Exhibit 1.1
Brandywine Realty Trust
2,250,000 Common Shares
of Beneficial Interest
($.01 par value)
Underwriting Agreement
New York, New York
October 14, 2003
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
McDonald Investments Inc., a KeyCorp Company
As Representatives of the Several Underwriters,
c/x Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Brandywine Realty Trust, a real estate investment trust
organized under the laws of the State of Maryland (the "Company"), proposes to
sell to the several underwriters named in Schedule I hereto (the "Underwriters")
for whom you (the "Representatives") are acting as representatives, 2,250,000
common shares of beneficial interest, par value $.01 per share (the "Common
Shares") of the Company, (said shares to be issued and sold by the Company being
hereinafter called the "Underwritten Securities"). The Company also proposes to
grant to the Underwriters an option to purchase up to 337,500 additional Common
Shares to cover over-allotments (the "Option Securities"; the Option Securities,
together with the Underwritten Securities, being hereinafter called the
"Securities"). To the extent there are no additional underwriters listed on
Schedule I other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and Underwriters shall mean
the singular or plural as the context requires. The use of the neuter in this
Agreement shall include the feminine and masculine wherever appropriate. Any
reference herein to the Registration Statement, a Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act (as defined herein) on or before the Effective Date (as defined
herein) of the Registration Statement or the issue date of such Preliminary
Prospectus or the Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement, or the issue date of any
Preliminary Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 17 hereof.
The Company, directly and through a wholly-owned subsidiary,
is the sole general partner and a limited partner of Brandywine Operating
Partnership, L.P., a Delaware limited partnership (the "Operating Partnership").
The Company owns its assets and conducts its operations through the Operating
Partnership and through subsidiaries of the Operating Partnership. As of June
30, 2003, the Company's ownership interest in the Operating Partnership entitled
the Company to approximately 95.6% of the Operating Partnership's distributions
after distributions by the Operating Partnership to holders of its preferred
units. The Company will contribute the net proceeds of the sale of the
Securities to the Operating Partnership in exchange for additional partnership
interests in the Operating Partnership. The Company and the Operating
Partnership wish to confirm as follows their agreement with you, in connection
with the purchase of the Securities by the Underwriter.
1. Representations and Warranties. The Company and the Operating
Partnership jointly and severally represent and warrant to, and agree with, each
Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under
the Act (as defined herein) and has prepared and filed with the
Commission (as defined herein) a registration statement (file number
333-56237) on Form S-3, including a related preliminary prospectus, for
registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, including a
related preliminary prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission one of
the following: either (i) prior to the Effective Date of such
registration statement, a further amendment to such registration
statement, (including the form of final prospectus) or (ii) after the
Effective Date of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b). In the case of clause (ii), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information (as
defined herein)) required by the Act and the rules thereunder to be
included in such registration statement and the Prospectus. As filed,
such amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Underwriter shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time (as
defined herein) or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the latest Preliminary Prospectus) as
the Company has advised you, prior to the Execution Time, will be
included or made therein.
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(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein) and on any date
on which Option Securities are purchased, if such date is not the
Closing Date (a "settlement date"), the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date and any
settlement date, the Prospectus (together with any supplement thereto)
did not or will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company and the Operating
Partnership make no representations or warranties as to the information
contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriter specifically for inclusion in the Registration Statement or
the Prospectus (or any supplement thereto).
(c) The Company is a real estate investment trust duly formed and
validly existing and in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full trust
power and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the Prospectus,
and is duly qualified to do business as a foreign trust and is in good
standing under the laws of each jurisdiction which requires such
qualification.
(d) Each of the subsidiaries of the Company, including the
Operating Partnership (collectively the "Subsidiaries"), is a
corporation, trust, limited partnership, limited liability company or
general partnership duly incorporated or formed, as the case may be,
validly existing and in good standing under the laws of the
jurisdiction in which it is chartered, formed or organized with full
corporate, trust, limited liability company or partnership power and
authority, to own or lease, as the case may be, and operate its
properties, and to conduct its business as described in the Prospectus,
and is duly qualified to do business and is in good standing under the
laws of each jurisdiction which requires such qualification.
(e) All the outstanding shares of capital stock, beneficial
interests, limited liability company interests or partnership interests
of each Subsidiary have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth in
the Prospectus or on Schedule II attached hereto, all outstanding
shares of capital stock, shares of beneficial interest, limited
liability company interests or partnership interests of the
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest or
any other security interests, claims, liens or encumbrances. The
Company's percentage interest and ownership in the Operating
Partnership, and the Operating Partnership's percentage interest and
ownership in each of the Subsidiaries, is as set forth on Schedule II.
Except in respect of the Operating Partnership and as set forth in the
Prospectus, or on Schedule III attached hereto, no options, warrants or
other rights to purchase, agreements or obligations to issue, or rights
to convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in any Subsidiary are
outstanding. The Company is the sole general partner of the Operating
Partnership. The Subsidiaries set forth on Schedule II include all of
the "significant subsidiaries" of the Company, as such term is defined
by Rule 1-02 of Regulation S-X.
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(f) The Company's authorized equity capitalization is as set forth
in the Prospectus; the Common Shares conform in all material respects
to the description thereof contained in the Prospectus; the outstanding
Common Shares have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities being sold hereunder by
the Company have been duly and validly authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; the certificates for
the Securities are in valid and sufficient form to comply with all
applicable Maryland statutory requirements and the rules and
regulations of the New York Stock Exchange; the holders of outstanding
shares of beneficial interest of the Company are not entitled to
preemptive or other rights to subscribe for the Securities and, except
as set forth in the Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of
beneficial interest or ownership interests in the Company are
outstanding.
(g) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required; and the statements in the Prospectus
under the headings "Description of Shares of Beneficial Interest,"
"Certain Provisions of Maryland Law and our Declaration of Trust and
Bylaws," "Federal Income Tax Considerations" and "Risk Factors - Our
Status as a REIT is dependent on compliance with federal income tax
requirements," insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate
and fair summaries of such legal matters, agreements, documents or
proceedings.
(h) This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership.
(i) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(j) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection with
the transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated herein
and in the Prospectus.
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(k) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to (i) the Declaration of Trust, charter or
by-laws, partnership agreements, operating agreements or other
organizational documents of the Company or any of the Subsidiaries,
(ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of the
Subsidiaries is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of its Subsidiaries or any of its or their properties.
(l) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(m) The consolidated historical financial statements and schedules
of the Company and its consolidated subsidiaries included in the
Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods
indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein).
The selected financial data set forth under the caption "Selected
Financial Information" in the Prospectus and Registration Statement
fairly present, on the basis stated in the Prospectus and the
Registration Statement, the information included therein.
(n) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company, the Operating Partnership or any of the other Subsidiaries, or
any of their respective partners, directors, trustees or officers in
their capacity as such, or to which the Company, the Operating
Partnership or any of the other Subsidiaries or its or their property
is pending or, to the best knowledge of the Company and the Operating
Partnership, threatened that (i) could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (ii)
could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto). There are no agreements,
contracts, indentures, leases or other instruments that are required to
be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that are not
described or filed as required by the Act.
