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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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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"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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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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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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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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(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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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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(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
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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
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
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.
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
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
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
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:
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;
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;
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;
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 Designated
Securities, the Guarantees, the Indenture, this Agreement and the
applicable Pricing Agreement and the consummation of the
transactions herein and therein contemplated do not conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Parent Guarantor or any of its subsidiaries
(including, without limitation, the Operating Partnership) is a
party or by which the Parent Guarantor or any of its subsidiaries
(including, without limitation, the Operating Partnership) is bound
or to which any of the property or assets of the Parent Guarantor or
any of its subsidiaries (including, without limitation, the
Operating Partnership) is subject, nor do such actions result in any
violation of the provisions of the declaration of trust or the
by-laws of the Parent Guarantor, the certificate of limited
partnership or partnership agreement of the Operating Partnership,
the charter or by-laws or other organizational documents of any of
the Subsidiary Guarantors or any law, statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Parent Guarantor or any of its
subsidiaries (including, without limitation, the Operating
Partnership) or any of their properties;
(xiii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Designated
Securities, the issue of the Guarantees, or the consummation by the
Operating Partnership and the Guarantors of the other transactions
contemplated by this Agreement, the applicable Pricing Agreement or
the Indenture, except such as have been obtained under the
Securities Act or the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Designated Securities by the
Underwriters;
(xiv) The Registration Statement, the Preliminary Prospectus,
any Issuer Free Writing Prospectus included in the Time of Sale
Information and the Prospectus and any amendments and supplements
thereto made by the Operating Partnership and the Guarantors prior
to the Time of Delivery for the Designated Securities (other than
the financial statements and related notes and schedules therein, as
to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations
thereunder;
(xv) The Incorporated Documents (other than the financial
statements and related notes and schedules therein, as to which such
counsel need express no opinion), when they were filed with the
Commission or became effective, as the case may be, complied as to
form in all material respects with the requirements of the Exchange
Act or the Securities Act, as applicable, and the rules and
regulations of the Commission thereunder; and such counsel have no
reason to
21
believe that any of the Incorporated Documents, when they were so
filed or became effective, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(xvi) The statements made under the caption under "Material
Federal Income Tax Consequences" in the Prospectus, insofar as they
purport to constitute summaries of matters of U.S. federal tax law
and regulations or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein in
all material respects;
(xvii) The Registration Statement has become effective under
the Securities Act; the Preliminary Prospectus and the Prospectus
relating to the Designated Securities and the Guarantees were filed
with the Commission within the prescribed time periods pursuant to
Rule 424(b) of the rules and regulations under the Securities Act;
any Issuer Free Writing Prospectus relating to the Designated
Securities was filed with the Commission within the prescribed time
periods pursuant to Rule 433 under the Securities Act; and, to such
counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statements has been issued or proceeding for that
purpose or pursuant to Section 8A of the Securities Act has been
instituted or threatened by the Commission;
(xviii) Such counsel has no reason to believe that (A) as of
their respective effective dates, the Registration Statement or any
amendment thereto made by the Operating Partnership and the
Guarantors prior to the Time of Delivery (other than the financial
statements and related notes and schedules therein, as to which such
counsel need express no belief) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (B) as of the Time of Sale (which such counsel may
assume to be the date of the applicable Pricing Agreement), the Time
of Sale Information (other than the financial statements and related
notes and schedules therein, as to which such counsel need express
no belief) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading, or (C) as of its date and as of the Time of Delivery,
the Prospectus or any amendment or prospectus supplement thereto
made by the Operating Partnership and the Guarantors prior to the
Time of Delivery (other than the financial statements and related
notes and schedules therein, as to which such counsel need express
no belief) contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make
the statements therein, in light of the circumstances in which they
were made, not misleading; and such counsel do not know of any
amendment to the Registration Statement required to be filed or any
contracts or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be
incorporated by reference into the Registration Statement, the
Preliminary Prospectus or the Prospectus or required
22
to be described in the Registration Statement, the Preliminary
Prospectus or the Prospectus that are not filed or incorporated by
reference or described as required.
The opinions as to enforceability expressed in paragraphs (viii), (ix) and (x)
above shall be understood to mean only that, if there is a default in
performance of an obligation, (A) if a failure to pay or other damages can be
shown and (B) if the defaulting party can be brought into a court which will
hear the case and apply the governing law, then, subject to the availability of
defenses and to the exceptions set forth in paragraphs (viii), (ix) and (x)
above, the court will provide a money damage (or, as appropriate, injunctive or
specific performance) remedy;
(d) (i) On the date of the applicable Pricing Agreement for such
Designated Securities and at the Time of Delivery for such Designated
Securities, PricewaterhouseCoopers LLP, the independent registered public
accounting firm of the Operating Partnership and the Parent Guarantor, which has
audited the financial statements of the Operating Partnership and its
consolidated subsidiaries and of the Parent Guarantor and its consolidated
subsidiaries, included or incorporated by reference in the Registration
Statement, shall have furnished to the Representatives letters, dated the
respective dates of delivery, in form and substance satisfactory to the
Representatives, containing statements and information of the type customarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or incorporated
by reference in the Registration Statement, the Preliminary Prospectus and the
Prospectus; and (ii) on the date of the applicable Pricing Agreement for such
Designated Securities and at the Time of Delivery for such Designated
Securities, PricewaterhouseCoopers LLP, the independent registered public
accounting firm of Prentiss Properties Trust, which has audited the financial
statements of Prentiss Properties Trust and its consolidated subsidiaries,
included or incorporated by reference in the Registration Statement, shall have
furnished to the Representatives letters, dated the respective dates of
delivery, in form and substance satisfactory to the Representatives, containing
statements and information of the type customarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the Prospectus;
