects with the requirements of the
Securities Act and the Rules and Regulations, and the
documents incorporated by reference in the Prospectus and
any further amendment or supplement to any such
incorporated document made by the Company prior to such
Delivery Date (other than the Financial Data, as to which
counsel need express no opinion) complied as to form in
all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the
respective rules and regulations thereunder;
(viii) The statements contained in the Prospectus
under the caption "Federal Income Tax Considerations" and
"Risk Factors --Potential Adverse Consequences of Failure
to Qualify
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as a REIT" and "Risk Factors -- Other Tax Liabilities,"
insofar as they describe federal statutes, rules and
regulations, have been reviewed by such counsel, are
correct in all material respects, and present fairly the
information required to be disclosed therein.
(ix) To such counsel's knowledge, there are no
contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the
Rules and Regulations which have not been described or
filed as exhibits to the Registration Statement;
(x) The issuance and sale of the shares of Stock
being delivered on such Delivery Date by the Company and
the compliance by the Company and the Operating
Partnership with all of the provisions of this Agreement
by the Company and the Operating Partnership will not
conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument filed as an exhibit to the
Registration Statement except for such conflicts,
breaches, violations or defaults that, individually or in
the aggregate, would not have a Material Adverse Effect,
nor will such actions result in any violation of the
provisions of the charter or by-laws of Arden Realty Inc.
or the Agreement of Limited Partnership of Arden Realty LP
or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body
having jurisdiction over these subsidiaries or any of
their properties or assets;
(xi) To such counsel's knowledge based solely on a
certificate from an officer of the Company, other than as
disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any
person granting such person the right to require the
Company to file a registration statement under the
Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require
the Company 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 Company under the
Securities Act; and
(xii) Neither the Company, the Operating
Partnership nor any of their subsidiaries is an
"investment company" as such
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term is defined in the Investment Company Act of 1940,
as amended.
(xiii) The Company has been and is organized 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 method of
operation has enabled, and its proposed method of
operation will enable, the Company to meet the
requirements for qualification and taxation as a "real
estate investment trust" under the Code beginning with the
Company's taxable year ended December 31, 1996.
In rendering such opinion, such counsel may state that its
opinion, as applicable, is limited to matters governed by the
federal securities and tax laws of the United States of America,
and the corporate and partnership laws of the State of
California. Such counsel shall also have furnished to the
Underwriter a written statement, addressed to the Underwriter and
dated the Delivery Date, in form and substance satisfactory to
the Underwriter, to the effect that (x) such counsel has acted as
counsel to the Company in connection with the preparation of the
Registration Statement and participated in conferences with
certain officers and representatives of the Company and the
Operating Partnership, representatives of Ernst & Young LLP and
the Underwriter at which the Registration Statement and the
Prospectus and related matters were discussed and (y) during the
course of such counsel's participation (relying as to factual
matters as to materiality to a large extent upon the statements
of officers and other representatives of the Company), no facts
have come to the attention of such counsel which led it to
believe that (i) the Registration Statement (other than the
Financial Data as to which such counsel need make no statement),
as of the Effective Date, contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements
therein not misleading, or (ii) the Prospectus as of the Delivery
Date (other than the Financial Data as to which such counsel need
make no statement) contains any untrue statement of a material
fact or omits to state a 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. The foregoing opinion and statement may be qualified
by a statement to the effect that such counsel does not assume
any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus and has not made any independent judgment, check or
verification thereof except to the extent set forth in paragraph
(viii) above.
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In addition, in rendering any such opinion, such counsel may
rely, as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company.