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(o) Each of the Company, the Operating Partnership and the
Subsidiaries owns or leases all such properties as are necessary to the
conduct of its operations as presently conducted. Each of the Company
and the Operating Partnership (either directly or through a Subsidiary)
has, and after giving effect to the transactions described in the
Registration Statement and Prospectus will have, good and marketable
and insurable title to all real property described in, or that secure
indebtedness identified in, the Prospectus as being or to be owned by
it, free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the Registration Statement
and the Prospectus or in a document filed as an exhibit to, or
incorporated by reference in, the Registration Statement and except
those which do not and will not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net
worth or results of operations of the Company and the Subsidiaries
taken as a whole. All the property described in the Prospectus as being
held under lease by each of the Company and the Subsidiaries is held by
it under valid, subsisting and enforceable leases, other than those
described in the Registration Statement and the Prospectus and those
which do not and will not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net
worth or results of operations of the Company and the Subsidiaries
taken as a whole.
(p) Neither the Company nor any Subsidiary is in violation or
default of (i) any provision of its Declaration of Trust, charter or
bylaws, partnership agreement, limited liability company agreement or
other organizational documents, as applicable, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or such subsidiary or any of its properties, as
applicable.
(q) KPMG LLP, who has audited certain financial statements of the
Company and its consolidated subsidiaries and delivered their report
with respect to the audited consolidated financial statements and
schedules incorporated by reference into the Prospectus, were
independent public accountants during the periods covered by their
report on the consolidated financial statements with respect to the
Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(r) There are no transfer taxes or other similar fees or charges
under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Securities.
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(s) The Company has filed all foreign, federal, state and local
tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto)
and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, 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
would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement
thereto). The Company and the Subsidiaries are organized and operate in
the manner described in the Registration Statement so that the Company
meets the requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), and the rules and regulations thereunder
as currently in effect. Each Subsidiary, including without limitation,
the Operating Partnership, that is a partnership or limited liability
company will be treated as a partnership, and not as an association
taxable as a corporation or a publicly traded partnership, for federal
income tax purposes.
(t) No labor problem or dispute with the employees of the Company
or any of the Subsidiaries exists or is threatened or imminent, and the
Company is not aware of any existing or imminent labor disturbance by
the employees of any of its or its Subsidiaries' principal suppliers,
contractors or customers, that could have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto) and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied
against it, 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 would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(u) The Company and each of the Subsidiaries 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; all policies of insurance
insuring the Company or any of the Subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and the Subsidiaries are in compliance with the
terms of such policies and instruments in all material respects; and
there are no claims by the Company or any of the Subsidiaries under any
such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; neither
the Company nor any such Subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company nor any such
Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
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(v) No consolidated Subsidiary is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making
any other distribution on such Subsidiary's capital stock or other
equity, from repaying to the Company any loans or advances to such
Subsidiary from the Company or from transferring any of such
Subsidiary's property or assets to the Company or any other Subsidiary
of the Company, except as described in or contemplated by the
Prospectus (exclusive of any supplement thereto) and except that the
Subsidiaries that are identified as "Joint Ventures" on Schedule I
require the consent of the joint venture partners listed on Schedule I
as a condition to making such payments or transfers and except that
following an event of default under the loan documents encumbering the
properties owned by a Subsidiary such Subsidiary may be prohibited from
making distributions to the Company.
(w) The Company and the Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, and neither the Company nor any
such Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(x) The Company and each of the Subsidiaries 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.
(y) The Company has not taken, 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 otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
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(z) (i) The Company and the Subsidiaries are (A) in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (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 where such non-compliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability would not, individually or in the
aggregate, have a material adverse change in the condition (financial
or otherwise), prospects, earnings, business or properties of the
Company and the Subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto). Except as set forth in the Prospectus, neither the Company
nor any of the subsidiaries has been named as a "potentially
responsible party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(ii) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the
business, operations and properties of the Company and the
Subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws, or
any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(aa) The minimum funding standard under Section 302 of the
Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder ("ERISA"), has
been satisfied by each "pension plan" (as defined in Section 3(2) of
ERISA) which has been established or maintained by the Company and/or
one or more of its subsidiaries, and the trust forming part of each
such plan which is intended to be qualified under Section 401 of the
Code is so qualified; each of the Company and its subsidiaries has
fulfilled its obligations, if any, under Section 515 of ERISA; neither
the Company nor any of its subsidiaries maintains or is required to
contribute to a "welfare plan" (as defined in Section 3(1) of ERISA)
which provides retiree or other post-employment welfare benefits or
insurance coverage (other than "continuation coverage" (as defined in
Section 602 of ERISA)); each pension plan and welfare plan established
or maintained by the Company and/or one or more of its subsidiaries is
in compliance in all material respects with the currently applicable
provisions of ERISA; and neither the Company nor any of its
subsidiaries 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. The assets of the Company and the Subsidiaries do
not, and as of the Closing Date will not, constitute "plan assets"
under ERISA.
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(bb) There is and has been no failure on the part of the Company
and any of the Company's 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 (the
"Sarbanes Oxley Act"), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(cc) Neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company and the Operating Partnership, any director,
trustee, officer, agent, employee or affiliate of the Company or any of
the Subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by such Persons of the
FCPA, including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of
the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any "foreign
official" (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have
conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and
which are reasonably expected to continue to ensure, continued
compliance therewith.
"FCPA" means Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder.
(dd) The operations of the Company and the Subsidiaries are and
have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency
(collectively, the "Money Laundering Laws") and no action, suit or
proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened.
(ee) Neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company, any director, trustee, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department ("OFAC"); and
the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject
to any U.S. sanctions administered by OFAC.
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(ff) The Company and its Subsidiaries are organized and operate in
a manner so as to enable the Company to qualify as a real estate
investment trust (a "REIT") under Sections 856 through 860 of the Code
and the rules and regulations thereunder as currently in effect, and
the Company has elected to be taxed as a REIT under the Code commencing
with the taxable year ending December 31, 1986. The Company intends to
continue to qualify as a REIT for the foreseeable future.
(gg) The Registration Statement was exempt from filing with the
National Association of Securities Dealers, Inc. pursuant to, and in
full compliance with, Conduct Rule 2710(b)(7)(C).
