EXECUTION COPY
BRANDYWINE OPERATING PARTNERSHIP, L.P.
DEBT SECURITIES
UNDERWRITING AGREEMENT
October 19, 2004
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described
Ladies and Gentlemen:
From time to time Brandywine Operating Partnership, L.P., a Delaware
limited partnership (the "Operating Partnership"), may enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue and sell
to the firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities"). The Securities shall be unconditionally
guaranteed (the "Guarantees") by Brandywine Realty Trust, a Maryland real estate
investment trust and the sole general partner and a limited partner of the
Operating Partnership (the "Parent Guarantor"), and certain of the Operating
Partnership's subsidiaries (the "Subsidiary Guarantors" and, together with the
Parent Guarantor, the "Guarantors").
The terms and conditions of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the Indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto shall act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement (the "Agreement") shall not be
construed as an obligation of the Operating Partnership to offer, issue or sell
any of the Securities or as an obligation of any of the Underwriters to purchase
the Securities. The obligation of the Operating Partnership to issue and sell
any of the Securities and the obligation of any of the Underwriters to purchase
any of the Securities shall be evidenced by the Pricing Agreement with respect
to the Designated Securities specified therein. Each Pricing Agreement shall
specify the aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the names of the Underwriters
of such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
registration statement and prospectus with respect thereto) the terms and
conditions of such Designated Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced
by an exchange of facsimile communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Operating Partnership and the Guarantors, jointly and severally,
represent and warrant to, and agree with, each of the Underwriters as follows:
(a) A registration statement on Form S-3 (File No. 333-117078) (the
"Initial Registration") in respect of the Securities and the Guarantees has been
(i) prepared by the Operating Partnership, the Parent Guarantor and the
Subsidiary Guarantors in conformity with the requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder, (ii) filed
with the Commission under the Securities Act and (iii) declared effective by the
Commission; no stop order suspending the effectiveness of the registration
statement or any post-effective amendment thereto, if any, has been issued, and
no proceeding for that purpose has been initiated or threatened by the
Commission; and the Operating Partnership and the Guarantors propose to file
with the Commission pursuant to Rule 424(b) under the Securities Act ("Rule
424(b)") a prospectus supplement to the form of prospectus included in such
registration statement and have previously advised you of all information
(financial and other) with respect to the Operating Partnership and the
Guarantors to be set forth therein. The term "Registration Statement" means the
Initial Registration Statement, as amended at the time such registration
statement became effective and as further amended as of the date of this
Agreement, including the exhibits thereto and the documents incorporated or
deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3
(the "Incorporated Documents"), but excluding the statement of eligibility and
qualification on Form T-1; the prospectus contained in the Registration
Statement is hereinafter referred to as the "Base Prospectus"; and the
prospectus supplement to such prospectus (including the Base Prospectus), in the
form filed with the Commission pursuant to Rule 424(b), is hereinafter called
the "Prospectus". If the Operating Partnership and the Guarantors shall have
filed an abbreviated registration statement to register additional Securities
pursuant to Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement. The Base
Prospectus, as the same may be amended or supplemented from time to time by a
preliminary form of prospectus supplement relating to the Designated Securities,
as and if filed pursuant to Rule 424(b), is hereinafter called a "Preliminary
Prospectus". Any reference herein to the Base Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
Incorporated Documents that were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or the Securities Act, as the case may
be, on or before the date of the Base Prospectus, any Preliminary Prospectus or
the Prospectus, as the case may be; any reference herein to the terms
"amendment" or "supplement", or similar terms, with respect to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any Incorporated Documents under the Exchange Act or the Securities Act, as
the case may be, after the issue date of any Preliminary Prospectus or the
Prospectus, as the case may be, and deemed to be incorporated therein by
reference; and any reference to any amendment to the Registration Statement
shall be deemed to include any annual report on Form 10-K of the Operating
Partnership or the Parent Guarantor filed pursuant to Section 13(a) or 15(d) of
the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement.
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(b) The Incorporated Documents, when they were filed with the
Commission or became effective, as the case may be, conformed in all material
respects to the requirements of the Exchange Act or the Securities Act, as
applicable, and the rules and regulations of the Commission thereunder; none of
such documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are filed with
the Commission or become effective, as the case may be, shall conform in all
material respects to the requirements of the Exchange Act or the Securities Act,
as applicable, and shall 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;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus shall conform, in all material respects to the requirements of the
Securities Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder; the
Registration Statement and any amendment thereto do not and shall not, as of the
applicable effective date, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and the Prospectus does not contain and
as amended or supplemented shall 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 light of the circumstances under which they
were made, not misleading; and when any Preliminary Prospectus was first filed
with the Commission (whether filed as part of the Registration Statement for the
registration of the Designated Securities 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 and the
rules and regulations of the Commission thereunder and did not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Operating Partnership by an Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus relating to such
Designated Securities.
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(d) Except as noted therein, the consolidated financial statements
(including the related notes thereto) incorporated by reference in the
Prospectus present fairly in all material respects the consolidated financial
condition of the Operating Partnership and its consolidated subsidiaries and the
Parent Guarantor and its consolidated subsidiaries, as applicable, as of the
dates indicated and the results of their operations and changes in their
consolidated cash flows for the periods specified; such financial statements
have been prepared in conformity with accounting principles generally accepted
in the United States applied on a consistent basis; any supporting schedules
incorporated by reference in the Registration Statement present fairly in all
material respects the information required to be stated therein; and any pro
forma financial information (including the related notes thereto) contained or
incorporated by reference in the Prospectus present fairly in all material
respects the information contained therein and have been prepared on a
reasonable basis using reasonable assumptions and in accordance with the
applicable requirements of the Securities Act and the Exchange Act.
(e) The Parent Guarantor and its subsidiaries (including, without
limitation, the Operating Partnership), taken as a whole, have not sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth in the Prospectus; and, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, (i) except as set forth on Schedule III to the applicable
Pricing Agreement, there has not been any change in the beneficial interests of
the Parent Guarantor (other than issuances of beneficial interests (A) pursuant
to equity-based awards granted in the ordinary course of business to trustees or
employees of the Parent Guarantor or the Operating Partnership, (B) upon
exercise of options and upon conversion or redemption of convertible or
redeemable securities, in each case which were outstanding as of the date of the
latest audited financial statements included or incorporated by reference in the
Prospectus, and (C) upon the exchange of Operating Partnership interests for
beneficial interests in the Parent Guarantor) or in the partnership interests in
the Operating Partnership or the capital stock, partnership, membership or
beneficial interests of any of its consolidated subsidiaries, or any change in
the long-term debt of the Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the Operating Partnership), taken as a whole,
and (ii) there has not been any material adverse change in the business,
properties, management, results of operations, financial condition or prospects
of the Parent Guarantor and its consolidated subsidiaries (including, without
limitation, the Operating Partnership), taken as a whole, except as set forth in
the Prospectus.
