Exhibit 1.1
Execution Version
BRANDYWINE OPERATING PARTNERSHIP,
L.P.
To the
Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described
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 will be unconditionally guaranteed (the
“Guarantee”) 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”).
The terms and
conditions of any particular issuance of Designated Securities will
be as specified in the Pricing Agreement relating thereto and in or
pursuant to the Indenture, dated as of October 22, 2004, as
amended and supplemented (the “Indenture”), among the
Operating Partnership, the Parent Guarantor and The Bank of New
York Mellon, as trustee (the “Trustee”).
1.
Introduction . Particular sales of Designated Securities may
be made from time to time to the Underwriters of such Designated
Securities, for which the firms designated as representatives of
the Underwriters of such Designated Securities in the Pricing
Agreement relating thereto will 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 will be evidenced by the Pricing Agreement with respect
to the
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Designated
Securities specified therein. Each Pricing Agreement will, among
other things, 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 will set forth the date,
time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement will 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. The Pricing Agreement will 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 will
be several and not joint.
2.
Representations, Warranties and Agreements of the Operating
Partnership and the Parent Guarantor . The Operating
Partnership and the Parent Guarantor, 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. 333-158589) in
respect of the Securities and the Guarantee have been
(i) prepared by the Operating Partnership and the Parent
Guarantor 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, and (ii) filed with
the Commission under the Securities Act and declared effective by
the Commission; no stop order suspending the effectiveness of the
registration statement or any post-effective amendment thereto has
been issued, and no proceeding for that purpose or pursuant to
Section 8A of the Securities Act has been initiated or
threatened by the Commission; and the Operating Partnership and the
Parent Guarantor 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 Parent Guarantor
to be set forth therein. The various parts of the registration
statement referred to above, each as amended at the time such part
of such registration statement was declared effective, including
the exhibits thereto, any prospectus supplement relating to the
Designated Securities that is filed with the Commission and deemed
by virtue of Rule 430A, 430B or 430C under the Securities Act
to be a part of such registration statement at the relevant time of
effectiveness 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, is
hereinafter referred to, collectively, as the “Registration
Statement”. The prospectus contained in the Registration
Statement in the form in which it has most recently been filed with
the Commission on or prior to the date of this Agreement is
hereinafter referred to as the “Base Prospectus”. The
Base Prospectus, as supplemented by the preliminary prospectus
supplement relating to the Designated Securities, as filed pursuant
to Rule 424(b), is hereinafter referred to as the
“Preliminary Prospectus”; and the Base Prospectus, as
supplemented by the final prospectus supplement relating to the
Designated Securities, in the form filed with the Commission
pursuant to Rule 424(b), is hereinafter referred to as the
“Prospectus”. If the Operating Partnership files an
abbreviated registration statement to register additional
Securities pursuant to Rule 462(b) under the Securities Act (the
“Rule 462
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Registration
Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include
such Rule 462 Registration Statement. Any reference herein to
the Base Prospectus, the 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 such prospectus, as the
case may be; any reference herein to the terms
“amendment” or “supplement”, or similar
terms, with respect to the Base Prospectus, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any post-effective amendment to the Registration Statement,
any prospectus supplement relating to the Designated Securities
filed with the Commission pursuant to Rule 424(b) under the
Securities Act and Incorporated Documents under the Exchange Act or
the Securities Act, as the case may be, after the issue date of
such prospectus 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 applicable
effective date or dates of the Registration Statement that is
incorporated by reference in the Registration Statement.
(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 Registration Statement, the Preliminary Prospectus
or Prospectus, when such documents are filed with the Commission or
become effective, as the case may be, will conform in all material
respects to the requirements of the Exchange Act or the Securities
Act, as applicable, and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(c) The
Registration Statement and the Preliminary Prospectus conform, and
the Prospectus and any further amendments or supplements to the
Registration Statement, the Preliminary Prospectus or the
Prospectus will 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 will
not, as of the applicable effective date or dates, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any amendment
or supplement thereto 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
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
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fact required
to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading; provided, however , that the representation
and warranty set forth in this Section 2(c) will not apply to any
statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished in writing
to the Operating Partnership by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Preliminary Prospectus or the Prospectus relating to such
Designated Securities.
