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Exhibit 1.1
BRANDYWINE OPERATING PARTNERSHIP, L.P.
DEBT SECURITIES
UNDERWRITING AGREEMENT
December 15, 2005
To the Representatives of the
several Underwriters named
in the
respective Pricing
Agreements
hereinafter described
Ladies and Gentlemen:
From time
to time Brandywine Operating Partnership, L.P., a Delaware
limited partnership (the "Operating
Partnership"), may enter into one or more
Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto,
with such additions and deletions as the
parties thereto may determine, and,
subject to the terms and conditions stated
herein and therein, to issue and sell
to the firms named in Schedule I to the
applicable Pricing Agreement (such firms
constituting the "Underwriters" with
respect to such Pricing Agreement and the
securities specified therein) certain of
its debt securities (the "Securities")
specified in Schedule II to such Pricing
Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The Securities shall be unconditionally
guaranteed (the "Guarantees") by Brandywine
Realty Trust, a Maryland real estate
investment trust and the sole general
partner and a limited partner of the
Operating Partnership (the "Parent
Guarantor"), and, subject to the terms and
conditions of the Indenture (the
"Indenture") identified in such Pricing
Agreement, certain of the Operating
Partnership's subsidiaries (the "Subsidiary
Guarantors" and, together with the Parent
Guarantor, the "Guarantors").
The terms
and conditions of any particular issuance of Designated
Securities shall be as specified in the
Pricing Agreement relating thereto and
in or pursuant to the Indenture.
1.
Introduction. Particular sales of Designated Securities may be
made
from time to time to the Underwriters of
such Designated Securities, for whom
the firms designated as representatives of
the Underwriters of such Designated
Securities in the Pricing Agreement
relating thereto shall act as
representatives (the "Representatives").
The term "Representatives" also refers
to a single firm acting as sole
representative of the Underwriters and to an
Underwriter or Underwriters who act without
any firm being designated as its or
their representatives. This Underwriting
Agreement (the "Agreement") shall not
be construed as an obligation of the
Operating Partnership to offer, issue or
sell any of the Securities or as an
obligation of any of the Underwriters to
purchase the Securities. The obligation of
the Operating Partnership to issue
and sell any of the Securities and the
obligation of any of the Underwriters to
purchase any of the Securities shall be
evidenced by the Pricing Agreement with
respect to the Designated Securities
specified therein. Each Pricing Agreement
shall, 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
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2
Securities, the names of the Underwriters
of such Designated Securities, the
names of the Representatives of such
Underwriters and the principal amount of
such Designated Securities to be purchased
by each Underwriter and shall set
forth the date, time and manner of delivery
of such Designated Securities and
payment therefor. The Pricing Agreement
shall also specify (to the extent not
set forth in the Indenture and registration
statement and prospectus with
respect thereto) the terms and conditions
of such Designated Securities. A
Pricing Agreement shall be in the form of
an executed writing (which may be in
counterparts), and may be evidenced by an
exchange of facsimile communications
or any other rapid transmission device
designed to produce a written record of
communications transmitted. The obligations
of the Underwriters under this
Agreement and each Pricing Agreement shall
be several and not joint.
2.
Representations, Warranties and Agreements of the Operating
Partnership
and Guarantors. The Operating Partnership
and the Guarantors, jointly and
severally, represent and warrant to, and
agree with, each of the Underwriters as
follows:
(a) A registration statement on Form S-3 (File No. 333-124681)
(the
"Initial Registration Statement") in
respect of the Securities and the
Guarantees has been (i) prepared by the
Operating Partnership, the Parent
Guarantor and the Subsidiary Guarantors in
conformity with the requirements of
the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and
regulations of the Securities and Exchange
Commission (the "Commission")
thereunder, (ii) filed with the Commission
under the Securities Act and (iii)
declared effective by the Commission; no
stop order suspending the effectiveness
of the registration statement or any
post-effective amendment thereto, if any,
has been issued, and no proceeding for that
purpose or pursuant to Section 8A of
the Securities Act has been initiated or
threatened by the Commission; and the
Operating Partnership and the Guarantors
propose to file with the Commission
pursuant to Rule 424(b) under the
Securities Act ("Rule 424(b)") a prospectus
supplement to the form of prospectus
included in such registration statement and
have previously advised you of all
information (financial and other) with
respect to the Operating Partnership and
the Guarantors to be set forth therein.
The term "Registration Statement" means the
Initial Registration Statement, as
amended at the time such registration
statement became effective and as further
amended as of the date of this Agreement,
including the exhibits thereto and the
documents incorporated or deemed to be
incorporated therein by reference
pursuant to Item 12 of Form S-3 (the
"Incorporated Documents"), but excluding
the statement of eligibility and
qualification on Form T-1; the prospectus
contained in the Registration Statement is
hereinafter referred to as the "Base
Prospectus"; and the final prospectus
supplement to such prospectus (including
the Base Prospectus), in the form filed
with the Commission pursuant to Rule
424(b), is hereinafter called the
"Prospectus". If the Operating Partnership and
the Guarantors shall have filed an
abbreviated registration statement to
register additional Securities pursuant to
Rule 462(b) under the Securities Act
(the "Rule 462 Registration Statement"),
then any reference herein to the term
"Registration Statement" shall be deemed to
include such Rule 462 Registration
Statement. The Base Prospectus, as
supplemented by the preliminary prospectus
supplement relating to the Designated
Securities, as filed pursuant to Rule
424(b), is hereinafter called the
"Preliminary Prospectus". 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 the Base
Prospectus, the Preliminary Prospectus or
the Prospectus, as the case may be;
any reference herein to the terms
"amendment" or
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3
"supplement", or similar terms, with
respect to the Preliminary Prospectus or
the Prospectus shall be deemed to refer to
and include the filing of any
Incorporated Documents under the Exchange
Act or the Securities Act, as the case
may be, after the issue date of the
Preliminary Prospectus or the Prospectus, as
the case may be, and deemed to be
incorporated therein by reference; and any
reference to any amendment to the
Registration Statement shall be deemed to
include any annual report on Form 10-K of
the Operating Partnership or the
Parent Guarantor filed pursuant to Section
13(a) or 15(d) of the Exchange Act
after the effective date of the
Registration Statement that is incorporated by
reference in the Registration
Statement.