(f) The Operating Partnership has been duly formed and is validly
existing as a limited partnership in good standing under the laws of the State
of Delaware, with limited partnership power and authority to own its properties
and conduct its business as described in the Prospectus, and has been duly
qualified or registered as a foreign limited partnership for the transaction of
business and is in good standing or subsisting under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification or registration except where the failure to so
qualify or register or be in good standing or subsisting could not reasonably be
expected, individually or in the aggregate, to have a (i) material adverse
effect on the business, properties, management, results of operations, financial
condition or prospects of the Parent Guarantor and its subsidiaries (including,
without limitation, the Operating Partnership), taken as a whole, or (ii) an
adverse effect on the ability to perform on the part of, or the performance by,
the Operating Partnership and the Guarantors of their respective obligations
hereunder and under the Indenture, the Securities and the Guarantees
(collectively, a "Material Adverse Effect"); the Parent Guarantor has been duly
formed and is validly existing as a real estate investment trust in good
standing under the laws of the State of Maryland, with trust power and authority
to own its properties and conduct its business as described in the Prospectus,
and has been duly qualified or registered as a foreign real estate investment
trust for the transaction of business and is in good standing or subsisting
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under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification or registration
except where the failure to so qualify or register or be in good standing or
subsisting could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect; and each consolidated subsidiary has been
duly incorporated, formed or organized and is validly existing as a corporation
or other entity in good standing or subsisting under the laws of its
jurisdiction of incorporation, formation or organization, with corporate,
partnership or limited liability company power and authority to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified or registered as a foreign corporation or other foreign entity
for the transaction of business and is in good standing or subsisting under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification or registration except
where the failure to so qualify or register or be in good standing or subsisting
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(g) The Operating Partnership has an authorized capitalization as
set forth in the Prospectus, and all of the issued partnership interests of the
Operating Partnership have been duly and validly authorized and issued and are
fully paid; the Parent Guarantor has an authorized capitalization as set forth
in the Prospectus, and all of the issued beneficial interests of the Parent
Guarantor have been duly and validly authorized and issued and are fully paid;
all of the issued shares of capital stock, partnership, membership or beneficial
interests of each consolidated subsidiary have been duly and validly authorized
and issued, are fully paid and, if applicable, non-assessable and are owned
directly or indirectly by the Operating Partnership, free and clear of all
liens, encumbrances or claims (collectively, "Liens"); and the Parent Guarantor
is the sole general partner of the Operating Partnership and its ownership
percentage in the Operating Partnership is as set forth in the Prospectus.
(h) This Agreement and the Pricing Agreement with respect to the
Designated Shares have been duly authorized, executed and delivered by each of
the Operating Partnership and the Guarantors.
(i) The Indenture has been duly authorized by the Operating
Partnership and the Guarantors and qualified under the Trust Indenture Act and,
at the Time of Delivery (as defined in Section 4 hereof) for such Designated
Securities, the Indenture shall constitute a valid and legally binding
instrument enforceable against the Operating Partnership and the Guarantors in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
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(j) The Securities have been duly authorized by the Operating
Partnership, and, when Designated Securities are issued and delivered pursuant
to this Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities shall have been duly executed,
authenticated, issued and delivered and shall constitute valid and legally
binding obligations of the Operating Partnership entitled to the benefits
provided by the Indenture and enforceable in accordance with their terms and
entitled to the benefits of the Indenture, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(k) The Guarantees have been duly authorized by the Guarantors and,
when the Securities are issued and delivered pursuant to this Agreement, the
Guarantees shall have been duly executed, issued and delivered and shall
constitute valid and legally binding obligations of each of the Guarantors
enforceable in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(l) The Indenture conforms and the Designated Securities and the
Guarantees shall conform, in all material respects, to the descriptions thereof
contained in the Prospectus.
(m) Neither the Parent Guarantor nor any of its consolidated
subsidiaries (including, without limitation, the Operating Partnership) is, or
with the giving of notice or lapse of time or both would be, in violation of or
in default under its declaration of trust, charter, by-laws, partnership
agreement, operating agreement or other organizational documents, as applicable,
except where, in the case of any subsidiary that is not the Operating
Partnership or a Subsidiary Guarantor, the violation or default could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect, or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Parent Guarantor or any of its
consolidated subsidiaries (including, without limitation, the Operating
Partnership) is a party or by which it or any of them or any of their respective
properties is bound, except where the violation or default could not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect; the issue and sale of the Designated Securities, the issue of the
Guarantees, the compliance by the Operating Partnership and the Guarantors with
all of the provisions of the Designated Securities, the Guarantees, the
Indenture, this Agreement and the applicable Pricing Agreement and the
consummation of the transactions herein and therein contemplated shall not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Parent
Guarantor or any of its subsidiaries (including, without limitation, the
Operating Partnership) is a party or by which the Parent Guarantor or any of its
subsidiaries (including, without limitation, the Operating Partnership) is bound
or to which any of the property or assets of the Parent Guarantor or any of its
subsidiaries (including, without limitation, the Operating Partnership) is
subject, nor shall such actions result in any violation of the provisions of the
declaration of trust or the by-laws of the Parent Guarantor, the certificate of
limited partnership or partnership agreement of the Operating Partnership, the
charter or by-laws or other organizational documents of any of the Subsidiary
Guarantors or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Parent Guarantor or any
of its subsidiaries (including, without limitation, the Operating Partnership)
or any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required for the issue and sale of the Designated Securities, the issue
of the Guarantees or the consummation by the Operating Partnership and the
Guarantors of the other transactions contemplated by this Agreement, the
applicable Pricing Agreement or the Indenture, except such as have been, or
shall have been prior to the Time of Delivery, obtained under the Securities Act
or the Trust Indenture Act and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Designated
Securities by the Underwriters.
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(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Parent Guarantor or any of its
consolidated subsidiaries (including, without limitation, the Operating
Partnership) is a party or to which any property of the Parent Guarantor or any
of its consolidated subsidiaries (including, without limitation, the Operating
Partnership) is subject, which could reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect, and, to the knowledge of the
Operating Partnership and the Guarantors, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(o) (i) PricewaterhouseCoopers, the independent certified public
accountants of the Operating Partnership and the Parent Guarantor, who have
audited certain financial statements of the Operating Partnership and its
consolidated subsidiaries and of the Parent Guarantor and its consolidated
subsidiaries, are independent public accountants as required by the Securities
Act and the rules and regulations of the Commission thereunder; and (ii) Ernst &
Young, the independent certified public accountants of The Xxxxxxxxxx Company,
L.P., who have audited certain financial statements of The Xxxxxxxxxx Company,
L.P. and its consolidated subsidiaries, are independent public accountants as
required by the Securities Act and the rules and regulations of the Commission
thereunder.
(p) The Parent Guarantor and its subsidiaries (including, without
limitation, the Operating Partnership) have good and marketable title in fee
simple to, or have valid rights to lease or otherwise use, all items of real and
personal property that is material to their respective businesses, in each case
free and clear of all Liens except (A) those Liens which have been reflected
generally or in the aggregate in the financial statements of the Operating
Partnership and of the Parent Guarantor as disclosed in the Prospectus or as are
described specifically, generally or in the aggregate in the Prospectus, or (B)
such Liens not required by generally accepted accounting principles to be
disclosed in the financial statements of the Operating Partnership or of the
Parent Guarantor, which do not (a) materially adversely interfere with the use
made or proposed to be made of such property by the Parent Guarantor and its
subsidiaries (including, without limitation, the Operating Partnership) or (b)
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(q) None of the Operating Partnership, the Parent Guarantor or any
of the Subsidiary Guarantors is, and after giving effect to each offering and
sale of the Securities and the issuance of the Guarantees is, or shall be
required to register as, an "investment company" under the Investment Company
Act of 1940, as amended (the "Investment Company Act").
