EXHIBIT 1.1
629,921 Shares
Brandywine Realty Trust
Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
------------------
February 24, 1998
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Brandywine Realty Trust, a Maryland real estate investment trust (the
"Company"), proposes to issue and sell 629,921 common shares of beneficial
interest of the Company, par value $0.01 per share (the "Shares"), to ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated (you or the "Underwriter"). The common shares
of beneficial interest, par value $0.01 per share, of the Company to be
outstanding after giving effect to the sale contemplated hereby are
hereinafter referred to as the "Common Shares."
1. Registration Statement and Prospectus. The Company has prepared and filed
with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively called the "Act"),
a registration statement on Form S-3 (Registration No. 333-39155) including a
preliminary prospectus relating to the registration of the Shares and such
other securities which may be offered from time to time by the Company in
accordance with Rule 415 under the Act. Such registration statement (as
amended, if applicable) has been declared effective by the Commission on
November 13, 1997. Such registration statement (as amended, if applicable), on
the one hand, and the prospectus constituting a part thereof and the
prospectus supplement relating to the offering of the Shares provided to the
Underwriter by the Company for use (whether or not such prospectus supplement
is required to be filed with the Commission by the Company pursuant to the
Act) (the "Prospectus Supplement"), on the other hand, including all documents
incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder (collectively called
the "Exchange Act") and the Act are referred to herein as the "Registration
Statement" and the "Prospectus," respectively; provided, however, that a
prospectus supplement shall be deemed to have supplemented the Prospectus only
with
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respect to the offering of the Shares to which it relates. Any registration
statement (including any amendment or supplement thereto or information which
is deemed part thereof) filed by the Company under Rule 462(b) of the Act (a
"Rule 462(b) Registration Statement") shall be deemed to be part of the
"Registration Statement" as defined herein and any prospectus or any term
sheet as contemplated by Rule 434 of the Act (a "Term Sheet") (including any
amendment or supplement thereto or information which is deemed part thereof)
included in such registration statement shall be deemed to be part of the
"Prospectus," as defined herein. All references in this Agreement to financial
statements and schedules and other information which is "contained,"
"included," "described" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the Registration
Statement or Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include, without limitation, even
though not specifically stated, any document filed under the Exchange Act
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be. Capitalized terms used but
not otherwise defined herein shall have the meanings given to those terms in
the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the representations and
warranties contained in this Agreement, and subject to its terms and
conditions, the Company agrees to issue and sell the Shares and the
Underwriter agrees to purchase from the Company at a price per share of
$22.7409 (the "Purchase Price"), the Shares.
3. Terms of the Offering. The Company is advised by the Underwriter that it
proposes (i) to deposit the Shares directly with the Trustee of ▇▇▇▇ ▇▇▇▇▇
REIT Trust, February 1998 Series (the "Trust"), a registered unit investment
trust under the Investment Company Act of 1940, as amended (the "Offering"),
as soon after the execution and delivery hereof as in its judgment is
advisable and (ii) initially to offer the Shares upon the terms set forth in
the Prospectus. The Company further acknowledges that the Underwriter is the
sponsor of the Trust and therefore is considered an affiliate of the Trust.
4. Delivery and Payment. Delivery to the Underwriter of certificates for, and
payment of the Purchase Price for the Shares shall be made, subject to Section
9, at 10:00 A.M., New York City time, on February 27, 1998, or such other time
not later than ten business days after such date as shall be agreed upon by the
Underwriter and the Company (such time and date of payment and delivery being
herein called the "Closing Date") at such place as you shall designate. The
Closing Date and the location of, delivery of and the form of payment for the
Shares may be varied by agreement between you and the Company.
Certificates for the Shares shall be registered in such
names and issued in such denominations as you shall request in writing not
later than two full business days prior to the Closing Date. Such certificates
shall be made available to you for inspection not later than 9:30 A.M., New
York City time, on the business day next preceding the Closing Date.
Certificates in definitive form evidencing the Shares shall be delivered to
you on the Closing Date, with any transfer taxes thereon duly paid by the
Company, for the account of the Underwriter, against payment of the Purchase
Price therefor by intra-bank transfer or wire transfer of same day funds
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to such account as may be designated by the Company at least two business days
prior to the Closing Date.
5. Agreements of the Transaction Entities. The Company and the Operating
Partnership (collectively, the "Transaction Entities") jointly and severally
agree with you as follows:
(a) In respect of the offering of Shares, the Company will (i)
prepare a Prospectus Supplement setting forth the number of Shares covered
thereby and their terms not otherwise specified in the Prospectus pursuant to
which the Shares are being issued, the name of the Underwriter and the number
of Shares which the Underwriter has agreed to purchase, the price at which the
Shares are to be purchased by the Underwriter from the Company, the initial
offering price, and such other information as the Underwriter and the Company
deem appropriate in connection with the offering of the Shares, and (ii) file
the Prospectus in a form approved by you pursuant to Rule 424(b) under the Act
no later than the Commission's close of business on the second business day
following the date of the determination of the offering price of the Shares
The Company will furnish to the Underwriter and to such dealers as you shall
specify as many copies of the Prospectus as the Underwriter shall reasonably
request for the purposes contemplated by the Act or the Exchange Act.
(b) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, the
Transaction Entities will advise you promptly and, if requested by you,
confirm such advice in writing, of (i) the effectiveness of any amendment to
the Registration Statement, (ii) the transmittal to the Commission for filing
of any Prospectus or other supplement or amendment to the Prospectus to be
filed pursuant to the Act, (iii) the receipt of any comments from the
Commission relating to the Registration Statement, any preliminary prospectus,
the Prospectus or any of the transactions contemplated by this Agreement, (iv)
any request by the Commission for post-effective amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes, and (vi)
the happening of any event 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 when the Prospectus is delivered to a
purchaser, not misleading. Each of the Transaction Entities will make every
reasonable effort to prevent the issuance of any stop order, and if at any
time the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, each of the Transaction Entities will make every
reasonable effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
(c) The Company will furnish to you without charge, one signed copy
of the Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and furnish to you such number of
conformed copies of the Registration Statement as so filed and of each
amendment to it as you may reasonably request. If applicable, the copies of
the Registration Statement and each amendment thereto furnished to the
Underwriter will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
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(d) At any time during the period ending 25 days after the date of
this Agreement, the Transaction Entities will not file any amendment to the
Registration Statement or any Rule 462(b) Registration Statement or make any
amendment or supplement to the Prospectus or any Term Sheet, if applicable, of
which you shall not previously have been advised or to which you or your
counsel shall reasonably object, it being understood and agreed that you shall
have no objection to any Prospectus Supplement filed in connection with any
other offering; and the Company will prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the Registration
Statement, Rule 462(b) Registration Statement, Term Sheet, or amendment or
supplement to the Prospectus which, in the opinion of your counsel, may be
necessary in connection with the distribution of the Shares by you, and will
use its best efforts to cause the same to become promptly effective. If
applicable, the Prospectus and any amendments or supplements thereto furnished
to the Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(e) If, at any time when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of Shares, any
event shall occur as a result of which, in the opinion of counsel for the
Underwriter, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, not misleading, or
if it is necessary to amend or supplement the Prospectus to comply with any
law, the Company will forthwith prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus (in form and substance
reasonably satisfactory to counsel for the Underwriter) so that the statements
in the Prospectus, as so amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing when it is so delivered, not misleading, or so that the Prospectus
will comply with any law, and to furnish to the Underwriter and to such
dealers as you shall specify, such number of copies thereof as the Underwriter
or dealers may reasonably request.
(f) Each of the Transaction Entities will use its best efforts, in
cooperation with the Underwriter, to qualify, register or perfect exemptions
for the Shares for offer and sale by the Underwriter under the applicable
state securities or Blue Sky laws and real estate syndication laws of such
jurisdictions as you may reasonably request; provided, however, none of the
Transaction Entities will be required to qualify as a foreign corporation,
file a general consent to service of process in any such jurisdiction, subject
itself to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject, or provide any undertaking or make any change
in its charter or by-laws that the Board of Trustees of the Company reasonably
determines to be contrary to the best interests of the Company and its
shareholders. In each jurisdiction in which the Shares have been so qualified
or registered, the Transaction Entities will use all reasonable efforts to
file such statements, reports and other documents as may be required by the
laws of such jurisdiction, to continue such qualification or registration in
effect for so long a period as the Underwriter may reasonably request for the
distribution of the Shares.
(g) To make generally available to the Company's shareholders as soon
as reasonably practicable but not later than sixty (60) days after the close
of the period covered thereby (ninety (90) days in the event the close of such
period is the close of the Company's fiscal year), an
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earnings statement (in form complying with the provisions of Rule 158 of the
Act) covering a period of at least twelve months after the effective date of
the Registration Statement (but in no event commencing later than ninety (90)
days after such date) which shall satisfy the provisions of Section 11(a) of
the Act, and, if required by Rule 158 of the Act, to file such statement as an
exhibit to the next periodic report required to be filed by the Company under
the Exchange Act covering the period when such earnings statement is released.
(h) During the period of five years after the date of this Agreement,
to furnish to you as soon as available a copy of each regular and periodic
report, financial statement or other publicly available information of the
Transaction Entities and any of their subsidiaries mailed to the holders of
the Shares or filed with the Commission or any securities exchange, and any
such publicly available information concerning the Transaction Entities or any
of their subsidiaries as you may reasonably request.
(i) During the period when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of the Shares, to
file all documents required to be filed by it with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act within the time periods required by
the Exchange Act.
(j) To pay all costs, expenses, fees and taxes incident to (i) the
preparation, printing, filing and distribution under the Act of the
Registration Statement and any amendment thereto (including financial
statements and exhibits), each preliminary prospectus, the Prospectus and all
amendments and supplements to any of them prior to or during the period
specified in Section 5(b), (ii) the printing and delivery of this Agreement
and the Blue Sky Memorandum (including the reasonable disbursements of counsel
for the Underwriter relating to the printing and delivery of the Blue Sky
Memorandum), (iii) the qualification of registration of the Shares for offer
and sale under the securities, Blue Sky laws or real estate syndication laws
of the several states in accordance with Section 5(f) hereof, (iv) the fee of
and the filings and clearance, if any, with the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the Offering, (v) the
fee of and the listing of the Shares on the New York Stock Exchange, Inc.
("NYSE"), (vi) furnishing such copies of the Registration Statement, the
Prospectus and all amendments and supplements thereto as may be requested for
use in connection with the offering or sale of the Shares by the Underwriter,
(vii) the preparation, issuance and delivery of certificates for the Shares to
the Underwriter, (viii) the costs and charges of any transfer agent or
registrar, (ix) any transfer taxes imposed on the sale by the Company of the
Shares to the Underwriter and (x) the fees and disbursements of the Company's
counsel and accountants.
(k) The Transaction Entities will use their best efforts to maintain
the listing of the Shares on the NYSE for a period of three years after the
Closing Date and thereafter unless the Company's Board of Trustees determines
that it is no longer in the best interests of the Company for the Shares to
continue to be so listed.
(l) The Transaction Entities will use their best efforts to do and
perform all things required to be done and performed under this Agreement by
the Transaction Entities prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Shares.
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(m) The Company will use the net proceeds received by it from the
sale of the Shares in the manner specified in the Prospectus Supplement under
"Use of Proceeds."
(n) The Company will prepare and file or transmit for filing with the
Commission in accordance with Rule 424(b) of the Act copies of the Prospectus.
(o) The Transaction Entities will use their best efforts to ensure
that the Company continues to qualify as a "real estate investment trust"
("REIT") under Sections 856 through 860 of the Internal Revenue Code of 1986,
as amended (the "Code"), for a period of three years after the date of this
Agreement unless the Company's Board of Directors determines that it is no
longer in the best interest of the Company to be so qualified.
(p) The Transaction Entities will not at any time, directly or
indirectly, take any action intended, or which might reasonably be expected,
to cause or result in, or which will constitute, stabilization of the price of
the Shares to facilitate the sale or resale of any Shares in violation of the
Act.
6. Representations and Warranties of the Transaction Entities. Each of the
Transaction Entities jointly and severally represents and warrants to the
Underwriter as of the date hereof and the Closing Date that:
(a) The Registration Statement became effective on November 13, 1997.
No stop order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Transaction Entities, threatened by the
Commission or by the state securities authority of any jurisdiction. No order
preventing or suspending the use of the Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Transaction Entities, threatened by the Commission or by the state securities
authority of any jurisdiction.