(e) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ shall have furnished to the
Underwriter its written opinion, as Maryland counsel to the Company and the
Operating Partnership, addressed to the Underwriter and dated the Delivery Date,
in form and substance reasonably satisfactory to the Underwriter, to the effect
that:
(i) The Company is a corporation duly incorporated and existing
under and by virtue of the laws of the State of Maryland and is in good
standing with the SDAT. The Company has full corporate power to conduct
its business substantially as described in the Prospectus;
(ii) The Operating Partnership 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 SDAT. The Operating
Partnership has full power as a limited partnership to conduct its
business substantially as described in the Prospectus;
(iii) The Company has an authorized capitalization as set forth
in the line items "Preferred Stock" and "Common Stock" under the caption
"Capitalization" in the Prospectus, and all of the issued shares of
stock of the Company (including the shares of Stock being delivered on
such Delivery Date) have been duly and validly authorized and, assuming
receipt of consideration therefor as provided in the resolutions
authorizing issuance thereof of the board of directors of the Company,
are validly issued, and fully paid and non-assessable and conform in all
material respects to the description thereof contained in the Prospectus
under the caption "Description of Capital Stock;" and all of the issued
partnership interests of the Operating Partnership have been duly and
validly authorized, assuming receipt of consideration therefor as
provided in the resolutions authorizing issuance thereof of the board of
directors of the Company, as general partner of the Operating
Partnership, are fully paid and (except as set forth in the Prospectus)
are owned of record by the Company;
(iv) Except as set forth in the Prospectus, there are no
preemptive or other rights under the Maryland General Corporation Law to
subscribe for or to purchase, nor any restriction upon the voting or
transfer of, any shares of the Stock pursuant to the Company's charter
or by-laws (except as set forth in Article VII of the charter);
(v) Except as set forth in the Prospectus, there are no
preemptive or other rights under the Maryland Revised Uniform Limited
Partnership Act to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, any Units pursuant to the Operating
Partnership Agreement;
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(vi) The information in the Prospectus under the caption
"Description of Capital Stock" to the extent that it constitutes matters
of Maryland law or legal conclusions, has been reviewed by such counsel
and is correct in all material respects; and the statements contained in
the Prospectus under the heading "Certain Provisions of Maryland Law and
the Company's Charter and Bylaws," insofar as they describe Maryland
statutory law are correct in all material respects;
(vii) This Agreement has been duly authorized, executed and, so
far as is known to such counsel, delivered by the Company and the
Operating Partnership;
(viii) The issuance and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the compliance by the
Company and the Operating Partnership with all of the provisions of this
Agreement by the Company and the Operating Partnership will not result
in any violation of the provisions of the charter or by-laws of the
Company or the Agreement of Limited Partnership of the Operating
Partnership or any Maryland statute or any order, rule or regulation
known to such counsel of any Maryland court or governmental agency or
body of the State of Maryland having jurisdiction over the Company or
the Operating Partnership or any of their properties or assets; and,
except for (a) the registration of the Stock under the Securities Act,
such consents, approvals, authorizations, registrations or
qualifications as may be required under applicable state and foreign
securities laws in connection with the purchase and distribution of the
Stock by the Underwriter, (b) consents, approvals, authorizations,
orders, filings or registrations that will be completed on or prior to
the Closing Date and (c) such consents, approvals, authorizations,
orders, filing or registrations, the absence of which, individually or
in the aggregate would not have a Material Adverse Effect, no consent,
approval, authorization or order of, or filing or registration with, any
such Maryland court or governmental agency or body of the State of
Maryland is required for the execution, delivery and performance of this
Agreement by the Company and the Operating Partnership; and
(ix) The terms of the Units conform in all material respects to
all statements and descriptions related thereto contained in the
Prospectus under the caption "Partnership Agreement."
In rendering such opinion, such counsel may state that its
opinion, as applicable, is limited to matters governed by the federal securities
and tax laws of the United States of America and the corporate and partnership
laws of the State of Maryland.
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(f) The Underwriter shall have received from ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., counsel for the Underwriter, such opinion or
opinions, dated such Delivery Date, with respect to the issuance
and sale of the Stock, the Registration Statement, the Prospectus
and other related matters as the Underwriter may reasonably
require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the
Underwriter shall have received from Ernst & Young LLP a letter,
in form and substance satisfactory to the Underwriter, addressed
to the Underwriter and dated the date hereof (i) confirming that
they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission and (ii) stating,
as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of
a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by
accountants' "comfort letters" to the Underwriter in connection
with registered public offerings.
(h) With respect to the letter of Ernst & Young LLP
referred to in the preceding paragraph and delivered to the
Underwriter concurrently with the execution of this Agreement
(the "initial letter"), the Company shall have furnished to the
Underwriter a letter (the "bring-down letter") of such
accountants, addressed to the Underwriter and dated such Delivery
Date (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission,
(ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the
respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days
prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information
and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings
set forth in the initial letter.
(i) The Company shall have furnished to the Underwriter a
certificate, dated the Delivery Date, of its Chairman of the
Board, its
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President or a Vice President and its chief financial officer
stating on behalf of the Company that:
(i) The representations, warranties and agreements
of the Company and the Operating Partnership in Section 1
are true and correct as of such Delivery Date; the Company
has complied with all its agreements contained herein; and
the conditions set forth in Sections 7(a) and 7(j) have
been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as
of the Effective Date, the Registration Statement did not
include any untrue statement of a material fact and did
not omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (B) the Prospectus as of the Delivery Date did
not include any untrue statement of a material fact and
did not omit to state a 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 (C) since the Effective Date
no event has occurred which should have been set forth in
a supplement or amendment to the Registration Statement or
the Prospectus.
(j) (i) Neither the Company, the Operating Partnership nor
any of their subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated
by reference in the Prospectus any loss or interference with
their business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus or (ii) since such
date there shall not have been any change in the stock,
partnership interests or long-term debt of the Company, the
Operating Partnership or any of their subsidiaries or any change,
or any development involving a prospective change in, or
affecting the general affairs, management, financial position,
stockholders' equity, partners' equity or results of operations
of the Company, the Operating Partnership and their subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the Underwriter, so
material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Stock
being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
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(k) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange,
Inc. or the American Stock Exchange, Inc. or on the Nasdaq Stock
Market, Inc., or trading in any securities of the Company on any
exchange or on the Nasdaq Stock Market, Inc., shall have been
suspended or minimum prices shall have been established on any
such exchange or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared
by federal, New York or California authorities, (iii) the United
States shall have become engaged in hostilities, there shall have
been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or
war by the United States or (iv) there shall have occurred such a
material adverse change in general economic, political or
financial conditions (or the effect of international conditions
on the financial markets in the United States shall be such) as
to make it, in your judgment, impracticable or inadvisable to
commence or continue the offering of the units of the Trust to
the public or to enforce contracts for the sale of units in the
Trust.
(l) The New York Stock Exchange, Inc. shall have approved
the Stock for listing, subject only to official notice of
issuance.
(m) The Company shall have delivered to the Underwriter
under separate cover at or prior to the Delivery Date any and all
officers' and other certificates delivered by the Company, the
Operating Partnership, their subsidiaries or its affiliates to
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ &
Young LLP on which such firms relied in rendering opinions.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
8. Indemnification and Contribution.
(a) The Company and the Operating Partnership, jointly
and severally, shall indemnify and hold harmless the Underwriter, its officers
and employees and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Stock), to which
the Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or
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otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (B) in
any blue sky application or other document prepared or executed by the Company
(or based upon any written information furnished by the Company) specifically
for the purpose of qualifying any or all of the Stock under the securities laws
of any state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by the Underwriter in
connection with, or relating in any manner to, the Stock or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company and the Operating
Partnership shall not be liable under this clause (iii) to the extent that is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by the Underwriter through its
gross negligence or willful misconduct) and shall reimburse the Underwriter and
each such officer, employee or controlling person promptly upon demand for any
legal or other expenses reasonably incurred by the Underwriter, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company and the
Operating Partnership shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application, in reliance upon and in conformity with written information
specified in Section 8(e) furnished to the Company through the Underwriter by or
on behalf of the Underwriter specifically for inclusion therein; provided
further, that the foregoing indemnity with respect to any Preliminary Prospectus
shall not inure to the benefit of the Underwriter from whom the person asserting
any such loss, claim, damage or liability purchased the Stock which is the
subject thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) at or prior to the confirmation of the sale of such
Stock to such person in any case where such delivery is required by the
Securities Act and the untrue statement or omission of a material fact contained
in such Preliminary Prospectus was corrected in the Prospectus (or the
Prospectus as supplemented). The foregoing indemnity agreement is in addition to
any liability which the Company or the Operating Partnership may otherwise have
to
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any Underwriter or to any officer, employee or controlling person of that
Underwriter.
(b) The Underwriter shall indemnify and hold harmless the
Company, the Operating Partnership, each of their respective officers and
employees, each of the Company's directors (including any person who, with his
or her consent, is named in the Registration Statement as about to become a
director of the Company), and each person, if any, who controls the Company
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Company or any such director, officer, employee or controlling person
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained (A) in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or (B) in any Blue Sky Application or (ii)
the omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information specified in Section 8(e) furnished to the Company through
the Underwriter by or on behalf of the Underwriter specifically for inclusion
therein, and shall reimburse the Company and any such director, officer,
employee or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer, employee or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which the Underwriter may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After
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notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that the Underwriter shall have the right to employ a single counsel to
represent jointly the Underwriter and it's officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Underwriter against the Company or the
Operating Partnership under this Section 8 if, in the reasonable judgment of the
Underwriter, it is advisable for the Underwriter and it's officers, employees
and controlling persons to be jointly represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by the
Company and the Operating Partnership. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld or delayed), settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld or delayed), but if settled with the
consent of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Operating Partnership on the one hand and the
Underwriter on the other hand from the offering of the Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Operating Partnership on the one hand and the Underwriter on the other hand
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Operating Partnership on the one hand and the Underwriter on the other hand with
respect to such offering shall be deemed to be in the same proportion as
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30
the total net proceeds from the offering of the Stock purchased under this
Agreement (before deducting expenses) received by the Company and the Operating
Partnership, on the one hand, and the total underwriting discounts and
commissions received by the Underwriter with respect to the shares of the Stock
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the shares of the Stock under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company and the Operating
Partnership or the Underwriter, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. For purposes of the preceding two sentences, the net
proceeds deemed to be received by the Company shall be deemed to be also for the
benefit of the Operating Partnership and information supplied by the Company
shall also be deemed to have been supplied by the Operating Partnership. The
Company, the Operating Partnership and the Underwriter agree that it would not
be just and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 8(d) shall be deemed to include, for purposes of this Section 8(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Stock underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which the Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The Underwriter confirms and the Company and the
Operating Partnership acknowledge that the statements with respect to the public
offering of the Stock by the Underwriter set forth on the cover page of, the
legend concerning stabilization on the inside front cover page of, and under the
caption "Underwriting" in the Prospectus are correct and constitute the only
information concerning the Underwriter furnished in writing to the Company and
the Operating Partnership by or on behalf of the Underwriter specifically for
inclusion in the Registration Statement and the Prospectus.
9. Termination. The obligations of the Underwriter hereunder may
be terminated by the Underwriter by notice given to and received by the Company
prior to delivery of and payment for the Stock if, prior to that time, any of
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the events described in Sections 7(j) or 7(k), shall have occurred or if the
Underwriter shall decline to purchase the Stock for any reason permitted under
this Agreement.
10. Reimbursement of the Underwriter's Expenses. If the Company
shall fail to tender the Stock for delivery to the Underwriter by reason of any
failure, refusal or inability on the part of the Company or the Operating
Partnership to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company or the Operating Partnership is not fulfilled (other
than the conditions set forth in Section 7(k)), the Company and the Operating
Partnership will reimburse the Underwriter for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the
Underwriter in connection with this Agreement and the proposed purchase of the
Stock, and upon demand the Company and the Operating Partnership shall pay the
full amount thereof to the Underwriter.
11. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by
mail, telex or facsimile transmission to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Manager,
Investment Banking Division (Fax: (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Company or to the Operating Partnership,
shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the
Registration Statement, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ (Fax: (▇▇▇) ▇▇▇-▇▇▇▇);
provided, however, that any notice to the Underwriter pursuant to Section 8(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the Underwriter,
which address will be supplied to any other party hereto by the Underwriter upon
request. Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriter, the Company
and the Operating Partnership. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company and the
Operating Partnership contained in this Agreement shall also be deemed to be for
the benefit of the person or persons, if any, who control the Underwriter or the
Independent Underwriter within the meaning of Section 15 of the Securities Act
and (B) the indemnity agreement of the Underwriter contained in Section 8(b) of
this
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Agreement shall be deemed to be for the benefit of officers, employees and
directors of the Company and the Operating Partnership, (including persons named
in the Registration Statement with their consent as about to become a director
of the Company) and any person controlling the Company within the meaning of
Section 13 of the Securities Act. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred to in this
Section 12, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Operating Partnership and the
Underwriter contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Stock and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
14. Definition of the Terms "Business Day" and "Subsidiary." For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations and, when used in
reference to subsidiaries of the Company or the Operating Partnership, includes
the entities listed on Schedule 1.
15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the principles of conflicts of laws thereof.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement among the Company,
the Operating Partnership and the Underwriter, please indicate your acceptance
in the space provided for that purpose below.
Very truly yours,
ARDEN REALTY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer and
Secretary
ARDEN REALTY LIMITED PARTNERSHIP,
the Operating Partnership
By: Arden Realty, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer and
Secretary
Accepted:
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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SCHEDULE 1
SUBSIDIARIES
Arden Realty Finance, Inc., a California corporation
Arden Realty Finance Partnership, L.P., a California limited partnership
Arden Realty Finance II, Inc., a Maryland corporation
Activity Business Center, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, L.L.C., a California limited liability company
34
