Exhibit 1.1
2,000,000 Shares
of 7.375% Series D Cumulative Redeemable Preferred Shares
BRANDYWINE REALTY TRUST
UNDERWRITING AGREEMENT
New York, New York
February 4, 2004
WACHOVIA CAPITAL MARKETS, LLC
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
c/o Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Brandywine Realty Trust, a real estate investment trust organized under the
laws of the State of Maryland (the "Company"), proposes to sell to you and the
several underwriters named in Schedule I hereto (the "Underwriters"), subject to
the terms and conditions stated herein, 2,000,000 shares (the "Firm Shares") of
its 7.375% Series D Cumulative Redeemable Preferred Shares, par value $0.01 per
share, liquidation preference $25.00 per share (the "Series D Preferred
Shares"), of the Company. The Company also proposes to grant to the Underwriters
an option to purchase up to 300,000 Shares of Series D Preferred Stock to cover
over-allotments (the "Additional Shares"; the Additional Shares, together with
the Firm Shares, being hereinafter called the "Shares"). Wachovia Capital
Markets, LLC ("Wachovia") is acting as lead manager in connection with the
offering and sale of the Shares (the "Offering").
The Company, directly and through a wholly-owned subsidiary, is the sole
general partner and a limited partner of Brandywine Operating Partnership, L.P.,
a Delaware limited partnership (the "Operating Partnership"). The Company owns
its assets and conducts its operations through the Operating Partnership and
through subsidiaries of the Operating Partnership. As of September 30, 2003, the
Company's ownership interest in the Operating Partnership entitled the Company
to approximately 95.6% of the Operating Partnership's distributions after
distributions by the Operating Partnership to holders of its preferred units.
The Company will contribute the net proceeds of the sale of the Securities to
the Operating Partnership in exchange for additional partnership interests in
the Operating Partnership. The Company and the Operating Partnership wish to
confirm as follows their agreement with the Underwriters, in connection with the
purchase of the Shares by such Underwriters.
1. Representations and Warranties. The Company and the Operating
Partnership jointly and severally represent and warrant to, and agree with, each
Underwriter as set forth below in this Section 1.
(a) A registration statement on Form S-3 (File No. 333-56237), with
respect to the Shares, including a base prospectus dated February 9, 1999,
was prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the rules
and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission"), was filed with the Commission and
declared effective. The registration statement and prospectus may have been
amended or supplemented prior to the date of this Agreement; any such
amendment or supplement was prepared and filed, and any such amendment
filed after the effective date of such registration statement has been
declared effective. No stop order suspending the effectiveness of the
registration statement has been issued, and no proceeding for that purpose
has been instituted, or to the Company's knowledge, threatened by the
Commission. A prospectus supplement (the "Prospectus Supplement") setting
forth the terms of the Offering, sale and plan of distribution of the
Shares and additional information concerning the Company and its business
has been or will be prepared and, together with the prospectus included in
the registration statement, will be filed pursuant to Rule 424(b) of the
Rules and Regulations on or before the second business day after the date
hereof (or such earlier time as may be required by the Rules and
Regulations). The registration statement, as it may have heretofore been
amended and at the time it became effective, is referred to herein as the
"Registration Statement," and the final form of prospectus included in the
Registration Statement, as supplemented by the Prospectus Supplement, in
the form filed by the Company with the Commission pursuant to Rule 424(b)
under the Rules and Regulations, is referred to herein as the "Prospectus",
except that if any revised prospectus or prospectus supplement shall be
provided to the Underwriters by the Company for use in connection with the
Offering which differs from the Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the Rules and Regulations), the term
"Prospectus" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first
provided to the Underwriters for such use. Copies of the Registration
Statement and the Prospectus, any amendments or supplements thereto and all
documents incorporated by reference therein that were filed with the
Commission on or prior to the date of this Agreement have been delivered to
the Underwriters and their counsel. Any preliminary prospectus or
prospectus subject to completion included in the Registration Statement or
filed with the Commission pursuant to Rule 424 under the Securities Act and
the Rules and Regulations is hereafter called a "Preliminary Prospectus."
Any reference herein to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Effective Date, the date of such
Preliminary Prospectus or the date of the Prospectus, as the case may be,
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, any
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Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include (i) the filing of any document under the Exchange Act after the
Effective Date, the date of such Preliminary Prospectus or the date of the
Prospectus, as the case may be, which is incorporated therein by reference
and (ii) any such document so filed. For purposes of this Agreement, all
references to the Registration Statement, the Prospectus, any Preliminary
Prospectus or to any amendment or supplement thereto shall be deemed to
include any copy filed with the Electronic Data Gathering Analysis and
Retrieval System (XXXXX), and such copy shall be identical in content to
any Prospectus delivered to the Underwriters for use in connection with the
Offering.
(b) The Registration Statement, when it became or becomes effective,
and the Prospectus and any amendment or supplement thereto, as of its date,
on the date of filing thereof with the Commission and at the Closing Date
(as hereinafter defined) and, if later, at any Additional Closing Date (as
hereinafter defined), complied or will comply in all material respects with
the applicable requirements of the Securities Act and the Rules and
Regulations; the Registration Statement, when it became or becomes
effective, or when it was filed with the Commission, did not or 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 and any amendment or supplement
thereto, as of its date, on the date of the filing thereof with the
Commission and at the Closing Date and, if later, at any Additional Closing
Date, did not or will not include an untrue statement of a material fact
required to be stated therein or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading. When any related Preliminary Prospectus was
first filed with the Commission (whether filed as part of the registration
statement for the registration of the Shares or any amendment thereto or
pursuant to Rule 424(a) under the Securities Act) and when any amendment
thereof or supplement thereto was first filed with the Commission, such
Preliminary Prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of the
Securities Act, the Exchange Act and the Rules and Regulations and did not
contain an untrue statement of a material fact and did not omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company and the
Operating Partnership make no representations or warranties as to the
information contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by the Underwriter
specifically for inclusion in the Registration Statement or the Prospectus
(or any supplement thereto).
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the Exchange Act and the Rules and Regulations, and did
not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) The Company is a real estate investment trust duly formed and
validly existing and in good standing under the laws of the jurisdiction in
which it is chartered or
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organized, with full trust power and authority to own or lease, as the case
may be, and to operate its properties and conduct its business as described
in the Registration Statement and the Prospectus, and is duly qualified to
do business as a foreign trust and is in good standing under the laws of
each jurisdiction which requires such qualification.
(e) Each of the subsidiaries of the Company, including the Operating
Partnership (collectively the "Subsidiaries"), is a corporation, trust,
limited partnership, limited liability company or general partnership duly
incorporated or formed, as the case may be, validly existing and in good
standing under the laws of the jurisdiction in which it is chartered,
formed or organized with full corporate, trust, limited liability company
or partnership power and authority, to own or lease, as the case may be,
and operate its properties, and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified to do
business and is in good standing under the laws of each jurisdiction which
requires such qualification.
(f) All the outstanding shares of capital stock, beneficial interests,
limited liability company interests or partnership interests of each
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the
Prospectus or on Schedule II attached hereto, all outstanding shares of
capital stock, shares of beneficial interest, limited liability company
interests or partnership interests of the Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries free and clear
of any perfected security interest or any other security interests, claims,
liens or encumbrances. The Company's percentage interest and ownership in
the Operating Partnership, and the Operating Partnership's percentage
interest and ownership in each of the Subsidiaries, is as set forth on
Schedule II. Except in respect of the Operating Partnership and as set
forth in the Prospectus, or on Schedule III attached hereto, no options,
warrants or other rights to purchase, agreements or obligations to issue,
or rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in any Subsidiary are
outstanding. The Company is the sole general partner of the Operating
Partnership. The Subsidiaries set forth on Schedule II include all of the
"significant subsidiaries" of the Company, as such term is defined by Rule
1-02 of Regulation S-X.
(g) The Company's authorized equity capitalization is as set forth in
the Prospectus; the Series D Preferred Shares conform in all material
respects to the description thereof contained in the Prospectus; the
outstanding Common Shares have been duly and validly authorized and issued
and are fully paid, and the Shares being sold hereunder by the Company have
been duly and validly authorized, and, when issued and delivered to and
paid for by the Underwriters pursuant to this Agreement, will be fully paid
and nonassessable; the certificates for the Shares are in valid and
sufficient form to comply with all applicable Maryland statutory
requirements and the rules and regulations of the New York Stock Exchange;
the holders of outstanding shares of beneficial interest of the Company are
not entitled to preemptive or other rights to subscribe for the Shares and,
except as set forth in the Prospectus, no options, warrants or other rights
to purchase, agreements or other obligations to issue, or rights to convert
any obligations into or exchange any securities for, shares of beneficial
interest or ownership interests in the Company are outstanding. At or prior
to the Closing Date, the Company will have
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executed and filed Articles Supplementary (the "Articles Supplementary")
establishing the terms of the Shares with the State Department of
Assessments and Taxation of the State of Maryland.
(h) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as
required. All of the contracts to which any of the Company, the Operating
Partnership or the Subsidiaries is a party and which are material to the
business and operations of the Company, the Operating Partnership or the
Subsidiaries, taken as a whole, (i) have been duly authorized, executed and
delivered by such entity, constitute valid and binding obligations of such
entity and are enforceable against such entity in accordance with the terms
thereof, except as such enforcement may be limited by (A) bankruptcy,
insolvency, reorganization or similar other laws affecting creditors'
rights generally and (B) general equity principles and limitations on the
availability of equitable relief, or (ii) in the case of any contract to be
executed on or before the Closing Date, will on the Closing Date be duly
authorized, executed and delivered by the Company and/or a subsidiary, and
constitute valid and binding agreements of such entity enforceable against
each entity in accordance with the terms thereof, except as such
enforcement may be limited by (A) bankruptcy, insolvency, reorganization or
similar other laws affecting creditors' rights generally and (B) general
equity principles and limitations on the availability of equitable relief.