(b) The Registration Statement and the Prospectus, including the
financial statements, schedules and related notes included in the Prospectus
or incorporated therein by reference and, if applicable, any Term Sheet to the
Prospectus, as of the date hereof and at the time the Registration Statement
became effective, and when any post-effective amendment to the Registration
Statement or Rule 462(b) Registration Statement becomes effective or any
amendment or supplement to the Prospectus is filed with the Commission, did or
will comply in all material respects with all applicable provisions of the Act
and will contain all statements required to be stated therein in accordance
with the Act. The Prospectus, including the financial statements, schedules
and related notes included in the Prospectus or incorporated therein by
reference, and if applicable, any Term Sheet to the Prospectus, as of the date
hereof and at the time the Registration Statement became effective, and at the
Closing Date, and when any post-effective amendment to the Registration
Statement or Rule 462(b) Registration Statement becomes effective or any
amendment or supplement to the Prospectus is filed with the Commission, did or
will comply in all material respects with all applicable provisions of the Act
and will contain all statements required to be stated therein in accordance
with the Act. On the date the Registration Statement was declared effective,
on the date hereof, on the date of filing of any Rule 462(b) Registration
Statement and on the Closing Date, no part of the Registration Statement or
any amendment did or will contain an untrue statement of a material fact or
omit to
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state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading. On the date the Registration
Statement was declared effective, on the date hereof, as of its date, on the
date of filing of any Rule 462(b) Registration Statement and at the Closing
Date, the Prospectus and the Prospectus Supplement did not or will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If a Rule 462(b) Registration Statement
is filed in connection with the offering and sale of the Shares, the Company
will have complied or will comply with the requirements of Rule 111 under the
Act relating to the payment of filing fees therefor. The foregoing
representations and warranties in this Section 6(b) do not apply to any
statements or omissions made in reliance on and in conformity with information
relating to the Underwriter furnished in writing to the Company by the
Underwriter specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto. The Transaction Entities
have not distributed any offering material in connection with the offering or
sale of the Shares other than the Registration Statement, the Prospectus or
any other materials, if any,permitted by the Act (which were disclosed to the
Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any, complied or will
comply when so filed in all material respects with all applicable provisions
of the Act; did not or will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; and the Prospectus delivered to the
Underwriter for use in connection with the offering of the Shares will, at the
time of such delivery, be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act, at
the time they were, or hereafter are, filed with the Commission, complied and
will comply in all material respects with the requirements of the Exchange
Act, and, when read together with other information in and incorporated by
reference in the Prospectus, at the time the Registration Statement became
effective, and as of the Closing Date, or during the period specified in
Section 5(b) did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The foregoing representations and warranties in this Section 6(d)
do not apply to any statements or omissions made in reliance on and in
conformity with information relating to the Underwriter furnished in writing
to the Company by the Underwriter specifically for inclusion in the
Registration Statement or Prospectus or any amendment or supplement thereto.
(e) The historical financial statements and the related notes
thereto, included or incorporated by reference in the Registration Statement
and the Prospectus, comply in all material respects with the requirements of
the Act and the Exchange Act, as applicable, and present fairly the
consolidated financial position of the Transaction Entities and their
consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; the
financial statements with respect to the Properties (as defined in the
Prospectus) acquired by the Transaction Entities and their consolidated
subsidiaries, together with
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related notes, incorporated by reference in the Registration Statement or the
Prospectus, present fairly a summary of gross income and direct operating
expenses or a summary of gross income, as the case may be, of such Properties
for the indicated periods; the foregoing financial statements have been
prepared in conformity with generally accepted accounting principles applied
on a consistent basis, and the supporting schedules included or incorporated
by reference in the Registration Statement present fairly the information
required to be stated therein; the pro forma financial information, and the
related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus comply in all material respects with
the applicable requirements of the Act and the Exchange Act, as applicable;
the assumptions used in preparing such pro forma information are reasonable
and the adjustments used therein are appropriate to give effect to the
transactions referred to therein; and the other financial and statistical
information and data set forth in the Registration Statement and the
Prospectus are accurately presented in all material respects and prepared on a
basis consistent with the books and records of the Transaction Entities and
their consolidated subsidiaries.
(f) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the condition (financial or otherwise),
business, prospects, properties, net worth or results of operations of the
Transaction Entities and their subsidiaries, taken as a whole, otherwise than
as set forth or contemplated in the Prospectus; and (ii) except as set forth
or contemplated in the Prospectus, neither the Transaction Entities nor any of
their subsidiaries has entered into any transaction or agreement (whether or
not in the ordinary course of business) material to the Transaction Entities
and their subsidiaries, taken as a whole.
(g) The Company 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 or lease its properties and to
conduct its business as described in the Prospectus, and is duly qualified as
a foreign trust for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than where
the failure to be so qualified or in good standing would not (1) have a
material adverse effect on the condition (financial or otherwise), business,
prospects, properties, net worth or results of operations of the Transaction
Entities and their subsidiaries, taken as a whole, (2) adversely affect the
issuance or validity of the Shares or (3) adversely affect the consummation of
any of the transactions contemplated by this Agreement (each of (1), (2) and
(3) above, a "Material Adverse Effect"); except for investments in
subsidiaries (including any joint ventures), in short-term investment
securities and in other securities as described in the Registration Statement
or Prospectus the Company has no direct or indirect equity or other interest
in any corporation, partnership, trust or other entity; each of the
subsidiaries of the Transaction Entities is defined on Schedule I hereto and
has been duly organized and is validly existing as a corporation, limited
liability company or general or limited partnership, as the case may be, in
good standing under the laws of its jurisdiction of organization with
corporate, limited liability company or partnership power and authority, as
the case may be, to own or lease its properties and conduct its business as
presently conducted and as described in the Prospectus, and has been duly
qualified as a foreign corporation, foreign limited liability company or
foreign general or limited partnership, as the case may be, for the
transaction of
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business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business, so as to require
such qualification, other than where the failure to be so qualified or in good
standing would not have a Material Adverse Effect; all the outstanding shares
of capital stock of each subsidiary have been duly authorized and validly
issued and are fully paid and nonassessable; except as disclosed in Schedule I
hereto, all the outstanding shares of capital stock membership interests or
all partnership interests of each subsidiary are owned by the Transaction
Entities, directly or indirectly, free and clear of all liens, encumbrances,
security interests and claims.
(h) 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, is duly qualified to do business as a foreign limited partnership
in each jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification (except where the failure
to be so qualified would not have a Material Adverse Effect on the earnings,
assets or business affairs of the Transaction Entities and their subsidiaries
considered as a single enterprise), and has all partnership power and
authority necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under this
Agreement. The Company is the sole general partner of the Operating
Partnership. The Agreement of Limited Partnership of the Operating Partnership
(the "Operating Partnership Agreement") is in full force and effect, and the
aggregate percentage interests of the Company and the limited partners in the
Operating Partnership are as set forth on Schedule I.
(i) This Agreement has been duly authorized, executed and delivered
by the Transaction Entities.
(j) The Shares have been duly authorized and, when issued and
delivered to the Underwriter against payment therefor in accordance with the
terms hereof, will be validly issued, fully paid and nonassessable.
Application has been made to list the Shares on the NYSE. The form of
certificate for the Shares will comply with all applicable legal and NYSE
requirements. The holders of outstanding shares of beneficial interest of the
Company are not entitled to preemptive or other rights to subscribe for the
Shares. The shares of beneficial interest of the Company conform to the
description thereof in the Registration Statement and the Prospectus.