(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, shall
conform in all material respects to
the requirements of the Exchange Act or the
Securities Act, as applicable, and
shall not contain an untrue statement of a
material fact or omit to state a
material fact required to be stated therein
or necessary to make the statements
therein not misleading.
(c) The Registration Statement and the Preliminary Prospectus
conform, and the Prospectus and any further
amendments or supplements to the
Registration Statement or the Prospectus
shall conform, in all material respects
to the requirements of the Securities Act
and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and
the rules and regulations of the
Commission thereunder; the Registration
Statement and any amendment thereto do
not and shall not, as of the applicable
effective date, contain an untrue
statement of a material fact or omit to
state a material fact required to be
stated therein or necessary to make the
statements therein not misleading; and
the Preliminary Prospectus does not
contain, and the Prospectus and the
Prospectus as amended or supplemented shall
not contain, an untrue statement of
a material fact or omit to state a material
fact required to be stated therein
or necessary to make the statements
therein, in light of the circumstances under
which they were made, not misleading;
provided, however, that this
representation and warranty shall 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) shall 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 this representation and
warranty shall not apply to any
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4
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 Guarantors
(including
their agents and representatives, but
excluding the Underwriters in their
capacity as such) has made, used, prepared,
authorized, approved or referred to,
nor shall 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
Company 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 and
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 shall 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 this representation and warranty
shall 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.
(f) Except as noted therein, the consolidated financial
statements
(including the related notes thereto)
incorporated by reference in the
Preliminary Prospectus and the Prospectus
present fairly in all material
respects the consolidated financial
condition of the Operating Partnership and
its consolidated subsidiaries, the Parent
Guarantor and its consolidated
subsidiaries, and Prentiss Properties Trust
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 the pro forma financial
information (including the related notes
thereto) contained or incorporated by
reference in the Preliminary Prospectus
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
Preliminary Prospectus and the
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5
Prospectus any material loss or
interference with its business from fire,
explosion, flood or other calamity, whether
or not covered by insurance, or from
any labor dispute or court or governmental
action, order or decree, otherwise
than as set forth in the Preliminary
Prospectus and the Prospectus; and, since
the respective dates as of which
information is given in the Registration
Statement, the Preliminary Prospectus and
the Prospectus, (i) except as set
forth on Schedule III to the applicable
Pricing Agreement, there has not been
any change in the beneficial interests of
the Parent Guarantor (other than
issuances of beneficial interests (A)
pursuant to equity-based awards granted in
the ordinary course of business to trustees
or employees of the Parent Guarantor
or the Operating Partnership, (B) upon
exercise of options and upon conversion
or redemption of convertible or redeemable
securities, in each case which were
outstanding as of the date of the latest
audited financial statements included
or incorporated by reference in the
Preliminary Prospectus and the Prospectus,
and (C) upon the exchange of Operating
Partnership interests for beneficial
interests in the Parent Guarantor) or in
the partnership interests in the
Operating Partnership or the capital stock,
partnership, membership or
beneficial interests of any of its
consolidated subsidiaries, or any change in
the long-term debt of the Parent Guarantor
and its consolidated subsidiaries
(including, without limitation, the
Operating Partnership), taken as a whole,
and (ii) there has not been any material
adverse change in the business,
properties, management, results of
operations, financial condition or prospects
of the Parent Guarantor and its
consolidated subsidiaries (including, without
limitation, the Operating Partnership),
taken as a whole, except as set forth in
the Preliminary Prospectus 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 limited partnership power
and authority to own its properties
and conduct its business as described in
the Preliminary Prospectus 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 as
to require such qualification or
registration except where the failure to so
qualify or register or be in good
standing or subsisting could not reasonably
be expected, individually or in the
aggregate, to have a (i) material adverse
effect on the business, properties,
management, results of operations,
financial condition or prospects of the
Parent Guarantor and its subsidiaries
(including, without limitation, the
Operating Partnership), taken as a whole,
or (ii) an adverse effect on the
ability to perform on the part of, or the
performance by, the Operating
Partnership and the Guarantors of their
respective obligations hereunder and
under the Indenture, the Securities and the
Guarantees (collectively, a
"Material Adverse Effect"); the Parent
Guarantor has been duly formed and is
validly existing as a real estate
investment trust in good standing under the
laws of the State of Maryland, with trust
power and authority to own its
properties and conduct its business as
described in the Preliminary Prospectus
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 consolidated subsidiary
has been duly incorporated, formed or
organized and is validly existing as a
corporation or other entity in good
standing or subsisting under the laws of its
jurisdiction of incorporation, formation or
organization, with corporate,
partnership or limited liability company
power and authority to own its
properties and conduct its business as
described
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6
in the Preliminary Prospectus 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 Preliminary Prospectus 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 Preliminary Prospectus 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; all of the
issued shares of capital stock,
partnership, membership or beneficial interests
of each consolidated subsidiary have been
duly and validly authorized and
issued, are fully paid and, if applicable,
non-assessable and are owned directly
or indirectly by the Operating Partnership,
free and clear of all liens,
encumbrances or claims (collectively,
"Liens"); and the Parent Guarantor is the
sole general partner of the Operating
Partnership and its ownership percentage
in the Operating Partnership is as set
forth in the Preliminary Prospectus 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
Guarantors.