(hh) Except as disclosed in the Registration Statement and the
Prospectus, the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of any Underwriter and
(ii) does not intend to use any of the proceeds from the sale of the
Securities hereunder to repay any outstanding debt owed to any
affiliate of any Underwriter.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company and by the Operating Partnership, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of $24.77 per
share, the Underwritten Securities set forth opposite such Underwriter's name in
Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby
grants an option to the several Underwriters to purchase, severally and
not jointly, up to 337,500 in the aggregate Option Securities at the
same purchase price per share as the Underwriters shall pay for the
Underwritten Securities. Such option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the
Underwriters. Such option may be exercised in whole or in part at any
time on or before the 30th day after the date of the Prospectus upon
written or telegraphic notice by the Representatives to the Company
setting forth the number of shares of the Option Securities as to which
the several Underwriters are exercising the option and the settlement
date. In the event that the Underwriters exercise less than their full
over-allotment option, the number of Option Securities to be sold by
the Company to each Underwriter shall be, as nearly as practicable, in
the same proportion as the maximum number of Option Securities to be
sold by the Company and the number of Option Securities to be sold. The
number of Option Securities to be purchased by each Underwriter shall
be the same percentage of the total number of shares of the Option
Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to
such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
11
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day (as defined
herein) prior to the Closing Date) shall be made at 10:00 AM, New York City
time, on October 20, 2003, or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement among the
Representatives and the Company or as provided in Section 10 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price of the
Securities being sold by wire transfer payable in same-day funds to the account
specified by the Company. Delivery of the Underwritten Securities and the Option
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
such option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof by wire transfer payable in same-day funds to the account
specified by the Company. If settlement for the Option Securities occurs after
the Closing Date, the Company will deliver to the Representatives on the
settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
cause the Prospectus, properly completed, and any supplement thereto to
be filed in a form approved by the Representatives with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise
the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (ii) when
the Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the
Commission, (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Prospectus
or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
12
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (i) notify the
Representatives of such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (iii) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters an earnings
statement or statements of the Company and the Subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits) and, so long as
delivery of a prospectus by an Underwriter or a dealer may be required
by the Act, as many copies of each Preliminary Prospectus and the
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will pay any fee of the National Association of Securities Dealers,
Inc., in connection with its review of the offering; provided that in
no event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
13
(f) The Company will not, without the prior written consent of
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, offer, sell, contract to sell,
pledge, or otherwise dispose of, (or enter into any transaction which
is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, including the
filing (or participation in the filing (except that the filing of
amendments or supplements to the Registration Statement on Form S-3
filed with the Securities and Exchange Commission on September 22, 2003
shall be permitted)) of a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act, any other shares of Common Shares or
any securities convertible into, or exercisable, or exchangeable for,
Common Shares; or publicly announce an intention to effect any such
transaction, for a period of 45 days after the date of the Underwriting
Agreement; provided, however, that the Company may issue and sell
Common Shares pursuant to any employee or trustee option or long-term
incentive plan, share ownership plan or dividend purchase or
reinvestment plan of the Company in effect at the Execution Time and
the Company may issue Common Shares issuable upon the conversion or
redemption of securities or the exercise of options or warrants
outstanding at the Execution Time or the conversion or redemption of
units in the Operating Partnership outstanding at the Execution Time;
or the conversion of equity in any of the Subsidiaries identified on
Schedule II as "Joint Ventures" pursuant to and in accordance with
conversion rights in effect at the Execution Time.
(g) The Company will comply with all applicable securities and
other applicable laws, rules and regulations, including, without
limitation, the Sarbanes Oxley Act, and will use its best efforts to
cause the Company's trustees and officers, in their capacities as such,
to comply with such laws, rules and regulations, including, without
limitation, the provisions of the Sarbanes Oxley Act.
(h) The Company will not 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 otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
14
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Operating
Partnership contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company and the Operating Partnership made in any certificates pursuant
to the provisions hereof, to the performance by the Company and the Operating
Partnership of their respective obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later
than (i) 6:00 PM New York City time on the date of determination of the
public offering price, if such determination occurred at or prior to
3:00 PM New York City time on such date or (ii) 9:30 AM on the Business
Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any
such supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxxxx
LLP, counsel for the Company, to have furnished to the Representatives
their opinion dated the Closing Date and addressed to the Underwriters
to the effect set forth in Exhibit A attached hereto. In rendering such
opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the States of
Pennsylvania, Maryland and Delaware or the Federal laws of the United
States, to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they believe to
be reliable and who are satisfactory to counsel for the Underwriters
and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (b) shall
also include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Proskauer Rose
LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Underwriters, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the President and Chief Executive
Officer and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and
that:
15
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive
of any supplement thereto), there has been no material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(e) The Company shall have requested and caused KPMG LLP and
PriceWaterhouseCoopers LLP ("PWC") to have furnished to the
Representatives for the Underwriters, at the Execution Time and at the
Closing Date, letters, dated respectively as of the Execution Time and
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they were or are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission
thereunder and that PWC has performed a review of the unaudited interim
financial information of the Company for the six-month period ended
June 30, 2003 and as at June 30, 2003, in accordance with Statement on
Auditing Standards No. 100, and stating in effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules incorporated by
reference in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Act and the
Exchange Act and the related rules and regulations adopted by the
Commission;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; PWC's limited review, in accordance with standards
established under Statement on Auditing Standards No. 100, of the
unaudited interim financial information for the six-month period
ended June 30, 2003, and as at June 30, 2003 incorporated by
reference in the Registration Statement and the Prospectus;
carrying out certain specified procedures (but not an examination
in accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with respect
to the comments set forth in such letter; a reading of the minutes
of the meetings of the shareholders, the Board of Trustees, the
Audit Committee, the Corporate Governance Committee and the
Compensation Committee of the Company; and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to December 31, 2002, nothing
came to their attention which caused PWC to believe that:
16
(A) any unaudited financial statements incorporated by
reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act as it
applies to Form 10-Q and with the related rules and
regulations adopted by the Commission; and said unaudited
financial statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus;
(B) with respect to the period subsequent to June 30,
2003, there were any changes, at a specified date not more
than five days prior to the date of the letters, in the
number of preferred shares and common shares of beneficial
interest issued and outstanding, increases in consolidated
debt or any decreases in consolidated total assets or total
beneficiaries' equity of the Company as compared with the
amounts shown on the June 30, 2003 unaudited condensed
consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus, or
for the period from July 1, 2003 to such specified date there
were any decreases, as compared with the corresponding period
in the preceding year; in consolidated total revenue or in the
total or per share amounts of net income, except in all
instances for changes, increases or decreases that the
Registration Statement discloses have occurred or may occur,
in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; and
(C) the information included or incorporated by reference
in the Registration Statement and Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of
an accounting, financial or statistical nature (which is limited
to accounting, financial or statistical information derived from
the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the
Prospectus and in Exhibit 12 to the Registration Statement,
including the information set forth under the caption "Selected
Financial Data" in the Prospectus, the information included or
incorporated by reference in Items 1, 2, 6, 7 and 11 of the
Company's Annual Report on Form 10-K, as updated on the Company's
current report on Form 8-K dated September 18, 2003, incorporated
by reference in the Registration Statement and the Prospectus, and
the information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q, incorporated by reference in the
Registration Statement and the Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding
any questions of legal interpretation.
17
References to the Prospectus in this paragraph (g) include any
supplement thereto at the date of the letters.
(f) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or
decrease specified in the letters referred to in paragraph (e) of this
Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(i) The Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the
Representatives.