(d) Prior
to or at the time when sales of the Designated Securities were
first made in accordance with the applicable Pricing Agreement (the
“Time of Sale”), the Operating Partnership prepared the
Preliminary Prospectus and each “free writing
prospectus” (as defined pursuant to Rule 405 under the
Securities Act) specified in Schedule II to the applicable
Pricing Agreement (collectively, the “Time of Sale
Information”); the Time of Sale Information, at the Time of
Sale did not, and at the Time of Delivery (as defined in
Section 4 hereof) will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided,
however , that the representation and warranty set forth in
this Section 2(d) will not apply to any statements or omissions
made in reliance upon and in conformity with information relating
to any Underwriter furnished in writing to the Operating
Partnership by an Underwriter of Designated Securities through the
Representatives expressly for use in such Time of Sale Information;
and no statement of a material fact included in the Prospectus has
been omitted from the Time of Sale Information, and no statement of
material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted
therefrom.
(e) None
of the Operating Partnership and the Parent Guarantor (including
their agents and representatives, but excluding the Underwriters in
their capacity as such) has made, used, prepared, authorized,
approved or referred to, nor will prepare, make, use, authorize,
approve or refer to, any “written communication” (as
defined in Rule 405 under the Securities Act) that constitutes
an offer to sell or solicitation of an offer to buy the Designated
Securities (each such communication by the Operating Partnership or
the Parent Guarantor or its agents or representatives not referred
to in clauses (i) and (ii) below, an “Issuer Free
Writing Prospectus”) except for (i) the Preliminary
Prospectus and the Prospectus, (ii) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Securities Act or Rule 134 under the Securities Act or
(iii) the documents specified in Schedule II to the
applicable Pricing Agreement or other written communications
approved in writing in advance by the Representatives; and each
Issuer Free Writing Prospectus complied in all material respects
with the requirements of the Securities Act, has been filed in
accordance with the Securities Act (as and if required by
Rule 433 under the Securities Act) and, when taken together
with the Preliminary Prospectus, did not, and at the Time of
Delivery will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the
representation and warranty set forth in this Section 2(e) will not
apply with respect to any statements or omissions made in any
Issuer Free Writing Prospectus in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Operating Partnership in writing by an Underwriter of Designated
Securities through the Representatives expressly for use in such
Issuer Free Writing Prospectus.
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(f) Except
as noted therein, the consolidated financial statements (including
the related notes thereto) incorporated by reference in the Time of
Sale Information and 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 Time of Sale Information and the Prospectus presents 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.
(g) 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 Time of Sale
Information and 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, except as set forth
in the Time of Sale Information and the Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement, the Time of Sale Information 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
(x) 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 or warrants 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 Time of Sale Information and the Prospectus, and
(C) upon the exchange of Operating Partnership interests for
beneficial interests in the Parent Guarantor and
(y) repurchases of the Parent Guarantor’s beneficial
interests under the Parent Guarantor’s share repurchase
program) 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 subsidiaries (including, without
limitation, the Operating Partnership), taken as a whole, except as
set forth in the Time of Sale Information and the
Prospectus.
(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, with partnership power and authority to own its
properties and conduct its business as described in the Time of
Sale Information and 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
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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 Parent Guarantor
of their respective obligations hereunder and under the Indenture,
the Securities and the Guarantee (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 Time of Sale Information and 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 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
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 Time of Sale Information
and 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.
(i) The
Operating Partnership has an authorized capitalization as set forth
in the Time of Sale Information and 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 Time of Sale Information and 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; except as set
forth in the Time of Sale Information and the Prospectus, all of
the issued shares of capital stock, partnership, membership or
beneficial interests of each consolidated subsidiary (including,
without limitation, the Operating Partnership) 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 Time of Sale Information and the
Prospectus.
