To the
Representatives of the
several Underwriters named in the
Pricing Agreement hereinafter described
From time to time
Brandywine Realty Trust, a Maryland real estate investment trust
(the “Company”), and Brandywine Operating Partnership,
L.P., a Delaware limited partnership and a subsidiary of the
Company (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, for
the Company 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 common shares
of beneficial interest, par value $0.01 per share (the
“Common Shares”) specified in Schedule I to such
Pricing Agreement (with respect to such Pricing Agreement, the
“Firm Shares”). If specified in such Pricing Agreement,
the Company may grant to the Underwriters the right to purchase at
their election an additional number of Common Shares, specified in
such Pricing Agreement as provided in Section 3 hereof (the
“Optional Shares”). The Firm Shares and the Optional
Shares, if any, which the Underwriters elect to purchase pursuant
to Section 3 hereof are herein collectively called the
“Designated Shares”).
The terms and
conditions of any particular issuance of Designated Shares will be
as specified in the Pricing Agreement relating thereto.
1.
Introduction . Particular sales of Designated Shares may be
made from time to time to the Underwriters of such Designated
Shares, for which the firms designated as representatives of the
Underwriters of such Designated Shares 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”) will not be construed as an obligation of
the Company to offer, issue or sell any of the Common Shares or as
an obligation of any of the Underwriters to purchase the Common
Shares. The obligation of the Company to issue and sell any of the
Common Shares and the obligation of any of the Underwriters to
purchase any of the Common Shares will be evidenced by the Pricing
Agreement with respect to the Designated Shares specified therein.
Each Pricing Agreement will, among other things, specify the
aggregate number of Firm Shares, the maximum number of Optional
Shares, if any, the initial public offering price of such Firm
Shares and Optional Shares or the manner of determining such
price,
1
the purchase
price to the Underwriters of such Designated Shares, the names of
the Underwriters of such Designated Shares, the names of the
Representatives of such Underwriters, the number of such Designated
Shares to be purchased by each Underwriter, and the underwriting
discount and commission, if any, payable to the Underwriters with
respect thereto and will set forth the date, time and manner of
delivery of such Firm Shares and Optional Shares, if any, and
payment therefor. The Pricing Agreement will also specify (to the
extent not set forth in the registration statement and prospectus
with respect thereto) the terms and conditions of such Designated
Shares. The 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 will be several and
not joint.
2.
Representations, Warranties and Agreements of the Company.
The Company and the Operating Partnership, 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 Common Shares has been (i) prepared by the
Company and the Operating Partnership 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 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 Company proposes 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 has
previously advised you of all information (financial and other)
with respect to the Company 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 exhibits thereto, any prospectus
supplement relating to the Designated Shares 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 time of its 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”; and 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 Shares, in the form 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 Shares, in the form filed with the Commission pursuant
to Rule 424(b), is hereinafter referred to as the
“Prospectus.” If the Company will have filed an
abbreviated registration statement to register additional Common
Shares pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration Statement”), then any
reference herein to the term “Registration Statement”
will be deemed to include such
2
Rule 462
Registration Statement. Any reference herein to the Base
Prospectus, the Preliminary Prospectus or the Prospectus will 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 will
be deemed to refer to and include any post-effective amendment to
the Registration Statement, any prospectus supplement relating to
the Designated Shares 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 will be deemed to include any annual report
on Form 10-K of the Company or the Operating Partnership 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 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; and 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 Common Shares or
any amendment thereto or pursuant to Rule 424(a) under the
Securities Act) and when any amendment thereof or supplement
thereto was first filed with the Commission, such Preliminary
Prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of
the Securities Act and the rules and regulations of the Commission
thereunder and did not contain an untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading; provided,
3
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 Company by an
Underwriter of Designated Shares through the Representatives
expressly for use in the Preliminary Prospectus or the Prospectus
relating to such Designated Shares.
(d) Prior
to or at the time when sales of the Designated Shares were first
made in accordance with the applicable Pricing Agreement (the
“Time of Sale”), the Company prepared the Preliminary
Prospectus and each “free writing prospectus” (as
defined pursuant to Rule 405 under the Securities Act), if
any, specified in Schedule II to such Pricing Agreement
(together with the number of Designated Shares and the initial
offering price to public set forth in Schedule I to such
Pricing Agreement, 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 Company by an Underwriter of Designated Shares 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) The
Company (including their agents and representatives, but excluding
the Underwriters in their capacity as such) has not 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 Shares (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 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 Company in writing by
an Underwriter of Designated Shares through the Representatives
expressly for use in such Issuer Free Writing
Prospectus.
4
(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 Company and
its consolidated subsidiaries and the Operating Partnership 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
Company 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 I to the applicable Pricing Agreement, there
has not been any change in the beneficial interests of the Company
(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 Company 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 Company and
(y) repurchases of the Company’s beneficial interests
under the Company’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 Company 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 Company 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
Company has been duly formed and is validly existing as a real
estate investment trust in good standing under the laws of the
State of Maryland, with trust power and authority to own 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
5
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 Company 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
Company of its obligations hereunder (collectively, a
“Material Adverse Effect”); and each other subsidiary
of the Company 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 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 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;
(j) The
Company has an authorized capitalization as set forth in the Time
of Sale Information and the Prospectus, and all of the issued
shares of beneficial interests of the Company 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 Company,
free and clear of all liens, encumbrances or claims (collectively,
“Liens”); and the Company 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.
(k) This
Agreement and the Pricing Agreement with respect to the Designated
Shares have been duly authorized, executed and delivered by the
Company and the Operating Partnership.
(l) The
Common Shares have been duly and validly authorized by the Company,
and, when Firm Shares are issued and delivered against payment
therefor pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Shares, and, in the case of Optional
Shares, pursuant to the Over-allotment Option (as defined in
Section 3 hereof), if any, with respect to such Designated
Shares, such Designated Shares will be duly and validly
6
issued and
fully paid; the Common Shares conform to the description thereof
contained in the Registration Statement and the Designated Shares
will conform to the description thereof contained in the Time of
Sale Information and the Prospectus with respect to such Designated
Shares; and the Designated Shares will have the rights set forth in
the Company’s declaration of trust, as then amended or
supplemented; and the holders of outstanding beneficial interests
of the Company are not entitled to preemptive or other rights
afforded by the Company to subscribe for the Designated
Shares.
(m) Neither
the Company 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 that is not 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 Company 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 Shares, the compliance by the Company with all of the
provisions of this Agreement and the applicable Pricing Agreement
and the Over-allotment Option, if any, 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 Company or any of its subsidiaries
(including, without limitation, the Operating Partnership) is a
party or by which the Company or any of its subsidiaries
(including, without limitation, the Operating Partnership) is bound
or to which any of the property or assets of the Company or any of
its subsidiaries (including, without limitation, the Operating
Partnership) is subject, nor will such actions result in any
violation of the provisions of the declaration of trust or the
by-laws of the Company, declaration of trust or the limited
partnership agreement of the Operating Partnership or any statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company 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 Shares or the consummation by the Company of
the other transactions contemplated by this Agreement or the
applicable Pricing Agreement, except such as have been, or will
have been prior to the Time of Delivery, obtained under the
Securities 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 Shares by the
Underwriters.
(n) Except
as set forth in the Time of Sale Information and the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries (including, without limitation,
the Operating Partnership) is a party or to which any property of
the Company or any of its subsidiaries (including, without
limitation, the Operating Partnership) is subject, which could
reasonably be expected, individually or in the aggregate,
to
7
have a Material
Adverse Effect, and, to the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(o) PricewaterhouseCoopers,
which has audited certain financial statements of the Company and
its consolidated subsidiaries and of the Operating Partnership and
its consolidated subsidiaries, is an independent registered public
accounting firm as required by the Securities Act and the rules and
regulations of the Commission and the Public Company Accounting
Oversight Board.
(p) The
Company 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 Company and of the
Operating Partnership 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 Company or of the Operating Partnership, which do
not (a) materially adversely interfere with the use made or
proposed to be made of such property by the Company and its
subsidiaries (including, without limitation, the Operating
Partnership) or (b) could not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.
(q) Neither
the Company nor the Operating Partnership is, and after giving
effect to each offering and sale of the Designated Shares is, or
will be required to register as, an “investment
company” under the Investment Company Act of 1940, as amended
(the “Investment Company Act”).
(r) At
all times commencing with the Company’s taxable year ended
December 31, 1986, the Company has been, and after giving
effect to the offering and the sale of the Designated Shares will
continue to be, organized and operated in conformity with the
requirements for qualification of the Company 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 Company will enable the Company to
continue to meet the requirements for qualification and taxation as
a REIT under the Code.
(s) The
Company 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.
8
(t) The
Company 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.
(u) The
Company 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 Company 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
Company and its subsidiaries (including, without limitation, the
Operating Partnership), taken as a whole.
(v) No
labor dispute or disturbance involving the employees of the Company
or any of its subsidiaries (including, without limitation, the
Operating Partnership) or of any other entity exists or, to the
knowledge of the Company, is threatened or imminent that could
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(w) The
Company 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 Company 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 Company periodically reviews the effect of Environmental Laws
on the business, operations and properties of the Company and its
subsidiaries including the Operating Partnership, 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 Company has reasonably concluded that such associated
costs and liabilities could not reasonably be expected,
9
individually or
in the aggregate, to have a Material Adverse Effect, except as set
forth in the Time of Sale Information and the
Prospectus.
(x) The
minimum funding standard under Section 302 of the Employee
Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder
(“ERISA”), has been satisfied by each “pension
plan” (as defined in Section 3(2) of ERISA) which has
been established or maintained by the Company and/or one or more of
its subsidiaries (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 Company 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 Company 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 Company 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 Company 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
Company 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.
(y) The
Company 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.
(z) There
is, and has been, no failure on the part of the Company 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).
(aa) No
relationship (direct or indirect) exists between or among any of
the Company or any affiliate of the Company, on the one hand, and
any trustee, officer, shareholder, tenant, customer or supplier of
the Company or any affiliate of the Company, 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 Company to or for
the benefit of any of the trustees or officers of the Company or
any of their respective family members.
10
(bb)
(i) The Company 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 Company’s internal
control over financial reporting (whether or not remediated) and
(B) no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting.
(iii) The
Company and its consolidated subsidiaries employ disclosure
controls and procedures that are designed to ensure that
information required to be disclosed by the Company in the reports
filed or submitted under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in the
Commission’s rules and forms, and is accumulated and
communicated to the Company’s management, including its
principal executive officer and principal financial officer, as
appropriate, to allow timely decisions regarding
disclosure.
(cc) The
Company 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 Company and its
subsidiaries (including, without limitation, the Operating
Partnership) all policies of insurance insuring the Company 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
Company 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
Company 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 Company 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.
(dd) No
subsidiary of the Company (including, without limitation, the
Operating Partnership) is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary’s capital stock or
other equity, from repaying to the Company any loans or advances to
such subsidiary from the Company, or from transferring any of such
subsidiary’s property or assets to the Company or
any
11
other
subsidiary of the Company, except that, in the case of subsidiaries
of the Company set forth on Schedule III 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
Company (including, without limitation, the Operating Partnership)
such subsidiary may be prohibited from making distributions to the
Company.
(ee) 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 Company believes, in good faith, to be reliable
and accurate in all material respects.
(ff) The
Company has not taken nor will it take, directly or indirectly any
action designed to, or that might reasonably be expected to, cause
or result in manipulation of the price of the Common
Shares.
For purposes of
this Section 2, references to “subsidiaries”,
insofar as such references relate to entities in which the Company
or Operating Partnership own or hold an equity or equivalent
interest equal to or less than 50%, are made by the Company and
Operating Partnership to their knowledge (after due
inquiry).
3. Offer
and Sale of the Designated Shares . Upon the execution of the
Pricing Agreement applicable to any Designated Shares and
authorization by the Representatives of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares
and Optional Shares, if any, for sale upon the terms and conditions
set forth in the Prospectus.
The Company may
specify in the Pricing Agreement applicable to any Designated
Shares that the Company thereby grants to the Underwriters the
right (an “Over-allotment Option”) to purchase at their
election up to the number of Optional Shares set forth in such
Pricing Agreement, on the terms set forth in the paragraph above,
for the sole purpose of covering over-allotments in the sale of the
Firm Shares. Any such election to purchase Optional Shares may be
exercised in whole or in part by written notice from the
Representatives to the Company, given at any time within a period
specified in the Pricing Agreement, setting forth the aggregate
number of Optional Shares to be purchased and the date on which
such Optional Shares are to be delivered, as determined by the
Representatives.
The number of
Optional Shares to be added to the number of Firm Shares to be
purchased by each Underwriter as set forth in Schedule I to
the Pricing Agreement applicable to such Designated Shares will be,
in each case, the number of Optional Shares which the Company has
been advised by the Representatives have been attributed to such
Underwriter; provided that, if the Company has not been so advised,
the number of Optional Shares to be so added will be, in each case,
that proportion of Optional Shares which the number of Firm Shares
to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the
Representatives may determine to the nearest 100 shares). The total
number of Designated Shares to be purchased by all the Underwriters
pursuant to such Pricing Agreement will be the aggregate number of
Firm Shares set forth in Schedule I to such Pricing
12
Agreement plus
the aggregate number of Optional Shares which the Underwriters
elect to purchase.
4.
Delivery of the Firm Shares and the Optional Shares .
Designated Shares 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 Company, will be
delivered by or on behalf of the Company 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 Company in the funds specified in such Pricing Agreement,
(i) with respect to the Firm Shares 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 Company may agree upon in writing, such time and date being
herein called the “First Time of Delivery” and
(ii) with respect to the Optional Shares, if any, in the
manner and at the time and date specified by the Representatives in
the written notice given by the Representatives of the
Underwriters’ election to purchase such Optional Shares, or
at such other time and date as the Representatives and the Company
may agree upon in writing, such time and date, if not the First
Time of Delivery, herein called a “Subsequent Time of
Delivery”. Each such time and date for delivery is herein
called a “Time of Delivery”.
5.
Further Agreements of the Company . The Company agrees with
each of the Underwriters of any Designated Shares as
follows:
(a) To
prepare the Prospectus in relation to the applicable Designated
Shares 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 Shares 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 any Time of Delivery for such Designated Shares which
shall be disapproved by the Representatives for such Designated
Shares 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 Shares promptly after reasonable notice thereof; to
advise the Representatives promptly of any amendment or supplement
to the Registration Statement or the Prospectus after any Time of
Delivery for such Designated Shares 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 Company or the Operating Partnership 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 Shares; 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 Shares, (iii) the suspension of
13
the
qualification of such Designated Shares 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 the Common Shares
or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) If
required by Rule 430(B)(h) under the Securities Act, to
prepare a form of prospectus in a form approved by you and to file
such form of prospectus pursuant to Rule 424(b) under the
Securities Act not later than may be required by Rule 424(b) under
the Securities Act; and to make no further amendment or supplement
to such form of prospectus which shall be disapproved by you
promptly after reasonable notice thereof;
(c) Promptly
from time to time to take such action as the Representatives may
reasonably request to qualify such Designated Shares 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 Shares; provided, however ,
that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
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