(j) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit B
attached hereto from each officer and trustee of the Company addressed
to the Representatives.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
18
The documents required to be delivered by this Section 6 shall be
delivered at the office of Proskauer Rose LLP, counsel for the Underwriters, at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by the Underwriters, the Company will reimburse the Underwriters
severally through Xxxx Xxxxx Xxxx Xxxxxx, Incorporated on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution. (a) The Company and the Operating
Partnership jointly and severally agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as originally
filed or in any amendment thereof, or in any Preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon 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, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Operating
Partnership will 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 any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by the Underwriters specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company and
the Operating Partnership may otherwise have.
19
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its trustees, each of its
officers who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act to the same extent as the foregoing indemnity to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company acknowledges that the statements set
forth on the cover page regarding delivery of the Securities and, under
the heading "Underwriting," the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary
Prospectus and the Prospectus constitute the only information furnished
in writing by or on behalf of the Underwriters for inclusion in any
Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
20
(d) In the event that the indemnity provided in paragraph (a), (b)
or (c) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Operating Partnership, jointly and severally, and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively
"Losses") to which the Company, the Operating Partnership and the
Underwriters, may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Operating
Partnership on the one hand, and by the Underwriters on the other from
the offering of the Securities; provided, however, that in no case
shall (i) any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Operating
Partnership, jointly and severally, and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
and the Operating Partnership on the one hand and of the Underwriters,
on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company and the Operating
Partnership shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on
the cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company
and the Operating Partnership on the one hand or the Underwriters on
the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Operating Partnership and
the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each
trustee of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
21
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Operating Partnership or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company, the Operating Partnership and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Shares shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on the New York Stock Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or the Operating Partnership or its officers or partners and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter, the Operating Partnership or the Company or any of the officers,
directors, trustees, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Xxxx Xxxxx Xxxx Xxxxxx, Incorporated General
Counsel (fax no. (000) 000-0000:) and confirmed to the General Counsel, Xxxx
Xxxxx Xxxx Xxxxxx, Incorporated, at 000 Xxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxx 00000,
Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to Brandywine Realty Trust General Counsel (fax no.
000-000-0000) and confirmed to it at Brandywine Realty Trust, 000 Xxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000, attention of the Legal
Department.
22
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, trustees, employees, agents and controlling persons
referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(i)(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
23
"Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or
any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended
or such Rule 462(b) Registration Statement, as the case may be. Such
term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
* * * * * *
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Operating Partnership and the several Underwriters.
Very truly yours,
BRANDYWINE REALTY TRUST
By: ____________________________________________
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
BRANDYWINE OPERATING
PARTNERSHIP, L.P.
By: Brandywine Realty Trust, its general partner
By: _____________________________________________
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
By:_________________________
Print name:
Title:
MCDONALD INVESTMENTS INC.,
a KeyCorp Company
By:_________________________
Print name:
Title:
SCHEDULE I
----------------------------------------------------------------------------------------------------------------------
Underwriter Number of Underwritten Securities
----------- ---------------------------------
------------------------------------------------------------ ---------------------------------------------------------
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 1,125,000
------------------------------------------------------------ ---------------------------------------------------------
McDonald Investment Inc., a KeyCorp Company 1,125,000
----------------------------------------------------------------------------------------------------------------------
SCHEDULE II
BRANDYWINE REALTY TRUST
SUBSIDIARIES
--------------------------------------------------------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
AAPOP 1, L.P., a Delaware limited AAP Sub One, Inc.-- GP - 1%
partnership
Atlantic American Properties Trust-- GP - 98%
and LP - 1%
-------------------------------------------- -----------------------------------------------
AAPOP 2, L.P., a Delaware limited Brandywine Xxxxxx, L.L.C.-- GP - 0.5%
partnership
Xxxxxx Operating Partnership I, L.P.-- GP -
98.5% and LP - 1%
-------------------------------------------- -----------------------------------------------
Brandywine Ambassador, L.P., a Brandywine Ambassador, L.L.C. - GP-1%
Pennsylvania limited partnership
BOP-- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine Central, L.P., a Pennsylvania Brandywine F.C., LP-- GP. - 98%
limited partnership
BTRS, Inc.-- LP. - 2%
-------------------------------------------- -----------------------------------------------
Brandywine Cira, L.P., a Pennsylvania BOP-- LP 99%
limited partnership
Brandywine Xxxx, LLC -- GP -- 1%
-------------------------------------------- -----------------------------------------------
Brandywine Croton, L.P., a Pennsylvania Brandywine Grande B, L.P.
limited partnership
LP - 99%
Brandywine Croton, LLC - GP-1%
-------------------------------------------- -----------------------------------------------
Brandywine Dominion, L.P., a Pennsylvania Brandywine Dominion, LLC-- GP - 1%
limited partnership
BOP(1)-- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine F.C., L.P., a Pennsylvania Brandywine F.C., L.L.C.-- GP - 1%
limited partnership
BOP-- LP-- 99%
-------------------------------------------- -----------------------------------------------
Brandywine Grande B, L.P., a Delaware Brandywine Grande B Corp.-- GP - 1%
limited partnership
BOP-- LP - 99%
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
Brandywine Grande C, L.P., a Delaware Brandywine Grande C Corp. - GP 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine I.S., L.P., a Pennsylvania Brandywine I.S., LLC-- GP - 1%
limited partnership
BOP-- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine Metroplex, L.P., a Pennsylvania Brandywine Metroplex, LLC-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine Norriton, L.P., a Pennsylvania Brandywine Norriton, L.L.C.-- GP 1%
limited partnership
BOP-- 99%
-------------------------------------------- -----------------------------------------------
Brandywine Operating Partnership, L.P., a BRT-- GP and LP(2)
Delaware limited partnership
LP's (other than BRT)(2)
-------------------------------------------- -----------------------------------------------
Brandywine P.M., L.P., a Pennsylvania Brandywine P.M., LLC-- GP - 1%
limited partnership
BOP-- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine XX Xxxxxx, L.P., a Pennsylvania Brandywine XX Xxxxxx, LLC-- GP - 1%
limited partnership
BOP-- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB Inn, L.P., a Pennsylvania Brandywine TB Inn, L.L.C.-- GP - 1%
limited partnership
BOP-- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB I, L.P., a Pennsylvania Brandywine TB I LLC-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine XX XX, L.P., a Pennsylvania Brandywine XX XX LLC-- GP - 1%
limited partnership
BOP-- LP - 99%
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
Brandywine TB V, L.P., a Pennsylvania Brandywine TB V, L.L.C.-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB VI, L.P., a Pennsylvania Brandywine TB VI, L.L.C.-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB VIII, L.P., a Pennsylvania Brandywine TB VIII, L.L.C.-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
C/N Iron Run Limited Partnership III, a BOP-- GP - 2%
Pennsylvania limited partnership
BOP-- LP - 87%
WOP(3) -- LP - 11%
-------------------------------------------- -----------------------------------------------