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(r) At all times commencing with the Parent Guarantor's taxable year
ended December 31, 1986, the Parent Guarantor has been and after giving effect
to the offering and the sale of the Designated Securities and the issuance of
the Guarantees shall continue to be, organized and operated in conformity with
the requirements for qualification of the Parent Guarantor as a real estate
investment trust ("REIT") under the Internal Revenue Code of 1986, as amended
(the "Code"), and the proposed method of operation of the Parent Guarantor shall
enable the Parent Guarantor to continue to meet the requirements for
qualification and taxation as a REIT under the Code.
(s) The Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the Operating Partnership) (A) have filed all
federal, state, local and foreign tax returns that are required to be filed or
have requested extensions thereof except in any case in which the failure so to
file could not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect, except as set forth in the Prospectus, and (B) have
paid all taxes required to be paid by them and any other assessment, fine or
penalty levied against them, 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 could not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect, except as set forth in the
Prospectus.
(t) The Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the Operating Partnership) possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct
their respective businesses, and neither the Parent Guarantor nor any such
consolidated subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could reasonably be expected to have a Material
Adverse Effect on the Parent Guarantor and its subsidiaries (including, without
limitation, the Operating Partnership), taken as a whole, except as set forth in
the Prospectus.
(u) No labor dispute or disturbance involving the employees of the
Parent Guarantor or any of its subsidiaries (including, without limitation, the
Operating Partnership) or of any other entity exists or is threatened or
imminent that could reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, except as set forth in the Prospectus.
(v) The Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the Operating Partnership) (A) are in compliance
with applicable federal, state, local and foreign laws and regulations relating
to the 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 in each case where such
non-compliance with Environmental Laws, failure to receive or comply with
required permits, licenses or other approvals, or liability could not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect, except as set forth in the Prospectus; except as set forth in the
Prospectus, neither the Parent Guarantor nor any of its consolidated
subsidiaries (including, without limitation, the Operating Partnership) has been
named as a "potentially responsible party" under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended; in the ordinary
course of its business, the Operating Partnership and the Parent Guarantor
periodically review the effect of Environmental Laws on the business, operations
and properties of the Operating Partnership, Parent Guarantor and their
respective consolidated subsidiaries, in the course of which they identify and
evaluate 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 Operating Partnership and the
Parent Guarantor have reasonably concluded that such associated costs and
liabilities could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect, except as set forth in the Prospectus.
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(w) 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 Parent Guarantor and/or one or more of its subsidiaries
(including, without limitation, the Operating Partnership), 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 Parent Guarantor and its
subsidiaries (including, without limitation, the Operating Partnership) has
fulfilled its obligations, if any, under Section 515 of ERISA; neither the
Parent Guarantor nor any of its subsidiaries (including, without limitation, the
Operating Partnership) 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 Parent Guarantor and/or one or more of its
subsidiaries (including, without limitation, the Operating Partnership) is in
compliance in all material respects with the currently applicable provisions of
ERISA; neither the Parent Guarantor nor any of its subsidiaries (including,
without limitation, the Operating Partnership) 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
under Title IV of ERISA; and the assets of the Parent Guarantor and its
subsidiaries (including, without limitation, the Operating Partnership) do not,
and as of the Time of Delivery shall not, constitute "plan assets" under ERISA.
(x) The Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the Operating Partnership) are currently in
compliance with all presently applicable provisions of the Americans with
Disabilities Act, as amended, except for any such non-compliance that could not
reasonably be expected, individually or in aggregate, to have a Material Adverse
Effect.
(y) There is, and has been, no failure on the part of the Parent
Guarantor and its subsidiaries (including, without limitation, the Operating
Partnership), and any of their respective trustees, directors or officers in
their capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act
of 2002 and the rules and regulations promulgated in connection therewith,
including, without limitation, Section 402 related to loans and Sections 302 and
906 related to certifications.
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(z) No relationship (direct or indirect) exists between or among any
of the Parent Guarantor or any affiliate of the Parent Guarantor, on the one
hand, and any trustee, officer, shareholder, tenant, customer or supplier of the
Parent Guarantor or any affiliate of the Parent Guarantor, on the other hand,
which is required by the Securities Act and the rules and regulations of the
Commission thereunder to be described in the Registration Statement or the
Prospectus which is not so described or is not described as required; and there
are no outstanding loans, advances (except normal advances for business expenses
in the ordinary course of business) or guarantees of indebtedness by the Parent
Guarantor to or for the benefit of any of the trustees or officers of the Parent
Guarantor or any of their respective family members, except as disclosed in (or
in documents incorporated into) the Registration Statement and the Prospectus.
(aa) The Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the Operating Partnership) 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.
(bb) The Parent Guarantor and each of its consolidated subsidiaries
(including, without limitation, the Operating Partnership) 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; to the knowledge of the Parent Guarantor and its subsidiaries
(including, without limitation, the Operating Partnership) all policies of
insurance insuring the Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the Operating Partnership) or their respective
businesses, assets, employees, officers and directors are in full force and
effect; the Parent Guarantor and its consolidated subsidiaries (including,
without limitation, the Operating Partnership) are in compliance with the terms
of such policies and instruments in all material respects; neither the Parent
Guarantor nor any of its consolidated subsidiaries (including, without
limitation, the Operating Partnership) has received notice from any insurer or
agent of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such coverage; and neither
the Parent Guarantor nor any of its consolidated subsidiaries (including,
without limitation, the Operating Partnership) has any reason to believe that it
shall not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that could not reasonably be
expected, individually or in aggregate, to have a Material Adverse Effect,
except as set forth in the Prospectus.
10
(cc) No consolidated subsidiary of the Parent Guarantor (including,
without limitation, the Operating Partnership) is currently prohibited, directly
or indirectly, from paying any dividends to the Operating Partnership, from
making any other distribution on such subsidiary's capital stock or other
equity, from repaying to the Operating Partnership any loans or advances to such
subsidiary from the Operating Partnership, or from transferring any of such
subsidiary's property or assets to the Operating Partnership or any other
subsidiary of the Operating Partnership, except that, as set forth in the
Prospectus, each of the consolidated subsidiaries of the Parent Guarantor set
forth in Schedule IV to the applicable Pricing Agreement require the consent of
their respective joint venture partners as a condition to making such payments
or transfers and that following an event of default under the loan documents
encumbering the properties owned by a subsidiary of the Parent Guarantor
(including, without limitation, the Operating Partnership) such subsidiary may
be prohibited from making distributions to the Operating Partnership.
(dd) The statistical and market-related data, if any, included in
the Prospectus is based on or derived from sources which the Operating
Partnership and the Guarantors believe, in good faith, to be reliable and
accurate in all material respects.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities and the Guarantees thereof, the several Underwriters
propose to offer such Designated Securities for sale upon the terms and
conditions set forth in the Prospectus.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least 24 hours' prior notice to the
Operating Partnership, shall be delivered by or on behalf of the Operating
Partnership to the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor by
wire transfer in federal or other same day funds, payable to the order of the
Operating Partnership in the funds specified in such Pricing Agreement, all in
the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Operating Partnership may agree upon in writing, such time and date being
herein called the "Time of Delivery" for such Designated Securities.