(k) Neither the Transaction Entities nor any of their subsidiaries
is, or with the giving of notice or lapse of time or both would be, in
violation of or in default under (1) its Declaration of Trust, articles of
incorporation, certificate of incorporation; partnership agreement or other
charter document as the case may be (in each case as amended to the date of
this Agreement), (2) its Bylaws (as amended to the date of this Agreement) or
(3) any indenture, mortgage, deed of trust, loan agreement, partnership
agreement or other agreement or instrument or obligation to which such
Transaction Entity or any of it subsidiaries is a party or by which it or any
of its properties is bound, except, with respect to clauses (2) and (3), for
violations and defaults which individually or in the aggregate would not have
a Material Adverse Effect; the issue and sale of the Shares and the
performance by each of the Transaction Entities of all of the obligations
under this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement, partnership agreement or other material agreement or
instrument to which any of the Transaction Entities or any of its subsidiaries
is a
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party or by which any of the Transaction Entities or of its subsidiaries is
bound or to which any of the property or assets of the Transaction Entities or
any of its subsidiaries is subject, except for such conflicts, breaches,
defaults or violations which individually or in the aggregate would not have a
Material Adverse Effect, nor will any such action result in any violation of
the provisions of the Articles of Incorporation or the ByLaws of the Company
or any applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over any of the Transaction
Entities or any of their properties, except for such violations which
individually or in the aggregate would not have a Material Adverse Effect; and
no consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Shares or the consummation by the Transaction Entities
of the transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, registrations or qualifications (x) as have
been obtained under the Act and the Exchange Act, (y) as may be required under
state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct
Rules of the NASD in connection with the purchase and distribution of the
Shares by the Underwriter or (z) the failure to obtain which would not have a
Material Adverse Effect.
(l) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of any
of the Transaction Entities, threatened to which any of the Transaction
Entities or their subsidiaries is or may be a party or to which any property
of any of the Transaction Entities or their subsidiaries is or may be the
subject which, if determined adversely to the Transaction Entities, could
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect; there are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or required
to be described in the Registration Statement or the Prospectus which are not
filed or described as required; and the descriptions of the terms of all such
contracts and documents contained or incorporated by reference in the
Registration Statement or Prospectus are complete and correct in all material
respects.
(m) The Company has 105,000,000 authorized shares of beneficial
interest, consisting of 100,000,000 Common Shares, and 5,000,000 preferred
shares of beneficial interest, par value $.01 per share. All of the issued and
outstanding shares of beneficial interest of the Company have been duly and
validly authorized and issued and are fully paid and nonassessable.
(n) One of the Transaction Entities or their subsidiaries has good
and marketable title to each Property, in each case free of any lien,
mortgage, pledge, charge or encumbrance of any kind except those (i) described
in the Prospectus or (ii) which do not materially affect or detract from the
value of such Property or interfere with the use made and proposed to be made
of such Property by the Transaction Entities and their subsidiaries and which
individually and in the aggregate are in an amount which is not material to
the Transaction Entities.
(o) Except as disclosed in the Prospectus, each entity identified in
the Prospectus as a tenant of any Property, or a subtenant thereof, has
entered into a lease or a sublease, if applicable, for the possession of such
Property; except as disclosed in the Prospectus, each such lease is in full
force and effect and neither the Transaction Entities nor any of their
subsidiaries has notice of any defense to the obligations of the tenant
thereunder or any claim asserted or threatened by any person or entity, which
claim, if sustained, would have a Material Adverse Effect; and except as
Page 10 of 25
disclosed in the Prospectus, the lessor under each lease has complied with its
obligations under such lease in all material respects and neither the
Transaction Entities nor any of their subsidiaries has notice of any default
by the tenant under such lease which, individually or in the aggregate with
other such defaults, would have a Material Adverse Effect.
(p) The mortgages and deeds of trust encumbering the Properties are
not (i) cross-defaulted to any indebtedness other than indebtedness of the
Transaction Entities or any of their subsidiaries or (ii) cross-collateralized
to any property not owned by any of the Transaction Entities or their
subsidiaries.
(q) Each of the Transaction Entities and their subsidiaries are
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are customary in the business in which they
are engaged and such insurance is adequate for the value of their properties;
all policies of insurance insuring the Transaction Entities or their
subsidiaries or their respective businesses, assets, employees, officers,
trustees and directors, as the case may be, are in full force and effect; each
of the Transaction Entities and their subsidiaries is in compliance with the
terms of such policies in all material respects and there are no claims by any
of the Transaction Entities or by their subsidiaries under any such policy as
to which any insurance company is denying liability or defending under a
reservation of rights clause, other than claims which individually or in the
aggregate would not have a Material Adverse Effect.
(r) Each of the Transaction Entities has filed all federal, state and
foreign income tax returns which have been required to be filed and have paid
all taxes indicated by said returns and all assessments received by it to the
extent that such taxes have become due and are not being contested in good
faith.
(s) Each of the Transaction Entities and each of their subsidiaries
owns, possesses and has obtained all material licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and has made all
material declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals necessary to own or lease, as the case may be, and to operate
its properties and to carry on its business as conducted as of the date
hereof, except in each case where the failure to obtain licenses, permits,
certificates, consents, orders, approvals and other authorizations, or to make
all declarations and filings, would not have a Material Adverse Effect, and
none of the Transaction Entities or any of its subsidiaries has received any
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other authorization,
except as described in the Prospectus and except, in each case, where such
revocation or modification would not have a Material Adverse Effect; and the
Transaction Entities and each of their subsidiaries are in compliance with all
laws, rules and regulations relating to the conduct of their respective
businesses as conducted as of the date hereof, except where noncompliance with
such laws, rules or regulations would not have a Material Adverse Effect.
(t) To the knowledge of the Transaction Entities, their independent
accountants who have certified certain of the financial statements filed with
the Commission as part of, or incorporated by reference in, the Registration
Statement or the Prospectus, are independent public accountants as required by
the Act.
Page 11 of 25
(u) To the knowledge of the Transaction Entities, no relationship,
direct or indirect, exists between or among any of the Transaction Entities or
their subsidiaries on the one hand, and the directors, trustees, officers,
stockholders, customers or suppliers of any of the Transaction Entities or
their subsidiaries on the other hand, which is required by the Act to be
described in the Registration Statement and the Prospectus which is not so
described.
(v) Each of the Transaction Entities has never been, is not now, and
immediately after giving effect to the sale of the Shares under this Agreement
will not be, an "investment company" or entity "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(w) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim against any of the
Transaction Entities, the Company has met the requirements for qualification
as a REIT under Sections 856 through 860 of the Code, and the present and
contemplated operations, assets and income of the Transaction Entities and
their subsidiaries, taken as a whole, continue to meet such requirements.
(x) The conditions for the use by the Company of a registration
statement on Form S-3 set forth in the General Instructions to Form S-3 have
been satisfied and the Company is entitled to use such form for the
transactions contemplated herein.
(y) Other than as disclosed in the Prospectus, the Transaction
Entities have no knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste materials
(collectively, "Hazardous Materials") on any of the Properties or (b) any
unlawful spills, releases, discharges or disposals of Hazardous Materials that
have occurred or are presently occurring on or from the Properties, which
presence or occurrence would individually or in the aggregate have a Material
Adverse Effect.
(z) Other than as disclosed in the Prospectus, the Transaction
Entities and their subsidiaries (i) are in compliance with any and all
applicable federal, state and local 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"), (ii)
each Transaction Entity has received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not individually or in the
aggregate have a Material Adverse Effect.
(aa) The Transaction Entities engage environmental consultants and
other experts to conduct reviews of the effect of Environmental Laws on the
properties of the Transaction Entities and their subsidiaries, prior to the
purchase of such properties in the course of which the Transaction Entities
identify and evaluate associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for cleanup,
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 reviews and
other than as described in the Prospectus, the Transaction Entities have
reasonably concluded
Page 12 of 25
that such associated costs and liabilities would not, individually or in the
aggregate, have a Material Adverse Effect.
(bb) Subsequent to the respective dates as of which information is
given in the Prospectus, (i) the Company has not purchased any of its
outstanding shares of beneficial interest, or declared, paid or otherwise made
any dividend or distribution of any kind on its shares of beneficial interest
other than regular periodic dividends on such shares; and (ii) there has not
been any material change in the shares of beneficial interest of the Company
or any material change in the short-term debt or long-term debt of the
Transaction Entities and their subsidiaries on a consolidated basis, except as
described in or contemplated by the Prospectus. Other than as described in or
contemplated by the Prospectus, including documents incorporated therein by
reference, there are no outstanding warrants or options to purchase or rights
to acquire any shares of beneficial interest of the Company and there are no
restrictions upon the voting or transfer of, or the declaration or payment of
any dividend or distribution on, any shares of beneficial interest of the
Company pursuant to the Company's Declaration of Trust or Bylaws, any
agreement or other instrument to which the Transaction Entities is a party or
by which the Transaction Entities is bound, or any order, law, rule,
regulation or determination of any court, governmental agency or body
(including, without limitation, any banking or insurance regulatory agency or
body), or arbitrator having jurisdiction over any of the Transaction Entities.
No holders of securities of the Company or of securities convertible into or
exchangeable for securities of the Company have rights to the registration of
such securities of the Company under the Registration Statement.
(cc) The Transaction Entities and their subsidiaries and affiliates
have not taken and will not take, directly or indirectly, any action designed
to, or that might be reasonably expected to, cause or result in stabilization
or manipulation of the price of the Shares, and the Transaction Entities and
their subsidiaries and affiliates have not distributed and agree not to
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares other than the Prospectus or other material
permitted by the Act.
(dd) Each of the Transaction Entities maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (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 existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(ee) There is (i) no significant unfair labor practice complaint
pending against any of the Transaction Entities or their subsidiaries or, to
the knowledge of the Transaction Entities, threatened against any of them,
before the National Labor Relations Board or any state or local labor
relations board, and no significant grievance or more significant arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending against any of the Transaction Entities or their subsidiaries or, to
the knowledge of the Transaction Entities, threatened against any of them, and
(ii) no significant strike, labor dispute, slowdown or stoppage pending
against any of the Transaction Entities or their subsidiaries or, to the
knowledge of the Transaction Entities, threatened against it or any of their
subsidiaries except for such actions
Page 13 of 25
specified in clause (i) or (ii) above which individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect.
(ff) No statement, representation, warranty or covenant made by any
of the Transaction Entities in this Agreement or made in any certificate or
document required by this Agreement to be delivered to the Underwriter is, or
will be, when made, inaccurate, untrue or incorrect in any material respect;
it being understood that no representation is made under this Section 6(ff)
with respect to the Registration Statement or the Prospectus which are the
subject of representations contained in other paragraphs in this Section 6.
(gg) Any certificate or other document signed by any officer or
authorized representative of any of the Transaction Entities or any of their
subsidiaries, and delivered to the Underwriter or to counsel for the
Underwriter in connection with the sale of the Shares shall be deemed a
representation and warranty by such entity or person, as the case may be, to
the Underwriter as to the matters covered thereby.
7. Indemnification.
(a) Each of the Transaction Entities jointly and severally agrees to
indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, expenses, liabilities and judgments caused by or resulting from any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by or resulting from any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, expenses, liabilities or judgments are caused by
or result from any such untrue statement or omission or alleged untrue
statement or omission based upon and in conformity with information relating
to the Underwriter furnished in writing to the Company by or on behalf of the
Underwriter through you expressly for use therein, provided, that this
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of the Underwriter from whom the person asserting any such
losses, liabilities, claims, damages or expenses purchased Shares, or any
person controlling the Underwriter, if a copy of the prospectus (as then
amended or supplemented if the Company shall have furnished any such
amendments or supplements thereto) was not sent or given by or on behalf of
the Underwriter to such person, if such is required by law, at or prior to the
written confirmation of the sale of such Shares to such person and if the
Prospectus (as so amended or supplemented) would have corrected the defect
giving rise to such loss, liability, claim, damage or expense.