C/N Xxxxxx Limited Partnership II, a BOP-- GP - 89%
Pennsylvania limited partnership
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
C/N Oaklands Limited Partnership I, a WOP-- GP - 88.9%
Pennsylvania limited partnership
BOP-- LP - .1%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
C/N Oaklands Limited Partnership III, a BOP-- GP - 2%
Pennsylvania limited partnership
BOP-- LP - 87%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
Eight Xxxxxx/Brandywine Partner, L.P., a Brandywine TB VIII L.P.-- LP - 50%
Pennsylvania limited partnership
Xxxxxx X. Xxxxxx LP - 1%
Eight Xxxxxx Tower Associates - GP - 49%
-------------------------------------------- -----------------------------------------------
x-Xxxxxxx.xxx Holding, L.P., a BOP-- GP - 99%
Pennsylvania limited partnership
BTRS, Inc.-- LP - 1%
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
Fifteen Horsham, L.P., a Pennsylvania WOP-- GP - 1%
limited partnership
BOP-- LP - 1%
WOP-- LP - 98%
-------------------------------------------- -----------------------------------------------
Iron Run Limited Partnership V, a BOP-- GP - 2%
Pennsylvania limited partnership
BOP-- LP - 87%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
LC/N Horsham Limited Partnership, a WOP-- GP - 88.9%
Pennsylvania limited partnership
BOP-- LP - .1%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
LC/N Xxxxx Valley Limited Partnership I, a WOP-- GP - 88.9%
Pennsylvania limited partnership
BOP-- LP - .1%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
Newtech IV Limited Partnership, a WOP-- GP - 88.9%
Pennsylvania limited partnership
BOP-- LP - .1%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
Xxxxxxx Lansdale Limited Partnership III, WOP-- GP - 88.9% / 98.9%
a Pennsylvania limited partnership
BOP-- LP - 11.1% / 1.1%
-------------------------------------------- -----------------------------------------------
Xxxxxx Operating Partnership I, L.P., a Brandywine Xxxxxx, LLC-- GP - 1% /1%
Delaware limited partnership
BOP-- LP - 99% / 99%
-------------------------------------------- -----------------------------------------------
100 Arrandale Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
Xxxxxxxx -- 11% / 1%
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
111 Arrandale Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
Xxxxxxxx -- 11% / 1%
-------------------------------------------- -----------------------------------------------
000 Xxxxxxxx Xxx Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
Xxxxxxxx -- 11% / 1%
-------------------------------------------- -----------------------------------------------
000 Xxxxxxxx Xxx Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
Xxxxxxxx -- 11% / 1%
-------------------------------------------- -----------------------------------------------
000 Xxxx Xxxxx Xxx Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
Xxxxxxxx -- 11% / 1%
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
GENERAL PARTNERSHIP OWNERSHIP STRUCTURE
-------------------------------------------- -----------------------------------------------
Brandywine 00 Xxxx Xxxxx Partnership, a Brandywine Xxxxx I, LLC-- GP - 50%
New York general partnership
Brandywine Xxxxx II, LLC-- GP - 50%
-------------------------------------------- -----------------------------------------------
Brandywine Broad Street Partnership, a New Brandywine Xxxxx I, LLC-- GP - 50%
York general partnership
Brandywine Xxxxx II, LLC-- GP - 50%
-------------------------------------------- -----------------------------------------------
Interstate Center Associates, a Virginia BOP-- 50%
general partnership
Brandywine Interstate 50, L.L.C.-- 50%
00-0000000
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
GENERAL PARTNERSHIP OWNERSHIP STRUCTURE
-------------------------------------------- -----------------------------------------------
Iron Run Venture II, a Pennsylvania Atlantic American Land Development, Inc. -
general partnership 44.2617%
AAPOP 1, LP-- GP - 55.7383%
-------------------------------------------- -----------------------------------------------
IR Northlight II Associates, a AAPOP 2, LP-- GP - 50%
Pennsylvania general partnership
BOP-- GP - 50%
00-0000000
-------------------------------------------- -----------------------------------------------
Plymouth TFC, General Partnership, a Brandywine P.M. LP-- GP - 50%
Pennsylvania general partnership
WOP-- 50%
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
CORPORATE SUBSIDIARIES SHAREHOLDERS
-------------------------------------------- -----------------------------------------------
AAP Sub One, Inc., a Delaware corporation Atlantic American Properties Trust - 100%
-------------------------------------------- -----------------------------------------------
Atlantic American Land Development, Inc., AAPOP 1, LP - 100%
a Delaware corporation
-------------------------------------------- -----------------------------------------------
Brandywine Grande B Corp., a Delaware BRT-- 100%
corporation
-------------------------------------------- -----------------------------------------------
Brandywine Grande C Corp., a Delaware BRT-- 100%
corporation
-------------------------------------------- -----------------------------------------------
Brandywine Holdings, I, Inc., a BRT-- 100%
Pennsylvania corporation
-------------------------------------------- -----------------------------------------------
Brandywine Realty Services Corporation, a BOP-- 9,500 Common Shares
Pennsylvania corporation
BRSP(8)-- 500 Common Shares
-------------------------------------------- -----------------------------------------------
BTRS, Inc., a Delaware corporation BOP-- 100%
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
CORPORATE SUBSIDIARIES SHAREHOLDERS
-------------------------------------------- -----------------------------------------------
Southpoint Land Holdings, Inc., a BOP-- 89 Shares
Pennsylvania corporation(7)
Xxxxxxxx - 11 Shares
-------------------------------------------- -----------------------------------------------
Valleybrooke Land Holdings, Inc., a BOP-- 89 Shares
Pennsylvania corporation(7)
Xxxxxxxx - 11 Shares
--------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
-------------------------------------------- ------------------------------------------------
Brandywine Ambassador, L.L.C., a BOP-- 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Xxxxx I, LLC, a Delaware BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Xxxxx II, LLC, a Delaware BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Brokerage Services, LLC, a New BRSCO-- 100%
Jersey limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Charlottesville LLC, a Virginia BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Xxxxxxxxx LLC, a Delaware BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Xxxx, LLC, a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Croton, LLC, a Pennsylvania Brandywine Grande B, L.P. - 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Xxxxxx, L.L.C., a Delaware BOP-- 100%
limited liability company
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
-------------------------------------------- ------------------------------------------------
Brandywine Dominion, L.L.C., a BOP-- 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine F.C., L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine I.S., L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Interstate 50, L.L.C., a BOP-- 100%
Delaware limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine - Main Street, LLC, a BOP-- 99%
Delaware limited liability company
Brandywine Acquisitions, LLC -- 1%
-------------------------------------------- ------------------------------------------------
Brandywine Metroplex LLC., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Norriton, L.L.C., a BOP-- 99%
Pennsylvania limited liability company
Norriton Corp. -- 1%
-------------------------------------------- ------------------------------------------------
Brandywine P.M., L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Piazza, L.L.C., a New Jersey BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Plaza 1000, L.L.C., a New BOP-- 100%
Jersey limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Promenade, L.L.C., a New Jersey BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine XX Xxxxxx, LLC, a Pennsylvania BOP-- 100%
limited liability company
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
-------------------------------------------- ------------------------------------------------
Brandywine TB Inn, L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine TB I, L.L.C., a Pennsylvania BOP -- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine XX XX, L.L.C., a Pennsylvania BOP -- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine TB V, L.L.C., a Pennsylvania BOP -- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine TB VI, L.L.C., a Pennsylvania BOP -- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine TB VIII, L.L.C., a Pennsylvania BOP -- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Trenton Urban Renewal, L.L.C., BOP -- BRT
a Delaware limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Xxxxxx, L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Christiana Center Operating Company I LLC, BOP-- Member - 100%
a Delaware limited liability company
---------------------------------------------------------------------------------------------
Christiana Center Operating Company II BOP-- Member - 100%
LLC, a Delaware limited liability company
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
-------------------------------------------- ------------------------------------------------
Christiana Center Operating Company III BOP-- Member - 100%
LLC, a Delaware limited liability company
-------------------------------------------- ------------------------------------------------
e-Tenants LLC, a Delaware limited x-Xxxxxxx.xxx Holding, L.P.