(i) The statements in the Prospectus under the headings "Description
of Shares of Beneficial Interest," "Certain Provisions of Maryland Law and
our Declaration of Trust and Bylaws," "Federal Income Tax Considerations",
"Plan of Distribution", and "Risk Factors - Our Status as a REIT is
dependent on compliance with federal income tax requirements," insofar as
such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of such
legal matters, agreements, documents or proceedings.
(j) Each of the Company and the Operating Partnership has full power
and authority to enter into this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the Operating
Partnership and constitutes a valid and binding agreement of the Company
and the Operating Partnership and is enforceable against the Company and
the Operating Partnership in accordance with the terms hereof, except as
rights to indemnification hereunder may be limited by applicable law and
except as the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
the rights and remedies of creditors or by general equitable principles.
(k) Title insurance in favor of the Company (or the Subsidiary which
holds title to such property) is maintained with respect to each of the
properties owned by the Company and the Subsidiaries in such amounts as are
customary for publicly traded companies operating in the industry and
sector in which the Company and the Subsidiaries operate, except, in each
case, where the failure to maintain such title insurance would not have a
material adverse effect on the business, properties, financial condition or
results of operations of the Company and the Subsidiaries, taken as a
whole.
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To the Company's knowledge, title insurance in favor of the mortgagee is
maintained in an amount equal to the maximum commitment of the related
loan.
(l) The mortgages and deeds of trust encumbering the properties and
assets of the Company and the Subsidiaries are not convertible into equity
of the Company or its Subsidiaries nor does the Company or any Subsidiary
hold a participating interest in any such mortgages or deeds of trust.
(m) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(n) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the Securities Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Shares by the Underwriters in the manner contemplated herein and in the
Prospectus.
(o) Neither the issue and sale of the Shares nor the consummation of
any other of the transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of the Subsidiaries pursuant to (i) the Declaration
of Trust, charter or by-laws, partnership agreements, operating agreements
or other organizational documents of the Company or any of the
Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any
of the Subsidiaries is a party or bound or to which its or their property
is subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its
Subsidiaries or any of its or their properties.
(p) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(q) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the Prospectus
and the Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the caption "Selected
Financial Information" in
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the Prospectus and Registration Statement fairly present, on the basis
stated in the Prospectus and the Registration Statement, the information
included therein.
(r) There are no pro forma, as adjusted, reclassified, restated or
other financial statements which are required to be included or
incorporated in the Registration Statement and Prospectus in accordance
with Regulation S-X under the Rules and Regulations, and which are not so
included or incorporated therein.
(s) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company, the Operating Partnership or any of the other Subsidiaries, or any
of their respective partners, directors, trustees or officers in their
capacity as such, or to which the Company, the Operating Partnership or any
of the other Subsidiaries or its or their property is pending or, to the
best knowledge of the Company and the Operating Partnership, threatened
that (i) could reasonably be expected to have a material adverse effect on
the performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto).
(t) There has not occurred any change, or any development involving a
prospective change, in the financial condition and results of operation of
the Company and the Subsidiaries from that set forth in the Prospectus,
except as would not have a material adverse effect on the business,
properties, financial condition or results of operations of the Company and
the Subsidiaries, taken as a whole.
(u) Each description of a contract, document or other agreement in the
Prospectus fairly reflects in all respects the material terms of the
underlying document, contract or agreement. Each agreement described in the
Prospectus or listed in the exhibits to the Registration Statement or
incorporated by reference is in full force and effect and is valid and
enforceable by and against the Company or a Subsidiary, as the case may be,
in accordance with its terms.
(v) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company or any of the Subsidiaries
and any person that would give rise to a valid claim against the Company,
any of the Subsidiaries or the Underwriters for a brokerage commission,
finder's fee or other like payment in connection with the offering,
issuance and sale of the Shares.
(w) The Company and the Subsidiaries are currently in compliance with
all presently applicable provisions of the Americans with Disabilities Act,
except for such noncompliance which would not have a material adverse
effect on the business, properties, financial condition or results of
operations of the Company and the Subsidiaries, taken as a whole.
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(x) Each of the Company, the Operating Partnership and the
Subsidiaries owns or leases all such properties as are necessary to the
conduct of its operations as presently conducted. Each of the Company and
the Operating Partnership (either directly or through a Subsidiary) has,
and after giving effect to the transactions described in the Registration
Statement and Prospectus will have, good and marketable and insurable title
to all real property described in, or that secure indebtedness identified
in, the Prospectus as being or to be owned by it, free and clear of all
liens, claims, security interests or other encumbrances except such as are
described in the Registration Statement and the Prospectus or in a document
filed as an exhibit to, or incorporated by reference in, the Registration
Statement and except those which do not and will not have a material
adverse effect on the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole. All the property described in the Prospectus
as being held under lease by each of the Company and the Subsidiaries is
held by it under valid, subsisting and enforceable leases, other than those
described in the Registration Statement and the Prospectus and those which
do not and will not have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or results
of operations of the Company and the Subsidiaries taken as a whole.
(y) Neither the Company nor any Subsidiary is in violation or default
of (i) any provision of its Declaration of Trust, charter or bylaws,
partnership agreement, limited liability company agreement or other
organizational documents, as applicable, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it
is a party or bound or to which its property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or such subsidiary or
any of its properties, as applicable.
(z) KPMG LLP, who has audited certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules
incorporated by reference into the Prospectus, were independent public
accountants during the periods covered by their report on the consolidated
financial statements with respect to the Company within the meaning of the
Securities Act and the Rules and Regulations. PriceWaterhouseCoopers LLP
are independent public accountants with respect to the Company within the
meaning of the Securities Act and the Rules and Regulations.
(aa) There are no transfer taxes or other similar fees or charges
under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the
Company or sale by the Company of the Shares.
(bb) The Company has filed all foreign, federal, state and local
tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the
8
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto) and has paid all taxes required to be paid by it and any
other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith or as would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Company and the Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto). The Company and the Subsidiaries are organized
and operate in the manner described in the Registration Statement so
that the Company meets the requirements for qualification as a real
estate investment trust under Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended (the "Code"), and the rules and
regulations thereunder as currently in effect. Each Subsidiary,
including without limitation, the Operating Partnership, that is a
partnership or limited liability company will be treated as a
partnership, and not as an association taxable as a corporation or a
publicly traded partnership, for federal income tax purposes, except
for e-Tenants LLC, which has elected to be taxed as a corporation.
(cc) No labor problem or dispute with the employees of the
Company or any of the Subsidiaries exists or is threatened or
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or its Subsidiaries'
principal suppliers, contractors or customers, that could have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto) and has paid all taxes required to be paid by it and any
other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith or as would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Company and the Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(dd) The Company and each of the Subsidiaries are 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; all policies of insurance
insuring the Company or any of the Subsidiaries or their respective
businesses, assets, employees, officers and directors are in full
force and effect; the Company and the Subsidiaries are in compliance
with the terms of such policies and instruments in all material
respects; and there are no claims by the Company or any of the
Subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a
reservation of rights clause; neither the Company nor any such
Subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor any such Subsidiary 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
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obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(ee) No consolidated Subsidiary is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making
any other distribution on such Subsidiary's capital stock or other
equity, from repaying to the Company any loans or advances to such
Subsidiary from the Company or from transferring any of such
Subsidiary's property or assets to the Company or any other Subsidiary
of the Company, except as described in or contemplated by the
Prospectus (exclusive of any supplement thereto) and except that the
Subsidiaries that are identified as "Joint Ventures" on Schedule I
require the consent of the joint venture partners listed on Schedule I
as a condition to making such payments or transfers and except that
following an event of default under the loan documents encumbering the
properties owned by a Subsidiary such Subsidiary may be prohibited
from making distributions to the Company.
(ff) The Company and the Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, and neither the Company nor
any such Subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(gg) The Company and each of the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(hh) The Company has not taken, directly or indirectly, any
action designed to or that would constitute or that might reasonably
be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares.
(ii) (i) The Company and the Subsidiaries are (A) in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the
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protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (B) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (C) have
not received notice of any actual or potential liability under any
environmental law, except where such non-compliance with Environmental
Laws, failure to receive required permits, licenses or other
approvals, or liability would not, individually or in the aggregate,
have a material adverse effect in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto). Except as set forth in the Prospectus, neither the Company
nor any of the subsidiaries has been named as a "potentially
responsible party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(ii) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the
business, operations and properties of the Company and the
Subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws, or
any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(jj) The minimum funding standard under Section 302 of the
Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder ("ERISA"), has
been satisfied by each "pension plan" (as defined in Section 3(2) of
ERISA) which has been established or maintained by the Company and/or
one or more of its subsidiaries, and the trust forming part of each
such plan which is intended to be qualified under Section 401 of the
Code is so qualified; each of the Company and its subsidiaries has
fulfilled its obligations, if any, under Section 515 of ERISA; neither
the Company nor any of its subsidiaries maintains or is required to
contribute to a "welfare plan" (as defined in Section 3(1) of ERISA)
which provides retiree or other post-employment welfare benefits or
insurance coverage (other than "continuation coverage" (as defined in
Section 602 of ERISA)); each pension plan and welfare plan established
or maintained by the Company and/or one or more of its subsidiaries is
in compliance in all material respects with the currently applicable
provisions of ERISA; and neither the Company nor any of its
subsidiaries has incurred or could reasonably be expected to incur any
withdrawal liability under Section 4201 of ERISA, any liability under
Section 4062, 4063, or 4064 of ERISA, or any other liability
11
under Title IV of ERISA. The assets of the Company and the
Subsidiaries do not, and as of the Closing Date will not, constitute
"plan assets" under ERISA.
(kk) There is and has been no failure on the part of the Company
and any of the Company's directors or officers, in their capacities as
such, to comply with any provision of the Sarbanes Oxley Act of 2002
and the rules and regulations promulgated in connection therewith (the
"Sarbanes Oxley Act"), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(ll) Neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company and the Operating Partnership, any director,
trustee, officer, agent, employee or affiliate of the Company or any
of the Subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by such Persons of the
FCPA, including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of
the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any "foreign
official" (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have
conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued
compliance therewith.
"FCPA" means Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder.
(mm) The operations of the Company and the Subsidiaries are and
have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the "Money Laundering Laws") and no action, suit
or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or,
to the best knowledge of the Company, threatened.