(k) The Indenture has been duly authorized by the Operating
Partnership and the Guarantors and
qualified under the Trust Indenture Act and,
at the Time of Delivery for such Designated
Securities, the Indenture shall
constitute a valid and legally binding
instrument enforceable against the
Operating Partnership and the Guarantors in
accordance with its terms, subject,
as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of
general applicability relating to or
affecting creditors' rights and to general
equity principles.
(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
shall have been duly executed,
authenticated, issued and delivered and
shall 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 Guarantees have been duly authorized by the Guarantors
and,
when the Securities are issued and
delivered pursuant to this Agreement, the
Guarantees shall have been duly executed,
issued and delivered and shall
constitute valid and legally binding
obligations of each of the Guarantors
enforceable in accordance with their terms,
subject, as to enforcement, to
bankruptcy, insolvency, reorganization and
other laws of general applicability
relating to or affecting creditors' rights
and to general equity principles.
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7
(n) The Indenture conforms, and the Designated Securities and
the
Guarantees shall 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 consolidated
subsidiaries (including, without
limitation, the Operating Partnership) is, or
with the giving of notice or lapse of time
or both would be, in violation of or
in default under its declaration of trust,
charter, by-laws, partnership
agreement, operating agreement or other
organizational documents, as applicable,
except where, in the case of any subsidiary
that is not the Operating
Partnership or a Subsidiary Guarantor, the
violation or default could not
reasonably be expected, individually or in
the aggregate, to have a Material
Adverse Effect, or any indenture, mortgage,
deed of trust, loan agreement or
other agreement or instrument to which the
Parent Guarantor or any of its
consolidated subsidiaries (including,
without limitation, the Operating
Partnership) is a party or by which it or
any of them or any of their respective
properties is bound, except where the
violation or default could not reasonably
be expected, individually or in the
aggregate, to have a Material Adverse
Effect; the issue and sale of the
Designated Securities, the issue of the
Guarantees, the compliance by the Operating
Partnership and the Guarantors with
all of the provisions of the Designated
Securities, the Guarantees, the
Indenture, this Agreement and the
applicable Pricing Agreement and the
consummation of the transactions herein and
therein contemplated shall not
conflict with or result in a breach or
violation of any of the terms or
provisions of, or constitute a default
under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or
instrument to which the Parent
Guarantor or any of its subsidiaries
(including, without limitation, the
Operating Partnership) is a party or by
which the Parent Guarantor or any of its
subsidiaries (including, without
limitation, the Operating Partnership) is bound
or to which any of the property or assets
of the Parent Guarantor or any of its
subsidiaries (including, without
limitation, the Operating Partnership) is
subject, nor shall such actions result in
any violation of the provisions of the
declaration of trust or the by-laws of the
Parent Guarantor, the certificate of
limited partnership or partnership
agreement of the Operating Partnership, the
charter or by-laws or other organizational
documents of any of the Subsidiary
Guarantors or any 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 Guarantees or the consummation by
the Operating Partnership and the
Guarantors of the other transactions
contemplated by this Agreement, the
applicable Pricing Agreement or the
Indenture, except such as have been, or
shall have been prior to the Time of
Delivery, obtained under the Securities Act
or the Trust Indenture Act and such
consents, approvals, authorizations, orders,
registrations or qualifications as may be
required under state securities or
Blue Sky laws in connection with the
purchase and distribution of the Designated
Securities by the Underwriters.
(p) Other than as set forth in the Preliminary Prospectus and
the
Prospectus, there are no legal or
governmental proceedings pending to which the
Parent Guarantor or any of its consolidated
subsidiaries (including, without
limitation, the Operating Partnership) is a
party or to which any property of
the Parent Guarantor or any of its
consolidated subsidiaries (including, without
limitation, the Operating Partnership) is
subject, which could reasonably be
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8
expected, individually or in the aggregate,
to have a Material Adverse Effect,
and, to the knowledge of the Operating
Partnership and the Guarantors, no such
proceedings are threatened or contemplated
by governmental authorities or
threatened by others.
(q) (i) 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; (ii)
PricewaterhouseCoopers LLP, the independent
registered public accounting firm of
Prentiss Properties Trust, which has
audited certain financial statements of
Prentiss Properties Trust and its
consolidated subsidiaries, is an independent
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; and (iii) Ernst
& Young, the independent registered
public accounting firm of The Rubenstein
Company, L.P., which has audited
certain financial statements of The
Rubenstein Company, L.P. 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 is material to their
respective businesses, in each case
free and clear of all Liens except (A)
those Liens which have been reflected
generally or in the aggregate in the
financial statements of the Operating
Partnership and of the Parent Guarantor as
disclosed in the Preliminary
Prospectus and the Prospectus or as are
described specifically, generally or in
the aggregate in the Preliminary Prospectus
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) None of the Operating Partnership, the Parent Guarantor or
any
of the Subsidiary Guarantors is, and after
giving effect to each offering and
sale of the Securities and the issuance of
the Guarantees is, or shall be
required to register as, an "investment
company" under the Investment Company
Act of 1940, as amended (the "Investment
Company Act").
(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 Guarantees shall continue to be,
organized and operated in conformity with
the requirements for qualification of the
Parent Guarantor as a real estate
investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended
(the "Code"), and the proposed method of
operation of the Parent Guarantor shall
enable the Parent Guarantor to continue to
meet the requirements for
qualification and taxation as a REIT under
the Code.
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9
(u) The Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the
Operating Partnership) (A) have filed all
federal, state, local and foreign tax
returns that are required to be filed or
have requested extensions thereof except in
any case in which the failure so to
file could not reasonably be expected,
individually or in the aggregate, to have
a Material Adverse Effect, except as set
forth in the Preliminary Prospectus and
the Prospectus, and (B) have paid all taxes
required to be paid by them and any
other assessment, fine or penalty levied
against them, to the extent that any of
the foregoing is due and payable, except
for any such assessment, fine or
penalty that is currently being contested
in good faith or as could not
reasonably be expected, individually or in
the aggregate, to have a Material
Adverse Effect, except as set forth in the
Preliminary Prospectus and the
Prospectus.