(e) (i) The Parent Guarantor and its subsidiaries (including,
without limitation, the Operating Partnership), taken as a whole, have not
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Preliminary Prospectus 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, otherwise than as set forth in
the Prospectus and (ii) since the respective dates as of which information is
given in the Registration Statement, the Preliminary Prospectus and the
Prospectus (without giving effect to any amendment thereof or supplement thereto
subsequent to the date of the Pricing Agreement relating to the Designated
Securities), except as set forth in Schedule IV 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, (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
23
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, or
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, management, results of
operations, financial condition or prospects of the Parent Guarantor and its
consolidated subsidiaries (including, without limitation, the Operating
Partnership), taken as a whole, except as set forth in the Preliminary
Prospectus and the Prospectus (without giving effect to any amendment thereof or
supplement thereto subsequent to the date of the Pricing Agreement relating to
the Designated Securities), the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities and the Guarantees on the
terms and in the manner contemplated in the Preliminary Prospectus and the
Prospectus;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities, (i) no downgrading shall have occurred in the rating
accorded the Operating Partnership's debt securities or the Parent Guarantor's
debt securities or, if applicable, preferred shares of beneficial interest by
any "nationally recognized statistical rating organization", as the term is
defined by the Commission for purposes of Rule 436(g)(2) under the Securities
Act and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Operating Partnership's debt securities or the Parent Guarantor's
debt securities or preferred shares;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the following: (i)
trading generally shall have been suspended or materially limited on the New
York Stock Exchange or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Operating Partnership or the Parent
Guarantor shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities or a material disruption
in commercial banking or securities settlement or clearance services; or (iv)
there shall have occurred any outbreak or escalation of hostilities or acts of
terrorism involving the United States or declaration of national emergency or
war by the United States or any change in financial markets or any calamity or
crisis, either within or outside the United States, that, in the judgment of the
Representatives, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or the delivery of the Designated
Securities on the terms and in the manner contemplated by this Agreement, the
Preliminary Prospectus, the Time of Sale Information and the Prospectus; and
(h) The Operating Partnership and the Guarantors shall have
furnished or caused to be furnished to the Representatives at the Time of
Delivery for the Designated Securities a certificate or certificates of officers
of the Operating Partnership and the Guarantors in such form and executed by
such officers of the Operating Partnership and the Guarantors as shall be
satisfactory to the Representatives, as to the accuracy of the representations
and warranties of the Operating Partnership and the Guarantors herein at and as
of such Time of Delivery, as to the performance by the Operating Partnership and
the Guarantors of all of its obligations hereunder
24
to be performed at or prior to such Time of Delivery, as to the matters set
forth in Sections 8(a), 8(e) and 8(f) hereof and as to such other matters
(including, without limitation, with respect to compliance with debt agreements
and instruments) as the Representatives may reasonably request.
9. Indemnification and Contribution. (a) The Operating Partnership, the
Parent Guarantor and the Subsidiary Guarantors, jointly and severally, shall
indemnify and hold harmless each Underwriter, its directors, officers and
employees and each person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any losses, claims, damages or
liabilities, joint or several, or any action in respect thereof to which such
Underwriter, officer, employee or controlling person may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities or actions arise out of or are based upon (i) an untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, the Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus and any other prospectus relating to
the Designated Securities, or any amendment or supplement thereto, the Time of
Sale Information, or any Issuer Free Writing Prospectus or any "issuer
information" (as defined in Rule 433 under the Securities Act) filed or required
to be filed pursuant to Rule 433(d), or (ii) the omission or alleged omission to
state in any preliminary prospectus, the Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Designated Securities, or any amendments or
supplements thereto, the Time of Sale Information, or any Issuer Free Writing
Prospectus or issuer information (as defined above) a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and shall reimburse each Underwriter and each such director, officer, employee
and controlling person promptly upon demand for any legal or other expenses
reasonably incurred by such Underwriter and each such director, officer,
employee and controlling person in connection with investigating or defending
any such loss, damage, liability, action or claim as such expenses are incurred;
provided, however, that the Operating Partnership, the Parent Guarantor and the
Subsidiary Guarantors shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus, the Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Designated Securities, or any such amendment or
supplement, the Time of Sale Information, or any Issuer Free Writing Prospectus,
in reliance upon and in conformity with information furnished in writing to the
Operating Partnership by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus relating to such Designated
Securities.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Operating Partnership, the Parent Guarantor and the Subsidiary
Guarantors and their directors, officers and employees and each person, if any,
who controls the Operating Partnership, the Parent Guarantor and the Subsidiary
Guarantors within the meaning of the Securities Act against any losses, claims,
damages or liabilities to which the Operating Partnership, the Parent Guarantor
or any Subsidiary Guarantor or any such director, officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) an untrue statement or alleged
untrue statement of a material fact contained in
25
any preliminary prospectus, the Preliminary Prospectus any preliminary
prospectus supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Designated Securities, or any amendment or supplement
thereto, the Time of Sale Information, or any Issuer Free Writing Prospectus, or
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
preliminary prospectus, the Preliminary Prospectus any preliminary prospectus
supplement, the Registration Statement, the Prospectus and any other prospectus
relating to the Designated Securities, or any such amendment or supplement, the
Time of Sale Information, or any Issuer Free Writing Prospectus, in reliance
upon and in conformity with written information furnished to the Operating
Partnership by such Underwriter through the Representatives expressly for use
therein, and shall reimburse the Operating Partnership, the Parent Guarantor or
any Subsidiary Guarantor for any legal or other expenses reasonably incurred by
the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under Section
9(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such Section. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such Section for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation provided, however, that any indemnified
party shall have the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the employment
thereof has been specifically authorized by the indemnifying party in writing,
(ii) such indemnified party shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for such indemnified party to employ
separate counsel or (iii) the indemnifying party has failed to assume the
defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more
26
than one separate counsel (plus local counsel in each such jurisdiction) at any
time for all such indemnified parties. If the indemnifying party does not assume
the defense of such action, it is understood that the indemnifying party shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate counsel (plus local counsel in each such jurisdiction) at
any time for all such indemnified parties, which firms shall be designated in
writing by the Representatives, if the indemnified parties under this Section 9