(nn) Neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company, any director, trustee, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department ("OFAC"); and
the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
12
(oo) The Company and its Subsidiaries are organized and operate
in a manner so as to enable the Company to qualify as a real estate
investment trust (a "REIT") under Sections 856 through 860 of the Code
and the rules and regulations thereunder as currently in effect, and
the Company has elected to be taxed as a REIT under the Code
commencing with the taxable year ending December 31, 1986. The Company
intends to continue to qualify as a REIT for the foreseeable future.
(pp) The Registration Statement was exempt from filing with the
National Association of Securities Dealers, Inc. pursuant to, and in
full compliance with, Conduct Rule 2710(b)(7)(C).
(qq) Except as disclosed in the Registration Statement and the
Prospectus, the Company (i) does not have any material lending or
other relationship with any bank or lending affiliate of any
Underwriter and (ii) does not intend to use any of the proceeds from
the sale of the Shares hereunder to repay any outstanding debt owed to
any affiliate of any Underwriter.
(rr) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
set forth in the Registration Statement and the Prospectus, there has
been no material adverse change or any development involving a
prospective material adverse change in the business, prospects,
properties, operations, condition (financial or other) or results of
operations of the Company or any of its Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, and since the date of the latest balance sheet presented
in the Registration Statement and the Prospectus, neither the Company
nor any of the Subsidiaries has incurred or undertaken any liabilities
or obligations, direct or contingent, which are material to the
Company and the Subsidiaries, taken as a whole, except for liabilities
or obligations which are reflected in (or in documents incorporated
into) the Registration Statement and the Prospectus.
(ss) No relationship, direct or indirect, exists between or among
any of the Company or any affiliate of the Company, on the one hand,
and any director, officer, stockholder, customer or supplier of the
Company or any affiliate of the Company, on the other hand, which is
required by the Securities Act, the Exchange Act, and the Rules and
Regulations to be described in the Registration Statement or the
Prospectus which is not so described or is not described as required.
There are no outstanding loans, advances (except normal advances for
business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company to or for the benefit of any of the
officers or directors of the Company or any of their respective family
members, except as disclosed in (or in documents incorporated into)
the Registration Statement and the Prospectus.
(tt) On or prior to the Closing Date, the Shares will be
registered pursuant to Section 12(b) of the Exchange Act and will have
been approved for listing, subject to notice of issuance, on the New
York Stock Exchange, Inc. (the "NYSE"), and the Company has not taken
and will not take any action designed to, or likely to have the effect
of, terminating the registration of the Shares under the Exchange Act,
nor has the
13
Company received any notification that the Commission is contemplating
terminating such registration.
(uu) The statistical and market-related data, if any, included in
the Prospectus are based on or derived from sources which the Company
believes, in good faith, to be reliable and accurate.
(vv) The conditions for use of Form S-3 under the Securities Act,
as set forth in the General Instructions thereto, have been satisfied.
During the period of at least the last 24 calendar months prior to the
date of this Agreement, the Company has timely filed with the
Commission all documents and other material required to be filed
pursuant to Sections 13, 14 and 15(d) under the Exchange Act. During
the period of at least the last 36 calendar months preceding the
filing of the Registration Statement, the Company has filed all
reports required to be filed pursuant to Sections 13, 14 and 15(d)
under the Exchange Act. Immediately preceding the filing of the
Registration Statement, the aggregate market value of the Company's
voting stock held by non-affiliates of the Company was equal to or
greater than $150 million.
(ww) The Company has not prior to the date hereof offered or sold
any securities which would be "integrated" with the offer and sale of
the Shares pursuant to the Registration Statement. Except as described
in the Registration Statement and the Prospectus or in filings made by
the Company with the Commission prior to the date hereof, the Company
has not sold or issued any of its common shares, preferred shares, any
other equity security of the Company or the Subsidiaries and any
security convertible into, or exercisable or exchangeable for, any of
its common shares, preferred shares or other such equity security
during the six-month period preceding the date of the Prospectus,
including but not limited to any sales pursuant to Rule 144A or
Regulation D or S under the Securities Act, other than shares of
Company common stock issued pursuant to employee benefit plans,
qualified stock option plans or the employee compensation plans,
pursuant to outstanding options, rights or warrants as described in
the Prospectus.
(xx) The Company's Chief Executive Officer ("CEO") and Chief
Financial Officer ("CFO") have reviewed the Prospectus and the
Prospectus Supplement (including, without limitation, all documents
incorporated therein by reference). Based on the knowledge of the CEO
and the CFO, the Prospectus and the Prospectus Supplement do not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading
with respect to the matters discussed therein and, with respect to
each incorporated document, each period covered by such report. Based
on the knowledge of the CEO and CFO, the financial statements, and
other financial information included in the Prospectus and the
Prospectus Supplement, fairly present in all material respects the
financial condition, results of operations and cash flows of the
Company as of, and for, the periods presented. The CEO and CFO are
responsible for establishing and maintaining disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)
for the Company and have (i) designed such disclosure controls and
procedures, or caused such disclosure controls
14
and procedures to be designed under their supervision, to ensure that
material information relating to the Company, including its
consolidated subsidiaries, is made known to them by others within
those entities, particularly during the periods in which the
Prospectus was being prepared, (ii) evaluated the effectiveness of the
Company's disclosure controls and procedures and (iii) disclosed in
the Prospectus any change in the Company's internal control over
financial reporting that occurred during the third quarter of 2003
that has materially affected, or is reasonably likely to materially
affect, the registrant's internal control over financial reporting.
Any certificate signed by any officer of the Company and delivered to the
Underwriters or counsel for the Underwriters in connection with the offering of
the Shares shall be deemed a representation and warranty by the Company and by
the Operating Partnership, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of $24.2125 per
share, the Firm Shares set forth opposite such Underwriter's name in Schedule I
hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not
jointly, up to 300,000 in the aggregate Additional Shares at the same
purchase price per share as the Underwriters shall pay for the Firm Shares.
Such option may be exercised only to cover over-allotments in the sale of
the Firm Shares by the Underwriters. Such option may be exercised in whole
or in part at any time on or before the 30th day after the date of the
Prospectus upon written or telegraphic notice by Wachovia to the Company
setting forth the number of shares of the Additional Shares as to which the
several Underwriters are exercising the option and the settlement date. In
the event that the Underwriters exercise less than their full
over-allotment option, the number of Additional Shares to be sold by the
Company to each Underwriter shall be, as nearly as practicable, in the same
proportion as the maximum number of Additional Shares to be sold by the
Company and the number of Additional Shares to be sold. The number of
Additional Shares to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Additional Shares to be
purchased by the several Underwriters as such Underwriter is purchasing of
the Firm Shares, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Firm Shares and
the Additional Shares (if the option provided for in Section 2(b) hereof shall
have been exercised on or before the first Business Day (as defined herein)
prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
February 27, 2004, or at such time on such later date not more than three
Business Days after the foregoing date as the Underwriters shall designate,
which date and time may be postponed by agreement among the Underwriters and the
Company or as provided in Section 10 hereof (such date and time of delivery and
payment for the Shares being herein called the "Closing Date"). Delivery of the
Shares shall be made to Wachovia for the respective accounts of the several
Underwriters against payment by the several Underwriters through Wachovia of the
purchase price of the Shares being sold by wire transfer payable in
15
same-day funds to the account specified by the Company. Delivery of the Firm
Shares and the Additional Shares shall be made through the facilities of The
Depository Trust Company unless Wachovia shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the first
Business Day prior to the Closing Date, the Company will deliver the Additional
Shares (at the expense of the Company) to Wachovia, at 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, on the date specified by Wachovia (which shall
be within three Business Days after exercise of such option) for the respective
accounts of the several Underwriters, against payment by the several
Underwriters through Wachovia of the purchase price thereof by wire transfer
payable in same-day funds to the account specified by the Company. If settlement
for the Additional Shares occurs after the Closing Date, the Company will
deliver to the Representatives on the settlement date for the Additional Shares
and the obligation of the Underwriters to purchase the Additional Shares shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Shares for sale to the public as set forth in the
Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will cause the Prospectus Supplement to be filed as
required by Section 1(a) hereof (but only if the Underwriters or
Underwriter' Counsel have not reasonably objected thereto by notice to the
Company after having been furnished a copy a reasonable time prior to
filing) and will notify the Underwriters promptly of such filing.
(b) The Company will notify you (and, if requested by you, will
confirm such notice in writing) of (i) any request by the Commission for
any amendment of or supplement to the Registration Statement or the
Prospectus or for any additional information, (ii) the mailing or the
delivery to the Commission for filing of any amendment of or supplement to
the Registration Statement or the Prospectus, (iii) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of the
initiation, or the threatening, of any proceedings therefor, (iv) the
receipt of any comments from the Commission, and (v) the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for that purpose. If the Commission shall
propose or enter a stop order at any time, the Company will make every
reasonable effort to prevent the issuance of any such stop order and, if
issued, to obtain the lifting of such order as soon as possible. The
Company will prepare and file with the Commission, promptly upon the
Underwriters' request, any amendments or supplements to the Registration
Statement or the Prospectus that, in the Underwriters' opinion, may be
necessary or advisable in connection with the Underwriters' distribution of
the Shares; and the Company will not file any amendment to the Registration
Statement or any amendment of or supplement to the Prospectus (other than
any prospectus supplement relating to the offering of other
16
securities registered under the Registration Statement or any document
required to be filed under the Exchange Act that upon filing is deemed to
be incorporated by reference therein) that differs from the prospectus on
file at the time of the effectiveness of the Registration Statement before
or after the effective date of the Registration Statement to which you
shall reasonably object in writing after being timely furnished in advance
a copy thereof.