5. The Operating Partnership and the Guarantors, jointly and severally,
agree with each of the Underwriters of any Designated Securities as follows:
(a) To prepare the Prospectus in relation to the applicable
Designated Securities and the Guarantees in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act no later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such earlier
time as may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus after the date of the
Pricing Agreement relating to such Designated Securities and prior to the Time
of Delivery for such Designated Securities which shall be disapproved by the
Representatives for such Designated Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or
supplement after the Time of Delivery for such Designated Securities and furnish
the Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Operating
11
Partnership or the Guarantors with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Designated Securities; and during such same period to advise the
Representatives, promptly after it receives notice thereof, of (i) the time when
any amendment to the Registration Statement has been filed or becomes effective
or any prospectus supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, (ii) the issuance by the Commission of any stop
order or any order preventing or suspending the use of any prospectus relating
to such Designated Securities, (iii) the suspension of the qualification of such
Designated Securities for offering or sale in any jurisdiction, (iv) the
initiation or threatening of any proceeding for any such purpose, or (v) any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or suspending
the use of any prospectus relating to such Designated Securities or suspending
any such qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated Securities and
Guarantees for offering and sale under the securities laws of such jurisdictions
within the United States as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings therein for as
long as may be necessary to complete the distribution of such Designated
Securities and Guarantees; provided, however, that in connection therewith
neither the Operating Partnership nor any of the Guarantors shall be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with (i) two copies of the
Registration Statement (as originally filed) and each amendment thereto, and all
exhibits and documents incorporated or deemed to be incorporated by reference
therein and (ii) copies of the Prospectus in such quantities as the
Representatives may from time to time reasonably request, and, if the delivery
of a prospectus is required at any time in connection with the offering or sale
of the Designated Securities and the issuance of the Guarantees; and if at such
time any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated or deemed to be
incorporated by reference in the Prospectus in order to comply with the
Securities Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably request of
an amended Prospectus or a prospectus supplement to the Prospectus, which shall
correct such statement or omission or effect such compliance;
(d) During the period beginning from the date of the Pricing
Agreement for the Designated Securities and continuing to and including the date
specified in the Pricing Agreement for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Operating Partnership or any of the Guarantors that mature more than one year
after the Time of Delivery and that are substantially similar to such Designated
Securities, without the prior written consent of the Representatives;
12
(e) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the
Securities Act), an earnings statement of the Operating Partnership and its
subsidiaries (which need not be audited) complying with Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder
(including, at the option of the Operating Partnership, Rule 158);
(f) To apply the net proceeds from the sale of the Designated
Securities as described in the Preliminary Prospectus and the Prospectus;
(g) Neither the Operating Partnership nor any of the Guarantors
shall 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, which is contrary to
any applicable law, of the price of any security of the Operating Partnership to
facilitate the sale or resale of the Securities;
(h) Neither the Operating Partnership nor any of the Guarantors
shall be or become, at any time prior to the expiration of three years after the
Time of Delivery, an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment Company Act;
(i) The Parent Guarantor shall use its best efforts to continue to
be organized and operated in conformity with the requirements for qualification
as a REIT under the Code for each of its taxable years for so long as the Board
of Trustees of the Parent Guarantor deems it in the best interests of the Parent
Guarantor's shareholders to remain so qualified and not to be materially and
adversely against the interests of the holders of the Designated Securities to
fail to be so qualified.
6. The Operating Partnership and the Guarantors, jointly and severally,
covenant and agree with the several Underwriters that the Operating Partnership
and the Guarantors shall pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Operating Partnerships and the Guarantors'
counsel and accountants in connection with the registration of the Securities
and the Guarantees under the Securities Act; (ii) all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and all other
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (iii) the cost of printing and
producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, the Indenture, any Blue Sky and legal investment memoranda, closing
documents (including any compilations thereof) and any other documents so long
as such documents have been approved by the Operating Partnership or the Parent
Guarantor in connection with the offering, purchase, sale and delivery of the
Securities and the Guarantees; (iv) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
the counsel to the Underwriters, in connection with such qualification and in
connection with any Blue Sky and legal investment surveys; (v) any fees charged
by securities rating agencies for rating the Securities; (vi) any filing fees
incident to, and the reasonable fees and disbursements of the counsel to the
Underwriters, in connection with any required review by the National Association
13
of Securities Dealers, Inc. of the terms of the sale of the Securities; (vii)
the cost of preparing the Securities and the Guarantees; (viii) the reasonable
fees and expenses of any Trustee identified in a Pricing Agreement (the
"Trustee") and any agent of any Trustee and any transfer or paying agent of the
Operating Partnership and the Guarantors and the reasonable fees and
disbursements of counsel to the Trustee or such agent in connection with any
Indenture, the Securities and the Guarantees; (ix) any transfer or similar taxes
payable in connection with the issuance, sale and delivery of the Designated
Securities and the Guarantees to the Underwriters; and (x) all other costs and
expenses incident to the performance of its obligations hereunder, which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as otherwise specifically provided in this Section 6 and Sections 8
and 11 hereof, the Underwriters shall pay all of their own costs and expenses,
including the fees of the counsel to the Underwriters, transfer taxes on resale
of any of the Securities by them, and any advertising expenses connected with
any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the Representatives' discretion, to the condition that all
representations and warranties and other statements of the Operating Partnership
and the Guarantors included or incorporated by reference in the Pricing
Agreement relating to such Designated Securities are true and correct at and as
of the Time of Delivery for such Designated Securities and the condition that
prior to such Time of Delivery the Operating Partnership and the Guarantors
shall have performed all of their obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) The Prospectus in relation to the applicable Designated
Securities shall have been filed with the Commission pursuant to Rule 424(b)
under the Securities Act within the applicable time period prescribed for such
filing by the rules and regulations under the Securities Act and in accordance
with Section 5(a) hereof; (ii) no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and (iii) all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction of the
Representatives;
(b) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Underwriters,
shall have furnished to the Representatives such opinion or opinions, dated the
Time of Delivery, with respect to the good standing status of the Operating
Partnership and the Guarantors, the Indenture, the Securities, the Guarantees,
the Registration Statement, the Prospectus and such other related matters as the
Representatives may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to
pass upon such matters;
(c) Xxxxxx Xxxxxxxx LLP, counsel to the Operating Partnership and
the Guarantors, shall have furnished to the Representatives their written
opinion dated the Time of Delivery in form and substance reasonably satisfactory
to the Representatives, to the following effect:
14
(i) The Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under the
laws of the State of Delaware, with limited partnership power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Parent Guarantor has been duly formed and is validly
existing as a real estate investment trust in good standing under
the laws of the State of Maryland, with trust power and authority to
own its properties and conduct its business as described in the
Prospectus;
(iii) Each Subsidiary Guarantor has been duly incorporated,
formed or organized and is validly existing as a corporation or
other entity in good standing under the laws of its jurisdiction of
incorporation, formation or organization, with corporate, limited
liability company or partnership power and authority to own its
properties and conduct its business as described in the Prospectus;
and all of the issued shares of capital stock, limited liability