consist of any Underwriter of the Designated Securities or any of its respective
directors, officers, employees or controlling persons, or by the Operating
Partnership, the Parent Guarantor or any Subsidiary Guarantor, if the
indemnified parties under this Section 9 consist of the Operating Partnership,
the Parent Guarantor or any Subsidiary Guarantor or any of their directors,
officers, administrative trustees or controlling persons. The indemnifying party
shall not be liable for any settlement of an action or claim for monetary
damages which an indemnified party may effect without the consent of the
indemnifying party, which consent shall not be unreasonably withheld. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim),
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party. For
purposes of this Section 9, references to "counsel" shall include a firm of
attorneys.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 9(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Operating Partnership, the Parent Guarantor
and the Subsidiary Guarantors on the one hand and the Underwriters of the
Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 9(c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits referred to in the immediately preceding sentence but also the
relative fault of the Operating Partnership, the Parent Guarantor or any
Subsidiary Guarantor on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Operating Partnership, the Parent Guarantor or any
Subsidiary Guarantor on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Operating Partnership, the Parent
Guarantor or any Subsidiary Guarantor bear to the total commissions or discounts
received by such Underwriters in respect thereof. The relative fault shall be
determined by
27
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading relates to information supplied by the Operating
Partnership, the Parent Guarantor or any Subsidiary Guarantor on the one hand or
by any such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Operating Partnership, the Parent Guarantor, the
Subsidiary Guarantors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section
9(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total public offering price at which the applicable Designated
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated Securities
in this Section 9(d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Designated Securities and not
joint.
(e) The obligations of the Operating Partnership, the Parent
Guarantor and the Subsidiary Guarantors under this Section 9 shall be in
addition to any liability which the Operating Partnership, the Parent Guarantor
or any Subsidiary Guarantor may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of any Underwriter and to
each person, if any, who controls any Underwriter within the meaning of the
Securities Act; and the obligations of the Underwriters under this Section 9
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Operating Partnership, the Parent Guarantor or any
Subsidiary Guarantor and to each person, if any, who controls the Operating
Partnership, the Parent Guarantor or any Subsidiary Guarantor within the meaning
of the Securities Act.
10. Defaulting Underwriters. (a) If any Underwriter shall default in its
obligation to purchase the Designated Securities which it has agreed to purchase
under the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Designated Securities on the terms contained
herein. If within 36 hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Designated Securities,
then the Operating Partnership shall be entitled to a further period of 36 hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Operating Partnership that they have so arranged for the purchase of such
Designated Securities, or the
28
Operating Partnership notifies the Representatives that it has so arranged for
the purchase of such Designated Securities, the Representatives or the Operating
Partnership shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Operating Partnership agrees to file promptly any amendments or supplements to
the Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Operating Partnership as provided in Section 10(a)
above, the aggregate principal amount of such Designated Securities which
remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of the Designated Securities, then the Operating Partnership shall have
the right to require each non-defaulting Underwriter to purchase the principal
amount of Designated Securities which such Underwriter agreed to purchase under
the Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro-rata share (based
on the principal amount of Designated Securities which such Underwriter agreed
to purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Operating Partnership as provided in Section 10(a)
above, the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities as referred to in Section 10(a) above, or if the Operating
Partnership shall not exercise the right described in Section 10(a) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating to
such Designated Securities shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Operating Partnership, except for
the expenses to be borne by the Operating Partnership and the Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
11. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Operating Partnership, the Guarantors and
the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any officer or director or
controlling person of any Underwriter, or the Operating Partnership or any
Guarantor, or any officer or director or controlling person of the Operating
Partnership or any Guarantor, and shall survive delivery of and payment for the
Securities.
29
12. Termination. If any Pricing Agreement shall be terminated pursuant to
Section 10 hereof or if any condition in Section 8(g)(i), 8(g)(iii) or 8(g)(iv)
hereof is not satisfied, the Operating Partnership and the Guarantors shall not
then be under any liability to any Underwriter with respect to the Designated
Securities covered by such Pricing Agreement except as provided in Sections 7
and 9 hereof, but, if for any other reason, Designated Securities are not
delivered by or on behalf of the Operating Partnership as provided herein, the
Operating Partnership or the Guarantors shall reimburse the Underwriters through
the Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Operating Partnership and the
Guarantors shall then be under no further liability to any Underwriter with
respect to such Designated Securities except as provided in Sections 7 and 9
hereof.
13. Authority of Representatives. In all dealings hereunder, the
Representatives of the Underwriters of Designated Securities shall act on behalf
of each of such Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement.
14. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Operating Partnership or the
Guarantors shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Operating Partnership and the Guarantors set forth in the
Registration Statement, Attention: General Counsel; provided, however, that any
notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its underwriters' questionnaire, or telex constituting such
questionnaire, which address shall be supplied to the Operating Partnership by
the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
15. Nature of Underwriters' Obligations. Each of the Operating Partnership
and the Parent Guarantor acknowledges and agrees that (i) the purchase and sale
of the Designated Securities pursuant to this Agreement and the applicable
Pricing Agreement is an arm's-length commercial transaction between the
Operating Partnership and the Guarantors, on the one hand, and the several
Underwriters, on the other, (ii) in connection therewith and with the process
leading to such transaction, each Underwriter is acting solely as a principal
and not the agent or fiduciary of the Operating Partnership, the Parent
Guarantor or the Subsidiary Guarantors, (iii) no Underwriter has assumed an
advisory or fiduciary responsibility in favor of the Operating Partnership, the
Parent Guarantor or the Subsidiary Guarantors with respect to the offering of
the Designated Securities or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the Operating
Partnership, the Parent Guarantor or the Subsidiary Guarantors on other matters)
or any other obligation to the Operating Partnership, the Parent Guarantor or
the Subsidiary Guarantors except the obligations expressly set forth in this
Agreement and the applicable Pricing Agreement and (iv) the Operating
Partnership, the Parent Guarantor and the Subsidiary Guarantors have consulted
their own legal and financial advisors to
30
the extent they deemed appropriate. Each of the Operating Partnership and the
Parent Guarantor agrees that it shall not claim that the Underwriters, or any of
them, owes an advisory, fiduciary or similar duty to the Operating Partnership,
the Parent Guarantor or the Subsidiary Guarantors, in connection with such
transaction or the process leading thereto.