(v) The Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the
Operating Partnership) possess all licenses,
certificates, permits and other
authorizations issued by the appropriate
federal, state, local or foreign regulatory
authorities necessary to conduct
their respective businesses, and neither
the Parent Guarantor nor any such
consolidated subsidiary has received any
notice of proceedings relating to the
revocation or modification of any such
certificate, authorization or permit
which, individually or in the aggregate, if
the subject of an unfavorable
decision, ruling or finding, could
reasonably be expected to have a Material
Adverse Effect on the Parent Guarantor and
its subsidiaries (including, without
limitation, the Operating Partnership),
taken as a whole, except as set forth in
the Preliminary Prospectus and the
Prospectus.
(w) No labor dispute or disturbance involving the employees of
the
Parent Guarantor or any of its subsidiaries
(including, without limitation, the
Operating Partnership) or of any other
entity exists or is threatened or
imminent that could reasonably be expected,
individually or in the aggregate, to
have a Material Adverse Effect, except as
set forth in the Preliminary
Prospectus and the Prospectus.
(x) The Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the
Operating Partnership) (A) are in compliance
with applicable federal, state, local and
foreign laws and regulations relating
to the protection of human health and
safety, the environment or hazardous or
toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"),
(B) have received, and are in compliance
with, all permits, licenses or other
approvals required of them under applicable
Environmental Laws to conduct their
respective businesses and (C) have not
received notice of any actual or
potential liability under any environmental
law, except in each case where such
non-compliance with Environmental Laws,
failure to receive or comply with
required permits, licenses or other
approvals, or liability could not reasonably
be expected, individually or in the
aggregate, to have a Material Adverse
Effect, except as set forth in the
Preliminary Prospectus and the Prospectus;
except as set forth in the Preliminary
Prospectus and the Prospectus, neither
the Parent Guarantor nor any of its
consolidated subsidiaries (including,
without limitation, the Operating
Partnership) has been named as a "potentially
responsible party" under the Comprehensive
Environmental Response, Compensation,
and Liability Act of 1980, as amended; in
the ordinary course of its business,
the Operating Partnership and the Parent
Guarantor periodically review the
effect of Environmental Laws on the
business, operations and properties of the
Operating Partnership, Parent Guarantor and
their respective consolidated
subsidiaries, in the course of which they
identify and evaluate associated costs
and liabilities (including, without
limitation, any capital or operating
<PAGE>
10
expenditures required for clean-up, closure
of properties or compliance with
Environmental Laws, or any permit, license
or approval, any related constraints
on operating activities and any potential
liabilities to third parties). On the
basis of such review, the Operating
Partnership and the Parent Guarantor have
reasonably concluded that such associated
costs and liabilities could not
reasonably be expected, individually or in
the aggregate, to have a Material
Adverse Effect, except as set forth in the
Preliminary Prospectus and the
Prospectus.
(y) The minimum funding standard under Section 302 of the
Employee
Retirement Income Security Act of 1974, as
amended, and the regulations and
published interpretations thereunder
("ERISA"), has been satisfied by each
"pension plan" (as defined in Section 3(2)
of ERISA) which has been established
or maintained by Parent Guarantor and/or
one or more of its subsidiaries
(including, without limitation, the
Operating Partnership), and the trust
forming part of each such plan which is
intended to be qualified under Section
401 of the Code is so qualified; each of
the Parent Guarantor and its
subsidiaries (including, without
limitation, the Operating Partnership) has
fulfilled its obligations, if any, under
Section 515 of ERISA; neither the
Parent Guarantor nor any of its
subsidiaries (including, without limitation, the
Operating Partnership) maintains or is
required to contribute to a "welfare
plan" (as defined in Section 3(1) of ERISA)
which provides retiree or other
post-employment welfare benefits or
insurance coverage (other than "continuation
coverage" (as defined in Section 602 of
ERISA)); each pension plan and welfare
plan established or maintained by the
Parent Guarantor and/or one or more of its
subsidiaries (including, without
limitation, the Operating Partnership) is in
compliance in all material respects with
the currently applicable provisions of
ERISA; neither the Parent Guarantor nor any
of its subsidiaries (including,
without limitation, the Operating
Partnership) has incurred or could reasonably
be expected to incur any withdrawal
liability under Section 4201 of ERISA, any
liability under Section 4062, 4063, or 4064
of ERISA, or any other liability
under Title IV of ERISA; and the assets of
the Parent Guarantor and its
subsidiaries (including, without
limitation, the Operating Partnership) do not,
and as of the Time of Delivery shall not,
constitute "plan assets" under ERISA.
(z) The Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the
Operating Partnership) are currently in
compliance with all presently applicable
provisions of the Americans with
Disabilities Act, as amended, except for
any such non-compliance that could not
reasonably be expected, individually or in
aggregate, to have a Material Adverse
Effect.
(aa) 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
related to loans and Sections 302 and
906 related to certifications.
(bb) 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
<PAGE>
11
Preliminary Prospectus or the Prospectus
which is not so described or is not
described as required; and there are no
outstanding loans, advances (except
normal advances for business expenses in
the ordinary course of business) or
guarantees of indebtedness by the Parent
Guarantor to or for the benefit of any
of the trustees or officers of the Parent
Guarantor or any of their respective
family members, except as disclosed in (or
in documents incorporated into) the
Registration Statement, the Preliminary
Prospectus and the Prospectus.
(cc) The Parent Guarantor and its consolidated subsidiaries
(including, without limitation, the
Operating Partnership) maintain a system of
internal accounting controls sufficient to
provide reasonable assurance that (i)
transactions are executed in accordance
with management's general or specific
authorizations; (ii) transactions are
recorded as necessary to permit
preparation of financial statements in
conformity with generally accepted
accounting principles and to maintain asset
accountability; (iii) access to
assets is permitted only in accordance with
management's general or specific
authorization; and (iv) the recorded
accountability for assets is compared with
the existing assets at reasonable intervals
and appropriate action is taken with
respect to any differences.
(dd) The Parent Guarantor and each of its consolidated
subsidiaries
(including, without limitation, the
Operating Partnership) are insured by
insurers of recognized financial
responsibility against such losses and risks
and in such amounts as are prudent and
customary in the businesses in which they
are engaged; to the knowledge of the Parent
Guarantor and its subsidiaries
(including, without limitation, the
Operating Partnership) all policies of
insurance insuring the Parent Guarantor and
its consolidated subsidiaries
(including, without limitation, the
Operating Partnership) or their respective
businesses, assets, employees, officers and
directors are in full force and
effect; the Parent Guarantor and its
consolidated subsidiaries (including,
without limitation, the Operating
Partnership) are in compliance with the terms
of such policies and instruments in all
material respects; neither the Parent
Guarantor nor any of its consolidated
subsidiaries (including, without
limitation, the Operating Partnership) has
received notice from any insurer or
agent of such insurer that capital
improvements or other expenditures are
required or necessary to be made in order
to continue such coverage; and neither
the Parent Guarantor nor any of its
consolidated subsidiaries (including,
without limitation, the Operating
Partnership) has any reason to believe that it
shall not be able to renew its existing
insurance coverage as and when such
coverage expires or to obtain similar
coverage from similar insurers as may be
necessary to continue its business at a
cost that could not reasonably be
expected, individually or in aggregate, to
have a Material Adverse Effect,
except as set forth in the Preliminary
Prospectus and the Prospectus.
(ee) No consolidated subsidiary of the Parent Guarantor
(including,
without limitation, the Operating
Partnership) is currently prohibited, directly
or indirectly, from paying any dividends to
the Operating Partnership, from
making any other distribution on such
subsidiary's capital stock or other
equity, from repaying to the Operating
Partnership any loans or advances to such
subsidiary from the Operating Partnership,
or from transferring any of such
subsidiary's property or assets to the
Operating Partnership or any other
subsidiary of the Operating Partnership,
except that, as set forth in the
Preliminary Prospectus and the Prospectus,
each of the consolidated subsidiaries
of the Parent Guarantor set forth in
Schedule IV to the applicable Pricing
Agreement require the consent of their
respective joint venture partners as a
condition to making such payments or
transfers and that following an event of
default under the
<PAGE>
12
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.
(ff) Neither the Parent Guarantor nor any of its affiliates
(including, without limitation, the
Operating Partnership) does any business
with the government of Cuba or with any
person or affiliate located in Cuba
within the meaning of Section 517.075,
Florida Statutes.
(gg) The statistical and market-related data, if any, included
in
the Preliminary Prospectus and the
Prospectus is based on or derived from
sources which the Operating Partnership and
the Guarantors believe, in good
faith, to be reliable and accurate in all
material respects.
(hh) The Parent Guarantor is not an "ineligible issuer" (as
defined
in Rule 405 under the Securities Act) and
is a "well-known seasoned issuer" (as
defined in Rule 405 under the Securities
Act), in each case at the times
relevant under the Securities Act in
connection with the offering of the
Designated Securities. Each of the
Operating Partnership and the Subsidiary
Guarantors is not an ineligible issuer at
the times relevant under the
Securities Act in connection with the
offering of the Designated Securities.
In addition to the foregoing
representations and warranties set forth in this
Section 2, the Parent Guarantor and the
Operating Partnership represent and
warrant separately to the Underwriters, to
the fullest extent applicable, to the
same effect as the representations and
warranties set forth in this Section, but
with respect to Prentiss Properties Trust
and its consolidated subsidiaries (it
being understood and agreed that, in giving
or making such representations and
warranties with respect to Prentiss
Properties Trust and its consolidated
subsidiaries, the Parent Guarantor and the
Operating Partnership are doing so
solely to the best of their knowledge).
3. Offer
and Sale of 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 and the
Guarantees thereof, the several
Underwriters propose to offer such Designated
Securities for sale upon the terms and
conditions set forth in the Prospectus.
4. 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, shall be
delivered by or on behalf of the Operating
Partnership to the Representatives
for the account of such Underwriter,
against payment by such Underwriter or on
its behalf of the purchase price therefor
by wire transfer in federal or other
same day funds, payable to the order of the
Operating Partnership in the funds
specified in such Pricing Agreement, all in
the manner and at the place and time
and date specified in such Pricing
Agreement or at such other place and time and
date as the Representatives and the
Operating Partnership may agree upon in
writing, such time and date being herein
called the "Time of Delivery" for such
Designated Securities.
<PAGE>
13
5. Further
Agreements of he Operating Partnership and Guarantors. The
Operating Partnership and the Guarantors,
jointly and severally, agree with each
of the Underwriters of any Designated
Securities as follows:
(a) To prepare the Prospectus in relation to the applicable
Designated Securities and the Guarantees in
a form approved by the
Representatives and to file such Prospectus
pursuant to Rule 424(b) under the
Securities Act no later than the
Commission's close of business on the second
business day following the execution and
delivery of the Pricing Agreement
relating to the applicable Designated
Securities or, if applicable, such earlier
time as may be required by Rule 424(b); to
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 shall 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 shall 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 or the
Guarantors with the Commission
pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in
connection with the offering or sale
of such Designated Securities; and during
such same period to advise the
Representatives, promptly after it receives
notice thereof, of (i) the time when
any amendment to the Registration Statement
has been filed or becomes effective
or any prospectus supplement to the
Prospectus or any amended Prospectus has
been filed with the Commission, (ii) the
issuance by the Commission of any stop
order or any order preventing or suspending
the use of any prospectus relating
to such Designated Securities, (iii) the
suspension of the qualification of such
Designated Securities for offering or sale
in any jurisdiction, (iv) the
initiation or threatening of any proceeding
for any such purpose or pursuant to
Section 8A of the Securities Act, or (v)
any request by the Commission for the
amending or supplementing of the
Registration Statement or Prospectus or for
additional information; and, in the event
of the issuance of any such stop order
or of any such order preventing or
suspending the use of any prospectus relating
to such Designated Securities or suspending
any such qualification, to promptly
use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to
qualify such Designated Securities and
Guarantees for offering and sale under the
securities laws of such jurisdictions
within the United States as the
Representatives may request and to comply with
such laws so as to permit the continuance
of sales and dealings therein for as
long as may be necessary to complete the
distribution of such Designated
Securities and Guarantees; provided,
however, that in connection therewith
neither the Operating Partnership nor any
of the Guarantors shall be required to
qualify as a foreign corporation or to file
a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with (i) two copies of the
Registration Statement (as originally
filed) and each amendment thereto, and all
exhibits and documents incorporated or
<PAGE>
14
deemed to be incorporated by reference
therein; (ii) copies of the Time of Sale
Information; and (iii) copies of the
Prospectus in such quantities as the
Representatives may from time to time
reasonably request, and, if the delivery
of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under
the Securities Act) is required at any time
in connection with the offering or
sale of the Designated Securities and the
issuance of the Guarantees; if at such
time any event shall have occurred as a
result of which the Prospectus as then
amended or supplemented would include an
untrue statement of a material fact or
omit to state any material fact necessary
in order to make the statements
therein, in the light of the circumstances
under which they were made when such
Prospectus is delivered, not misleading, or
if for any other reason it shall be
necessary during such same period to amend
or supplement the Prospectus or to
file under the Exchange Act any document
incorporated or deemed to be
incorporated by reference in the Prospectus
in order to comply with the
Securities Act, the Exchange Act or the
Trust Indenture Act, to notify the
Representatives and, subject to Section
5(a) hereof, to prepare and file such
document and to furnish without charge to
each Underwriter and to any dealer in
securities as many copies as the
Representatives may from time to time
reasonably request of an amended Prospectus
or a prospectus supplement to the
Prospectus, which shall correct such
statement or omission or effect such
compliance; and if at any time prior to the
Time of Delivery any event shall
have occurred as a result of which the Time
of Sale Information as then amended
or supplemented would include any untrue
statement of a material fact or omit to
state any material fact necessary in order
to make the statements therein, in
the light of the circumstances under which
they were made, not misleading, or if
for any other reason it is necessary to
amend or supplement the Time of Sale
Information to comply with the Securities
Act, the Exchange Act or the Trust
Indenture Act, to notify the
Representatives thereof and, subject to Section
5(a) hereof, prepare and file with the
Commission (to the extent required) and
to furnish to the Underwriters and to any
dealer as the Representatives may
reasonably request, such amendments or
supplements to the Time of Sale
Information as will correct such statement
or omission or effect such
compliance;
(d) During the period beginning from the date of the Pricing
Agreement for the Designated Securities and
continuing to and including the date
specified in the Pricing Agreement for such
Designated Securities, not to offer,
sell, contract to sell or otherwise dispose
of any debt securities of the
Operating Partnership or any of the
Guarantors that mature more than one year
after the Time of Delivery and that are
substantially similar to such Designated
Securities, without the prior written
consent of the Representatives;
(e) To make generally available to its security holders as soon
as
practicable, but in any event not later
than eighteen months after the effective
date of the Registration Statement (as
defined in Rule 158(c) under the
Securities Act), an earnings statement of
the Operating Partnership and its
subsidiaries (which need not be audited)
complying with Section 11(a) of the
Securities Act and the rules and
regulations of the Commission thereunder
(including, at the option of the Operating
Partnership, Rule 158);
(f) To apply the net proceeds from the sale of the Designated
Securities as described in the Preliminary
Prospectus and the Prospectus;
(g) Not to take, directly or indirectly, any action designed to
or
that would constitute or that might
reasonably be expected to cause or result
in, under the Exchange Act or
<PAGE>
15
otherwise, stabilization or manipulation,
which is contrary to any applicable
law, of the price of any security of the
Operating Partnership to facilitate the
sale or resale of the Securities;
(h) Not to be or become, at any time prior to the expiration of
three years after the Time of Delivery, an
"investment company" or an entity
"controlled" by an "investment company", as
such terms are defined in the
Investment Company Act;
(i) In the case of the Parent Guarantor, to use its best efforts
to
continue to be organized and operated in
conformity with the requirements for
qualification as a REIT under the Code for
each of its taxable years for so long
as the Board of Trustees of the Parent
Guarantor deems it in the best interests
of the Parent Guarantor's shareholders to
remain so qualified and not to be
materially and adversely against the
interests of the holders of the Designated
Securities to fail to be so qualified;
and
(j) To retain, pursuant to reasonable procedures developed in
good
faith, copies of each Issuer Free Writing
Prospectus that is not filed with the
Commission in accordance with Rule 433
under the Securities Act.
6. Certain
Agreements of the Underwriters Regarding Free Writing
Prospectuses. Each Underwriter, severally
and not jointly, hereby represents and
warrants to, and agrees with, the Operating
Partnership and the Guarantors as
follows:
(a) Such Underwriter has not used, authorized, referred to or
participated in the planning for use of,
and shall not use, authorize, refer to
or participate in the planning for use of,
any "free writing prospectus" (as
defined in Rule 405 under the Securities
Act) except for (i) a free writing
prospectus that, solely as a result of use
by such Underwriter, would not
trigger an obligation to file such free
writing prospectus with the Commission
pursuant to Rule 433 (other than a free
writing prospectus under Section 6(b)
below), (ii) any Issuer Free Writing
Prospectus listed on Schedule II to the
applicable Pricing Agreement or prepared
pursuant to Section 2(e) or Section
5(a) hereof, or (iii) any free writing
prospectus prepared by such Underwriter
and approved by the Operating Partnership
in advance in writing (each such free
writing prospectus referred to in clauses
(i) or (iii), an "Underwriter Free
Writing Prospectus");
(b) Such Underwriter has not used, and shall not, without the
prior
written consent of the Operating
Partnership, use, any free writing prospectus
that contains the final terms of the
Designated Securities unless such terms
have previously been included in a free
writing prospectus filed with the
Commission; provided, however, that
Underwriters may use a term sheet
substantially in the form of Annex II
hereto without the prior consent of the
Operating Partnership;
(c) Such Underwriter shall, pursuant to reasonable procedures
developed in good faith, retain copies of
each free writing prospectus used or
referred to by it, in accordance with Rule
433 under the Securities Act; and
(d) Such Underwriter is not subject to any pending proceeding
under
Section 8A of the Securities Act with
respect to the offering of the Designated
Securities (and shall promptly notify the
Operating Partnership if any such
proceeding against it is initiated during
the period in
<PAGE>
16
which a prospectus (or in lieu thereof, a
notice pursuant to Rule 173(a) of the
Securities Act) is required to be delivered
in connection with sales of
Designated Securities).
7. Payment of Expenses. The Operating Partnership and the
Guarantors, jointly and severally, covenant
and agree with the several
Underwriters that the Operating Partnership
and the Guarantors shall pay or
cause to be paid the following: (i) the
fees, disbursements and expenses of the
Operating Partnerships and the Guarantors'
counsel and accountants in connection
with the registration of the Securities and
the Guarantees under the Securities
Act; (ii) all other expenses in connection
with the preparation, printing and
filing of the Registration Statement, any
preliminary prospectus, the
Preliminary Prospectus and the Prospectus
and all other amendments and
supplements thereto, and any Issuer Free
Writing Prospectus. and the mailing and
delivering of copies thereof to the
Underwriters and dealers; (iii) the cost of
printing and producing any Agreement among
Underwriters, this Agreement, any
Pricing Agreement, the Indenture, any Blue
Sky and legal investment memoranda,
closing documents (including any
compilations thereof) and any other documents
so long as such documents have been
approved by the Operating Partnership or the
Parent Guarantor in connection with the
offering, purchase, sale and delivery of
the Securities and the Guarantees; (iv) all
expenses in connection with the
qualification of the Securities for
offering and sale under state securities
laws as provided in Section 5(b) hereof,
including the fees and disbursements of
the counsel to the Underwriters, in
connection with such qualification and in
connection with any Blue Sky and legal
investment surveys; (v) any fees charged
by securities rating agencies for rating
the Securities; (vi) any filing fees
incident to, and the reasonable fees and
disbursements of the counsel to the
Underwriters, in connection with any
required review by the National Association
of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vii)
the cost of preparing the Securities and
the Guarantees; (viii) the reasonable
fees and expenses of any Trustee identified
in a Pricing Agreement (the
"Trustee") and any agent of any Trustee and
any transfer or paying agent of the
Operating Partnership and the Guarantors
and the reasonable fees and
disbursements of counsel to the Trustee or
such agent in connection with any
Indenture, the Securities and the
Guarantees; (ix) any transfer or similar taxes
payable in connection with the issuance,
sale and delivery of the Designated
Securities and the Guarantees to the
Underwriters; and (x) all other costs and
expenses incident to the performance of its
obligations hereunder, which are not
otherwise specifically provided for in this
Section. It is understood, however,
that, except as otherwise specifically
provided in this Section 7 and Sections 9
and 12 hereof, the Underwriters shall pay
all of their own costs and expenses,
including the fees of the counsel to the
Underwriters, transfer taxes on resale
of any of the Securities by them, and any
advertising expenses connected with
any offers they may make.
8. Conditions of Underwriters' Obligations. The obligations of
the
Underwriters of any Designated Securities
under the Pricing Agreement relating
to such Designated Securities shall be
subject, in the Representatives'
discretion, to the condition that all
representations and warranties and other
statements of the Operating Partnership and
the Guarantors included or
incorporated by reference in the Pricing
Agreement relating to such Designated
Securities are true and correct at and as
of the Time of Delivery for such
Designated Securities and the condition
that prior to such Time of Delivery the
Operating Partnership and the Guarantors
shall have performed all of their
obligations hereunder theretofore to be
performed, and the following additional
conditions:
<PAGE>
17
(a) (i) The Preliminary Prospectus and the Prospectus in relation
to
the applicable Designated Securities shall
have been filed with the Commission
pursuant to Rule 424(b) under the
Securities Act within the applicable time
period prescribed for such filing by the
rules and regulations under the
Securities Act and in accordance with
Section 5(a) hereof; (ii) each Issuer Free
Writing Prospectus relating to the
Designated Securities (including, without
limitation, an Issuer Free Writing
Prospectus setting forth the final terms of
the Designated Securities) shall have been
filed with the Commission pursuant to
Rule 433 under the Securities Act within
the applicable time period prescribed
for such filing by Rule 433 and in
accordance with Section 5(a) hereof; (iii) no
stop order suspending the effectiveness of
the Registration Statement or any
part thereof shall have been issued and no
proceeding for that purpose or
pursuant to Section 8A of the Securities
Act shall have been initiated or
threatened by the Commission; and (iv) all
requests for additional information
on the part of the Commission shall have
been complied with to the reasonable
satisfaction of the Representatives;
(b) Simpson Thacher & Bartlett LLP, counsel to the
Underwriters,
shall have furnished to the Representatives
such opinion or opinions, dated the
Time of Delivery, with respect to the good
standing status of the Operating
Partnership and the Guarantors, the
Indenture, the Securities, the Guarantees,
the Registration Statement, the Prospectus,
the Time of Sale Information and
such other related matters as the
Representatives may reasonably request, and
such counsel shall have received such
documents and information as they may
reasonably request to enable them to pass
upon such matters;
(c) Pepper Hamilton LLP, counsel to the Operating Partnership
and
the Guarantors, shall have furnished to the
Representatives their written
opinion dated the Time of Delivery in form
and substance reasonably satisfactory
to the Representatives, to the following
effect:
(i) The Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under
the
laws of the State of Delaware, with limited partnership power
and
authority to own its properties and conduct its business as
described in the Preliminary Prospectus and the Prospectus;
(ii) The Parent Guarantor has been duly formed and is validly
existing as a real estate investment trust in good standing
under
the laws of the State of Maryland, with trust power and authority
to
own its properties and conduct its business as described in the
Preliminary Prospectus and the Prospectus;
(iii) Each Subsidiary Guarantor has been duly incorporated,
formed or organized and is validly existing as a corporation or
other entity in good standing under the laws of its jurisdiction
of
incorporation, formation or organization, with corporate,
limited
liability company or partnership power and authority to own its
properties and conduct its business as described in the
Preliminary
Prospectus and the Prospectus; and all of the issued shares of
capital stock, limited liability company, partnership or
beneficial
interests of each Subsidiary Guarantor have been duly and
validly
authorized and issued, are fully paid and, as applicable,
non-assessable;
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18
(iv) All of the issued partnership interests of the Operating
Partnership have been duly and validly authorized and issued and
are
fully paid; all of the issued beneficial interests of the
Parent
Guarantor have been duly and validly authorized and issued and
are
fully paid; and the Parent Guarantor is the sole general partner
of
the Operating Partnership and its percentage interest and
ownership
in the Operating Partnership is as set forth in the Preliminary
Prospectus and the Prospectus;
(v) The Operating Partnership has been duly qualified or
registered as a foreign partnership for the transaction of
business
and is in good standing or subsisting under the laws of each
other
jurisdiction in which it owns or leases properties, or conducts
any
business so as to require such qualification or registration,
except
where the failure to so qualify or register or be in good
standing
or subsisting could not reasonably be expected, individually or
in
the aggregate, to have a Material Adverse Effect; the Parent
Guarantor has been duly qualified or registered as a foreign
trust
for the transaction of business and is in good standing or
subsisting under the laws of each other jurisdiction in which
it
owns or leases properties or conducts any business so as to
require
such qualification or registration, except where the failure to
so
qualify or register or be in good standing or subsisting could
not
reasonably be expected, individually or in the aggregate, to have
a
Material Adverse Effect; and each Subsidiary Guarantor has been
duly
qualified or registered as a foreign corporation or other entity
for
the transaction of business and is in good standing or
subsisting
under the laws of each other jurisdiction in which it owns or
leases
properties or conducts any business so as to require such
qualification or registration, except where the failure to so
qualify or register or be in good standing or subsisting could
not
reasonably be expected, individually or in the aggregate, to have
a
Material Adverse Effect (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local
counsel
and in respect of matters of fact upon certificates of officers
of
the Operating Partnership and Guarantors, provided that such
counsel
shall state that they believe that both the Representatives and
they
are justified in relying upon such opinions and certificates);
(vi) To such counsel's knowledge and other than as set forth
in the Preliminary Prospectus 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 of which any property of
the
Parent Guarantor or any of its subsidiaries (including, without
limitation, the Operating Partnership) is the subject, which
are
required, individually or in the aggregate, to be disclosed in
the
Registration Statement, the Preliminary Prospectus or the
Prospectus
which are not fairly described therein as required; and, to
such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
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19
(vii) This Agreement and the applicable Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Operating Partnership and the
Guarantors;
(viii) The Indenture has been duly authorized, executed and
delivered by the Operating Partnership and the Guarantors and
constitutes a valid and legally binding instrument, enforceable
against the Operating Partnership and the Guarantors in
accordance
with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, receivership, moratorium or other
laws
(including, without limitation, the effect of statutory and
other
laws regarding fraudulent conveyances, fraudulent transfers and
preferential matters) and as may be limited by the exercise of
judicial discretion and application of principles of equity,
including, without limitation, requirements of good faith, fair
dealing, conscionability and materiality (regardless of whether
the
enforceability of the Indenture is considered in a proceeding at
law
or equity); and the Indenture has been duly qualified under the
Trust Indenture Act;
(ix) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute
valid
and legally binding obligations of the Operating Partnership
entitled to the benefits provided by the Indenture and are
enforceable against the Operating Partnership in accordance with
the
terms of the Designated Securities, subject, as to enforcement,
to
bankruptcy, insolvency, reorganization, receivership, moratorium
or
other laws (including, without limitation, the effect of
statutory
and other laws regarding fraudulent conveyances, fraudulent
transfers and preferential matters) and as may be limited by
the
exercise of judicial discretion and application of principles
of
equity, including, without limitation, requirements of good
faith,
fair dealing, conscionability and materiality (regardless of
whether
the enforceability of the Designated Securities is considered in
a
proceeding at law or equity);
(x) The Guarantees have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and
legally
binding obligations of the Guarantors and are enforceable
against
the Guarantors in accordance with the terms of the Guarantees,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws
(including,
without limitation, the effect of statutory and other laws
regarding
fraudulent conveyances, fraudulent transfers and preferential
matters) and as may be limited by the exercise of judicial
discretion and application of principles of equity, including,
without limitation, requirements of good faith, fair dealing,
conscionability and materiality (regardless of whether the
enforceability of the Guarantees is considered in a proceeding
at
law or equity);
(xi) The Designated Securities, the Guarantees and the
Indenture conform in all material respects to the descriptions
thereof in the Preliminary Prospectus and the Prospectus as
amended
or supplemented;
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20
(xii) The issue and sale of the Designated Securities, the
issue of the Guarantees, the compliance by the Operating
Partnership
and the Guarantors with all of the provisions of the Desig