company, partnership or beneficial interests of each Subsidiary
Guarantor have been duly and validly authorized and issued, are
fully paid and, as applicable, non-assessable;
(iv) All of the issued partnership interests of the Operating
Partnership have been duly and validly authorized and issued and are
fully paid; all of the issued beneficial interests of the Parent
Guarantor have been duly and validly authorized and issued and are
fully paid; and the Parent Guarantor is the sole general partner of
the Operating Partnership and its percentage interest and ownership
in the Operating Partnership is as set forth in the Prospectus;
(v) The Operating Partnership has been duly qualified or
registered as a foreign partnership for the transaction of business
and is in good standing or subsisting under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business so as to require such qualification or registration, except
where the failure to so qualify or register or be in good standing
or subsisting could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect; the Parent
Guarantor has been duly qualified or registered as a foreign trust
for the transaction of business and is in good standing or
subsisting under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require
such qualification or registration, except where the failure to so
qualify or register or be in good standing or subsisting could not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; and each Subsidiary Guarantor has been duly
qualified or registered as a foreign corporation or other entity for
the transaction of business and is in good standing or subsisting
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification or registration, except where the failure to so
qualify or register or be in good standing or subsisting could not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel
and in respect of matters of fact upon certificates of officers of
the Operating Partnership and Guarantors, provided that such counsel
shall state that they believe that both the Representatives and they
are justified in relying upon such opinions and certificates);
15
(vi) To such counsel's knowledge and other than as set forth
in the Prospectus, there are no legal or governmental proceedings
pending to which the Parent Guarantor or any of its subsidiaries
(including, without limitation, the Operating Partnership) is a
party, or of which any property of the Parent Guarantor or any of
its subsidiaries (including, without limitation, the Operating
Partnership) is the subject, which are required, individually or in
the aggregate, to be disclosed in the Registration Statement or the
Prospectus which are not fairly described therein as required; and,
to such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vii) This Agreement and the applicable Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Operating Partnership and the
Guarantors;
(viii) The Indenture has been duly authorized, executed and
delivered by the Operating Partnership and the Guarantors and
constitutes a valid and legally binding instrument, enforceable
against the Operating Partnership and the Guarantors in accordance
with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws
(including, without limitation, the effect of statutory and other
laws regarding fraudulent conveyances, fraudulent transfers and
preferential matters) and as may be limited by the exercise of
judicial discretion and application of principles of equity,
including, without limitation, requirements of good faith, fair
dealing, conscionability and materiality (regardless of whether the
enforceability of the Indenture is considered in a proceeding at law
or equity); and the Indenture has been duly qualified under the
Trust Indenture Act;
(ix) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Operating Partnership
entitled to the benefits provided by the Indenture and are
enforceable against the Operating Partnership in accordance with the
terms of the Designated Securities, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws (including, without limitation, the effect of statutory
and other laws regarding fraudulent conveyances, fraudulent
transfers and preferential matters) and as may be limited by the
exercise of judicial discretion and application of principles of
equity, including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of whether
the enforceability of the Designated Securities is considered in a
proceeding at law or equity);
16
(x) The Guarantees have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Guarantors and are enforceable against
the Guarantors in accordance with the terms of the Guarantees,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws (including,
without limitation, the effect of statutory and other laws regarding
fraudulent conveyances, fraudulent transfers and preferential
matters) and as may be limited by the exercise of judicial
discretion and application of principles of equity, including,
without limitation, requirements of good faith, fair dealing,
conscionability and materiality (regardless of whether the
enforceability of the Guarantees is considered in a proceeding at
law or equity);
(xi) The Designated Securities, the Guarantees and the
Indenture conform in all material respects to the descriptions
thereof in the Prospectus as amended or supplemented;
(xii) The issue and sale of the Designated Securities, the
issue of the Guarantees, the compliance by the Operating Partnership
and the Guarantors with all of the provisions of the Designated
Securities, the Guarantees, the Indenture, this Agreement and the
applicable Pricing Agreement and the consummation of the
transactions herein and therein contemplated do not conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Parent Guarantor or any of its subsidiaries
(including, without limitation, the Operating Partnership) is a
party or by which the Parent Guarantor or any of its subsidiaries
(including, without limitation, the Operating Partnership) is bound
or to which any of the property or assets of the Parent Guarantor or
any of its subsidiaries (including, without limitation, the
Operating Partnership) is subject, nor do such actions result in any
violation of the provisions of the declaration of trust or the
by-laws of the Parent Guarantor, the certificate of limited
partnership or partnership agreement of the Operating Partnership,
the charter or by-laws or other organizational documents of any of
the Subsidiary Guarantors or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Parent Guarantor or any of its
subsidiaries (including, without limitation, the Operating
Partnership) or any of their properties;
(xiii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Designated
Securities, the issue of the Guarantees, or the consummation by the
Operating Partnership and the Guarantors of the other transactions
contemplated by this Agreement, the applicable Pricing Agreement or
the Indenture, except such as have been obtained under the
Securities Act or the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Designated Securities by the
Underwriters;
17
(xiv) The Registration Statement and the Prospectus and any
amendments and supplements thereto made by the Operating Partnership
and the Guarantors prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related notes
and schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations thereunder;
(xv) The Incorporated Documents (other than the financial
statements and related notes and schedules therein, as to which such
counsel need express no opinion), when they were filed with the
Commission or became effective, as the case may be, complied as to
form in all material respects with the requirements of the Exchange
Act or the Securities Act, as applicable, and the rules and
regulations of the Commission thereunder; and such counsel have no
reason to believe that any of the Incorporated Documents, when they
were so filed or became effective, as the case may be, 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;
(xvi) The statements made under the caption under "Material
Federal Income Tax Consequences" in the Prospectus, insofar as they
purport to constitute summaries of matters of U.S. federal tax law
and regulations or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein in
all material respects;
(xvii) The Registration Statement has become effective under
the Securities Act; the Prospectus relating to the Designated
Securities and the Guarantees was filed with the Commission within
the prescribed time periods pursuant to Rule 424(b) of the rules and
regulations under the Securities Act; and, to such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statements has been issued or proceeding for the
purpose has been instituted or threatened by the Commission;
(xviii) Such counsel have no reason to believe that, as of
their respective effective dates, the Registration Statement or any
amendment thereto made by the Operating Partnership and the
Guarantors prior to the Time of Delivery (other than the financial
statements and related notes and schedules therein, as to which such
counsel need express no belief) 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 its date and as of the Time of Delivery,
the Prospectus or any amendment or prospectus supplement thereto
made by the Operating Partnership and the Guarantors prior to the
Time of Delivery (other than the financial statements and related
notes and schedules therein, as to which such counsel need express
no belief) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading; and such counsel 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 that are not filed or
incorporated by reference or described as required.
18
The opinions as to enforceability expressed in paragraphs (viii), (ix) and (x)
above shall be understood to mean only that if there is a default in performance
of an obligation, (A) if a failure to pay or other damages can be shown and (B)
if the defaulting party can be brought into a court which will hear the case and
apply the governing law, then, subject to the availability of defenses and to
the exceptions set forth in paragraphs (viii), (ix) and (x) above, the court
will provide a money damage (or perhaps injunctive or specific performance)
remedy.