(j) This
Agreement and the Pricing Agreement with respect to the Designated
Securities have been duly authorized, executed and delivered by
each of the Operating Partnership and the Parent
Guarantor.
(k) The
Indenture has been duly authorized by the Operating Partnership and
the Parent Guarantor and qualified under the Trust Indenture Act
and, at the Time of Delivery for
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such Designated
Securities, the Indenture will constitute a valid and legally
binding instrument enforceable against the Operating Partnership
and the Parent Guarantor 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.
(l) 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 will have been
duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Operating
Partnership 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.
(m) The
Guarantee has been duly authorized by the Parent Guarantor and,
when the Designated Securities are issued and delivered pursuant to
this Agreement and the Pricing Agreement with respect to such
Designated Securities, the Guarantee will have been duly executed,
issued and delivered and will constitute a valid and legally
binding obligation of the Parent Guarantor enforceable 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.
(n) The
Indenture conforms, and the Designated Securities and the Guarantee
conform, in all material respects, to the descriptions thereof
contained in the Preliminary Prospectus, the Time of Sale
Information and the Prospectus.
(o) Neither
the Parent Guarantor nor any of its 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 of the Parent Guarantor or the Operating Partnership,
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 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 Guarantee,
the compliance by the Operating Partnership and the Parent
Guarantor with all of the provisions of the Designated Securities,
the Guarantee, the Indenture, this Agreement and the applicable
Pricing Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the 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
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subject, nor
will 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 or any law, 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 Guarantee or the
consummation by the Operating Partnership and the Parent Guarantor
of the other transactions contemplated by this Agreement, the
applicable Pricing Agreement or the Indenture, except such as have
been, or will 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.
(p) Except
as set forth in the Time of Sale Information and 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 to which any
property of the Parent Guarantor or any of its 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 Parent Guarantor, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(q) PricewaterhouseCoopers
LLP, the independent registered public accounting firm of the
Operating Partnership and the Parent Guarantor, which has audited
certain financial statements of the Operating Partnership and its
consolidated subsidiaries and of the Parent Guarantor and its
consolidated subsidiaries, is an independent registered public
accounting firm with respect thereto as required by the Securities
Act and the rules and regulations of the Commission and the Public
Company Accounting Oversight Board.
(r) 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 are 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 Time of Sale Information and the Prospectus or as are described
specifically, generally or in the aggregate in the Time of Sale
Information and 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.
(s) Neither
the Operating Partnership nor the Parent Guarantor is, and after
giving effect to each offering and sale of the Designated
Securities and the issuance of the
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Guarantee is,
or will be required to register as, an “investment
company” under the Investment Company Act of 1940, as amended
(the “Investment Company Act”).
(t) 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 Guarantee, will 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 will enable the Parent Guarantor
to continue to meet the requirements for qualification and taxation
as a REIT under the Code.
(u) The
Parent Guarantor and its 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, 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.
(v) The
Parent Guarantor and its subsidiaries (including, without
limitation, the Operating Partnership) own or possess, or can
acquire on reasonable terms, the trademarks, service marks, trade
names, or other intellectual property (collectively,
“Intellectual Property”) necessary to carry on the
business now operated by them, taken as a whole, and no such entity
has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect
the interest of such entities therein, and which infringement,
conflict, invalidity or inadequacy could reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(w) The
Parent Guarantor and its 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 subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
license, 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.
(x) 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, to the knowledge of the Operating Partnership or the
Parent Guarantor, is threatened or imminent that could reasonably
be expected, individually or in the aggregate, to have a Material
Adverse Effect.
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(y) The
Parent Guarantor and its 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 Time of Sale Information and the Prospectus; except as set
forth in the Time of Sale Information and the Prospectus, neither
the Parent Guarantor nor any of its 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
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); and 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 Time of Sale Information and the
Prospectus.
(z) The
minimum funding standard under Section 302 of the Employee
Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder
(“ERISA”), has been satisfied by each “pension
plan” (as defined in Section 3(2) of ERISA) which has
been established or maintained by the 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; except as set forth in the Time of Sale
Information and the Prospectus, 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 will not,
constitute “plan assets” under ERISA.