(b) In case any action shall be brought against the Underwriter or
any person controlling the Underwriter, based upon any preliminary prospectus,
the Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against any of the
Transaction Entities, the Underwriter shall promptly notify the Company in
writing and the Company may, at its election, assume the defense thereof,
including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses. The Underwriter or any
such controlling person shall have the right to employ
Page 14 of 25
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall, if any of the Transaction
Entities has assumed the defense as indicated above, be at the expense of the
Underwriter or such controlling person unless (i) the employment of such
counsel shall have been specifically authorized in writing by one of the
Transaction Entities, (ii) one of the Transaction Entities shall have failed
to assume the defense and employ counsel or (iii) the named parties to any
such action (including any impleaded parties) include both the Underwriter or
such controlling person and the Transaction Entities and the Underwriter or
such controlling person 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 Transaction Entities (in which case the
Transaction Entities shall not have the right to assume the defense of such
action on behalf of the Underwriter or such controlling person, it being
understood, however, that the Transaction Entities 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 firm of attorneys (in addition to any local counsel) for the
Underwriter and controlling persons, which firm shall be designated in writing
by the Underwriter and that all such fees and expenses shall be reimbursed as
they are incurred). None of the Transaction Entities shall be liable for any
settlement of any such action effected without its written consent, but if
settled with their written consent, each of the Transaction Entities agrees to
indemnify and hold harmless the Underwriter and any such controlling person
from and against any loss or liability by reason of such settlement to the
extent required by this Section 7. Notwithstanding the immediately preceding
sentence, if in any case where the fees and expenses of counsel are at the
expense of the indemnifying party and an indemnified party shall have
requested the indemnifying party to reimburse the indemnified party for such
fees and expenses of counsel as incurred, such indemnifying party agrees that
it shall be liable for any settlement of any action effected without its
written consent, if (i) such settlement is entered into more than forty
business days after the receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall have failed to reimburse the
indemnified party in accordance with such request for reimbursement prior to
the date of such settlement; provided, however, that if it is determined by a
final non appealable order of a court of competent jurisdiction that any of
the Transaction Entities has no indemnification obligation under this Section
7, all fees and expenses paid by any of the Transaction Entities pursuant to
this sentence shall be returned to them upon demand. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(c) The Underwriter agrees to indemnify and hold harmless each of the
Transaction Entities and each of their officers, trustees and directors who
sign the Registration Statement and any person controlling any of the
Transaction Entities within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, to the same extent as the foregoing indemnity from each
of the Transaction Entities to the Underwriter, but only with reference to and
in conformity with information relating to the Underwriter furnished in
writing by or on behalf of the Underwriter expressly for use in the
Registration Statement, the Prospectus or any preliminary prospectus. In case
any action shall be brought against any of the Transaction Entities, any of
their officers,
Page 15 of 25
trustees, directors, or any person controlling any of the Transaction
Entities, based on the Registration Statement, the Prospectus or any
preliminary prospectus and in respect of which indemnity may be sought against
the Underwriter, the Underwriter shall have the rights and duties given to the
Transaction Entities (except that if any of the Transaction Entities shall
have assumed the defense thereof, the Underwriter shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof but the fees and expenses of such counsel shall, except as otherwise
provided herein, be at the expense of the Underwriter), and each of the
Transaction Entities, their officers, trustees, directors, and any person
controlling any of the Transaction Entities shall have the rights and duties
given to the Underwriter, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
expenses, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, expenses, liabilities and judgments (i) in such proportion as
is appropriate to reflect the relative benefits received by the Transaction
Entities on the one hand and the Underwriter on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Transaction Entities, on the one hand, and the
Underwriter, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, expenses, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative benefits received by the Transaction Entities, on the one hand, and
the Underwriter, on the other hand, shall be deemed to be in the same
proportion as the total net proceeds from the Offering (before deducting
expenses) received by the Transaction Entities and the total underwriting
discounts and commissions received by the Underwriter, bear to the total price
to the public of the Shares, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Transaction Entities,
on the one hand, and the Underwriter, on the other hand, shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by any of the Transaction Entities or the Underwriter
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Each of the Transaction Entities and the Underwriter agree
that it would not be just and equitable if contribution pursuant to this
Section 7(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, expenses,
liabilities or judgments referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, 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 7, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of such untrue
Page 16 of 25
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) The Underwriter confirms and each Transaction Entity acknowledges
that (i) the statements with respect to the public offering of the Shares by
the Underwriter set forth on the cover page of the Prospectus Supplement and
(ii) the second paragraph under the caption "Underwriting" in the Prospectus
Supplement are correct and constitute the only information concerning the
Underwriter furnished in writing to the Company by or on behalf of the
Underwriter specifically for inclusion in the Registration Statement and
Prospectus.
8. Conditions of Underwriter's Obligations. The obligations of the Underwriter
to purchase the Shares under this Agreement are subject to the satisfaction of
each of the following conditions:
(a) All the representations and warranties of the Transaction
Entities contained in this Agreement shall be true and correct, in all
material respects, on the Closing Date, with the same force and effect as if
made on and as of the Closing Date.
(b) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been commenced or shall be pending before or threatened by the Commission
to the knowledge, after due inquiry, of the Company. No stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or threatened by the state securities authority of any jurisdiction, to
the knowledge of the Company.
(c) (i) Since the date of the latest balance sheet included or
incorporated by reference in the Registration Statement and the Prospectus,
there shall not have been any Material Adverse Effect, (ii) other than as set
forth in the Prospectus, no proceedings shall be pending or, to the knowledge
of any of the Transaction Entities, after due inquiry, threatened against any
of the Transaction Entities or any Property before or by any federal, state or
other commission, board or administrative agency, where an unfavorable
decision, ruling or finding could reasonably be expected to result in a
Material Adverse Effect, and on the Closing Date you shall have received a
certificate dated the Closing Date, signed by the Chief Executive Officer and
the Chief Financial Officer of each of the Company and the General Partner, in
their capacities as the Chief Executive Officer and Chief Financial Officer of
each entity and on behalf of each entity, confirming the matters set forth in
paragraphs (a), (b) and (c) of this Section 8.
(d) You shall have received on the Closing Date the opinions, dated
the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, in the form
attached hereto as Annex A and the opinion, dated the Closing Date, of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, tax counsel for the Company, in the Form of Annex B.
(e) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Hunton & ▇▇▇▇▇▇▇▇, counsel for the Underwriter, to the effect
that:
Page 17 of 25
(i) the Shares have been duly authorized, and when issued
and delivered to the Underwriter against payment therefor as
provided by this Agreement, will have been validly issued
and will be fully paid and nonassessable, and the issuance
of such Shares is not subject to any preemptive or similar
rights;
(ii) the Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no stop order
suspending its effectiveness has been issued and no
proceedings for that purpose are pending before or
threatened by the Commission;
(iii) this Agreement was duly and validly authorized,
executed and delivered by each of the Transaction Entities;
and
(iv) the Registration Statement, at the time it became
effective, and the Prospectus, as of the date of the
Prospectus Supplement (in each case, other than documents
incorporated therein by reference and the financial
statements and supporting schedules and other financial and
statistical data included or incorporated by reference
therein, as to which no opinion need be rendered) complied
as to form in all material respects with the requirements of
the Act.
In addition, Hunton & ▇▇▇▇▇▇▇▇ shall state that they have
participated in conferences with officers and other representatives of the
Transaction Entities and representatives of the independent public accountants
for the Company and representatives of the Underwriter at which the contents
of the Prospectus and related matters were discussed and, although they are
not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus or the documents incorporated therein by
reference, on the basis of the foregoing (relying as to materiality to a large
extent upon the opinions of officers and other representatives of the
Transaction Entities), no facts have come to the attention of such counsel
which lead them to believe that the Registration Statement, including the
documents incorporated therein by reference, at the time the Company filed its
Annual Report on Form 10-K for the Year Ended December 31, 1996, or at the
date of the Underwriting Agreement, 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 the
Prospectus, including the documents incorporated therein by reference, at the
time the Prospectus was first provided to the Underwriter for use in
connection with the offering of the Shares or at the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and schedules and other financial or statistical data
included in the Registration Statement, the Prospectus or the documents
incorporated therein by reference).
(f) On the date hereof, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Zelenkofske, ▇▇▇▇▇▇▇
& Company, Ltd. shall have furnished to the Underwriter a letter, dated the
date of its delivery, addressed to the Underwriter and in form and substance
satisfactory to the Underwriter (and to its counsel), confirming that they are
independent public accountants with respect to the Transaction Entities and
their subsidiaries as required by the Act and with respect to the financial
and other statistical
Page 18 of 25
and numerical information contained in the Registration Statement. At the
Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Zelenkofske, ▇▇▇▇▇▇▇ & Company, Ltd.
shall have furnished to the Underwriter a letter, dated the date of its
delivery, which shall confirm, on the basis of a review in accordance with the
procedures set forth in the letter from it, that nothing has come to their
attention during the period from the date of the letter referred to in the
prior sentence to a date (specified in the letter) not more than five days
prior to the Closing Date, which would require any change in its letter dated
the date hereof if it were required to be dated and delivered at the Closing
Date.
(g) At the Closing Date, the Shares shall have been approved for
listing on the NYSE upon official notice of issuance.
(h) Each of the Transaction Entities and their subsidiaries shall not
have failed at or prior to the Closing Date, to perform or comply with any of
the agreements pursuant to Section 5 herein contained and required to be
performed or complied with by the Transaction Entities at or prior to the
Closing Date.
(i) At the Closing Date, Hunton & ▇▇▇▇▇▇▇▇ shall have been furnished
with such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the Shares, as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by each of
the Transaction Entities in connection with the issuance and sale of the
Shares as herein contemplated shall be reasonably satisfactory in form and
substance to the Underwriter and Hunton & ▇▇▇▇▇▇▇▇.
9. Effective Date of Agreement and Termination. This Agreement shall become
effective upon the execution of this Agreement.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Company if any of the following
has occurred: (i) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has been a Material
Adverse Effect, (ii) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions
or in the financial markets of the United States or elsewhere that, in your
judgment, is material and adverse and would, in your judgment, make it
impracticable or inadvisable (x) to commence or continue the offering of the
shares to the public or (y) to enforce contracts for the sale of the shares,
(iii) the suspension or material limitation of trading in securities on the
NYSE or the American Stock Exchange or material limitation on prices for
securities on either of such exchanges, (iv) (a) the downgrading of any of the
debt securities of any of the Transaction Entities or any of their
subsidiaries by any "nationally recognized statistical rating organization" or
the announcement by any such organization of an initial rating with respect to
any such securities that is below the ratings of other such organizations in
effect for such securities on the date hereof, or (b) the public announcement
by any such organization that it has under surveillance or review, with
possible negative implications, its rating of any of such securities, (v) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental
authority which in your opinion would result in a Material Adverse Effect,
(vi) the declaration of a banking moratorium by either federal or New York
State authorities or (vii) the
Page 19 of 25
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
10. Miscellaneous. Notices given pursuant to any provision of this Agreement
shall be addressed as follows: (a) if to the Company, to Brandywine Realty
Trust, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and (b) if to you, to ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
Incorporated, Attention: Syndicate Department, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or in any case to such other address as the person to be
notified may have requested in writing.
No recourse shall be had for any of the obligations of the
Company hereunder or for any claim based thereon or otherwise in respect
thereof, against any past, present or future trustee, shareholder, officer or
employee of the Company, whether by virtue of any statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all of such
liability being expressly waived and released by the Underwriter and any such
person or entity who acts through the Underwriter.
The provisions of Sections 5, 6 and 7 shall remain operative
and in full force and effect, and will survive delivery of and payment for the
Shares, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of the Underwriter or by or on behalf of any of
the Transaction Entities, the officers or directors of any of the Transaction
Entities or any controlling person of any of the Transaction Entities and (ii)
acceptance of the Shares and payment for them hereunder.
In the event of termination of this Agreement, the
provisions of Section 7 shall remain operative and in full force and effect.
If this Agreement shall be terminated by the Underwriter
because of any failure or refusal on the part of any of the Transaction
Entities to comply with the terms or to fulfill any of the conditions of this
Agreement, each of the Transaction Entities, jointly and severally, agrees to
reimburse the Underwriter for all out-of-pocket expenses (including the fees
and documented disbursements of counsel) reasonably incurred by the
Underwriter.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon each of the
Transaction Entities and the Underwriter, any controlling persons referred to
herein and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any
right under or by virtue of this Agreement. The term "successors and assigns"
shall not include a purchaser of any of the Shares from the Underwriter merely
because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
Page 20 of 25
Please confirm that the foregoing correctly sets forth the
agreement among the parties hereto.
Very truly yours,
BRANDYWINE REALTY TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BRANDYWINE OPERATING
PARTNERSHIP, L.P.
By: Brandywine Realty Trust,
Its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
Page 21 of 25
SCHEDULE I
BRANDYWINE REALTY TRUST
SUBSIDIARIES
PARTNERS
PARTNERSHIP SUBSIDIARIES (Capital/Profits)
----------------------------------------------------------------------------------------------------------------------------------
Brandywine Operating Partnership, L.P., a Delaware limited partnership BRT -- G.P. - 97.598%
BRT -- L.P. - 1.147% (1)
Class A (other than BRT) - L.P. - 1.255%
----------------------------------------------------------------------------------------------------------------------------------
Fifteen Horsham, L.P., a Pennsylvania limited partnership WOP -- G.P. - 1% (2)
BOP -- L.P. 1% (3)
WOP -- L.P. - 98%
----------------------------------------------------------------------------------------------------------------------------------
C/N Oaklands Limited Partnership I, a Pennsylvania limited partnership WOP -- G.P. - 88.9% / 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1% (4)
----------------------------------------------------------------------------------------------------------------------------------
Newtech IV Limited Partnership, a Pennsylvania limited partnership WOP -- G.P. - 88.9% / 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1%
----------------------------------------------------------------------------------------------------------------------------------
Newtech III Limited Partnership, a Pennsylvania limited partnership WOP -- G.P. - 88.9% / 63.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1%
N.E. Leasing -- 0% / 35% (5)
----------------------------------------------------------------------------------------------------------------------------------
LC/N ▇▇▇▇▇ Valley Limited Partnership I, a Pennsylvania limited partnership WOPr--iG.P. - 88.9% / 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1%
----------------------------------------------------------------------------------------------------------------------------------
LC/N Horsham Limited Partnership, a Pennsylvania limited partnership WOP -- G.P. - 88.9% / 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1%
----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Lansdale Limited Partnership III, a Pennsylvania limited partnership WOPe--hG.P. - 88.9% / 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1%
----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Operating Partnership I, L.P., a Delaware limited partnership Brandywine ▇▇▇▇▇▇, LLC -- G.P. - 1%/1%
BOP -- L.P. - 99%/99%
----------------------------------------------------------------------------------------------------------------------------------
C/N Leedom Limited Partnership II, a Pennsylvania limited partnersh BOP -- 89% /99%
SSI -- L.P. - 11% / 1% (6)
----------------------------------------------------------------------------------------------------------------------------------
C/N Oaklands Limited Partnership III, a Pennsylvania limited partnership BOPi-- L.P. - 89% / 99%
TNC -- L.P. - 11% / 1%
----------------------------------------------------------------------------------------------------------------------------------
Iron Run Limited Partnership V, a Pennsylvania limited partnership BOP -- L.P. - 89% / 99%
TNC -- L.P. - 11% / 1%
----------------------------------------------------------------------------------------------------------------------------------
C/N Iron Run Limited Partnership III, a Pennsylvania limited partnership BOPi-- G.P. - 2% / 2%
BOP -- L.P. - 87% / 97%
TNC -- L.P. - 11% / 1%
----------------------------------------------------------------------------------------------------------------------------------
Brandywine Realty Partners, a Pennsylvania general partnership BOP -- G.P. - 70% / 98%
Outside partner -- 30% / 2%
----------------------------------------------------------------------------------------------------------------------------------
Brandywine TB I, L.P., a Pennsylvania limited partnership BRT TB I LLC -- G.P. - 1% (7)
BOP -- L.P. - 99%
----------------------------------------------------------------------------------------------------------------------------------
Brandywine ▇▇ ▇▇, L.P., a Pennsylvania limited partnership BRT ▇▇ ▇▇ LLC -- G.P. - 1% (8)
BOP -- L.P. - 99%
----------------------------------------------------------------------------------------------------------------------------------
Page 22 of 25
PARTNERS
PARTNERSHIP SUBSIDIARIES (Capital/Profits)
----------------------------------------------------------------------------------------------------------------------------------
Brandywine TB III, L.P., a Pennsylvania limited partnership BRT TB III LLC -- G.P. - 1% (9)
BOP -- L.P. - 99%
----------------------------------------------------------------------------------------------------------------------------------
Brandywine Dominion, L.P., a Pennsylvania limited partnership Brandywine Dominion, LLC -- G.P. - 1%
BOP -- L.P. - 99%
----------------------------------------------------------------------------------------------------------------------------------
Brandywine P.M., L.P., a Pennsylvania limited partnership Brandywine P.M., LLC -- G.P. - 1%
BOP -- L.P. 99%
----------------------------------------------------------------------------------------------------------------------------------
Brandywine I.S., L.P., a Pennsylvania limited partnership Brandywine I.S., LLC -- G.P. - 1%
BOP -- L.P. 99%
==================================================================================================================================
1. BRT and Brandywine Holdings I, Inc. (a Pennsylvania
corporation and a wholly-owned subsidiary of BRT)
collectively own Class A Units that constitute the
percentage shown above.
2. Brandywine ▇▇▇▇▇▇, LLC (a Pennsylvania limited liability
company and a wholly-owned subsidiary of BOP) is General
Partner of WOP with a 1%/1% interest.
3. Brandywine Operating Partnership ("BOP") is a Delaware
limited partnership.
4. The ▇▇▇▇▇▇▇ Company ("TNC") is a Pennsylvania corporation.
5. N. E. Leasing is not an affiliate. N.E. Leasing is entitled
to 35% of the partnership's residual cash flow. "Residual
Cash Flow" upon the sale of the property equals the gross
sales price less (i) outstanding indebtedness, (ii) reserves
and (iii) repayment of capital and accrued equity of WOP,
BRT ▇▇▇▇▇▇ and TNC (estimated to equal $1,338,468 as of July
1, 1996).
6. Safeguard Scientifics, Inc. ("SSI") is a Pennsylvania
corporation.
7. Brandywine TB I, L.L.C. is a Pennsylvania limited liability
company in which BOP is the sole member.
8. Brandywine ▇▇ ▇▇, L.L.C. is a Pennsylvania limited liability
company in which BOP is the sole member.
9. Brandywine TB III, L.L.C. is a Pennsylvania limited
liability company in which BOP is the sole member.
=======================================================================================================
CORPORATE SUBSIDIARIES SHAREHOLDERS
-------------------------------------------------------------------------------------------------------
Brandywine Holdings, I, Inc., a Pennsylvania corporation BRT -- 100%
-------------------------------------------------------------------------------------------------------
Brandywine Holdings II, Inc., a Pennsylvania corporation BRT -- 100%(1)
-------------------------------------------------------------------------------------------------------
Brandywine Holdings III, Inc., a Pennsylvania corporation BRT -- 100%(2)
-------------------------------------------------------------------------------------------------------
Brandywine Realty Services Corporation, a Pennsylvania corporation BOP -- 9,473 Preferred Shares
27 Common Shares
BRSP(3) -- 500 Common Shares
=======================================================================================================
1. To be dissolved.
2. To be dissolved.
3. BRSP is Brandywine Realty Services Partnership.
==============================================================================
LIMITED LIABILITY COMPANY SUBSIDIARIES MEMBERS
------------------------------------------------------------------------------
Brandywine Acquisitions, LLC ("BA LLC") BOP -- 100%
------------------------------------------------------------------------------
Brandywine - Main Street, LLC BOP -- 99%
BA LLC -- 1%
------------------------------------------------------------------------------
1100 Brandywine, LLC BOP -- 100%
------------------------------------------------------------------------------
Brandywine Leasing, LLC BOP -- 100%
------------------------------------------------------------------------------
Brandywine TB I, LLC BOP -- 100%
------------------------------------------------------------------------------
Brandywine ▇▇ ▇▇, LLC BOP -- 100%
------------------------------------------------------------------------------
Brandywine TB III, LLC BOP -- 100%
------------------------------------------------------------------------------
Page 23 of 25
==============================================================================
LIMITED LIABILITY COMPANY SUBSIDIARIES MEMBERS
------------------------------------------------------------------------------
Brandywine ▇▇▇▇▇▇, LLC BOP -- 100%
------------------------------------------------------------------------------
Brandywine Dominion, LLC BOP -- 100%
Brandywine P.M., LLC BOP -- 100%
------------------------------------------------------------------------------
Brandywine I.S., LLC BOP -- 100%
==============================================================================
Page 24 of 25