16. Persons Entitled to Benefit of Agreement. This Agreement and each
Pricing Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Operating Partnership, the Guarantors and, to the extent
provided in Sections 9 and 11 hereof, the directors, officers and employees of
the Operating Partnership, the Guarantors or any Underwriter and each person who
controls the Operating Partnership, the Guarantors or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
17. Time of Essence. Time shall be of the essence of each Pricing
Agreement. As used herein, "business day" shall mean any day on which the New
York Stock Exchange, Inc. is open for trading.
18. Governing Law. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
19. Counterparts. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
31
Very truly yours,
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, its General
Partner
By: /s/ Gerard H. Sweeney
-----------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief Executive Officer
BRANDYWINE REALTY TRUST
By: /s/ Gerard H. Sweeney
----------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief Executive Officer
AAPOP 2, L.P.
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, one of its general
partners
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P.,
a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, one of its general partners
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
32
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE AMBASSADOR, L.P.
By: Brandywine Ambassador, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE BYBERRY LP, a Delaware
limited partnership
By: Brandywine Byberry LLC, a Delaware
limited liability company, its
general partner
By: Brandywine Operating
Partnership, a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE CENTRAL L.P.
By: Brandywine F.C., L.P., a
Pennsylvania limited partnership,
its general partner
By: Brandywine F.C., L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
33
BRANDYWINE CIRA, L.P.
By: Brandywine Cira, LLC, a Pennsylvania
limited liability company, its
general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE F.C., L.P.
By: Brandywine F.C., L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE GRANDE B, L.P.
By: Brandywine Grande B, L.L.C., a
Delaware limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
34
BRANDYWINE METROPLEX, L.P.
By: Brandywine Metroplex, LLC, a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE MIDATLANTIC LP, a Delaware
limited partnership
By: Brandywine Midatlantic LLC, a
Delaware limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE P.M., L.P.
By: Brandywine P.M., L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
35
BRANDYWINE TB FLORIG, L.P.
By: Brandywine TB Florig, LLC, a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE TB INN, L.P.
By: Brandywine TB Inn, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE TB I, L.P.
By: Brandywine TB I, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
36
BRANDYWINE TB II, L.P.
By: Brandywine TB II, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE TB V, L.P.
By: Brandywine TB V, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE TB VI, L.P.
By: Brandywine TB VI, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
37
BRANDYWINE TB VIII, L.P.
By: Brandywine TB VIII, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
C/N IRON RUN LIMITED PARTNERSHIP III
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
C/N LEEDOM LIMITED PARTNERSHIP II
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
C/N OAKLANDS LIMITED PARTNERSHIP I
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
38
C/N OAKLANDS LIMITED PARTNERSHIP III
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
E-TENANTS.COM HOLDING, L.P.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
FIFTEEN HORSHAM, L.P.
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
IRON RUN LIMITED PARTNERSHIP V
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
39
LC/N HORSHAM LIMITED PARTNERSHIP
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
LC/N KEITH VALLEY LIMITED PARTNERSHIP I
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
40
NEWTECH IV LIMITED PARTNERSHIP
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
NICHOLS LANSDALE LIMITED PARTNERSHIP III
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
41
OLS OFFICE PARTNERS, L.P., a Delaware
limited partnership
By: Brandywine One Logan LLC, a
Pennsylvania limited liability
company, its general partner
By: Brandywine Midatlantic LP, a
Delaware limited partnership,
its managing member
By: Brandywine Midatlantic LLC,
a Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland real
estate investment trust,
its general partner*
RADNOR CENTER ASSOCIATES, a Pennsylvania
limited partnership
By: Brandywine Radnor Center LLC, a
Pennsylvania limited liability
company, its general partner
By: Brandywine Midatlantic LP, a
Delaware limited partnership,
its managing member
By: Brandywine Midatlantic LLC,
a Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
42
RADNOR PROPERTIES ASSOCIATES-II, L.P., a
Delaware limited partnership
By: Radnor GP, L.L.C., a Delaware
limited liability company, its
general partner
By: Brandywine Midatlantic LP, a
Delaware limited partnership,
its managing member
By: Brandywine Midatlantic LLC,
a Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
43
RADNOR PROPERTIES-SDC, L.P., a Delaware
limited partnership
By: Radnor GP-SDC, L.L.C., a Delaware
limited liability company, its
general partner
By: Radnor Properties Associates-II,
L.P., a Delaware limited
partnership, managing member
By: Radnor GP, L.L.C., a
Delaware limited liability
company, its general partner
By: Brandywine Midatlantic
LP, a Delaware limited
partnership, its
managing member
By: Brandywine
Midatlantic LLC,
a Delaware limited
liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its
sole member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
44
RADNOR PROPERTIES-200 RC, L.P., a
Delaware limited partnership
By: Radnor GP-200 RC, L.L.C., a Delaware
limited liability company, its
general partner
By: Radnor Properties-200 RC
Holdings, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Radnor 200
Holdings LLC, a Delaware
limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
RADNOR PROPERTIES-200 RC HOLDINGS, L.P.,
a Delaware limited partnership
By: Brandywine Radnor 200 Holdings LLC,
a Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
45
RADNOR PROPERTIES-201 KOP, L.P., a
Delaware limited partnership
By: Radnor GP-201 KOP, L.L.C., a
Delaware limited liability company,
its general partner
By: Radnor Properties Associates-II,
L.P., a Delaware limited
partnership, managing member
By: Radnor GP, L.L.C., a
Delaware limited liability
company, its general partner
By: Brandywine Midatlantic
LP, a Delaware limited
partnership, its
managing member
By: Brandywine
Midatlantic LLC, a
Delaware limited
liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its
sole member
By: Brandywine Realty
Trust, a Maryland
real estate
investment*
46
RADNOR PROPERTIES-555 LA, L.P., a
Delaware limited partnership
By: Radnor GP-555 LA, L.L.C., a Delaware
limited liability company, its
general partner
By: Radnor Properties Associates-II,
L.P., a Delaware limited
partnership, managing member
By: Radnor GP, L.L.C., a
Delaware limited liability
company, its general partner
By: Brandywine Midatlantic
LP, a Delaware limited
partnership, its
managing member
By: Brandywine
Midatlantic LLC, a
Delaware limited
liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its
sole member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
47
WITMER OPERATING PARTNERSHIP I, L.P.
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
100 ARRANDALE ASSOCIATES, L.P.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
111 ARRANDALE ASSOCIATES, L.P.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
440 CREAMERY WAY ASSOCIATES, L.P.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
442 CREAMERY WAY ASSOCIATES, L.P.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
48
481 JOHN YOUNG WAY ASSOCIATES, L.P.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
INTERSTATE CENTER ASSOCIATES
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, one of its general
partners
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
By: Brandywine Interstate 50, L.L.C., a
Delaware limited liability company,
one of its general partners
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
49
IR NORTHLIGHT II ASSOCIATES
By: AAPOP 2, L.P., a Delaware limited
partnership, one of its general
partners
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, one of its general
partners
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited
liability company, its
general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, one of its general
partners
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, one of its general
partners
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
50
PLYMOUTH TFC GENERAL PARTNERSHIP
By: Brandywine P.M., L.P., a
Pennsylvania Limited Partnership,
its general partner
By: Brandywine P.M., L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, one of its general
partners
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
BTRS, INC.*
SOUTHPOINT LAND HOLDINGS, INC.*
VALLEYBROOKE LAND HOLDINGS, INC.*
BRANDYWINE AMBASSADOR, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
51
BRANDYWINE BYBERRY LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE CHARLOTTESVILLE LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE CHRISTINA LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE CIRA, LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE DABNEY, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
52
BRANDYWINE DOMINION, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE F.C., L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE GRANDE B, LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE GREENTREE V, LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE INTERSTATE 50, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
53
BRANDYWINE-MAIN STREET, LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE METROPLEX LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE MIDATLANTIC LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE ONE LOGAN LLC, a Pennsylvania
limited liability company
By: Brandywine Midatlantic LP, a
Delaware limited partnership, its
sole member
By: Brandywine Midatlantic LLC, a
Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
54
BRANDYWINE ONE RODNEY SQUARE LLC, a
Delaware limited liability company
By: Brandywine Midatlantic LP, a
Delaware limited partnership, its
sole member
By: Brandywine Midatlantic LLC, a
Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
BRANDYWINE P.M., L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE PIAZZA, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE PLAZA 1000, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
55
BRANDYWINE PROMENADE, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE RADNOR CENTER LLC, a
Pennsylvania limited liability company
By: Brandywine Midatlantic LP, a
Delaware limited partnership, its
general partner
By: Brandywine Midatlantic LLC, a
Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
BRANDYWINE RADNOR 200 HOLDINGS LLC, a
Delaware limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB FLORIG, LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
56
BRANDYWINE TB INN, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB I, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB II, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB V, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB VI, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
57
BRANDYWINE TB VIII, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TRENTON URBAN RENEWAL, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE WITMER, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
58
BRANDYWINE 300 DELAWARE LLC, a Delaware
limited liability company
By: Brandywine Midatlantic LP, a
Delaware limited partnership, its
sole member
By: Brandywine Midatlantic LLC, a
Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
CHRISTIANA CENTER OPERATING COMPANY III
LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
E-TENANTS LLC
By: e-Tenants.com Holding, L.P., a
Pennsylvania limited partnership,
its sole member
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its general
partner
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
59
RADNOR GP, L.L.C., a Delaware limited
liability company
By: Brandywine Midatlantic LP, a
Delaware limited partnership, its
sole member
By: Brandywine Midatlantic LLC, a
Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
RADNOR GP-SDC, L.L.C., a Delaware
limited liability company
By: Radnor Properties Associates-II,
L.P., a Delaware limited
partnership, its sole member
By: Radnor GP, L.L.C., a Delaware
limited liability company, its
general partner
By: Brandywine Midatlantic LP, a
Delaware limited
partnership, its sole member
By: Brandywine Midatlantic
LLC, a Delaware limited
liability company, its
general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its
sole member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
60
RADNOR GP-200 RC, L.L.C., a Delaware
limited liability company
By: Radnor Properties-200 RC Holdings,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Radnor 200 Holdings
LLC, a Delaware limited
liability company, its general
partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
61
RADNOR GP-201 KOP, L.L.C., a Delaware
limited liability company
By: Radnor Properties Associates-II,
L.P., a Delaware limited
partnership, managing member
By: Radnor GP, L.L.C., a Delaware
limited liability company, its
general partner
By: Brandywine Midatlantic LP,
a Delaware limited
partnership, its managing
member
By: Brandywine Midatlantic
LLC, a Delaware limited
liability company, its
general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its
sole member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
62
RADNOR GP-555 LA, L.L.C., a Delaware
limited liability company
By: Radnor Properties Associates-II,
L.P., a Delaware limited
partnership, managing member
By: Radnor GP, L.L.C., a Delaware
limited liability company, its
general partner
By: Brandywine Midatlantic LP, a
Delaware limited
partnership, its managing
member
By: Brandywine Midatlantic
LLC, a Delaware limited
liability company, its
general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its
sole member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
* By: /s/ Gerard H. Sweeney
----------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief Executive Officer
63
J.P. MORGAN SECURITIES INC.
By: /s/ Maria Sramek
-----------------------------
Name: Maria Sramek
Title: Vice Persident
BANC OF AMERICA SECURITIES LLC
By: /s/ Peter J. Carbone
------------------------------
Name: /s/ Peter J. Carbone
Title: Vice President
On behalf of themselves and each of the other several Underwriters
ANNEX I
PRICING AGREEMENT
December __, 2005
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
As Representatives of the several
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
Brandywine Operating Partnership, L.P., a Delaware limited
partnership (the "Operating Partnership"), proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated December 15,
2005 (the "Underwriting Agreement"), among the Operating Partnership, Brandywine
Realty Trust, a Maryland real estate investment trust and sole general partner
and a limited partner of the Operating Partnership (the "Parent Guarantor"),
each of the subsidiaries of the Operating Partnership parties thereto (the
"Subsidiary Guarantors"; and, together with the Parent Guarantor, the
"Guarantors") and you to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Preliminary Prospectus and the Prospectus in Section 2 of the Underwriting
Agreement shall be deemed to be a representation or warranty as of the date of
the Underwriting Agreement in relation to the Preliminary Prospectus and the
Prospectus, and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Preliminary Prospectus and the Prospectus
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions of
the Underwriting Agreement so incorporated by reference shall be deemed to refer
to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Underwriters of the Designated Securities pursuant to
Section 13 of the Underwriting Agreement and the addresses of the
Representatives referred to in such Section 13 are set forth in Schedule II
hereto.
An amendment to the Registration Statement, or a prospectus
supplement to the Prospectus, as the case may be, relating to the Designated
Securities, in the form heretofore delivered to you is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Operating
Partnership and the Guarantors agree to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Operating Partnership and the Guarantors, at the time and
place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us ____ counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Operating Partnership and the Guarantors.
Very truly yours,
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, its General
Partner
By: ____________________________________
Name:
Title:
BRANDYWINE REALTY TRUST
By: ____________________________________
Name:
Title:
AAPOP 2, L.P.
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, one of its general
partners
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P.,
a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
I-2
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, one of its general partners
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE AMBASSADOR, L.P.
By: Brandywine Ambassador, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE BYBERRY LP, a Delaware
limited partnership
By: Brandywine Byberry LLC, a Delaware
limited liability company, its
general partner
By: Brandywine Operating
Partnership, a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
I-3
BRANDYWINE CENTRAL L.P.
By: Brandywine F.C., L.P., a
Pennsylvania limited partnership,
its general partner
By: Brandywine F.C., L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
BRANDYWINE CIRA, L.P.
By: Brandywine Cira, LLC, a Pennsylvania
limited liability company, its
general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE F.C., L.P.
By: Brandywine F.C., L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
I-4
BRANDYWINE GRANDE B, L.P.
By: Brandywine Grande B, L.L.C., a
Delaware limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE METROPLEX, L.P.
By: Brandywine Metroplex, LLC, a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE MIDATLANTIC LP, a Delaware
limited partnership
By: Brandywine Midatlantic LLC, a
Delaware limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
I-5
BRANDYWINE P.M., L.P.
By: Brandywine P.M., L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE TB FLORIG, L.P.
By: Brandywine TB Florig, LLC, a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE TB INN, L.P.
By: Brandywine TB Inn, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
I-6
BRANDYWINE TB I, L.P.
By: Brandywine TB I, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE TB II, L.P.
By: Brandywine TB II, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE TB V, L.P.
By: Brandywine TB V, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
I-7
BRANDYWINE TB VI, L.P.
By: Brandywine TB VI, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
BRANDYWINE TB VIII, L.P.
By: Brandywine TB VIII, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
C/N IRON RUN LIMITED PARTNERSHIP III
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
C/N LEEDOM LIMITED PARTNERSHIP II
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-8
C/N OAKLANDS LIMITED PARTNERSHIP I
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
C/N OAKLANDS LIMITED PARTNERSHIP III
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
E-TENANTS.COM HOLDING, L.P.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-9
FIFTEEN HORSHAM, L.P.
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
IRON RUN LIMITED PARTNERSHIP V
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
LC/N HORSHAM LIMITED PARTNERSHIP
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
I-10
LC/N KEITH VALLEY LIMITED PARTNERSHIP I
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
NEWTECH IV LIMITED PARTNERSHIP
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
I-11
NICHOLS LANSDALE LIMITED PARTNERSHIP III
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
OLS OFFICE PARTNERS, L.P., a Delaware
limited partnership
By: Brandywine One Logan LLC, a
Pennsylvania limited liability
company, its general partner
By: Brandywine Midatlantic LP, a
Delaware limited partnership,
its managing member
By: Brandywine Midatlantic LLC,
a Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland real
estate investment trust,
its general partner*
I-12
RADNOR CENTER ASSOCIATES, a Pennsylvania
limited partnership
By: Brandywine Radnor Center LLC, a
Pennsylvania limited liability
company, its general partner
By: Brandywine Midatlantic LP, a
Delaware limited partnership,
its managing member
By: Brandywine Midatlantic LLC,
a Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
RADNOR PROPERTIES ASSOCIATES-II, L.P., a
Delaware limited partnership
By: Radnor GP, L.L.C., a Delaware
limited liability company, its
general partner
By: Brandywine Midatlantic LP, a
Delaware limited partnership,
its managing member
By: Brandywine Midatlantic LLC,
a Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
I-13
RADNOR PROPERTIES-SDC, L.P., a Delaware
limited partnership
By: Radnor GP-SDC, L.L.C., a Delaware
limited liability company, its
general partner
By: Radnor Properties Associates-II,
L.P., a Delaware limited
partnership, managing member
By: Radnor GP, L.L.C., a
Delaware limited liability
company, its general partner
By: Brandywine Midatlantic
LP, a Delaware limited
partnership, its
managing member
By: Brandywine
Midatlantic LLC,
a Delaware limited
liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its
sole member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
I-14
RADNOR PROPERTIES-200 RC, L.P., a
Delaware limited partnership
By: Radnor GP-200 RC, L.L.C., a Delaware
limited liability company, its
general partner
By: Radnor Properties-200 RC
Holdings, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Radnor 200
Holdings LLC, a Delaware
limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
RADNOR PROPERTIES-200 RC HOLDINGS, L.P.,
a Delaware limited partnership
By: Brandywine Radnor 200 Holdings LLC,
a Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
I-15
RADNOR PROPERTIES-201 KOP, L.P., a
Delaware limited partnership
By: Radnor GP-201 KOP, L.L.C., a
Delaware limited liability company,
its general partner
By: Radnor Properties Associates-II,
L.P., a Delaware limited
partnership, managing member
By: Radnor GP, L.L.C., a
Delaware limited liability
company, its general partner
By: Brandywine Midatlantic
LP, a Delaware limited
partnership, its
managing member
By: Brandywine
Midatlantic LLC, a
Delaware limited
liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its
sole member
By: Brandywine Realty
Trust, a Maryland
real estate
investment*
I-16
RADNOR PROPERTIES-555 LA, L.P., a
Delaware limited partnership
By: Radnor GP-555 LA, L.L.C., a Delaware
limited liability company, its
general partner
By: Radnor Properties Associates-II,
L.P., a Delaware limited
partnership, managing member
By: Radnor GP, L.L.C., a
Delaware limited liability
company, its general partner
By: Brandywine Midatlantic
LP, a Delaware limited
partnership, its
managing member
By: Brandywine
Midatlantic LLC, a
Delaware limited
liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its
sole member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
I-17
WITMER OPERATING PARTNERSHIP I, L.P.
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
100 ARRANDALE ASSOCIATES, L.P.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
111 ARRANDALE ASSOCIATES, L.P.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
440 CREAMERY WAY ASSOCIATES, L.P.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
442 CREAMERY WAY ASSOCIATES, L.P.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-18
481 JOHN YOUNG WAY ASSOCIATES, L.P.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
INTERSTATE CENTER ASSOCIATES
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, one of its general
partners
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
By: Brandywine Interstate 50, L.L.C., a
Delaware limited liability company,
one of its general partners
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
I-19
IR NORTHLIGHT II ASSOCIATES
By: AAPOP 2, L.P., a Delaware limited
partnership, one of its general
partners
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, one of its general
partners
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited
liability company, its
general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, one of its general
partners
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, one of its general
partners
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-20
PLYMOUTH TFC GENERAL PARTNERSHIP
By: Brandywine P.M., L.P., a
Pennsylvania Limited Partnership,
its general partner
By: Brandywine P.M., L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, one of its general
partners
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
BTRS, INC.*
SOUTHPOINT LAND HOLDINGS, INC.*
VALLEYBROOKE LAND HOLDINGS, INC.*
BRANDYWINE AMBASSADOR, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-21
BRANDYWINE BYBERRY LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE CHARLOTTESVILLE LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE CHRISTINA LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE CIRA, LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE DABNEY, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-22
BRANDYWINE DOMINION, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE F.C., L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE GRANDE B, LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE GREENTREE V, LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE INTERSTATE 50, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-23
BRANDYWINE-MAIN STREET, LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE METROPLEX LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE MIDATLANTIC LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE ONE LOGAN LLC, a Pennsylvania
limited liability company
By: Brandywine Midatlantic LP, a
Delaware limited partnership, its
sole member
By: Brandywine Midatlantic LLC, a
Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
I-24
BRANDYWINE ONE RODNEY SQUARE LLC, a
Delaware limited liability company
By: Brandywine Midatlantic LP, a
Delaware limited partnership, its
sole member
By: Brandywine Midatlantic LLC, a
Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
BRANDYWINE P.M., L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE PIAZZA, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE PLAZA 1000, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-25
BRANDYWINE PROMENADE, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE RADNOR CENTER LLC, a
Pennsylvania limited liability company
By: Brandywine Midatlantic LP, a
Delaware limited partnership, its
general partner
By: Brandywine Midatlantic LLC, a
Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
BRANDYWINE RADNOR 200 HOLDINGS LLC, a
Delaware limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB FLORIG, LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-26
BRANDYWINE TB INN, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB I, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB II, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB V, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TB VI, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-27
BRANDYWINE TB VIII, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE TRENTON URBAN RENEWAL, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
BRANDYWINE WITMER, L.L.C.