(d) (i) On the date of the applicable Pricing Agreement for such
Designated Securities and at the Time of Delivery for such Designated
Securities, PricewaterhouseCoopers LLP, the independent certified public
accountants of the Operating Partnership and the Parent Guarantor, who have
audited the financial statements of the Operating Partnership and its
consolidated subsidiaries and of the Parent Guarantor and its consolidated
subsidiaries, included or incorporated by reference in the Registration
Statement, shall have furnished to the Representatives letters, dated the
respective dates of delivery, in form and substance satisfactory to the
Representatives, containing statements and information of the type customarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or incorporated
by reference in the Registration Statement and the Prospectus; and (ii) on the
date of the applicable Pricing Agreement for such Designated Securities and at
the Time of Delivery for such Designated Securities, Ernst & Young, the
independent certified public accountants of The Xxxxxxxxxx Company, L.P., who
have audited the financial statements of The Xxxxxxxxxx Company, L.P. and its
consolidated subsidiaries, included or incorporated by reference in the
Registration Statement, shall have furnished to the Representatives letters,
dated the respective dates of delivery, in form and substance satisfactory to
the Representatives, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
or incorporated by reference in the Registration Statement and the Prospectus;
(e) (i) The Parent Guarantor and its subsidiaries (including,
without limitation, the Operating Partnership), taken as a whole, have not
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth in the Prospectus and (ii) since
the respective dates as of which information is given in the Registration
Statement and the Prospectus (without giving effect to any amendment thereof or
supplement thereto subsequent to the date of the Pricing Agreement relating to
the Designated Securities), there has not been any change in the beneficial
interests of the Parent Guarantor (other than issuances of beneficial interests
(A) pursuant to equity-based awards granted in the ordinary course of business,
(B) upon exercise of options and upon conversion or redemption of convertible or
redeemable securities, in each case which were outstanding as of the date of the
latest audited financial statements included or incorporated by reference in the
Prospectus, and (C) upon the exchange of Operating Partnership interests for
beneficial interests in the Parent Guarantor) or in the partnership interests in
19
the Operating Partnership or the capital stock, partnership, membership or
beneficial interests of any of its consolidated subsidiaries, or any change in
the long-term debt of the Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the Operating Partnership), taken as a whole, or
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, management, results of
operations, financial condition or prospects of the Parent Guarantor and its
consolidated subsidiaries (including, without limitation, the Operating
Partnership), taken as a whole, except as set forth in the Prospectus (without
giving effect to any amendment thereof or supplement thereto subsequent to the
date of the Pricing Agreement relating to the Designated Securities), the effect
of which, in any such case described in clause (i) or (ii), is in the judgment
of the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities and the Guarantees on the terms and in the manner
contemplated in the Prospectus;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities, (i) no downgrading shall have occurred in the rating
accorded the Operating Partnership's debt securities or the Parent Guarantor's
debt securities or, if applicable, preferred shares of beneficial interest by
any "nationally recognized statistical rating organization", as the term is
defined by the Commission for purposes of Rule 436(g)(2) under the Securities
Act and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Operating Partnership's debt securities or the Parent Guarantor's
debt securities or preferred shares;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the following: (i)
trading generally shall have been suspended or materially limited on the New
York Stock Exchange or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Operating Partnership or the Parent
Guarantor shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities; or (iv) there shall have
occurred any outbreak or escalation of hostilities or acts of terrorism
involving the United States or declaration of national emergency or war by the
United States or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the
Representatives, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or the delivery of the Designated
Securities on the terms and in the manner contemplated by this Agreement and the
Prospectus; and
(h) The Operating Partnership and the Guarantors shall have
furnished or caused to be furnished to the Representatives at the Time of
Delivery for the Designated Securities a certificate or certificates of officers
of the Operating Partnership and the Guarantors in such form and executed by
such officers of the Operating Partnership and the Guarantors as shall be
satisfactory to the Representatives, as to the accuracy of the representations
and warranties of the Operating Partnership and the Guarantors herein at and as
of such Time of Delivery, as to the performance by the Operating Partnership and
the Guarantors of all of its obligations hereunder to be performed at or prior
to such Time of Delivery, as to the matters set forth in Sections 7(a), (e) and
(f) and as to such other matters (including, without limitation, with respect to
compliance with debt agreements and instruments) as the Representatives may
reasonably request.
20
8. (a) The Operating Partnership, the Parent Guarantor and the
Subsidiary Guarantors, jointly and severally, shall indemnify and hold harmless
each Underwriter, its directors, officers and employees and each person, if any,
who controls any Underwriter within the meaning of the Securities Act, from and
against any losses, claims, damages or liabilities, joint or several, or any
action in respect thereof to which such Underwriter, officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities or actions arise out of
or are based upon (i) an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Designated Securities, or any amendment or supplement
thereto, or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus and any other prospectus relating to the Designated Securities,
or any amendments or supplements thereto a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse each Underwriter and each such director, officer, employee and
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by such Underwriter and each such director, officer,
employee and controlling person in connection with investigating or defending
any such loss, damage, liability, action or claim as such expenses are incurred;
provided, however, that the Operating Partnership, the Parent Guarantor and the
Subsidiary Guarantors shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus and any other prospectus relating to the
Designated Securities, or any such amendment or supplement, in reliance upon and
in conformity with information furnished in writing to the Operating Partnership
by any Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus relating to such Designated Securities.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Operating Partnership, the Parent Guarantor and the Subsidiary
Guarantors against any losses, claims, damages or liabilities to which the
Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus and any other prospectus
relating to the Designated Securities, or any amendment or supplement thereto,
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus and any other prospectus relating to the
Designated Securities, or any such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Operating Partnership by
such Underwriter through the Representatives expressly for use therein, and
shall reimburse the Operating Partnership, the Parent Guarantor or any
Subsidiary Guarantor for any legal or other expenses reasonably incurred by the
Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor in
connection with investigating or defending any such action or claim as such
expenses are incurred.
21
(c) Promptly after receipt by an indemnified party under Section
8(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation provided, however, that any indemnified
party shall have the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the employment
thereof has been specifically authorized by the indemnifying party in writing,
(ii) such indemnified party shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for such indemnified party to employ
separate counsel or (iii) the indemnifying party has failed to assume the
defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate counsel (plus local counsel in each such jurisdiction) at
any time for all such indemnified parties. If the indemnifying party does not
assume the defense of such action, it is understood that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate counsel (plus local counsel in each such jurisdiction) at
any time for all such indemnified parties, which firms shall be designated in
writing by you, if the indemnified parties under this Section 8 consist of any
Underwriter of the Designated Securities or any of its respective directors,
officers, employees or controlling persons, or by the Operating Partnership, the
Parent Guarantor or any Subsidiary Guarantor, if the indemnified parties under
this Section 8 consist of the Operating Partnership, the Parent Guarantor or any
Subsidiary Guarantor or any of their directors, officers, administrative
trustees or controlling persons. The indemnifying party shall not be liable for
22
any settlement of an action or claim for monetary damages which an indemnified
party may effect without the consent of the indemnifying party, which consent
shall not be unreasonably withheld. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim), unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party. For purposes of this Section 8,
references to "counsel" shall include a firm of attorneys.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Operating Partnership, the Parent Guarantor
and the Subsidiary Guarantors on the one hand and the Underwriters of the
Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 8(c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits referred to in the immediately preceding sentence but also the
relative fault of the Operating Partnership, the Parent Guarantor or any
Subsidiary Guarantor on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Operating Partnership, the Parent Guarantor or any
Subsidiary Guarantor on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Operating Partnership, the Parent
Guarantor or any Subsidiary Guarantor bear to the total commissions or discounts
received by such Underwriters in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the
Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor on the
one hand or by any such Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Operating Partnership, the Parent Guarantor, the
Subsidiary Guarantors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
23
equitable considerations referred to above in this Section 8(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section
8(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total public offering price at which the applicable Designated
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated Securities
in this Section 8(d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Designated Securities and not
joint.
(e) The obligations of the Operating Partnership, the Parent
Guarantor and the Subsidiary Guarantors under this Section 8 shall be in
addition to any liability which the Operating Partnership, the Parent Guarantor
or any Subsidiary Guarantor may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of any Underwriter and to
each person, if any, who controls any Underwriter within the meaning of the
Securities Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Operating Partnership, the Parent Guarantor or any
Subsidiary Guarantor and to each person, if any, who controls the Operating
Partnership, the Parent Guarantor or any Subsidiary Guarantor within the meaning
of the Securities Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within 36
hours after such default by any Underwriter the Representatives do not arrange
for the purchase of such Designated Securities, then the Operating Partnership
shall be entitled to a further period of 36 hours within which to procure
another party or other parties satisfactory to the Representatives to purchase
such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Operating
Partnership that they have so arranged for the purchase of such Designated
Securities, or the Operating Partnership notifies the Representatives that it
has so arranged for the purchase of such Designated Securities, the
Representatives or the Operating Partnership shall have the right to postpone
the Time of Delivery for such Designated Securities for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Operating Partnership agrees to file promptly
any amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to the Pricing Agreement with respect to such Designated
Securities.
24
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Operating Partnership as provided in Section 9(a) above,
the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Operating Partnership shall have the right
to require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro-rata share (based on
the principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Operating Partnership as provided in Section 9(a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities as referred to in Section 9(b) above, or if the Operating
Partnership shall not exercise the right described in Section 9(b) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating to
such Designated Securities shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Operating Partnership, except for
the expenses to be borne by the Operating Partnership and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Operating Partnership, the Guarantors and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any officer or director or
controlling person of any Underwriter, or the Operating Partnership or any
Guarantor, or any officer or director or controlling person of the Operating
Partnership or any Guarantor, and shall survive delivery of and payment for the
Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof or if the condition in Section 7(i) is not satisfied, the Operating
Partnership and the Guarantors shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Sections 6 and 8 hereof, but, if for any other
reason, Designated Securities are not delivered by or on behalf of the Operating
Partnership as provided herein, the Operating Partnership or the Guarantors
shall reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Securities, but the Operating Partnership and the Guarantors shall then be under
no further liability to any Underwriter with respect to such Designated
Securities except as provided in Sections 6 and 8 hereof.
25
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Operating Partnership or the Guarantors shall
be delivered or sent by mail, telex or facsimile transmission to the address of
the Operating Partnership and the Guarantors set forth in the Registration
Statement, Attention: General Counsel; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its underwriters' questionnaire, or telex constituting such questionnaire, which
address shall be supplied to the Operating Partnership by the Representatives
upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Operating Partnership,
the Guarantors and, to the extent provided in Sections 8 and 10 hereof, the
directors, officers and employees of the Operating Partnership, the Guarantors
or any Underwriter and each person who controls the Operating Partnership, the
Guarantors or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day on which the New York Stock Exchange,
Inc. is open for trading.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
26
Very truly yours,
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
BRANDYWINE REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
AAPOP 2, L.P.
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, one of its general partners
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania limited
liability company, one of its general partners
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
27
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE AMBASSADOR, L.P.
By: Brandywine Ambassador, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE CENTRAL L.P.
By: Brandywine F.C., L.P., a Pennsylvania limited
partnership, its general partner
By: Brandywine F.C., L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
28
BRANDYWINE CIRA, L.P.
By: Brandywine Xxxx, LLC, a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE F.C., L.P.
By: Brandywine F.C., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE GRANDE B, L.P.
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner*
BRANDYWINE GREENTREE V, LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
29
BRANDYWINE I.S., L.P.
By: Brandywine I.S., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE METROPLEX, L.P.
By: Brandywine Metroplex, LLC, a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE P.M., L.P.
By: Brandywine P.M., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
30
BRANDYWINE XX XXXXXX, L.P.
By: Brandywine XX Xxxxxx, LLC, a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB INN, L.P.
By: Brandywine TB Inn, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB I, L.P.
By: Brandywine TB I, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
31
BRANDYWINE XX XX, L.P.
By: Brandywine XX XX, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB V, L.P.
By: Brandywine TB V, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB VI, L.P.
By: Brandywine TB VI, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
32
BRANDYWINE TB VIII, L.P.
By: Brandywine TB VIII, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
C/N IRON RUN LIMITED PARTNERSHIP III
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
C/N XXXXXX LIMITED PARTNERSHIP II
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
C/N OAKLANDS LIMITED PARTNERSHIP I
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
33
C/N OAKLANDS LIMITED PARTNERSHIP III
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
X-XXXXXXX.XXX HOLDING, L.P.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
FIFTEEN HORSHAM, L.P.
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
IRON RUN LIMITED PARTNERSHIP V
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
34
LC/N HORSHAM LIMITED PARTNERSHIP
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
LC/N XXXXX VALLEY LIMITED PARTNERSHIP I
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
35
NEWTECH IV LIMITED PARTNERSHIP
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
XXXXXXX LANSDALE LIMITED PARTNERSHIP III
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
36
XXXXXX OPERATING PARTNERSHIP I, L.P.
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
100 ARRANDALE ASSOCIATES, L.P.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
111 ARRANDALE ASSOCIATES, L.P.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
000 XXXXXXXX XXX ASSOCIATES, L.P.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
000 XXXXXXXX XXX ASSOCIATES, L.P.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
37
000 XXXX XXXXX XXX ASSOCIATES, L.P.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
INTERSTATE CENTER ASSOCIATES
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, one of its general
partners
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
By: Brandywine Interstate 50, L.L.C., a Delaware
limited liability company, one of its general partners
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
38
IR NORTHLIGHT II ASSOCIATES
By: AAPOP 2, L.P., a Delaware limited partnership, one
of its general partners
By: Xxxxxx Operating Partnership I, L.P., a
Delaware limited partnership, one of its general
partners
By: Brandywine Xxxxxx, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland real
estate investment
trust, its general
partner*
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, one of its general
partners
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, one of its general
partners
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
39
PLYMOUTH TFC GENERAL PARTNERSHIP
By: Brandywine P.M., L.P., a Pennsylvania Limited
Partnership, its general partner
By: Brandywine P.M., L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, one of its general partners
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
BTRS, INC.*
SOUTHPOINT LAND HOLDINGS, INC.*
VALLEYBROOKE LAND HOLDINGS, INC.*
BRANDYWINE AMBASSADOR, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
40
BRANDYWINE CHARLOTTESVILLE LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE XXXXXXXXX LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE XXXX, LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE XXXXXX, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE DOMINION, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
41
BRANDYWINE F.C., L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE GRANDE B, LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE I.S., L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE INTERSTATE 50, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE-MAIN STREET, LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
42
BRANDYWINE METROPLEX LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE P.M., L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE PIAZZA, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE PLAZA 1000, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE PROMENADE, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
43
BRANDYWINE XX XXXXXX, LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE TB INN, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE TB I, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE XX XX, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE TB V, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
44
BRANDYWINE TB VI, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE TB VIII, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE TRENTON URBAN RENEWAL, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE XXXXXX, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
45
CHRISTIANA CENTER OPERATING COMPANY III LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
E-TENANTS LLC
By: x-Xxxxxxx.xxx Holding, L.P., a Pennsylvania
limited partnership, its sole member
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general
partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
* By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
46
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Vice President
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxxxxxxx X'Xxxxxx
------------------------
Name: Xxxxxxxxxxx X'Xxxxxx
Title: Managing Director
On behalf of itself and each of the other several Underwriters
47
ANNEX I
PRICING AGREEMENT
____________ __, 2004
X.X. Xxxxxx Securities Inc.
Bear, Xxxxxxx & Co. Inc.