liability company
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
JOINT VENTURES BRANDYWINE MEMBERS/PARTNERS
------------------------------------------- -------------------------------------------------
Brandywine Industrial Partnership, L.P., a BB&K GP, BB&K LP Business Trust, BOP and
Delaware limited partnership Xxxxxxx Lansdale Limited Partnership III
------------------------------------------- -------------------------------------------------
0000 Xxxxxxxxxxxx Xxxxxxxxx Partnership, a Brandywine Dominion, LP -- GP - 50%
Pennsylvania general partnership
------------------------------------------- -------------------------------------------------
PJP Building Two, L.C., a Virginia limited Brandywine Charlottesville, LLC -- 30%
liability company
Pavilion Holdings, LLC -- 20%
Xxxxxxx Land Development Company, L.C. f/k/a
Xxxxxxx Land and Cattle Company, L.C. -- 50%
------------------------------------------- -------------------------------------------------
PJP Building Five, L.C., a Virginia Brandywine Charlottesville, LLC -- 25%
limited liability company
Pavilion Holdings, LLC -- 25%
Xxxxxxx Land and Development Company, L.C. --
50%
------------------------------------------- -------------------------------------------------
Two Tower Bridge Associates, a Brandywine XX XX, LP-- GP - 35%
Pennsylvania limited partnership
------------------------------------------- -------------------------------------------------
Four Tower Bridge Associates, a Brandywine TB I, LP-- GP - 65%
Pennsylvania limited partnership
------------------------------------------- -------------------------------------------------
Five Xxxxxx/Brandywine Partner, L.P., a Brandywine TB V, L.P.-- GP - 50%
Pennsylvania Limited Partnership
Five Xxxxxx Tower Associates -- GP - 49%
Xxxxxx X. Xxxxxx-- LP - 1%
------------------------------------------- -------------------------------------------------
---------------------------------------------------------------------------------------------
JOINT VENTURES BRANDYWINE MEMBERS/PARTNERS
------------------------------------------- -------------------------------------------------
Five Tower Bridge Associates, a Five Xxxxxx/Brandywine Partner, L.P.-- LP
Pennsylvania limited partnership -- 30%
------------------------------------------- -------------------------------------------------
Six Tower Bridge Associates, a Brandywine TB VI, LP-- GP - 65%
Pennsylvania limited partnership
------------------------------------------- -------------------------------------------------
Eight Tower Bridge Development Associates, Eight Xxxxxx/Brandywine Partner, L.P.-- GP--
a Pennsylvania limited partnership 11% [A BRT subsidiary, Brandywine TB VIII,
L.P., is a 50% limited partner in this entity.]
Eight Tower Bridge - VEF II, LLC-- LP-- 89%
------------------------------------------- -------------------------------------------------
Tower Bridge Inn Associates, a Brandywine TB Inn, L.P.-- GP - 50%
Pennsylvania limited partnership
Xxxxxx Tower Inn Associates -- GP - 23.1829%
Tower Bridge Partners -- LP - 23.1889%
Centre Consho, LLC-- LP - 3.6222%
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
CONDOMINIUM UNIT OWNERS
-------------------------------------------- ------------------------------------------------
Allendale Road Corporate Center, a BOP owns all units
Pennsylvania Condominium Association
-------------------------------------------- ------------------------------------------------
Greentree Executive Campus 1001-03 BOP owns 2 units
Association, Inc., a New Jersey non-profit
corporation 1001 Greentree Associates, L.L.C. owns 1 Unit.
-------------------------------------------- ------------------------------------------------
Princeton Pike V, VI & VII Condominium BOP owns all units
Association, Inc., a New Jersey condominium
association
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
TRUST TRUSTEES
-------------------------------------------- ------------------------------------------------
Atlantic American Properties Trust, a BOP -- Common Shares - 100%
Maryland real estate investment trust
100 BRT Employees -- Preferred Shares - 100%
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
PARENT TRUSTEES
-------------------------------------------- ------------------------------------------------
Brandywine Realty Trust, a Maryland
real estate investment trust
---------------------------------------------------------------------------------------------
(1) Brandywine Operating Partnership, LP, referred to as "BOP," is a Delaware
limited partnership.
(2) Per BOP Unit Registry.
(3) Xxxxxx Operating Partnership I, L.P., referred to as "WOP," is a Delaware
limited partnership.
(4) The minority interest in these entities is subject to put/call rights under
which BOP will ultimately acquire the minority interests.