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
I-28
BRANDYWINE 300 DELAWARE LLC, a Delaware
limited liability company
By: Brandywine Midatlantic LP, a
Delaware limited partnership, its
sole member
By: Brandywine Midatlantic LLC, a
Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
CHRISTIANA CENTER OPERATING COMPANY III
LLC
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner*
E-TENANTS LLC
By: e-Tenants.com Holding, L.P., a
Pennsylvania limited partnership,
its sole member
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its general
partner
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner*
I-29
RADNOR GP, L.L.C., a Delaware limited
liability company
By: Brandywine Midatlantic LP, a
Delaware limited partnership, its
sole member
By: Brandywine Midatlantic LLC, a
Delaware limited liability
company, its general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
RADNOR GP-SDC, L.L.C., a Delaware
limited liability company
By: Radnor Properties Associates-II,
L.P., a Delaware limited
partnership, its sole member
By: Radnor GP, L.L.C., a Delaware
limited liability company, its
general partner
By: Brandywine Midatlantic LP, a
Delaware limited
partnership, its sole member
By: Brandywine Midatlantic
LLC, a Delaware limited
liability company, its
general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its
sole member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
I-30
RADNOR GP-200 RC, L.L.C., a Delaware
limited liability company
By: Radnor Properties-200 RC Holdings,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Radnor 200 Holdings
LLC, a Delaware limited
liability company, its general
partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner*
I-31
RADNOR GP-201 KOP, L.L.C., a Delaware
limited liability company
By: Radnor Properties Associates-II,
L.P., a Delaware limited
partnership, managing member
By: Radnor GP, L.L.C., a Delaware
limited liability company, its
general partner
By: Brandywine Midatlantic LP,
a Delaware limited
partnership, its managing
member
By: Brandywine Midatlantic
LLC, a Delaware limited
liability company, its
general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its
sole member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
I-32
RADNOR GP-555 LA, L.L.C., a Delaware
limited liability company
By: Radnor Properties Associates-II,
L.P., a Delaware limited
partnership, managing member
By: Radnor GP, L.L.C., a Delaware
limited liability company, its
general partner
By: Brandywine Midatlantic LP, a
Delaware limited
partnership, its managing
member
By: Brandywine Midatlantic
LLC, a Delaware limited
liability company, its
general partner
By: Brandywine Operating
Partnership, L.P., a
Delaware limited
partnership, its
sole member
By: Brandywine Realty
Trust, a Maryland
real estate
investment trust,
its general partner*
* By: ________________________________
Name:
Title:
I-33
[NAME OF REPRESENTATIVES]
By: ________________________________
Name:
Title:
[NAME OF REPRESENTATIVES]
By: ________________________________
Name:
Title:
On behalf of themselves and each of the other several Underwriters
I-34
SCHEDULE I
Principal Amount
of Designated Securities
Underwriter to be Purchased
----------- ---------------
[Insert Names of Underwriters] $
=========
Total $
=========
I-35
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
______% Notes due 20__
AGGREGATE PRINCIPAL AMOUNT:
$-----------
PRICE TO PUBLIC:
____% of the principal amount of the Designated Securities, plus accrued
interest, if any, from _____________, 20__
PURCHASE PRICE BY UNDERWRITERS:
___% of the principal amount of the Designated Securities, plus accrued
interest, if any, from _____________, 20__
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal or other same day funds
TIME OF DELIVERY:
9:30 a.m. (New York City time), ___________ __, 20__
INDENTURE:
Indenture, dated as of October 22, 2004, as supplemented by the First
Supplemental Indenture, dated as of May 25, 2005 (the "Indenture"), among
the Operating Partnership, the Guarantors and The Bank of New York, as
Trustee
MATURITY:
___________ __, 20__
I-36
INTEREST RATE:
___% per annum
INTEREST PAYMENT DATES:
___________ __ and ___________ __, beginning on ___________ __, 20__
REDEMPTION PROVISIONS:
[Insert as appropriate.]
SINKING FUND PROVISIONS:
[Insert as appropriate.]
CONVERTIBILITY OR EXCHANGEABILITY PROVISIONS:
[Insert as appropriate.]
DEFEASANCE PROVISIONS:
As set forth in the Indenture.
GUARANTORS:
Brandywine Realty Trust and the Subsidiary Guarantors named in the
signature pages of this Pricing Agreement.
OTHER TERMS AND CONDITIONS:
[Insert as appropriate.]
CLEAR MARKET PERIOD (Section 5(d) of the Underwriting Agreement):
From date hereof through ________, 200_.
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
[Insert address of counsel to Underwriters]
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
[Insert names of Representatives]
I-37
Address for Notices, etc.:
[Insert addresses of Representatives]
UNDERWRITERS COUNSEL:
Simpson Thacher & Bartlett LLP
LIST OF FREE WRITING PROSPECTUSES
(Section 2(e) of the Underwriting Agreement):
[Term sheet substantially consistent with form of term sheet comprising Annex II
to the Underwriting Agreement]
INFORMATION FURNISHED TO OPERATING
PARTNERSHIP IN WRITING BY THE
UNDERWRITERS THROUGH THE
REPRESENTATIVES EXPRESSLY FOR
INCLUSION IN PROSPECTUS, TIME OF
SALE INFORMATION OR OTHER
DOCUMENTS (Sections 2 and 9 of the
Underwriting Agreement):
[As set forth in a letter delivered by the Representatives at the Time of
Delivery]
I-38
SCHEDULE III
[Insert as appropriate.]
I-39
SCHEDULE IV
[Insert as appropriate.]
I-40
ANNEX II
BRANDYWINE OPERATING PARTNERSHIP, L.P.
PRICING TERM SHEET
Issuer: Brandywine Operating Partnership, L.P.
Guarantors: Brandywine Realty Trust and certain subsidiaries
Size: $_________
Maturity: _____________ __, 200_
Coupon: ____%
Price: ____% of principal amount
Yield to maturity: ____%
[Spread to Benchmark Treasury: ____%]
[Benchmark Treasury:] _____]
[Benchmark Treasury [Price] and Yield: ______ _____%]
Interest Payment Dates: ______ and _____, commencing _____, 2006
Redemption Provisions:
[First call date: ________]
[Make-whole call [At any time][Before the first call date] at
a discount rate of Treasury plus __basis points]
Redemption prices: Commencing _______: ___%
Commencing _______: ___%
Commencing _______: 100%
[Redemption with proceeds of equity Prior to ____, up to 35% may be redeemed at
offering ___%]
Settlement: T+_; _________ __, 200_
[CUSIP: ]
[Ratings: ]
Note: A securities rating is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting EDGAR on the
SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus if
you request it by calling ____________ or emailing ________________ at
Brandywine Realty Trust and _________________.