11
(aa) The
Parent Guarantor and its 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.
(bb) 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 Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith, including, without limitation,
Section 402 (relating to loans) and Sections 302 and 906
(relating to certifications).
(cc) 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, the Time
of Sale Information 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.
(dd)
(i) 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 (A) transactions are executed in
accordance with management’s general or specific
authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(ii) Since
the end of the most recent audited fiscal year, there has been
(A) no material weakness in the Parent Guarantor’s or
the Operating Partnership’s internal control over financial
reporting (whether or not remediated) and (B) no change in the
Parent Guarantor’s or the Operating Partnership’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Parent
Guarantor’s or the Operating Partnership’s internal
control over financial reporting.
(iii) The
Parent Guarantor, the Operating Partnership and their respective
consolidated subsidiaries employ disclosure controls and procedures
that are designed to ensure that information required to be
disclosed by the Operating Partnership and the Parent Guarantor in
the reports filed or submitted under the Exchange Act is recorded,
processed, summarized and
12
reported,
within the time periods specified in the Commission’s rules
and forms, and is accumulated and communicated to the Parent
Guarantor’s and the Operating Partnership’s management,
including its respective principal executive officer and principal
financial officer, as appropriate, to allow timely decisions
regarding disclosure.
(ee) The
Parent Guarantor and each of its 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 subsidiaries (including, without limitation, the
Operating Partnership) or their respective businesses, assets,
trustees, directors, officers and employees are in full force and
effect; the Parent Guarantor and its 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 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 subsidiaries
(including, without limitation, the Operating Partnership) has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to
continue its business at a cost that could not reasonably be
expected, individually or in aggregate, to have a Material Adverse
Effect.
(ff) No
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,
in the case of subsidiaries of the Parent Guarantor set forth on
Schedule IV to the applicable Pricing Agreement that are joint
ventures, the relevant joint venture agreements 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.
(gg) The
statistical and market-related data, if any, included in the Time
of Sale Information and the Prospectus is based on or derived from
sources which the Operating Partnership and the Parent Guarantor
believe, in good faith, to be reliable and accurate in all material
respects.
(hh) The
Operating Partnership and each of the consolidated subsidiaries of
the Operating Partnership that are partnerships are properly
classified as partnerships, and not as corporations or as
associations taxable as corporations, for federal income tax
purposes throughout the period from their respective dates of
formation through the date hereof, or, in the case of any such
partnerships that have terminated, through the date of termination
of such partnerships.
13
For purposes of
this Section 2, references to “subsidiaries”,
insofar as such references relate to entities in which the Parent
Guarantor or Operating Partnership own or hold an equity or
equivalent interest equal to or less than 50%, are made by the
Parent Guarantor and Operating Partnership to their knowledge
(after due inquiry).
3. Offer
and Sale of the Designated Securities . Upon the execution of
the Pricing Agreement applicable to any Designated Securities and
authorization by the Representatives of the release of such
Designated Securities (including the Guarantee), the several
Underwriters propose to offer such Designated Securities for sale
upon the terms and conditions set forth in the
Prospectus.
4.
Payment and Settlement for Designated Securities .
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,
will 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.
Further Agreements of the Operating Partnership and the Parent
Guarantor . The Operating Partnership and the Parent Guarantor,
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 Guarantee 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 file any Issuer Free Writing
Prospectus to the extent, and within the time period, required by
Rule 433 under the Securities Act; to make no further
amendment or any supplement to the Registration Statement or
Prospectus after the Time of Sale and prior to the Time of Delivery
for such Designated Securities which will be disapproved by the
Representatives for such Designated Securities promptly after
reasonable notice thereof; not to use, authorize, approve, refer to
or file any Issuer Free Writing Prospectus which will be
disapproved by the Representatives for such Designated Securities
promptly after reasonable notice thereof; to advise the
Representatives promptly of any amendment or supplement to the
Registration Statement or the Prospectus 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 Partnership
14
or the Parent
Guarantor 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)&nbs
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