SCHEDULE III
List of Options, Warrants
and Other Convertible Securities
Options
-------
----------------------------------------------------------------------------------------------------------------------
Name Date of Grant Exercise Price Ending Balance
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxx, Xxx 10/6/98 24.00 50,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxx, Xxx 10/6/98 26.40 50,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 100,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 1/2/98 25.25 6,587
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 7/1/99 25.25 3,297
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 1/2/98 27.78 7,708
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 7/1/99 27.78 3,857
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 1/2/98 29.04 8,314
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 7/1/99 29.04 4,161
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 33,924
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Jr., Al 1/2/98 27.78 2,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 2,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxx, Xxxx 10/6/98 24.00 50,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxx, Xxxx 10/6/98 26.40 50,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 100,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxx, Xxx 1/2/98 27.78 7,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 7,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
XxXxxxxx, Xxx 1/2/98 27.78 5,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 5,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 7/1/99 25.25 6,594
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 1/2/98 27.78 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 7/1/99 27.78 7,715
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 1/2/98 29.04 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 7/1/99 29.04 8,322
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 47,631
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Jr., Xxxx 1/2/98 25.25 19,792
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Jr., Xxxx 1/2/98 27.78 23,159
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Jr., Xxxx 1/2/98 29.04 24,944
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 67,895
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Sr., Xxxx 1/2/98 25.25 197,923
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Sr., Xxxx 1/2/98 27.78 231,597
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Sr., Xxxx 1/2/98 29.04 249,438
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 678,958
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx, Xxxxxxx 6/1/99 25.25 6,726
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx, Xxxxxxx 6/1/99 27.78 7,870
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx, Xxxxxxx 6/1/99 29.04 8,489
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 23,085
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxx 7/1/99 25.25 6,594
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 1/2/98 27.78 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 7/1/99 27.78 7,715
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 1/2/98 29.04 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxx 7/1/99 29.04 8,322
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 47,631
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 6/1/99 25.25 6,726
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 6/1/99 27.78 7,870
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxx 6/1/99 29.04 8,489
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 23,085
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx, Xxxxxx 7/1/99 25.25 6,594
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx, Xxxxxx 7/1/99 27.78 7,715
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx, Xxxxxx 7/1/99 29.04 8,322
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 22,631
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxxx 8/8/94 6.21 13,333
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxxx 8/8/94 14.31 33,334
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxxx 7/25/02 19.50 100,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxxx 1/2/98 25.25 296,736
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxxx 1/2/98 27.78 347,222
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx, Xxxxx 1/2/98 29.04 374,531
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 1,165,156
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxxxxx 7/1/99 25.25 6,594
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxxxxx 1/2/98 27.78 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxxxxx 7/1/99 27.78 7,715
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxxxxx 1/2/98 29.04 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxxx, Xxxxxxx 7/1/99 29.04 8,322
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 47,631
------------------------------- ---------------------------- ---------------------------- ----------------------------
Grand Total 2,372,627
----------------------------------------------------------------------------------------------------------------------
WARRANTS
--------
----------------------------------------------------------------------------------------------------------------------
Name Number of Underlying Common Shares
------------------------------------------------------------ ---------------------------------------------------------
Five Arrows Realty Securities L.L.C. 500,000
------------------------------------------------------------ ---------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------------
UNITS
------
----------------------------------------------------------------------------------------------------------------------
Totals for All Units
------------------------------------------------------------------------ ---------------------------------------------
Total General Partnership Units Outstanding: 37,119,090
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Limited Partnership Units Outstanding: 2,340,212
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Units to BRT 603,005
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Units to Holdings I 5
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Units to outside limited partners 1,737,202
------------------------------------------------------------------------ ---------------------------------------------
Total Reserved Units for redemption/conversion of Series A Preferred 1,415,094 Units
Mirror Units:
------------------------------------------------------------------------ ---------------------------------------------
Total Reserved Units for redemption conversion of Series B Preferred 3,679,245 Units
Units:
------------------------------------------------------------------------ ---------------------------------------------
Total Series A Preferred Mirror Units Outstanding: 750,000 Units
------------------------------------------------------------------------ ---------------------------------------------
Total Series B Preferred Units Outstanding 1,950,000 Units
------------------------------------------------------------------------ ---------------------------------------------
Total Series C Preferred Mirror Units Outstanding: 4,375,000 Units
----------------------------------------------------------------------------------------------------------------------
OTHER
Partners in 0000 Xxxxxxxxxxxx Xxxxxxxxx Partnership have the right,
under certain circumstances, to have the partnership interests valued and to
convert these interests into Class A Units of Brandywine Operating Partnership,
L.P.
EXHIBIT A
1. The Company is a real estate investment trust duly formed and
existing under and by virtue of the laws of the State of Maryland and is in good
standing under the laws of the State of Maryland, including with the State
Department of Assessments and Taxation of Maryland. The Company has the full
trust power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business as described in the Registration
Statement and the Prospectus requires such registration or qualification, except
where the failure to so qualify would not have a material adverse effect on the
condition (financial or otherwise), business, prospects, properties or earnings
of the Company.
2. Each of the Subsidiaries is a corporation, limited liability
company, limited partnership or general partnership duly incorporated or formed,
as the case may be, validly existing and in good standing, as the case may be,
under the laws of its jurisdiction of incorporation or formation, with full
corporate, limited liability company, or partnership power and authority, as the
case may be, to own, lease, and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus, and is
duly registered and qualified to conduct its business in each jurisdiction or
place where the nature of its properties or the conduct of its business as
described in the Registration Statement and the Prospectus requires such
registration or qualification, except where the failure to so qualify would not
have a material adverse effect on the condition (financial or otherwise),
business, prospects, properties or earnings of such Subsidiary.
3. The authorized beneficial interest of the Company (including, but
not limited to, any options, warrants or other securities convertible into or
exchangeable shares of beneficial interest of the Company) is as set forth in
the Registration Statement and the Prospectus Supplement, and the Shares conform
in all material respects to the description thereof in the Registration
Statement and the Prospectus Supplement. All the outstanding shares of
beneficial interest of the Company outstanding prior to the issuance of the
Shares have been duly and validly authorized and issued, are fully paid and
nonassessable, and are free of any preemptive or other rights to subscribe for
the Shares under Maryland law or any agreements entered into by the Company and
identified under Item 15 to the Company's Annual Report on Form 10-K for the
year ended December 31, 2002, as amended by the Annual Report on Form 10-K/A.
4. The Shares have been duly and validly authorized and, when issued
and delivered to the Underwriters against payment therefor in accordance with
the terms of the Agreement, will be validly issued, fully paid and nonassessable
and free of any preemptive or other rights to subscribe for the Shares under
Maryland law or any agreements entered into by the Company and identified under
Item 15 to the Company's Annual Report on Form 10-K for the year ended December
31, 2002, as amended by the Annual Report on Form 10-K/A.
5. To our knowledge after due inquiry, except as set forth on Schedule
I to the Officer's Certificate, there are no outstanding options, warrants or
other rights to purchase, calling for the issuance of, or any commitment, plan
or arrangement to issue, any shares of beneficial interest of the Company or any
security or other right or obligation convertible into or exchangeable or
exercisable for shares of beneficial interest of the Company. There is no holder
of any security of the Company or any other person who has the statutory right
or, to our knowledge after due inquiry, the contractual or other right, to cause
the Company to sell or otherwise issue to him, or to permit him to underwrite
the sale of, the Shares or the right to have any Common Shares or other
securities of the Company included in the Registration Statement or the right,
as a result of the filing of the Registration Statement or sale of the Shares as
provided in the Agreement, to require registration under the Act of any Common
Shares or other securities of the Company.