(c) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(d) The Company shall comply with the Securities Act, the Exchange Act
and the Rules and Regulations to permit completion of the distribution as
contemplated in this Agreement, the Registration Statement and the
Prospectus. If at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act or the Exchange Act any
event shall have occurred as a result of which the Prospectus as then
amended or supplemented would, in the judgment of the Underwriters or the
Company, include an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement to comply with the
Securities Act or the Exchange Act or the Rules and Regulations, the
Company will notify you promptly and prepare and file with the Commission
an appropriate amendment or supplement (at the expense of the Company and
in form and substance satisfactory to you) which will correct such
statement or omission and will use its best efforts to have any amendment
to the Registration Statement declared effective as soon as possible.
(e) As soon as practicable, the Company will make generally available
to its security holders and to the Underwriters an earnings statement or
statements of the Company and the Subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) The Company consents to the use and delivery of the Preliminary
Prospectus by the Underwriters in accordance with Section 5(b) of the
Securities Act.
(g) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits) and, so long as delivery
of a prospectus by an Underwriter or a dealer may be required by the Act,
as many copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
(h) During the period of two years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to security holders, and the
Company will deliver to you (i) as soon as
17
practicable after the filing thereof, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company are
listed (but only to the extent such reports and financial statements are
not publicly available on XXXXX); and (ii) such additional information
concerning the business and financial condition of the Company as you may
from time to time reasonably request; provided, however, in the case of
clause (ii), that to the extent that the furnishing of such information to
you would, in the reasonable judgment of the Company, require the Company
to make public disclosure thereof pursuant to Regulation FD under the
Exchange Act, you shall execute and deliver to the Company a
confidentiality agreement in form and substance reasonably satisfactory to
the Company as a precondition to receipt of the requested information.
(i) The Company will arrange, if necessary, for the qualification of
the Shares for sale under the laws of such jurisdictions as the
Underwriters may designate, will maintain such qualifications in effect so
long as required for the distribution of the Shares and will pay any fee of
the National Association of Securities Dealers, Inc., in connection with
its review of the offering; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale of
the Shares, in any jurisdiction where it is not now so subject.
(j) The Company will apply the net proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(k) The Company, during the period when the Prospectus is required to
be delivered under the Securities Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to the
Securities Act, the Exchange Act and the Rules and Regulations within the
time periods required thereby.
(l) The Company will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Sarbanes Oxley Act, and will use its best efforts to cause the Company's
trustees and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the provisions
of the Sarbanes Oxley Act.
(m) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
(n) The Company will not be or become, at any time prior to the
expiration of three years after the date of the Agreement, an "investment
company," as such term is defined in the Investment Company Act.
(o) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code
for each of its taxable years
18
for so long as the Board of Trustees of the Company deems it in the best
interests of the Company's stockholders to remain so qualified.
(p) For a period commencing on the date hereof and ending 45 days
following the date of the Prospectus, without the prior written consent of
Wachovia, the Company shall not authorize or effect the sale or issuance,
or agree to sell or issue, any shares of Series D Preferred Shares or any
parity or senior equity securities with respect to the Series D Preferred
Shares (as to dividend rights, or rights upon liquidation, dissolution or
winding up), except for the sales to the Underwriters pursuant to this
Agreement.
(q) Prior to the Closing Date, the Company will execute and file with
the Maryland State Department of Assessments and Taxation (the "SDAT") the
Articles Supplementary to its Declaration of Trust establishing the terms
of the Series D Preferred Stock. The Company shall first provide the form
of Articles Supplementary to counsel to the Underwriters and shall not file
any form of Articles Supplementary to which counsel to the Underwriters has
objected.
(r) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company and the Operating
Partnership will pay, or reimburse if paid by the Underwriters, all fees,
costs and expenses (including, without limitation, the fees, disbursements
and expenses of the counsel and accountants of the Company and the
Subsidiaries) incident to the performance of the obligations of the Company
and the Operating Partnership under this Agreement, including but not
limited to fees, costs and expenses of or relating to (i) the preparation,
printing and filing of the Registration Statement and exhibits to it, the
Prospectus and any amendment or supplement to the Registration Statement or
the Prospectus, (ii) the preparation and delivery of certificates
representing the Shares, (iii) the printing of this Agreement, (iv)
furnishing (including costs of shipping and mailing) such copies of the
Registration Statement, the Prospectus and any Preliminary Prospectus and
Prospectus Supplement, and all amendments and supplements thereto, as may
be requested for use in connection with the offering and sale of the Shares
by the Underwriters or by dealers to whom Shares may be sold, (v) filings
required to be made by or on behalf of the Company or the Underwriters and
the fees and disbursements and other charges (other than counsel for the
Underwriters) in connection therewith and filings to be made by the Company
with the Commission, and the fees, disbursements and other charges of
counsel for the Company in connection therewith, (vi) the registration or
qualification of the Shares for offer and sale under the securities or blue
sky laws of such jurisdictions designated pursuant to Section 4(f),
including the reasonable fees, disbursements and other charges of counsel
to the Underwriters in connection therewith, and the preparation and
printing of preliminary, supplemental and final blue sky memoranda, (vii)
counsel to the Company and any surveyors, engineers, appraisers,
photographers, accountants and other professionals engaged by or on behalf
of the Company, (viii) transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (ix)
costs and charges of any transfer agent, registrar or depositary, (x) the
preparation and filing of the registration statement on Form 8-A relating
to the Shares and all costs and expenses incident to listing the Shares on
the NYSE, (xi) the review and qualification of the offering of the Shares
by the
19
NASD, including the reasonable fees, disbursements and other charges of
counsel to the Underwriters in connection therewith, and (xii) the costs
and expenses of the Company and the Operating Partnership relating to
investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Shares, including, without limitation,
expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and the
Operating Partnership and any such consultants, and the cost of any
aircraft chartered in connection with the road show. It being understood,
however, that except as provided in this Section and Section 8 entitled
"Indemnification and Contribution" and Section 9 entitled "Default by an
Underwriter", the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes
payable on resale of any of the Shares by them and any advertising expenses
connected with any offers they may make.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Firm Shares and the Additional Shares, as the
case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company and the Operating Partnership contained
herein as of the Execution Time, the Closing Date and any settlement date
pursuant to Section 3 hereof, to the accuracy of the statements of the Company
and the Operating Partnership made in any certificates pursuant to the
provisions hereof, to the performance by the Company and the Operating
Partnership of their respective obligations hereunder and to the following
additional conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to
be declared effective before the Offering may commence, such post-effective
amendment shall have become effective not later than 5:30 P.M., New York
time, on the date of this Agreement, or at such later time and date as
shall have been consented to in writing by you; at the Closing Date, the
Shares shall have been approved for listing on the NYSE upon official
notice of issuance; the Prospectus containing information relating to the
description of the Shares and the method of distribution and similar
matters shall have been filed with the Commission pursuant to Rule 424(b)
in a timely fashion in accordance with Section 4(a) hereof; and, at or
prior to the Closing Date, no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereof shall
have been issued and no proceedings therefor shall have been initiated or
threatened by the Commission, nor shall any state securities authority have
suspended the qualification or registration of the Shares for offering or
sale in any jurisdiction and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus
or otherwise) shall have been complied with to the satisfaction of the
Underwriters and the Underwriters' Counsel.
(b) The Underwriters shall not have advised the Company that the
Registration Statement or any amendment thereto contains an untrue
statement of fact that in the opinion of the Underwriters or the
Underwriters' Counsel is material or omits to state a material fact that in
the opinion of the Underwriters or the Underwriters' Counsel is required to
be stated therein or is necessary to make the statements therein not
20
misleading, or that the Prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact that in the opinion of the
Underwriters or the Underwriters' counsel is material or omits to state a
material fact that in the opinion of the Underwriters or the Underwriters'
counsel is material and is required to be stated therein or necessary, in
the light of the circumstances under which they were made, to make the
statements therein not misleading.
(c) The Company shall have requested and caused Xxxxxx Xxxxxxxx LLP,
counsel for the Company, to have furnished to Wachovia, as lead manager,
their opinion dated the Closing Date and addressed to the Underwriters to
the effect set forth in Exhibit A attached hereto. In rendering such
opinion, such counsel may rely (A) as to matters involving the application
of laws of any jurisdiction other than the States of Pennsylvania, Maryland
and Delaware or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectus in this
paragraph (b) shall also include any supplements thereto at the Closing
Date.
(d) Wachovia, as lead manager, shall have received from Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date and addressed to the Underwriters, with
respect to the issuance and sale of the Shares, the Registration Statement,
the Prospectus (together with any supplement thereto) and other related
matters as Wachovia may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the President and Chief Executive
Officer and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Prospectus, any
supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of
any supplement thereto), there has been no material adverse effect on
the condition (financial or otherwise),
21
prospects, earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(iv) Each signer of such certificate has carefully examined the
Registration Statement and the Prospectus (including any documents
filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus) and (A) believes that as of the date of
such certificate, such documents are true and correct in all material
respects and do not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein
not untrue or misleading and (B) does not know of any event that has
occurred as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein not untrue or
misleading in any material respect and there has been no document
required to be filed under the Exchange Act and the Exchange Act Rules
and Regulations that upon such filing would be deemed to be
incorporated by reference into the Prospectus that has not been so
filed.
(v) Since the execution and delivery of the Underwriting
Agreement and prior to the Closing Date and the Option Closing Date,
there has not occurred any downgrading in the rating accorded the
Company or any securities of the Company by any rating agency nor has
any notice been given to the Company or any of the Subsidiaries of (A)
any intended or potential downgrading by any rating agency in such
securities, or (B) any review or possible change by any rating agency
that does not indicate a stable, positive or improving rating accorded
such securities.
(f) The Company shall have requested and caused KPMG LLP and
PriceWaterhouseCoopers LLP ("PWC") to have furnished to the Underwriters,
at the Execution Time and at the Closing Date, letters, dated respectively
as of the Execution Time and as of the Closing Date, in form and substance
satisfactory to Wachovia.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letters referred to in paragraph (f) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), earnings, business or properties of
the Company and the Subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the sole judgment of Wachovia, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
shares as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
22
(h) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company or any of the
Subsidiaries or any of their respective officers or directors or trustees,
as the case may be, in their capacities as such, before or by any Federal,
state or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, in which litigation or
proceeding it is reasonably probable that an unfavorable ruling, decision
or finding would have a material adverse effect on the business,
properties, financial condition or results of operations of the Company and
the Subsidiaries, taken as a whole.
(i) Prior to the Closing Date, the Company shall have furnished to the
Underwriters such further information, certificates and documents as the
Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(k) The Securities shall have been listed and admitted and authorized
for trading on the New York Stock Exchange, and satisfactory evidence of
such actions shall have been provided to the Underwriters.
(l) The Company shall have complied with the provisions of Section
4(d) hereof with respect to the furnishing of Prospectuses.
(m) Prior to the Closing Date, the Company shall have duly filed the
Articles Supplementary with the State Department of Assessments and
Taxation of Maryland.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to Wachovia and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by Wachovia.
Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the
Underwriters, at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by the
Underwriters, the Company will reimburse the Underwriters severally through
23
Wachovia on demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Shares.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold each Underwriter, its
directors, officers, employees and agents and each person, if any, who
controls it within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act harmless from and against any and all
losses, claims, liabilities, expenses and damages (including, but not
limited to, any and all investigative, legal and other expenses reasonably
incurred in connection with, and any and all amounts paid in settlement of,
any action, suit or proceeding between any of the indemnified parties and
any indemnifying parties or between any indemnified party and any third
party, or otherwise, or any claim asserted), as and when incurred, to which
any Underwriter, or any such person may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on (i) any
untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any amendment or supplement to the Registration Statement or the
Prospectus or in any documents filed under the Exchange Act and deemed to
be incorporated by reference into the Prospectus, or in any application or
other document executed by or on behalf of the Company or any Subsidiary or
based on written information furnished by or on behalf of the Company or
any Subsidiary filed in any jurisdiction in order to qualify the Shares
under the securities or blue sky laws thereof or filed with the Commission,
(ii) the omission or alleged omission to state in such document a material
fact required to be stated in it or necessary to make the statements in it,
in the light of the circumstances under which they were made, not
misleading or (iii) any act or failure to act or any alleged act or failure
to act by any Underwriter in connection with, or relating in any manner to,
the Shares or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability, expense or
action arising out of or based upon matters covered by clause (i) or (ii)
above (provided that the Company shall not be liable under this clause
(iii) to the extent it is finally judicially determined by a court of
competent jurisdiction that such loss, claim, damage, liability, expense or
action resulted directly from any such acts or failures to act undertaken
or omitted to be taken by such Underwriter through its gross negligence or
willful misconduct); provided, that the Company will not be liable to the
extent that such loss, claim, damage, liability, expense or action arises
from the sale of the Shares in the public offering to any person by any
Underwriter and is based on an untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information relating to the Underwriter furnished in writing to the Company
by such Underwriter expressly for inclusion in the Registration Statement,
any Preliminary Prospectus or the Prospectus. The Company acknowledges that
the statements set forth on the cover page regarding delivery of the Shares
and, under the heading "Underwriting," the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriters for
24
inclusion in any Preliminary Prospectus or the Prospectus. This indemnity
agreement will be in addition to any liability that the Company might
otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its trustees, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act to the same extent
as the foregoing indemnity to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Company
by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have. The Company acknowledges that the
statements set forth on the cover page regarding delivery of the Shares
and, under the heading "Underwriting," the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in
any Preliminary Prospectus or the Prospectus. This indemnity will be in
addition to any liability that each Underwriter might otherwise have;
provided, however, that in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discounts and
commissions received by such Underwriter.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
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
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the
25
indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, 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.
(d) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Operating
Partnership, jointly and severally, and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company, the Operating Partnership and the Underwriters, may be subject in
such proportion as is appropriate to reflect the relative benefits received
by the Company and the Operating Partnership on the one hand, and by the
Underwriters on the other from the offering of the Shares; provided,
however, that in no case shall (i) any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of
the Shares) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Shares purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Operating Partnership, jointly and severally, and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company
and the Operating Partnership on the one hand and of the Underwriters, on
the other in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Operating Partnership shall be
deemed to be equal to the total net proceeds from the Offering (before
deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of
the Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company and the Operating
Partnership on the one hand or the Underwriters on the other, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company and the Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls an
26
Underwriter within the meaning of either the Securities Act or the Exchange
Act and each director, officer, employee and agent of an Underwriter shall
have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Securities Act or
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each trustee of the Company shall have the same
rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Shares agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Shares set forth
opposite their names in Schedule I hereto bears to the aggregate amount of
Shares set forth opposite the names of all the remaining Underwriters) the
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Shares set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Shares, and
if such nondefaulting Underwriters do not purchase all the Shares, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Operating Partnership or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company, the Operating Partnership and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of Wachovia, by notice given to the Company prior to
delivery of and payment for the Shares if at any time prior to such time (A)
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings business affairs or business prospects of the Company; or (B) any
domestic or international event or act or occurrence has materially disrupted,
or in your opinion will in the immediate future materially disrupt, the market
for the Company's securities or securities in general; or (C) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the NYSE, or if trading on the NYSE shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by the NYSE or by order of
the Commission or any other governmental authority having jurisdiction; or (D)
if a banking moratorium has been declared by any state or federal authority or
if any new restriction materially adversely affecting the distribution of the
Firm Shares or the Additional Shares, as the case may be, shall have become
effective or if a material disruption in commercial banking or securities
settlement or clearance services shall have occurred; or (E) (i) there has
occurred any outbreak or escalation of hostilities or acts of terrorism
involving the United States or there is a declaration of a national emergency
27
or war by the United States or (ii) there shall have been any other such
calamity or crisis or any change in political, financial or economic conditions,
if the effect of any such event in (i) or (ii) as in your judgment makes it
impracticable or inadvisable to proceed with the offering, sale and delivery of
the Firm Shares or the Additional Shares, as the case may be, on the terms and
in the manner contemplated by the Prospectus.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities, contribution agreements and other
statements of the Company or the Operating Partnership or its officers or
partners and of the Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of any Underwriter, the Operating Partnership or the Company or any of
the officers, directors, trustees, employees, agents or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for
the Shares. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. Notices. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed, delivered, or faxed
and confirmed in writing, to such Underwriter c/o Wachovia Capital Markets,
LLC, One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000 Attention: Debt Capital Markets, with a copy to Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx X. Xxxxxx, III, Esq.;
(b) if sent to the Company, shall be mailed, delivered, or faxed and
confirmed in writing to such party c/o Brandywine Realty Trust, 000
Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000, attention
of the Legal Department, with a copy to Xxxxxx Xxxxxxxx LLP, 3000 Two Xxxxx
Square, 00xx xxx Xxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000,
Attention: Xxxxxxx Xxxxxxxx, Esq.
provided, however, that any notice to an Underwriter pursuant to Section 8 shall
be delivered or sent by mail or facsimile transmission to such Underwriter at
its address set forth in its acceptance facsimile to you, which address will be
supplied to any other party hereto by you upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, trustees, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
28
15. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(i)(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Shares that is
first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Shares included in the Registration Statement at
the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
29
"Rule 430A Information" shall mean information with respect to the
Shares and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
* * * * * *
30
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, the Operating Partnership and the several Underwriters.
Very truly yours,
BRANDYWINE REALTY TRUST
By: _____________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
BRANDYWINE OPERATING
PARTNERSHIP, L.P.
By: Brandywine Realty Trust, its general partner
By: _____________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
WACHOVIA CAPITAL MARKETS, LLC
On their behalf and on behalf of each
of the several underwriters named in Schedule 1 hereto.
By: WACHOVIA CAPITAL MARKETS, LLC
By: _____________________________________
Authorized Signatory
SCHEDULE I
--------------------------------------- -------------------------------------
Underwriter Number of Underwritten Shares
--------------------------------------- -------------------------------------
Wachovia Capital Markets, LLC 700,000
--------------------------------------- -------------------------------------
Bear, Xxxxxxx & Co. Inc. 650,000
--------------------------------------- -------------------------------------
Xxxxxxx Xxxxx & Associates, Inc. 650,000
--------------------------------------- -------------------------------------
SCHEDULE II
BRANDYWINE REALTY TRUST
SUBSIDIARIES
-------------------------------------------- -----------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
AAPOP 1, L.P., a Delaware limited AAP Sub One, Inc.-- GP - 1%
partnership
Atlantic American Properties Trust-- GP - 98%
and LP - 1%
-------------------------------------------- -----------------------------------------------
AAPOP 2, L.P., a Delaware limited Brandywine Xxxxxx, L.L.C.-- GP - 0.5%
partnership
Xxxxxx Operating Partnership I, L.P. -- GP -
98.5% and LP - 1%
-------------------------------------------- -----------------------------------------------
Brandywine Ambassador, L.P., a Brandywine Ambassador, L.L.C. - GP-1%
Pennsylvania limited partnership
BOP - LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine Central, L.P., a Pennsylvania Brandywine F.C., LP-- GP. - 98%
limited partnership
BTRS, Inc. -- LP. - 2%
-------------------------------------------- -----------------------------------------------
Brandywine Cira, L.P., a Pennsylvania BOP -- LP 99%
limited partnership
Brandywine Xxxx, LLC -- GP -- 1%
-------------------------------------------- -----------------------------------------------
Brandywine Croton, L.P., a Pennsylvania Brandywine Grande B, L.P.
limited partnership
LP - 99%
Brandywine Croton, LLC - GP-1%
-------------------------------------------- -----------------------------------------------
Brandywine Dominion, L.P., a Pennsylvania Brandywine Dominion, LLC-- GP - 1%
limited partnership
BOP(1) -- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine F.C., L.P., a Pennsylvania Brandywine F.C., L.L.C.-- GP - 1%
limited partnership
BOP-- LP-- 99%
-------------------------------------------- -----------------------------------------------
Brandywine Grande B, L.P., a Delaware Brandywine Grande B Corp.-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
Brandywine Grande C, L.P., a Delaware Brandywine Grande C Corp. - GP 1%
limited partnership
BOP - LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine I.S., L.P., a Pennsylvania Brandywine I.S., LLC-- GP - 1%
limited partnership
BOP-- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine Metroplex, L.P., a Pennsylvania Brandywine Metroplex, LLC - GP - 1%
limited partnership
BOP - LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine Norriton, L.P., a Pennsylvania Brandywine Norriton, L.L.C.-- GP 1%
limited partnership
BOP -- 99%
-------------------------------------------- -----------------------------------------------
Brandywine Operating Partnership, L.P., a BRT-- GP and LP(2)
Delaware limited partnership
LP's (other than BRT)(2)
-------------------------------------------- -----------------------------------------------
Brandywine P.M., L.P., a Pennsylvania Brandywine P.M., LLC-- GP - 1%
limited partnership
BOP-- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine XX Xxxxxx, L.P., a Pennsylvania Brandywine XX Xxxxxx, LLC - GP - 1%
limited partnership
BOP-- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB Inn, L.P., a Pennsylvania Brandywine TB Inn, L.L.C.-- GP - 1%
limited partnership
BOP - LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB I, L.P., a Pennsylvania Brandywine TB I LLC-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine XX XX, L.P., a Pennsylvania Brandywine XX XX LLC-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
Brandywine TB V, L.P., a Pennsylvania Brandywine TB V, L.L.C.-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB VI, L.P., a Pennsylvania Brandywine TB VI, L.L.C.-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB VIII, L.P., a Pennsylvania Brandywine TB VIII, L.L.C. - GP - 1%
limited partnership
BOP--LP-99%
-------------------------------------------- -----------------------------------------------
C/N Iron Run Limited Partnership III, a BOP-- GP - 2%
Pennsylvania limited partnership
BOP-- LP - 87%
WOP(3) -- LP - 11%
-------------------------------------------- -----------------------------------------------
C/N Xxxxxx Limited Partnership II, a BOP-- GP - 89%
Pennsylvania limited partnership
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
C/N Oaklands Limited Partnership I, a WOP-- GP - 88.9%
Pennsylvania limited partnership
BOP-- LP - .1%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
C/N Oaklands Limited Partnership III, a BOP-- GP - 2%
Pennsylvania limited partnership
BOP-- LP - 87%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
Eight Xxxxxx/Brandywine Partner, L.P., a Brandywine TB VIII L.P. - LP - 50%
Pennsylvania limited partnership
Xxxxxx X. Xxxxxx LP - 1%
Eight Xxxxxx Tower Associates - GP - 49%
-------------------------------------------- -----------------------------------------------
x-Xxxxxxx.xxx Holding, L.P., a BOP - GP - 99%
Pennsylvania limited partnership
BTRS, Inc. - LP - 1%
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
Fifteen Horsham, L.P., a Pennsylvania WOP-- GP - 1%
limited partnership
BOP-- LP 1%
WOP-- LP - 98%
-------------------------------------------- -----------------------------------------------
Iron Run Limited Partnership V, a BOP-- GP - 2%
Pennsylvania limited partnership
BOP-- LP - 87%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
LC/N Horsham Limited Partnership, a WOP-- GP - 88.9%
Pennsylvania limited partnership
BOP-- LP - .1%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
LC/N Xxxxx Valley Limited Partnership I, a WOP -- GP - 88.9% Pennsylvania
limited partnership
BOP-- LP - .1%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
Newtech IV Limited Partnership, a WOP-- GP - 88.9%
Pennsylvania limited partnership
BOP-- LP - .1%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
Xxxxxxx Lansdale Limited Partnership III, WOP-- GP - 88.9% / 98.9%
a Pennsylvania limited partnership
BOP-- LP - 11.1% / 1.1%
-------------------------------------------- -----------------------------------------------
Xxxxxx Operating Partnership I, L.P., a Brandywine Xxxxxx, LLC-- GP - 1% /1%
Delaware limited partnership
BOP-- LP - 99% / 99%
-------------------------------------------- -----------------------------------------------
100 Arrandale Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
Xxxxxxxx -- 11% / 1%
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
111 Arrandale Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
Xxxxxxxx -- 11% / 1%
-------------------------------------------- -----------------------------------------------
000 Xxxxxxxx Xxx Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
Xxxxxxxx -- 11% / 1%
-------------------------------------------- -----------------------------------------------
000 Xxxxxxxx Xxx Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
Xxxxxxxx -- 11% / 1%
-------------------------------------------- -----------------------------------------------
000 Xxxx Xxxxx Xxx Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
Xxxxxxxx -- 11% / 1%
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
GENERAL PARTNERSHIP OWNERSHIP STRUCTURE
-------------------------------------------- -----------------------------------------------
Brandywine 00 Xxxx Xxxxx Partnership, a Brandywine Axinn I, LLC-- GP - 50%
New York general partnership
Brandywine Xxxxx II, LLC -- GP - 50%
-------------------------------------------- -----------------------------------------------
Brandywine Broad Street Partnership, a New Brandywine Axinn I, LLC-- GP - 50%
York general partnership
Brandywine Xxxxx II, LLC -- GP - 50%
-------------------------------------------- -----------------------------------------------
Interstate Center Associates, a Virginia BOP-- 50%
general partnership
Brandywine Interstate 50, L.L.C. - 50%
00-0000000
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
GENERAL PARTNERSHIP OWNERSHIP STRUCTURE
-------------------------------------------- -----------------------------------------------
Iron Run Venture II, a Pennsylvania Atlantic American Land Development, Inc. -
general partnership 44.2617%
AAPOP 1, LP - GP - 55.7383%
-------------------------------------------- -----------------------------------------------
IR Northlight II Associates, a AAPOP 2, LP-- GP - 50%
Pennsylvania general partnership
BOP-- GP - 50%
00-0000000
-------------------------------------------- -----------------------------------------------
Plymouth TFC, General Partnership, a Brandywine P.M. LP-- GP - 50%
Pennsylvania general partnership
WOP -- 50%
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
CORPORATE SUBSIDIARIES SHAREHOLDERS
-------------------------------------------- -----------------------------------------------
AAP Sub One, Inc., a Delaware corporation Atlantic American Properties Trust - 100%
-------------------------------------------- -----------------------------------------------
Atlantic American Land Development, Inc., AAPOP 1, LP - 100%
a Delaware corporation
-------------------------------------------- -----------------------------------------------
Brandywine Grande B Corp., a Delaware BRT -- 100%
corporation
-------------------------------------------- -----------------------------------------------
Brandywine Grande C Corp., a Delaware BRT 100%
corporation
-------------------------------------------- -----------------------------------------------
Brandywine Holdings, I, Inc., a BRT -- 100%
Pennsylvania corporation
-------------------------------------------- -----------------------------------------------
Brandywine Realty Services Corporation, a BOP -- 9,500 Common Shares
Pennsylvania corporation
BRSP(8) -- 500 Common Shares
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
CORPORATE SUBSIDIARIES SHAREHOLDERS
-------------------------------------------- -----------------------------------------------
BTRS, Inc., a Delaware corporation BOP - 100%
-------------------------------------------- -----------------------------------------------
Southpoint Land Holdings, Inc., a BOP -- 89 Shares
Pennsylvania corporation(7)
Xxxxxxxx - 11 Shares
-------------------------------------------- -----------------------------------------------
Valleybrooke Land Holdings, Inc., a BOP-- 89 Shares
Pennsylvania corporation(7)
Xxxxxxxx - 11 Shares
-------------------------------------------- -----------------------------------------------
-------------------------------------------- ------------------------------------------------
LIMITED LIABILITY COMPANY SUBSIDIARIES MEMBERS
-------------------------------------------- ------------------------------------------------
Brandywine Ambassador, L.L.C., a BOP - 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Xxxxx I, LLC, a Delaware BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Xxxxx II, LLC, a Delaware BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Brokerage Services, LLC, a New BRSCO - - 100%
Jersey limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Charlottesville LLC, a Virginia BOP - 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Xxxxxxxxx LLC, a Delaware BOP - 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Xxxx, LLC, a Pennsylvania BOP -- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Croton, LLC, a Pennsylvania Brandywine Grande B, L.P. - 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Xxxxxx, L.L.C., a Delaware BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
-------------------------------------------- ------------------------------------------------
LIMITED LIABILITY COMPANY SUBSIDIARIES MEMBERS
-------------------------------------------- ------------------------------------------------
Brandywine Dominion, L.L.C., a BOP-- 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine F.C., L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine I.S., L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Interstate 50, L.L.C., a BOP-- 100%
Delaware limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine - Main Street, LLC, a BOP -- 99%
Delaware limited liability company Brandywine Acquisitions, LLC -- 1%
-------------------------------------------- ------------------------------------------------
Brandywine Metroplex LLC., a Pennsylvania BOP - 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Norriton, L.L.C., a BOP-- 99%
Pennsylvania limited liability company
Norriton Corp. -- 1%
-------------------------------------------- ------------------------------------------------
Brandywine P.M., L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Piazza, L.L.C., a New Jersey BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Plaza 1000, L.L.C., a New BOP-- 100%
Jersey limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Promenade, L.L.C., a New Jersey BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine XX Xxxxxx, LLC, a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
-------------------------------------------- ------------------------------------------------
LIMITED LIABILITY COMPANY SUBSIDIARIES MEMBERS
-------------------------------------------- ------------------------------------------------
Brandywine TB Inn, L.L.C., a Pennsylvania BOP - 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine TB I, L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine XX XX, L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine TB V, L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine TB VI, L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine TB VIII, L.L.C., a Pennsylvania BOP --100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Trenton Urban Renewal, L.L.C., BOP -BRT
a Delaware limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Xxxxxx, L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Christiana Center Operating Company I LLC, BOP -- Member - 100%
a Delaware limited liability company
-------------------------------------------- ------------------------------------------------
Christiana Center Operating Company II BOP -- Member - 100%
LLC, a Delaware limited liability company
-------------------------------------------- ------------------------------------------------
-------------------------------------------- ------------------------------------------------
LIMITED LIABILITY COMPANY SUBSIDIARIES MEMBERS
-------------------------------------------- ------------------------------------------------
Christiana Center Operating Company III BOP -- Member - 100%
LLC, a Delaware limited liability company
-------------------------------------------- ------------------------------------------------
e-Tenants LLC, a Delaware limited x-Xxxxxxx.xxx Holding, L.P.
liability company
-------------------------------------------- ------------------------------------------------
--------------------------------------------------------------------------------------------
JOINT VENTURES BRANDYWINE MEMBERS/PARTNERS
--------------------------------------------------------------------------------------------
Brandywine Industrial Partnership, L.P., a BB&K GP, BB&K LP Business Trust, BOP and
Delaware limited partnership Xxxxxxx Lansdale Limited Partnership III
--------------------------------------------------------------------------------------------
0000 Xxxxxxxxxxxx Xxxxxxxxx Partnership, a Brandywine Dominion, LP -- GP - 50%
Pennsylvania general partnership
--------------------------------------------------------------------------------------------
PJP Building Two, L.C., a Virginia limited Brandywine Charlottesville, LLC-- 30%
liability company
Pavilion Holdings, LLC -- 20%
Xxxxxxx Land Development Company, L.C. f/k/a
Xxxxxxx Land and Cattle Company, L.C. -- 50%
--------------------------------------------------------------------------------------------
PJP Building Five, L.C., a Virginia Brandywine Charlottesville, LLC-- 25%
limited liability company
Pavilion Holdings, LLC -- 25%
Xxxxxxx Land and Development Company, L.C.-- 50%
--------------------------------------------------------------------------------------------
Two Tower Bridge Associates, a Brandywine XX XX, LP-- GP - 35%
Pennsylvania limited partnership
--------------------------------------------------------------------------------------------
Four Tower Bridge Associates, a Brandywine TB I, LP-- GP - 65%
Pennsylvania limited partnership
--------------------------------------------------------------------------------------------
Five Xxxxxx/Brandywine Partner, L.P., a Brandywine TB V, L.P.-- GP - 50%
Pennsylvania Limited Partnership
Five Xxxxxx Tower Associates -- GP - 49%
Xxxxxx X. Xxxxxx-- LP - 1%
--------------------------------------------------------------------------------------------
------------------------------------------- ------------------------------------------------
JOINT VENTURES BRANDYWINE MEMBERS/PARTNERS
------------------------------------------- ------------------------------------------------
Five Tower Bridge Associates, a Five Xxxxxx/Brandywine Partner, L.P.-- LP -- 30%
Pennsylvania limited partnership
--------------------------------------------------------------------------------------------
Six Tower Bridge Associates, a Brandywine TB VI, LP-- GP - 65%
Pennsylvania limited partnership
--------------------------------------------------------------------------------------------
Eight Tower Bridge Development Associates, Eight Xxxxxx/Brandywine Partner, L.P.-- GP--
a Pennsylvania limited partnership 11% [A BRT subsidiary, Brandywine TB VIII,
L.P., is a 50% limited partner in this entity.]
Eight Tower Bridge - VEF II, LLC-- LP-- 89%
--------------------------------------------------------------------------------------------
Tower Bridge Inn Associates, a Brandywine TB Inn, L.P.-- GP - 50%
Pennsylvania limited partnership
Xxxxxx Tower Inn Associates -- GP - 23.1829%
Tower Bridge Partners -- LP - 23.1889%
Centre Consho, LLC -- LP - 3.6222%
--------------------------------------------------------------------------------------------
Macquarie BDN LLC, a Delaware limited BOP - 20%; Macquarie Office LLC - 80%
liability company
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
CONDOMINIUM UNIT OWNERS
--------------------------------------------------------------------------------------------
Allendale Road Corporate Center, a BOP owns all units
Pennsylvania Condominium Association
--------------------------------------------------------------------------------------------
Greentree Executive Campus 1001-03 BOP owns 2 units
Association, Inc., a New Jersey non-profit
corporation 1001 Greentree Associates, L.L.C. owns 1 Unit.
--------------------------------------------------------------------------------------------
Princeton Pike V, VI & VII Condominium BOP owns all units
Association, Inc., a New Jersey condominium
association
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
TRUST TRUSTEES
--------------------------------------------------------------------------------------------
Atlantic American Properties Trust, a BOP -- Common Shares - 100%
Maryland real estate investment trust
100 BRT Employees -- Preferred Shares - 100%
--------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
PARENT TRUSTEES
----------------------------------------------------------------------------------------------
Brandywine Realty Trust, a Maryland
real estate investment trust
----------------------------------------------------------------------------------------------
(1) Brandywine Operating Partnership, LP, referred to as "BOP," is a Delaware
limited partnership.
(2) Per BOP Unit Registry.
(3) Xxxxxx Operating Partnership I, L.P., referred to as "WOP," is a Delaware
limited partnership.
(4) The minority interest in these entities is subject to put/call rights under
which BOP will ultimately acquire the minority interests.
SCHEDULE III
List of Options, Warrants
and Other Convertible Securities
Options
------------------------------- ---------------------------- ---------------------------- ----------------------------
Name Date of Grant Exercise Price Ending Balance
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxx, Xxx 10/6/98 24.00 50,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxx, Xxx 10/6/98 26.40 50,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 100,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 1/2/98 25.25 6,587
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 7/1/99 25.25 3,297
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 1/2/98 27.78 7,708
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 7/1/99 27.78 3,857
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 1/2/98 29.04 8,314
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 7/1/99 29.04 4,161
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 33,924
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Jr., Al 1/2/98 27.78 2,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 2,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxx, Xxxx 10/6/98 24.00 50,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxx, Xxxx 10/6/98 26.40 50,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 100,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxx, Xxx 1/2/98 27.78 7,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 7,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
XxXxxxxx, Xxx 1/2/98 27.78 5,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 5,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 7/1/99 25.25 6,594
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 1/2/98 27.78 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 7/1/99 27.78 7,715
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 1/2/98 29.04 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 7/1/99 29.04 8,322
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 47,631
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Jr., Xxxx 1/2/98 25.25 19,792
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Jr., Xxxx 1/2/98 27.78 23,159
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Jr., Xxxx 1/2/98 29.04 24,944
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 67,895
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Sr., Xxxx 1/2/98 25.25 197,923
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Sr., Xxxx 1/2/98 27.78 231,597
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Sr., Xxxx 1/2/98 29.04 249,438
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 678,958
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx, Xxxxxxx 6/1/99 25.25 6,726
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx, Xxxxxxx 6/1/99 27.78 7,870
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx, Xxxxxxx 6/1/99 29.04 8,489
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 23,085
------------------------------- ---------------------------- ---------------------------- ----------------------------
------------------------------- ---------------------------- ---------------------------- ----------------------------
Name Date of Grant Exercise Price Ending Balance
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 7/1/99 25.25 6,594
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 1/2/98 27.78 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 7/1/99 27.78 7,715
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 1/2/98 29.04 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 7/1/99 29.04 8,322
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 47,631
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 6/1/99 25.25 6,726
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 6/1/99 27.78 7,870
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 6/1/99 29.04 8,489
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 23,085
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx, Xxxxxx 7/1/99 25.25 6,594
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx, Xxxxxx 7/1/99 27.78 7,715
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx, Xxxxxx 7/1/99 29.04 8,322
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 22,631
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxxx 8/8/94 6.21 13,333
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxxx 8/8/94 14.31 33,334
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxxx 7/25/02 19.50 100,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxxx 1/2/98 25.25 296,736
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxxx 1/2/98 27.78 347,222
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxxx 1/2/98 29.04 374,531
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 1,165,156
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxxxxx 7/1/99 25.25 6,594
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxxxxx 1/2/98 27.78 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxxxxx 7/1/99 27.78 7,715
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxxxxx 1/2/98 29.04 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxxxxx 7/1/99 29.04 8,322
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 47,631
------------------------------- ---------------------------- ---------------------------- ----------------------------
Grand Total 2,372,627
------------------------------- ---------------------------- ---------------------------- ----------------------------
WARRANTS
------------------------------------------------------------ ---------------------------------------------------------
Name Number of Underlying Common Shares
------------------------------------------------------------ ---------------------------------------------------------
Five Arrows Realty Securities L.L.C. 250,000
------------------------------------------------------------ ---------------------------------------------------------
Total 250,000
------------------------------------------------------------ ---------------------------------------------------------
UNITS
----------------------------------------------------------------------------------------------------------------------
Totals for All Units
------------------------------------------------------------------------ ---------------------------------------------
Total General Partnership Units Outstanding: 42,353,026
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Limited Partnership Units Outstanding: 3,433,962
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Units to BRT 1,696,755
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Units to Holdings I 5
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Units to outside limited partners 1,737,202
------------------------------------------------------------------------ ---------------------------------------------
Total Reserved Units for redemption/conversion of Series A Preferred 1,415,094 Units
Mirror Units:
------------------------------------------------------------------------ ---------------------------------------------
Total Reserved Units for redemption conversion of Series B Preferred 3,679,245 Units
Units:
------------------------------------------------------------------------ ---------------------------------------------
Total Series A Preferred Mirror Units Outstanding: 750,000 Units
------------------------------------------------------------------------ ---------------------------------------------
Total Series B Preferred Units Outstanding 1,950,000 Units
------------------------------------------------------------------------ ---------------------------------------------
Total Series D Preferred Mirror Units Outstanding: 2,000,000 Units
------------------------------------------------------------------------ ---------------------------------------------
OTHER
Partners in 0000 Xxxxxxxxxxxx Xxxxxxxxx Partnership have the right,
under certain circumstances, to have the partnership interests valued and to
convert these interests into Class A Units of Brandywine Operating Partnership,
L.P.
EXHIBIT A
1. The Company is a real estate investment trust duly formed and existing
under and by virtue of the laws of the State of Maryland and is in good standing
under the laws of the State of Maryland, including with the State Department of
Assessments and Taxation of Maryland. The Company has the full trust power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus and is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business as described in the Registration Statement and the Prospectus requires
such registration or qualification, except where the failure to so qualify would
not have a material adverse effect on the condition (financial or otherwise),
business, prospects, properties or earnings of the Company.
2. Each of the Subsidiaries is a corporation, limited liability company,
limited partnership or general partnership duly incorporated or formed, as the
case may be, validly existing and in good standing, as the case may be, under
the laws of its jurisdiction of incorporation or formation, with full corporate,
limited liability company, or partnership power and authority, as the case may
be, to own, lease, and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus, and is duly
registered and qualified to conduct its business in each jurisdiction or place
where the nature of its properties or the conduct of its business as described
in the Registration Statement and the Prospectus requires such registration or
qualification, except where the failure to so qualify would not have a material
adverse effect on the condition (financial or otherwise), business, prospects,
properties or earnings of such Subsidiary.
3. The authorized beneficial interest of the Company (including, but not
limited to, any options, warrants or other securities convertible into or
exchangeable shares of beneficial interest of the Company) is as set forth in
the Registration Statement and the Prospectus Supplement, and the Shares conform
in all material respects to the description thereof in the Registration
Statement and the Prospectus Supplement. All the outstanding shares of
beneficial interest of the Company outstanding prior to the issuance of the
Shares have been duly and validly authorized and issued, are fully paid and
nonassessable, and are free of any preemptive or other rights to subscribe for
the Shares under Maryland law or any agreements entered into by the Company and
identified under Item 15 to the Company's Annual Report on Form 10-K for the
year ended December 31, 2002, as amended by the Annual Report on Form 10-K/A-1.
4. The Shares have been duly and validly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with the
terms of the Agreement, will be validly issued, fully paid and nonassessable and
free of any preemptive or other rights to subscribe for the Shares under
Maryland law or any agreements entered into by the Company and identified under
Item 15 to the Company's Annual Report on Form 10-K for the year ended December
31, 2002, as amended by the Annual Report on Form 10-K/A-1.
5. To our knowledge after due inquiry, except as set forth on Schedule I to
the Officer's Certificate, there are no outstanding options, warrants or other
rights to purchase, calling for the issuance of, or any commitment, plan or
arrangement to issue, any shares of beneficial interest of the Company or any
security or other right or obligation convertible into or exchangeable or
exercisable for shares of beneficial interest of the Company. There is no holder
of any security of the Company or any other person who has the statutory right
or, to our knowledge after due inquiry, the contractual or other right, to cause
the Company to sell or otherwise issue to him, or to permit him to underwrite
the sale of, the Shares or the right to have any common shares or other
securities of the Company included in the Registration Statement or the right,
as a result of the filing of the Registration Statement or sale of the Shares as
provided in the Agreement, to require registration under the Act of any common
shares or other securities of the Company.
6. All of the outstanding units of limited and general partnership
interests of the Operating Partnership (the "Units"), and the partnership and
membership interests in each of the other Subsidiaries that is a partnership or
limited liability company, as the case may be, were created under the agreements
forming the Operating Partnership and such other Subsidiaries, as the case may
be, and all of the issued and outstanding shares of capital stock of each of the
Subsidiaries that is a corporation have been duly authorized and validly issued,
and are fully paid and nonassessable. To our knowledge after due inquiry, except
as described in the Registration Statement and the Prospectus (or any amendment
or supplement thereto) or Schedule II to the Officer's Certificate, all such
Units, partnership interests and shares of capital stock are owned by the
Company directly, or indirectly through one of the Subsidiaries, free and clear
of any security interest, lien, adverse claim, equity or other encumbrance, and,
to our knowledge after due inquiry, the Company's ownership interest in the
Operating Partnership, and the Company's and the Operating Partnership's
respective ownership interest in each of the Subsidiaries, is as set forth on
Schedule II attached hereto (without giving effect to the issuance of the
Shares). Except as described in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), there are no outstanding options,
warrants or other rights to purchase, calling for the issuance of, or any
commitment, plan or arrangement to issue, any equity interests in any
Subsidiary, or any security or other right or obligation convertible into or
exchangeable or exercisable for any such interests in any such Subsidiary. The
terms of the Units conform in all material respects to statements and
descriptions thereof contained in the Registration Statement and the Prospectus.
The Company is the sole general partner of the Operating Partnership. The
Subsidiaries set forth on Schedule II attached hereto include all of the
"significant subsidiaries" of the Company, as such term is defined by Rule 1-02
of Regulation S-X.
7. The Company has the full trust power and authority, and the Operating
Partnership has the requisite partnership power and authority, to enter into the
Agreement, and in the case of the Company, to issue, sell and deliver the Shares
to the Underwriters as provided in the Agreement, and the Agreement has been
duly and validly authorized, executed and delivered by the Company and the
Operating Partnership, as applicable, and is the legal, valid and binding
agreement of each of the Company and the Operating Partnership, as applicable,
enforceable against them in accordance with its terms.
8. The form of certificate representing the Shares is in due and proper
form and complies in all material respects with all applicable Maryland
statutory requirements and the rules and regulations of the New York Stock
Exchange.
9. To our knowledge after due inquiry, neither the Company nor any of the
Subsidiaries is in violation of its respective Declaration of Trust, certificate
or articles of incorporation or bylaws, partnership agreement, operating
agreement or other organizational documents or is in default in the performance
of any material obligation, agreement or condition contained in any bond,
debenture, note or other evidence of indebtedness.
10. With respect to the Company and the Subsidiaries, neither the offer,
sale or delivery of the Shares, the execution, delivery or performance of the
Agreement, nor the consummation of the transactions contemplated thereby by the
Company or the Subsidiaries, as applicable: (i) required or requires, with
respect to the Company or the Subsidiaries, any consent, approval, authorization
or other order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official, or the New
York Stock Exchange (except (a) such as has been made or obtained and (b) as to
state securities or Blue Sky laws, as to which we express no opinion); (ii)
conflicted with or conflicts with, constituted or constitutes, or resulted in or
results in, a breach or violation of, or a default under, the Declaration of
Trust, Articles Supplementary, certificate or articles of incorporation or
bylaws, partnership agreement or other organizational documents, of any of such
entities, or under any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition covenant or
instrument to which any of such entities is a party or by which any of them or
any of their respective properties or assets are bound or subject to; (iii)
violated or violates any statute, law, rule, regulation, judgment, injunction,
order or decree applicable to any of such entities or any of their respective
properties or assets; or (iv) resulted or will result in the creation or
imposition of any lien, charge or encumbrance upon the property or assets of any
of such entities pursuant to the terms of any agreement or instrument to which
any of them is a party or by which any of them may be bound or to which any of
the property or assets of any of them is subject.
11. Neither the Company nor any of the Subsidiaries is, and after giving
effect to the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus (and any amendment or supplement
thereto) will be, an "investment company" as defined in the Investment Company
Act of 1940, as amended.
12. To our knowledge after due inquiry, (i) there are no pending or
threatened actions, suits or proceedings against the Company or any of the
Subsidiaries or any of their respective trustees, directors or officers in their
capacity as such, or to which the Company or any of the Subsidiaries or any of
their respective trustees, directors or officers in their capacity as such, or
any of their respective properties or assets, is subject, that are of a
character which is required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto) other than any that are
described or incorporated therein by reference and (ii) there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to the Registration Statement
that are not described or filed as required by the Act.
13. The statements in the Registration Statement and Prospectus Supplement
set forth under the headings "Description of Shares of Beneficial Interest",
"Certain Provisions of Maryland Law and of our Declaration of Trust and Bylaws"
and "Federal Income Tax Considerations", and the statements in the Company's
Annual Report on Form 10-K for the year ended December 31, 2002 and incorporated
by reference in the Registration Statement under the heading "Risk Factors--Our
status as a REIT is dependent on compliance with federal income tax
requirements", to the extent they constitute matters of law or descriptions or
summaries of contracts, agreements or other legal documents, or refer to or
constitute statements of matters of law, descriptions of statutes, rules or
regulations, or legal conclusions, each, respectively, are accurate and fair
summaries of the information disclosed therein.
14. The Registration Statement has become effective under the Act and any
required filing of the Prospectus (or any amendment or supplement thereto)
pursuant to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b). To our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened. The Registration Statement and
the Prospectus (or any amendment or supplement thereto) (other than the
financial statements and other financial and statistical information contained
therein, as to which we express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the Exchange Act and
the respective rules thereunder.
15. The Shares are duly listed, admitted and authorized for trading on the
New York Stock Exchange, subject to official notice of issuance.
16. The Company was organized in conformity with the requirements for
qualification as a REIT for federal income tax purposes, and, based on the facts
and assumptions set forth in the Prospectus (and any amendment or supplement
thereto) and certain representations by the Company regarding certain federal
income tax matters, its method of operation has enabled it, and its proposed
method of operation will enable it, to meet the requirements under the Internal
Revenue Code of 1986, as amended, for qualification and taxation as a REIT.
In addition, the Registration Statement and the Prospectus (other than the
financial statements and related schedules and other financial data therein, as
to which we express no view) comply as to form in all material respects with the
requirements of the Securities Act and the rules and regulations thereunder;
although we do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in paragraph 13 above,
no facts have come to our attention that have led us to believe that, as of its
effective date, the Registration Statement (other than the financial statements
and related schedules therein and other financial data, as to which we express
no view) contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that, as of the date of the Prospectus Supplement
dated December 29, 2003, the Prospectus (other than the financial statements and
related schedules therein and other financial data, as to which we express no
view), contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of the date
hereof, the
Prospectus (other than the financial statements and related schedules therein
and other financial data, as to which we express no view) contains an untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; the documents incorporated by reference in either the
Registration Statement or the Prospectus (other than the financial statements
and related schedules therein and other financial data, as to which we express
no view), when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the requirements
of the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and no facts have come to our
attention that have led us to believe that any of such documents, when they
became effective or were so filed, as the case may be, contained, in the case of
a registration statement which became effective under the Securities Act, an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or, in the case of other documents which were filed under the Securities Act or
the Exchange Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
documents were so filed, not misleading; and we do not know of any amendment to
the Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the Prospectus or
required to be described in the Registration Statement or the Prospectus which
are not filed or incorporated by reference or described as required.
With respect to the prior paragraph, our statements are based upon our
representation of the Company and our participation in the preparation of the
Registration Statement and the Prospectus and review and discussion thereof, and
we do not pass upon or assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus, subject to the opinion set forth above in paragraph 13.