As Representatives of the several
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
Brandywine Operating Partnership, L.P., a Delaware limited
partnership (the "Operating Partnership"), proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated October 19,
2004 (the "Underwriting Agreement"), among the Operating Partnership, Brandywine
Realty Trust, a Maryland real estate investment trust and sole general partner
and a limited partner of the Operating Partnership (the "Parent Guarantor"),
each of the subsidiaries of the Operating Partnership parties thereto (the
"Subsidiary Guarantors"; and, together with the Parent Guarantor, the
"Guarantors") and you to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions of
the Underwriting Agreement so incorporated by reference shall be deemed to refer
to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a prospectus
supplement to the Prospectus, as the case may be, relating to the Designated
Securities, in the form heretofore delivered to you is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Operating
Partnership and the Guarantors agree to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Operating Partnership and the Guarantors, at the time and
place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding,
please sign and return to us ___ counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Operating Partnership and the Guarantors.
Very truly yours,
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, its General Partner
By:____________________________________________
Name:
Title:
BRANDYWINE REALTY TRUST
By:____________________________________________
Name:
Title:
AAPOP 2, L.P.
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, one of its general partners
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
I-2
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania limited
liability company, one of its general partners
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE AMBASSADOR, L.P.
By: Brandywine Ambassador, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE CENTRAL L.P.
By: Brandywine F.C., L.P., a Pennsylvania limited
partnership, its general partner
By: Brandywine F.C., L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
I-3
BRANDYWINE CIRA, L.P.
By: Brandywine Xxxx, LLC, a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE F.C., L.P.
By: Brandywine F.C., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE GRANDE B, L.P.
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner*
BRANDYWINE GREENTREE V, LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
I-4
BRANDYWINE I.S., L.P.
By: Brandywine I.S., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE METROPLEX, L.P.
By: Brandywine Metroplex, LLC, a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE P.M., L.P.
By: Brandywine P.M., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-5
BRANDYWINE XX XXXXXX, L.P.
By: Brandywine XX Xxxxxx, LLC, a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB INN, L.P.
By: Brandywine TB Inn, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB I, L.P.
By: Brandywine TB I, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-6
BRANDYWINE XX XX, L.P.
By: Brandywine XX XX, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB V, L.P.
By: Brandywine TB V, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB VI, L.P.
By: Brandywine TB VI, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-7
BRANDYWINE TB VIII, L.P.
By: Brandywine TB VIII, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
C/N IRON RUN LIMITED PARTNERSHIP III
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
C/N XXXXXX LIMITED PARTNERSHIP II
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
C/N OAKLANDS LIMITED PARTNERSHIP I
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
I-8
C/N OAKLANDS LIMITED PARTNERSHIP III
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
X-XXXXXXX.XXX HOLDING, L.P.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
FIFTEEN HORSHAM, L.P.
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
IRON RUN LIMITED PARTNERSHIP V
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
I-9
LC/N HORSHAM LIMITED PARTNERSHIP
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
LC/N XXXXX VALLEY LIMITED PARTNERSHIP I
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
I-10
NEWTECH IV LIMITED PARTNERSHIP
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general
partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
XXXXXXX LANSDALE LIMITED PARTNERSHIP III
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
I-11
XXXXXX OPERATING PARTNERSHIP I, L.P.
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
100 ARRANDALE ASSOCIATES, L.P.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
111 ARRANDALE ASSOCIATES, L.P.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
000 XXXXXXXX XXX ASSOCIATES, L.P.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
000 XXXXXXXX XXX ASSOCIATES, L.P.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
I-12
481 XXXX XXXXX WAY ASSOCIATES, L.P.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
INTERSTATE CENTER ASSOCIATES
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, one of its general
partners
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
By: Brandywine Interstate 50, L.L.C., a Delaware
limited liability company, one of its general partners
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-13
IR NORTHLIGHT II ASSOCIATES
By: AAPOP 2, L.P., a Delaware limited partnership, one
of its general partners
By: Xxxxxx Operating Partnership I, L.P., a
Delaware limited partnership, one of its
general partners
By: Brandywine Xxxxxx, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland real
estate investment
trust, its general
partner*
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, one of its general
partners
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, one of its general
partners
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
I-14
PLYMOUTH TFC GENERAL PARTNERSHIP
By: Brandywine P.M., L.P., a Pennsylvania Limited
Partnership, its general partner
By: Brandywine P.M., L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, one of its general partners
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner*
BTRS, INC.*
SOUTHPOINT LAND HOLDINGS, INC.*
VALLEYBROOKE LAND HOLDINGS, INC.*
BRANDYWINE AMBASSADOR, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
I-15
BRANDYWINE CHARLOTTESVILLE LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE XXXXXXXXX LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE XXXX, LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE XXXXXX, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE DOMINION, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
I-16
BRANDYWINE F.C., L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE GRANDE B, LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE I.S., L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE INTERSTATE 50, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE-MAIN STREET, LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
I-17
BRANDYWINE METROPLEX LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE P.M., L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE PIAZZA, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE PLAZA 1000, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE PROMENADE, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
I-18
BRANDYWINE XX XXXXXX, LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE TB INN, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE TB I, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE XX XX, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE TB V, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
I-19
BRANDYWINE TB VI, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE TB VIII, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
BRANDYWINE TRENTON URBAN RENEWAL, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE XXXXXX, L.L.C.
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
I-20
CHRISTIANA CENTER OPERATING COMPANY III LLC
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner*
E-TENANTS LLC
By: x-Xxxxxxx.xxx Holding, L.P., a Pennsylvania
limited partnership, its sole member
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general
partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
* By:___________________________________________
Name:
Title:
X.X. XXXXXX SECURITIES INC.
By:___________________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:___________________________
Name:
Title:
On behalf of itself and each of the other several Underwriters
I-21
SCHEDULE I
Principal Amount
of Designated
Securities
Underwriter to be Purchased
----------- ---------------
X.X. Xxxxxx Securities Inc. $__________
Bear, Xxxxxxx & Co. Inc. __________
[Insert Other Underwriters] __________
Total $__________
I-22
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
______% Notes due 20__
AGGREGATE PRINCIPAL AMOUNT:
$___________________
PRICE TO PUBLIC:
____% of the principal amount of the Designated Securities, plus
accrued interest, if any, from _____________, 20__
PURCHASE PRICE BY UNDERWRITERS:
___% of the principal amount of the Designated Securities, plus accrued
interest, if any, from _____________, 20__
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal or other same day funds
TIME OF DELIVERY:
9:30 a.m. (New York City time), ___________ __, 20__
INDENTURE:
Indenture, dated as of ___________ __, 20__ (the "Indenture") among the
Operating Partnership, the Guarantors and the Bank of New York, as
Trustee
MATURITY:
___________ __, 20__
I-23
INTEREST RATE:
___% per annum
INTEREST PAYMENT DATES:
___________ __ and ___________ __, beginning on ___________ __, 20__
REDEMPTION PROVISIONS:
[Insert as appropriate.]
SINKING FUND PROVISIONS:
[Insert as appropriate.]
CONVERTIBILITY OR EXCHANGEABILITY PROVISIONS:
[Insert as appropriate.]
DEFEASANCE PROVISIONS:
As set forth in the Indenture.
OTHER TERMS AND CONDITIONS:
[Insert as appropriate.]
CLEAR MARKET PERIOD (Section 5(d) of the Underwriting Agreement):
From date hereof through ________, 200_.
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
I-24
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
X.X. Xxxxxx Securities Inc.
Bear, Xxxxxxx & Co. Inc.
Address for Notices, etc.:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: High Grade Syndicate Desk-8th Floor
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
UNDERWRITERS COUNSEL:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
I-25
SCHEDULE III
None.
I-26
SCHEDULE IV
Four Tower Bridge Associates
Six Tower Bridge Associates
I-27