6. All of the outstanding units of limited and general partnership
interests of the Operating Partnership (the "Units"), and the partnership and
membership interests in each of the other Subsidiaries that is a partnership or
limited liability company, as the case may be, were created under the agreements
forming the Operating Partnership and such other Subsidiaries, as the case may
be, and all of the issued and outstanding shares of capital stock of each of the
Subsidiaries that is a corporation have been duly authorized and validly issued,
and are fully paid and nonassessable. To our knowledge after due inquiry, except
as described in the Registration Statement and the Prospectus (or any amendment
or supplement thereto) or Schedule II to the Officer's Certificate, all such
Units, partnership interests and shares of capital stock are owned by the
Company directly, or indirectly through one of the Subsidiaries, free and clear
of any security interest, lien, adverse claim, equity or other encumbrance, and,
to our knowledge after due inquiry, the Company's ownership interest in the
Operating Partnership, and the Company's and the Operating Partnership's
respective ownership interest in each of the Subsidiaries, is as set forth on
Schedule II attached hereto (without giving effect to the issuance of the
Shares). Except as described in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), there are no outstanding options,
warrants or other rights to purchase, calling for the issuance of, or any
commitment, plan or arrangement to issue, any equity interests in any
Subsidiary, or any security or other right or obligation convertible into or
exchangeable or exercisable for any such interests in any such Subsidiary. The
terms of the Units conform in all material respects to statements and
descriptions thereof contained in the Registration Statement and the Prospectus.
The Company is the sole general partner of the Operating Partnership. The
Subsidiaries set forth on Schedule II attached hereto include all of the
"significant subsidiaries" of the Company, as such term is defined by Rule 1-02
of Regulation S-X.
7. The Company has the full trust power and authority, and the
Operating Partnership has the requisite partnership power and authority, to
enter into the Agreement, and in the case of the Company, to issue, sell and
deliver the Shares to the Underwriters as provided in the Agreement, and the
Agreement has been duly and validly authorized, executed and delivered by the
Company and the Operating Partnership, as applicable, and is the legal, valid
and binding agreement of each of the Company and the Operating Partnership, as
applicable, enforceable against them in accordance with its terms.
8. The form of certificate representing the Common Shares is in due and
proper form and complies in all material respects with all applicable Maryland
statutory requirements and the rules and regulations of the New York Stock
Exchange.
9. To our knowledge after due inquiry, neither the Company nor any of
the Subsidiaries is in violation of its respective Declaration of Trust,
certificate or articles of incorporation or bylaws, partnership agreement,
operating agreement or other organizational documents or is in default in the
performance of any material obligation, agreement or condition contained in any
bond, debenture, note or other evidence of indebtedness.
10. With respect to the Company and the Subsidiaries, neither the
offer, sale or delivery of the Shares, the execution, delivery or performance of
the Agreement, nor the consummation of the transactions contemplated thereby by
the Company or the Subsidiaries, as applicable: (i) required or requires, with
respect to the Company or the Subsidiaries, any consent, approval, authorization
or other order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official, or the New
York Stock Exchange (except (a) such as has been made or obtained and (b) as to
state securities or Blue Sky laws, as to which we express no opinion); (ii)
conflicted with or conflicts with, constituted or constitutes, or resulted in or
results in, a breach or violation of, or a default under, the Declaration of
Trust, Articles Supplementary, certificate or articles of incorporation or
bylaws, partnership agreement or other organizational documents, of any of such
entities, or under any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition covenant or
instrument to which any of such entities is a party or by which any of them or
any of their respective properties or assets are bound or subject to; (iii)
violated or violates any statute, law, rule, regulation, judgment, injunction,
order or decree applicable to any of such entities or any of their respective
properties or assets; or (iv) resulted or will result in the creation or
imposition of any lien, charge or encumbrance upon the property or assets of any
of such entities pursuant to the terms of any agreement or instrument to which
any of them is a party or by which any of them may be bound or to which any of
the property or assets of any of them is subject.
11. Neither the Company nor any of the Subsidiaries is, and after
giving effect to the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus (and any amendment or supplement
thereto) will be, an "investment company" as defined in the Investment Company
Act of 1940, as amended.
12. To our knowledge after due inquiry, (i) there are no pending or
threatened actions, suits or proceedings against the Company or any of the
Subsidiaries or any of their respective trustees, directors or officers in their
capacity as such, or to which the Company or any of the Subsidiaries or any of
their respective trustees, directors or officers in their capacity as such, or
any of their respective properties or assets, is subject, that are of a
character which is required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto) other than any that are
described or incorporated therein by reference and (ii) there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to the Registration Statement
that are not described or filed as required by the Act.
13. The statements in the Registration Statement and Prospectus
Supplement set forth under the headings "Description of Shares of Beneficial
Interest", "Certain Provisions of Maryland Law and of our Declaration of Trust
and Bylaws" and "Federal Income Tax Considerations", and the statements in the
Company's Annual Report on Form 10-K for the year ended December 31, 2002 and
incorporated by reference in the Registration Statement under the heading "Risk
Factors--Our status as a REIT is dependent on compliance with federal income tax
requirements", to the extent they constitute matters of law or descriptions or
summaries of contracts, agreements or other legal documents, or refer to or
constitute statements of matters of law, descriptions of statutes, rules or
regulations, or legal conclusions, each, respectively, are accurate and fair
summaries of the information disclosed therein.
14. The Registration Statement has become effective under the Act and
any required filing of the Prospectus (or any amendment or supplement thereto)
pursuant to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b). To our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened. The Registration Statement and
the Prospectus (or any amendment or supplement thereto) (other than the
financial statements and other financial and statistical information contained
therein, as to which we express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the Exchange Act and
the respective rules thereunder. We have no reason to believe that on the
Effective Date or the date the Registration Statement was last deemed amended
the Registration Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus as of its date
and on the Closing Date included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (in each case, other than the financial statements and
other financial and statistical information contained therein, as to which we
express no opinion).
15. The Shares are duly listed, admitted and authorized for trading on
the New York Stock Exchange, subject to official notice of issuance.
16. The Company was organized in conformity with the requirements for
qualification as a REIT for federal income tax purposes, and, based on the facts
and assumptions set forth in the Prospectus (and any amendment or supplement
thereto) and certain representations by the Company regarding certain federal
income tax matters, its method of operation has enabled it, and its proposed
method of operation will enable it, to meet the requirements under the Internal
Revenue Code of 1986, as amended, for qualification and taxation as a REIT.
EXHIBIT B
Form of Lock-Up Agreement
October ___, 2003
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
McDonald Investments Inc., A KeyCorp Company
c/x Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: Brandywine Realty Trust; Public Offering of Common Shares
---------------------------------------------------------
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Brandywine Realty
Trust, a real estate investment trust organized under the laws of Maryland (the
"Company"), Brandywine Operating Partnership, L.P., a Delaware limited
partnership, and you as the underwriters named therein (the "Underwriters"),
relating to an underwritten public offering of common shares of beneficial
interest, par value $.01 per share (the "Common Shares"), of the Company.
In order to induce you to enter into the Underwriting Agreement, the
undersigned agrees that he, she or it, as the case may be, will not, without the
prior written consent of the Underwriters, offer, sell, contract to sell, pledge
or otherwise dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of beneficial interest in the Company or any securities convertible into,
or exercisable or exchangeable for, such shares of beneficial interest, or
publicly announce an intention to effect any such transaction, for a period of
45 days after the date of the Underwriting Agreement, other than Common Shares
disposed of as bona fide gifts approved in writing by the Underwriters.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Very truly yours,
________________________
Print name:
Title:
Address:
