10,000,000 Shares
BRANDYWINE REALTY TRUST
Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
January 29, 1998
XXXXX XXXXXX INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
NATIONSBANC XXXXXXXXXX SECURITIES LLC
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Brandywine Realty Trust, a Maryland real estate investment trust (the
"Company"), proposes to issue and sell an aggregate of 10,000,000 shares (the
"Firm Shares") of its common shares of beneficial interest, par value $0.01 per
share (the "Common Shares"), to you (collectively, the "Underwriters"). The
Company also proposes to sell to the Underwriters, upon the terms and conditions
set forth in Section 2 hereof, up to an additional 1,500,000 Common Shares (the
"Additional Shares"). The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "Shares."
The Company, directly and through a wholly-owned subsidiary, is the
sole general partner and a limited partner (with an aggregate 98.2% ownership
interest as of the date hereof, without giving effect to the issuance and sale
of any Shares hereunder) of Brandywine Operating Partnership, L.P., a Delaware
limited partnership (the "Operating Partnership"). The Company will contribute
the net proceeds of the sale of the Firm Shares and the Additional Shares 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 several purchases of
the Shares by the Underwriters.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 (Registration No. 333-39155) under
the Act (the "registration statement"), including a prospectus generally
relating to the Shares; and such amendments, if any, to such registration
statement as may have been required prior to the date hereof have been filed
with the Commission, and such amendments, if any, have been similarly prepared.
Such registration statement and any post-effective amendments thereto have
become effective under the Act. The Company also has filed with the Commission
pursuant to Rule 424(b) under the Act, a prospectus supplement relating to the
Shares dated January 8, 1998 and has filed, or proposes to file, with the
Commission a second prospectus supplement specifically relating to the Shares
dated the date hereof.
The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it became effective, or, if the registration statement
became effective prior to the execution of this Agreement, as supplemented or
amended prior to the execution of this Agreement, including all information (if
any) deemed to be a part of such registration at the time it became effective
pursuant to Rule 430A under the Act. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the registration
statement will be filed and must be declared effective before the offering of
the Shares may commence, the term "Registration Statement" as used in this
Agreement means the registration statement as amended by said post-effective
amendment. The term "Prospectus" as used in this Agreement means the base
prospectus included in the Registration Statement at the time it was declared
effective, or, if the prospectus included in the Registration Statement omits
information in reliance on Rule 430A under the Act and such information is
included in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, the term "Prospectus" as used in this Agreement means the prospectus in
the form included in the Registration Statement as supplemented by the addition
of the Rule 430A information contained in the prospectus filed with the
Commission pursuant to Rule 424(b). The term "Prepricing Prospectus" as used in
this Agreement means the prospectus subject to completion in the form included
in the registration statement at the time of the initial filing of the
registration statement with the Commission, and as such prospectus shall have
been amended or supplemented from time to time prior to the date of the
Prospectus. Any reference in this Agreement to the registration statement, the
Registration Statement, any Prepricing 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 under the Act, as of the date of the
registration statement, the Registration Statement, such Prepricing Prospectus
or the Prospectus, as the case may be, and any reference to any amendment or
supplement to the registration statement, the Registration Statement, any
Prepricing Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") which, upon filing, are incorporated by
reference therein, as required by paragraph (b) of Item 12 of Form S-3. As used
herein, the term "Incorporated Documents" means
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the documents which at the time are incorporated by reference in the
registration statement, the Registration Statement, any Prepricing Prospectus,
the Prospectus, or any amendment or supplement thereto. Capitalized terms used,
but not defined, herein shall have the respective meanings ascribed thereto in
the Prospectus.
2. Agreements to Sell and Purchase. The Company hereby agrees, subject
to all the terms and conditions set forth herein, to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company and the Operating Partnership herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $22.77 per Share (the "purchase price per share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto (or
such number of Firm Shares increased as set forth in Section 11 hereof).
The Company also agrees, subject to all the terms and conditions set
forth herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Company and the Operating
Partnership herein contained and subject to all the terms and conditions set
forth herein, the Underwriters shall have the right to purchase from the
Company, at the purchase price per share, pursuant to an option (the
"over-allotment option") which may be exercised at any time and from time to
time prior to 9:00 P.M., New York City time, on the 30th day after the date of
the Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday,
on the next business day thereafter when the New York Stock Exchange is open for
trading), up to an aggregate of 1,500,000 Additional Shares. Additional Shares
may be purchased only for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. Upon any exercise of the
over-allotment option, each Underwriter, severally and not jointly, agrees to
purchase from the Company the number of Additional Shares (subject to such
adjustments as you may determine in order to avoid fractional shares) which
bears the same proportion to the number of Additional Shares to be purchased by
the Underwriters as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto (or such number of Firm Shares increased
as set forth in Section 11 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering. The Company has been advised by you that
you propose to make a public offering of your respective portions of the Shares
as soon after the Registration Statement and this Agreement have become
effective as in your judgment is advisable and initially to offer the Shares
upon the terms set forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office of
Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New
York City time, on February 4, 1998 (the "Closing Date"). The place of closing
for the Firm Shares and the Closing Date may be varied by agreement between you
and the Company.
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Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the aforementioned office
of Xxxxx Xxxxxx Inc. at such time on such date (the "Option Closing Date"),
which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor earlier than two nor later than ten business days after the
giving of the notice hereinafter referred to, as shall be specified in a written
notice from you to the Company of your determination to purchase a number,
specified in such notice, of Additional Shares. The place of closing for any
Additional Shares and the Option Closing Date for such Shares may be varied by
agreement between you and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment of the purchase
price therefor by wire transfer of immediately available funds to the Company.
5. Agreements of the Company and the Operating Partnership. The Company
and the Operating Partnership jointly and severally agree with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the Company will endeavor to cause the Registration Statement or such
post-effective amendment to become effective as soon as possible and will advise
you promptly and, if requested by you, will confirm such advice in writing, when
the Registration Statement or such post-effective amendment has become
effective.
(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the Commission
for amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the happening
of any event, which makes any statement of a material fact made in the
Registration Statement or the Prospectus (as then amended or supplemented)
untrue or which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the Act or the regulations thereunder
to be stated therein or necessary in order to make the statements therein not
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misleading, or of the necessity to amend or supplement the Prospectus (as then
amended or supplemented) to comply with the Act or any other law. If at any time
the Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, (i) five
copies of the registration statement as originally filed with the Commission and
of each amendment thereto, including financial statements and all exhibits to
the registration statement, (ii) such number of copies of the Prepricing
Prospectus or Prospectus as you may reasonably request, (iii) such number of
copies of the Incorporated Documents, as you may reasonably request, and (iv)
such number of conformed copies of the Registration Statement and of each
amendment thereto, but without exhibits, as you may reasonably request.
(d) The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus or,
prior to the end of the period of time referred to in the first sentence of
subsection (f) below, file any document which upon filing becomes an
Incorporated Document, of which you shall not previously have been advised or to
which, after you shall have received a copy of the document proposed to be
filed, you shall object.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of the Prepricing Prospectus. The
Company consents to the use, in accordance with the provisions of the Act and
with the securities or Blue Sky or real estate syndication laws of the
jurisdictions in which the Shares are offered by the several Underwriters and by
dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so
furnished by the Company.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriters a prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer, the Company
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto) as
you may request. The Company consents to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of the Act
and with the securities or Blue Sky or real estate syndication laws of the
jurisdictions in which the Shares are offered by the several Underwriters and by
all dealers to whom Shares may be sold, both in connection with the offering and
sale of the Shares and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with sales by any Underwriter
or dealer. If during such period of time any event shall occur that in the
judgment of the Company or in the opinion of counsel for the Underwriters is
required to be set forth in the Prospectus (as then amended or supplemented) or
should be set forth therein in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if it
is necessary to supplement or amend the Prospectus (or to file under the
Exchange Act any document which, upon filing, becomes an Incorporated Document)
in order to comply with the Act or any other law, the
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Company will forthwith prepare and, subject to the provisions of paragraph (d)
above, file with the Commission an appropriate supplement or amendment thereto
(or to such document), and will expeditiously furnish to the Underwriters and
dealers a reasonable number of copies thereof. In the event that the Company and
you agree that the Prospectus should be amended or supplemented, the Company, if
requested by you, will promptly issue a press release announcing or disclosing
the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for
the Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers under
the securities or Blue Sky or real estate syndication laws of such jurisdictions
as you may designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; 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 which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Company
will furnish to you (i) as soon as available, a copy of each report of the
Company mailed to stockholders or filed with the Commission, and (ii) from time
to time such other information concerning the Company as you may reasonably
request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
Section 11 hereof or by notice given by you terminating this Agreement pursuant
to Section 11 or Section 12 hereof) or if this Agreement shall be terminated by
the Underwriters because of any failure or refusal on the part of the Company to
comply with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse you for all out-of-pocket expenses (including fees
and expenses of counsel for the Underwriters) incurred by you in connection
herewith.
(k) The Company will apply the net proceeds from the sale of
the Shares in accordance with the description set forth in the Prospectus.
(l) The Company will timely file with the Commission the
Prospectus pursuant to Rule 424(b) under the Act and will advise you of the time
and manner of such filing.
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(m) Except as provided or described in this Agreement or in
the Prospectus, neither the Company nor the Operating Partnership will sell,
offer to sell, solicit an offer to buy, contract to sell or otherwise transfer
or dispose of any Common Shares or any securities convertible into or
exercisable or exchangeable for Common Shares (whether through the issuance or
granting of any options, warrants, commitments, subscriptions, rights to
purchase or otherwise) for a period of 90 days after the date of the Prospectus,
without the prior written consent of Xxxxx Xxxxxx Inc.; provided, however, that
the foregoing shall not prohibit (i) the Company or the Operating Partnership
from issuing Common Shares, limited partner interests in the Operating
Partnership ("Units"), or other securities exchangeable for or redeemable into
Common Shares in connection with the acquisition of any office or industrial
property or an equity interest in any such property, (ii) the Company from
issuing Common Shares upon the exercise or conversion of any Units or any
options or warrants of the Company outstanding on the date hereof, (iii) the
Company from issuing Common Shares to non-employee trustees of the Company as
compensation for their participation on the Company's board of trustees, and
(iv) awards under the Company's 1997 Long-Term Incentive Plan to employees of
the Company other than those named in the Prospectus.
(n) The Company has furnished to you "lock-up" letters, in
form and substance satisfactory to you, signed by each of its current officers
and trustees.
(o) Except as stated in this Agreement and in any Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Shares to facilitate the sale or resale of the Shares.
6. Representations and Warranties of the Company. The Company and the
Operating Partnership, jointly and severally, represent and warrant to each
Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act. The Commission
has not issued any order suspending the effectiveness of the Registration
Statement or any part thereof and no proceeding for that purpose has been
instituted or threatened or, to the best knowledge of the Company, contemplated
by the Commission or the securities authority of any state or other
jurisdiction.
(b) The Company and the transactions contemplated by this
Agreement meet the requirements and conditions for using a registration
statement on Form S-3 under the Act. When any Prepricing Prospectus was filed
with the Commission it (i) contained all statements required to be stated
therein in accordance with, and complied in all material respects with the
requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
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made, not misleading. When the Registration Statement or any amendment thereto
was declared effective, and on the Closing Date (or the Option Closing Date, as
the case may be) it (i) contained or will contain all statements required to be
stated therein in accordance with, and complied or will comply in all material
respects with the requirements of, the Act and the rules and regulations of the
Commission thereunder and (ii) did not or will not include any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus or any amendment or
supplement thereto is filed with the Commission pursuant to Rule 424(b) and at
the Closing Date (or the Option Closing Date, as the case may be), the
Prospectus, as amended or supplemented at any such time, (i) contained or will
contain all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements of, the
Act and the rules and regulations of the Commission thereunder and (ii) did not
or will not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
representations and warranties in this paragraph (b) do not apply to statements
in or omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the Company in
writing by or on behalf of any Underwriter through you expressly for use
therein.
(c) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such document was filed,
when such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder, any
further Incorporated Documents so filed will, when they are filed, conform in
all material respects with the requirements of the Exchange Act and the rules
and regulations thereunder, no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading and no such further document, when it is
filed, will contain an untrue statement of a material fact or will omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading.
(d) The Company is a real estate investment trust duly formed
and validly existing under and by virtue of the laws of the State of Maryland
and is in good standing with the State Department of Assessments and Taxation of
Maryland, with 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 requires such
registration or qualification, except where the failure to be so registered or
qualified would not have a material adverse effect on the condition (financial
or otherwise), business, prospects, properties, net worth or results of
operations of the Company.
(e) Each of the Operating Partnership and the corporations,
partnerships and limited partnerships listed on Schedule 6(e) hereto (each, a
"Subsidiary") is a corporation, limited
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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 its jurisdiction of incorporation or formation. Each such entity has
full corporate or partnership power and authority, to own, lease, and operate
its properties, and to conduct its business as described in the Registration
Statement and the Prospectus. Each such Subsidiary 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
requires such registration or qualification, except where the failure to be so
registered or qualified would not have a material adverse effect on the
condition (financial or otherwise), business, prospects, properties, net worth
or results of operations of such Subsidiary.
(f) All the outstanding Common Shares of the Company have been
duly authorized and validly issued, are fully paid and nonassessable and are
free of any preemptive or similar rights; the Shares have been duly authorized
and, when issued and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights that entitle or will
entitle any person or entity to acquire any Shares upon the issuance thereof by
the Company, and the beneficial interest of the Company conforms to the
description thereof in the Registration Statement and the Prospectus. Except
with regard to 1997 compensation of non-employee trustees of the Company payable
in Common Shares, awards under the Company's 1997 Long-Term Incentive Plan and
as disclosed in the Prospectus, there are no outstanding options, warrants or
other rights calling for the issuance of, or any commitment, plan or arrangement
to issue, any beneficial interest of the Company or any security convertible
into or exchangeable for beneficial interest of the Company.
(g) All of the outstanding Units and shares of capital stock
or partnership interests in each of the Subsidiaries have been duly authorized
and validly issued or created under the documents or agreements forming such
entity, are fully paid and, in the case of Subsidiaries that are corporations,
nonassessable, and will be owned or be held by the persons and entities in the
percentage amounts set forth and in the manner described in the Prospectus or
Schedule 6(g). Except as described in the Prospectus or Schedule 6(g), all such
Units, partnership interests and shares of capital stock are owned by the
Company directly, or indirectly through the Operating Partnership or one of the
other Subsidiaries, free and clear of any lien, adverse claim, security
interest, equity, or other encumbrance, and the Company's percentage interest
and ownership in the Operating Partnership, and the Company's and the Operating
Partnership's percentage interest and ownership in each of the Subsidiaries, is
as set forth on Schedule 6(g) attached hereto. 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 calling for
the issuance of, or any commitment, plan or arrangement to issue, any equity
interests in any Subsidiary, or any security 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 Prospectus. The Company is the sole general partner of the
Operating
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Partnership and has sole voting, management and administrative control of
Brandywine Realty Partners.
(h) The Company has no direct or indirect subsidiaries other
than the Subsidiaries. Other than the Subsidiaries and the entities listed on
Schedule 6(h) attached hereto, neither the Company nor the Operating Partnership
owns, directly or indirectly, more than 2% of the securities of any corporation,
partnership, joint venture, limited liability company, association or other
business association.
(i) There are no actions, suits or proceedings pending or, to
the knowledge of the Company or the Operating Partnership, threatened against or
affecting the Company or any of the Subsidiaries, or any of their respective
partners, directors, trustees or officers in their capacity as such, or to which
the Company or any of the Subsidiaries or any of their respective partners,
directors, trustees or officers in their capacity as such, or to which any of
their respective properties is subject, that are required to be described in the
Registration Statement or the Prospectus but are not described as required, and
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.
(j) Neither the Company nor any of the Subsidiaries is in
violation of its Declaration of Trust, certificate or articles of incorporation
or by-laws, partnership agreement or other organizational documents, or of any
law, ordinance, administrative or governmental rule or regulation applicable to
the Company or any of the Subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over the Company or any of the
Subsidiaries, or in default in any material respect in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound.
(k) Neither the issuance and offer, and sale or delivery of
the Shares, the execution, delivery or performance of this Agreement, nor the
consummation of the transactions contemplated hereby or thereby by the Company
or any Subsidiary, as applicable, (i) required or requires 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 (except such as may be required for the registration of the Shares
under the Act and compliance with the securities or Blue Sky laws of various
jurisdictions, all of which have been or will be effected in accordance with
this Agreement), (ii) conflicted with, conflicts or will conflict with or
constituted, constitutes or will constitute a breach of, or a default under, the
Declaration of Trust, certificate or articles of incorporation or bylaws,
partnership agreement or other organizational documents, of the Company or any
of the Subsidiaries or under any agreement, indenture, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound, (iii) violated,
violates or will violate
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any statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of the Subsidiaries or any of their respective
properties, or (iv) resulted, results or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of the Subsidiaries 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.
(l) All offers and sales of Units or other partnership
interests in the Operating Partnership, and the offer, sale or issuance by the
Company of Common Shares and Preferred Shares prior to the date hereof have been
duly registered under the Act, or were exempt from the registration requirements
of the Act and state securities and Blue Sky laws.
(m) The accountants, Xxxxxx Xxxxxxxx LLP and Zelenkofske
Xxxxxxx & Company, Ltd., who have audited the financial statements included or
incorporated by reference in the Registration Statement and the Prospectus (and
any amendment or supplement thereto), are independent public accountants as
required by the Act.
(n) The financial statements, together with related schedules
and notes, included or incorporated by reference in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in cash flows
of the respective entity, entities, property, or properties, as applicable, at
the respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, and comply with the applicable accounting requirements of the
Act (including, without limitation, Rule 3-14 of Regulation S-X promulgated by
the Commission). The other financial and statistical information and data
included in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the relevant entity,
entities, property or properties, as applicable; any pro forma financial
statements of the Company included or incorporated by reference in the
Registration Statement and the Prospectus comply in all material respects with
the applicable requirements of Rule 11-02 of Regulation S-X of the Commission,
and any pro forma adjustments have been made upon management's reasonable good
faith estimates of the pro forma adjustments and have been properly applied to
the historical amounts in the compilation of such statements.
(o) The Company has all trust power and authority, and the
Operating Partnership has all partnership power and authority, to enter into
this Agreement and each Transaction Document to which it is a party, and, in the
case of the Company, to issue, sell and deliver the Shares to the Underwriters
as provided in the Underwriting Agreement, and each of the Underwriting
Agreement and each Transaction Document has been duly and validly authorized,
executed and delivered by the Company and the Operating Partnership, as
applicable, and, to the knowledge of the Company, each of the other parties
thereto, and is a valid, legal and binding agreement of each of the Company and
the Operating Partnership, as applicable,
11
enforceable against each of the Company and the Operating Partnership in
accordance with its terms, except as enforcement of rights to indemnity and
contribution hereunder may be limited by Federal or state securities laws or
principles of public policy.
(p) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), neither
the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in the
beneficial interest or capital stock, or material increase in the short-term
debt or long-term debt, of the Company or any of the Subsidiaries, or any
material adverse change, or any development involving or which may reasonably be
expected to involve, a prospective material adverse change, in the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Company and the Subsidiaries taken as a whole.
(q) Each of the Company or 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 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. 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.
(r) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted by
the Act.
(s) Each of the Company and each of the Subsidiaries has, such
permits, licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its respective properties and to
conduct its business in the manner described in the Prospectus; each of the
Company and each of the Subsidiaries has fulfilled and performed all its
material obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights of
the holder of any such permit, subject in each case to such
12
qualification as may be set forth in the Prospectus; and, except as described in
the Prospectus, none of such permits contains any restriction that is materially
burdensome to the Company or any of the Subsidiaries.
(t) The Company together with the Subsidiaries maintains and
will maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (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 existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(u) Neither the Company nor any of its Subsidiaries nor any
employee or agent of the Company or any Subsidiary has made any payment of funds
of the Company or any Subsidiary or received or retained any funds in violation
of any law, rule or regulation, which payment, receipt or retention of funds is
of a character required to be disclosed in the Prospectus.
(v) The Company and each of the Subsidiaries have filed all
tax returns required to be filed, which returns are complete and correct, and
neither the Company nor any Subsidiary is in default in the payment of any taxes
which were payable pursuant to said returns or any assessments with respect
thereto.
(w) Except as described in the Prospectus, there is no holder
of any security of the Company, or the Operating Partnership or any other person
who has the right, contractual or otherwise, to cause the Company to sell or
otherwise issue to them, or to permit them 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 contemplated by this
Agreement, to require registration under the Act of any Common Shares or other
securities of the Company.
(x) The Company and the Subsidiaries own or possess all
patents, trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Prospectus as being owned by them or any of them or
necessary for the conduct of their respective businesses, and neither the
Company nor the Operating Partnership is aware of any claim to the contrary or
any challenge by any other person to the rights of the Company and the
Subsidiaries with respect to the foregoing.
(y) None of the Company or any Subsidiary is now, and after
sale of the Shares to be sold by it hereunder and application of the net
proceeds from such sale as described in the Prospectus under the caption "Use of
Proceeds" will be, an "investment company," or entity "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
13
(z) The Company has filed in a timely manner each document or
report required to be filed by it pursuant to the Exchange Act and the rules and
regulations thereunder; each such document or report at the time it was filed
conformed to the requirements of the Exchange Act and the rules and regulations
thereunder; and none of such documents or reports contained an untrue statement
of any material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(aa) The Company and its 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 Code and the rules and regulations
thereunder as currently in effect. Each Subsidiary 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.
(bb) The Shares are duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange.
(cc) Except as described in the Prospectus or provided in the
Credit Facility (as defined in the Prospectus), the mortgages and deeds of trust
encumbering certain of the Properties will not be cross-defaulted or
cross-collateralized with any other property not owned directly or indirectly by
the Company or any of the Subsidiaries.
(dd) (1) Each of the Properties, the Company, and each of the
Subsidiaries (i) is, and as of the Closing Date will be, in compliance in all
material respects 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"), (ii) has received, or will have received,
as of the Closing Date, as the case may be, all licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective
business, and (iii) is, and will be as of the Closing Date in material
compliance with all terms and conditions of any such permit, license or
approval.
(2) Except as may be specifically disclosed in the Phase
I Environmental Site Assessment reports referred to in the Prospectus or in
filings made with the Commission in a Current Report on Form 8-K or a Quarterly
Report on Form 10-Q (the "Environmental Reports"), the Company and the
Subsidiaries have not at any time, and, to the knowledge of the Company, no
other party has at any time, handled, buried, stored, retained, refined,
transported, processed, manufactured, generated, produced, spilled, allowed to
seep, leak, escape or xxxxx, or be pumped, poured, emitted, emptied, discharged,
injected, dumped, transferred or otherwise disposed of or dealt with, Hazardous
Materials (as hereinafter defined) on, to or from the Properties. The Company
and the Subsidiaries do not intend to use the Properties or any subsequently
acquired properties for the purpose of handling, burying, storing (except with
respect to cleaning materials reasonably used to operate the Properties in the
ordinary course, in normal quantities and in full compliance with law),
retaining, refining, transporting, processing,
14
manufacturing, generating, producing, spilling, seeping, leaking, escaping,
leaching, pumping, pouring, emitting, emptying, discharging, injecting, dumping,
transferring or otherwise disposing of or dealing with Hazardous Materials.
(3) Except as disclosed in the Environmental Reports, to
the knowledge of the Company, there has been no seepage, leaking, escape,
leaching, discharge, injection, release, emission, spill, pumping, pouring,
emptying or dumping of Hazardous Materials into waters on or adjacent to the
Properties or onto lands from which such hazardous or toxic waste or substances
might seep, flow or drain into such waters.
(4) Except as disclosed in the Environmental Reports,
neither the Company nor any Subsidiary has received notice of any occurrence or
circumstance which, with notice or passage of time or both, would give rise to
any claim under or pursuant to any Environmental Law pertaining to hazardous or
toxic waste or substances on or originating from the Properties or arising out
of the conduct of any such party.
(5) No environmental engineering firm which prepared the
Environmental Reports (or amendments thereto) or physical condition
(engineering) reports with respect to the Properties was employed for such
purpose on a contingent basis or has any substantial interest in the Company or
any Subsidiary.
As used herein, "Hazardous Material" shall include, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances or related materials,
asbestos or any related material as defined by any Federal, state or local
environmental law, ordinance, rule, or regulation including, without limitation,
Environmental Laws such as the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Section
1801, et seq.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. Section 9601, et seq.), the New Jersey Industrial Site Recovery Act,
N.J.S.A. Section 13:1K-6, et seq. or and in the regulations adopted and
publications promulgated pursuant to each of the foregoing or by any Federal,
state or local Governmental authority having or claiming jurisdiction over the
Properties as described in the Prospectus.
(ee) To the knowledge of the Company, all physical condition
(engineering) reports obtained for the Properties are materially true and
correct. Neither the Company nor any of the Subsidiaries is aware of any
material capital expenditures (other than expenditures for maintenance or tenant
improvements in the ordinary course of business) that will be required in
connection with any of the Properties prior to the fifth anniversary of this
Agreement, except as disclosed in the Registration Statement.
(ff) As of the Closing Date, the Company or the Operating
Partnership, as applicable, will have obtained ALTA Extended Coverage Owner's
Policies of Title Insurance (or its equivalent) from title insurers of
recognized financial responsibility on each of the Properties,
15
in amounts at least equal to the acquisition price of each such property (or, in
the case of the Properties at Delaware Corporate Center I, Freedom Business
Center and the Park 80 Garage, the leasehold interest) (and improvements located
on each such property), and such insurance shall be in full force and effect.
(gg) The assets of the Company and the Subsidiaries do not,
and as of the Closing Date will not, constitute "plan assets" under the Employee
Retirement Income Security Act of 1974, as amended.
(hh) Each partnership agreement, agreement of limited
partnership, other organizational or formation agreement, and each amendment
thereto, of each Subsidiary that is a general or limited partnership (the
"Organizational Documents") has been duly and validly authorized, executed and
delivered by the Company and the applicable Subsidiaries party thereto, and each
such Organizational Document constitutes the legal, valid and binding agreement
of each party thereto, enforceable against each such party in accordance with
its terms.
(ii) Each of the agreements disclosed in the Prospectus under
the caption "Recent Developments -- Pending Acquisitions" as having been
executed has been executed and delivered by the seller thereunder and has been
duly and validly authorized, executed and delivered by each of the Company and
the Subsidiaries that is a party thereto, and each such agreement constitutes
the legal, valid and binding agreement of each such party thereto, enforceable
against each such party in accordance with its terms.
(jj) (i) The Company and its Subsidiaries have their
respective principal business operations in the United States or its
Territories.
(ii) The Company has a class of securities registered
pursuant to Section 12(b) of the Exchange Act.
(iii) The Company (A) since prior to December 31,
1994, has been subject to the requirements of Section 12 of the
Exchange Act and has filed all the material required to be filed
pursuant to Sections 13 and 14 of the Exchange Act, and (B) since prior
to December 31, 1994, has filed in a timely manner all reports required
to be filed under Sections 13 and 14 of the Exchange Act, and has not
used Rule 12b-25(b) under the Exchange Act.
(iv) Neither the Company nor any Subsidiary has,
since December 31, 1996, (A) failed to pay any dividend or sinking fund
installment on preferred stock, or (B) defaulted (I) on any installment
or installments on indebtedness for borrowed money, or (II) on any
rental on one or more long term leases.
(v) The aggregate market value of the Company's
voting stock held by non-affiliates of the Company is $100 million or
more and the Company had a trading volume
16
of such stock of 3,000,000 shares or more during the 12 month period
ended the date hereof.
7. 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, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Prepricing
Prospectus or in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon and in
conformity with the information relating to such Underwriter furnished in
writing to the Company by or on behalf of any Underwriter through you expressly
for use in connection therewith (which information is described in its entirety
in Section 13 below); provided, however, that the indemnification contained in
this paragraph (a) with respect to any Prepricing Prospectus shall not inure to
the benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by such Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such person within
the time required by the Act and the regulations thereunder, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Company has delivered the Prospectus to the
several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending within the time required by the Act. The foregoing indemnity
agreement shall be in addition to any liability which the Company may otherwise
have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company or the Operating Partnership, such
Underwriter or such controlling person shall promptly notify the Company or the
Operating Partnership, and the Company or the Operating Partnership shall assume
the defense thereof, including the employment of counsel and payment of all fees
and expenses. Such Underwriter or any such controlling person shall have the
right to employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
(i) the Company and the Operating Partnership have agreed in writing to pay such
fees and expenses, (ii) the Company and the Operating Partnership have failed to
assume the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both such
Underwriter or such controlling person and the Company or the Operating
Partnership and such Underwriter or such controlling
17
person shall have been advised by its counsel that representation of such
indemnified party and the Company or the Operating Partnership by the same
counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the Company and the Operating Partnership shall not have the right to
assume the defense of such action, suit or proceeding on behalf of such
Underwriter or such controlling person). It is understood, however, that the
Company shall, in connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Underwriters and controlling persons not having actual or potential
differing interests with you or among themselves, which firm shall be designated
in writing by Xxxxx Xxxxxx Inc., and that all such fees and expenses shall be
reimbursed as they are incurred. The Company and the Operating Partnership shall
not be liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent, or if
there shall be a final judgment for the plaintiff in any such action, suit or
proceeding, the Company and the Operating Partnership agree to indemnify and
hold harmless any Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its trustees and officers who sign the
Registration Statement, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Operating Partnership
to each Underwriter, but only with respect to losses, claims, damages,
liabilities and expenses arising out of or based on information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter through you
expressly for use in the Registration Statement, the Prospectus or any
Prepricing Prospectus or any amendment or supplement thereto. If any action,
suit or proceeding shall be brought against the Company, any of its directors or
officers, or any such controlling person based on the Registration Statement,
the Prospectus or any Prepricing Prospectus, or any amendment or supplement
thereto, and in respect of which indemnity may be sought against any Underwriter
pursuant to this paragraph (c), such Underwriter shall have the rights and
duties given to the Company and the Operating Partnership by paragraph (b) above
(except that if the Company or the Operating Partnership shall have assumed the
defense thereof such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at such Underwriter's expense), and the
Company, its trustees and officers, and any such controlling person shall have
the rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which the
Underwriters may otherwise have.
18
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Operating Partnership, on the one hand, and the Underwriters, on
the other hand, from the offering of the Shares, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Operating Partnership, on the one hand, and the Underwriters, on the other, in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Operating Partnership, on the one hand, and the Underwriters, on the other,
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the Operating
Partnership bear to the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Underwriters on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company, the Operating Partnership and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by a pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price of the Shares underwritten by it and distributed to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective numbers of Firm Shares set
forth opposite their names in Schedule I hereto (or such numbers of Firm Shares
increased as set forth in Section 11 hereof) and not joint.
19
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company and the Operating Partnership set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company and its trustees or
officers, the Operating Partnership and its officers, or any person controlling
the Company or the Operating Partnership, (ii) acceptance of any Shares and
payment therefor hereunder, and (iii) any termination of this Agreement. A
successor to any Underwriter or any person controlling any Underwriter, or to
the Company and its trustees or officers, the Operating Partnership and its
officers, or any person controlling the Company or the Operating Partnership,
shall be entitled to the benefits of the indemnity, contribution, and
reimbursement agreements contained in this Section 7.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the registration statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the registration
statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, prospects, properties, net worth, or results of operations of the
Company or the Subsidiaries not contemplated by the Prospectus, which in your
opinion would materially, adversely affect the market for the Shares, or (ii)
any event or development relating to or involving the Company or any officer or
trustee of the Company or the Operating
20
Partnership which makes any statement made in the Prospectus untrue or which, in
the opinion of the Company and its counsel or the Underwriters and their
counsel, requires the making of any addition to or change in the Prospectus in
order to state a material fact required by the Act or any other law to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading, if amending or
supplementing the Prospectus to reflect such event or development would, in your
opinion, materially, adversely affect the market for the Shares.
(c) You shall have received on the Closing Date, the opinion
of Xxxxxx Xxxxxxxx LLP, counsel for the Company, the Operating Partnership and
the other Subsidiaries, dated the Closing Date and addressed to you, in the form
set forth on Exhibit 8(c) attached hereto.
In rendering their opinion as aforesaid, such counsel may rely
upon an opinion or opinions, each dated the Closing Date, of other counsel
retained by them or the Company as to laws of any jurisdiction other than the
United States, the State of New York, the Commonwealth of Pennsylvania and the
State of Delaware, provided that (1) each such local counsel is reasonably
acceptable to you, (2) such reliance is expressly authorized by each opinion so
relied upon and a copy of each such opinion is delivered to you and is, in form
and substance, satisfactory to you and your counsel, and (3) such counsel shall
state in their opinion that they believe that they and the Underwriters are
justified in relying thereon.
(d) You shall have received on the Closing Date an opinion of
Xxxxxx Xxxxxxxx LLP, special tax advisor to the Company, satisfactory in form
and substance to you, to the effect that (i) the descriptions of the Federal
income tax conclusions contained in the Prospectus under the caption "Federal
Income Tax Considerations" are correct in all material respects, and the
discussion contained therein fairly summarizes the Federal income tax
considerations that may be material to a holder of the common shares; (ii)
assuming the Company is operated in accordance with the assumptions and
representations of management regarding its activities and intended activities,
the Company will continue to qualify as a REIT under the Code; and (iii) the
Operating Partnership and the Title Holding Partnerships will be treated for
Federal income tax purposes as partnerships and not as associations taxable as
corporations or as publicly-traded partnerships.
(e) You shall have received on the Closing Date an opinion of
Battle Xxxxxx LLP, counsel for the Underwriters, dated the Closing Date and
addressed to you, with respect to the Registration Statement, the Prospectus and
this Agreement and such other related matters as you may request.
(f) You shall have received comfort letters, including, but
not limited to, certain agreed upon procedures, addressed to you and dated the
date hereof and the Closing Date from Xxxxxx Xxxxxxxx LLP and Zelenkofske
Xxxxxxx & Company Ltd., independent public accountants, substantially in the
forms heretofore approved by you.
21
(g) You shall have received a letter (or letters) from Xxxxxxx
& Xxxxxxxxx of Pennsylvania, Inc., dated as of a recent date, (i) confirming
that they are independent real estate service experts retained by the Company,
and (ii) confirming the conclusions and findings of such firm with respect to
the information and other matters contained in the Registration Statement (or
filed as an exhibit thereto) attributed to them.
(h) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company or the
Underwriters, shall be contemplated by the Commission at or prior to the Closing
Date; (ii) there shall not have been any change in the beneficial interest of
the Company nor any material increase in the short-term or long-term debt of the
Company (other than in the ordinary course of business) from that set forth or
contemplated in the Registration Statement or the Prospectus (or any amendment
or supplement thereto); (iii) there shall not have been, since the respective
dates as of which information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), except as may otherwise be
stated in the Registration Statement and Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Properties or the Company and the Subsidiaries taken as a whole; (iv) the
Company and the Subsidiaries shall not have any liabilities or obligations,
direct or contingent (whether or not in the ordinary course of business), that
are material to the Company and the Subsidiaries, taken as a whole, other than
those reflected in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); and (v) all the representations and warranties
of the Company and the Operating Partnership contained in this Agreement shall
be true and correct on and as of the date hereof and on and as of the Closing
Date as if made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
and the chief financial officer of the Company (or such other officers as are
acceptable to you), to the effect set forth in this Section 8(h) and in Section
8(i) hereof.
(i) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
(j) The Shares shall have been listed or approved for listing
upon notice of issuance on the New York Stock Exchange.
(k) The Company and the Operating Partnership shall have
furnished or caused to be furnished to you such further certificates and
documents as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
22
Any certificate or document signed by any officer of the Company and
the Operating Partnership and delivered to you, or to counsel for the
Underwriters, shall be deemed a representation and warranty by the Company or
the Operating Partnership, as applicable, to each Underwriter as to the
statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (h) shall be dated the Option
Closing Date in question and the opinions called for by paragraphs (c), (d), (e)
and (f) shall be revised to reflect the sale of Additional Shares.
9. Expenses. The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration Statement, each
Prepricing Prospectus, the Prospectus, and all amendments or supplements to any
of them as may be reasonably requested for use in connection with the offering
and sale of the Shares; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Shares, including any stamp taxes
in connection with the original issuance and sale of the Shares; (iv) if
required, the printing (or reproduction) and delivery of this Agreement, the
preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Shares; (v) the listing of the Shares on the New York Stock Exchange;
(vi) if required, the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction, and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) if required, the
filing fees and the fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc.; (viii) the transportation and other expenses incurred
by or on behalf of Company representatives in connection with presentations to
prospective purchasers of the Shares; and (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel) for the Company.
10. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become
23
effective, it may be terminated by the Company, by notifying you, or by you, by
notifying the Company.
11. Default of Underwriters. If any one or more of the Underwriters
shall fail or refuse to purchase Firm Shares which it or they are obligated to
purchase hereunder on the Closing Date, and the aggregate number of Firm Shares
which such defaulting Underwriter or Underwriters are obligated but fail or
refuse to purchase is not more than one-tenth of the aggregate number of Firm
Shares which the Underwriters are obligated to purchase on the Closing Date,
each non-defaulting Underwriter shall be obligated, severally, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule I hereto
bears to the aggregate number of Firm Shares set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
accordance with Section 20 of the Master Agreement Among Underwriters of Xxxxx
Xxxxxx Inc., to purchase the Firm Shares which such defaulting Underwriter or
Underwriters are obligated, but fail or refuse, to purchase. If any one or more
of the Underwriters shall fail or refuse to purchase Firm Shares which it or
they are obligated to purchase on the Closing Date and the aggregate number of
Firm Shares with respect to which such default occurs is more than one-tenth of
the aggregate number of Firm Shares which the Underwriters are obligated to
purchase on the Closing Date and arrangements satisfactory to you and the
Company for the purchase of such Firm Shares by one or more non-defaulting
Underwriters or other party or parties approved by you and the Company are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Company,
purchases Shares which a defaulting Underwriter is obligated, but fails or
refuses, to purchase.
Any notice under this Section 11 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
12. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company, by notice to the Company, if prior to the Closing
Date or any Option Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities in New York or Pennsylvania
shall have been declared by either federal or state authorities, or (iii) there
shall have occurred any outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in political, financial or
24
economic conditions, the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable or inadvisable to
commence or continue the offering of the Shares at the offering price to the
public set forth on the cover page of the Prospectus or to enforce contracts for
the resale of the Shares by the Underwriters. Notice of such termination may be
given to the Company by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
13. Information Furnished by the Underwriters. The Company and the
Operating Partnership acknowledge and agree that the statements set forth in the
last paragraph on the cover page, the stabilization legend on the inside cover
page, the list of Underwriters and their respective allotments appearing under
the caption "Underwriting" in the Prospectus and the statements in the first and
third paragraphs under the caption "Underwriting" in any Prepricing Prospectus
and in the Prospectus, constitute the only information furnished by or on behalf
of the Underwriters as such information is referred to in Sections 6(b) and 7
hereof.
14. Miscellaneous. Except as otherwise provided in Sections 6, 11 and
12 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company or the Operating
Partnership, at the office of the Company at 00 Xxxxxx Xxxxxxxxx, Xxxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, President and Chief
Executive Officer; or (ii) if to you, in care of Xxxxx Xxxxxx Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its trustees and officers, the Operating
Partnership and the other controlling persons referred to in Section 7 hereof
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any of
the Shares in his status as such purchaser.
15. Applicable Law; Counterparts. This Agreement shall 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.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
25
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Operating Partnership and the several Underwriters.
Very truly yours,
BRANDYWINE REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
Confirmed as of the date first
above mentioned.
XXXXX XXXXXX INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
NATIONSBANC XXXXXXXXXX SECURITIES, INC.
By: XXXXX XXXXXX INC.
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------
Xxxx X. Xxxxxxxxx
Managing Director
SCHEDULE I
BRANDYWINE REALTY TRUST
Number
of
Underwriter Firm Shares
----------- -----------
Xxxxx Xxxxxx Inc.......................................... 2,000,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation....... 2,000,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated...................... 2,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated....................................... 2,000,000
NationsBanc Xxxxxxxxxx Securities LLC..................... 2,000,000
Total............................................. 10,000,000
==========
SCHEDULE 6(e)
Subsidiaries of the Company
See Attached
BRANDYWINE REALTY TRUST
SUBSIDIARIES (January 21, 1998)
===================================================================================================================================
PARTNERS FOREIGN JURISDICTIONS IN
PARTNERSHIP SUBSIDIARIES (Capital/Profits) WHICH QUALIFIED
===================================================================================================================================
Brandywine Dominion, L.P., a Pennsylvania limited Brandywine Dominion, LLC
partnership -- G.P. - 1%
BOP -- L.P. - 99% None
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine I.S., L.P., a Pennsylvania limited Brandywine I.S., LLC --
partnership G.P. - 1%
BOP -- L.P. 99% None
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Operating Partnership, a Delaware limited BRT -- G.P. - 96.550% Maryland
partnership BRT -- L.P. - 1.647% (1) New Jersey
Class A (other than BRT) Ohio
- L.P. - 1.803% Pennsylvania
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine P.M., L.P., a Pennsylvania limited Brandywine P.M., LLC --
partnership G.P. - 1%
BOP -- L.P. 99% None
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Realty Partners, a Pennsylvania general BOP -- G.P. - 70% / 98%
partnership Outside partner -- 30% / None
2%
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine TB I, L.P., a Pennsylvania limited BRT TB I LLC -- G.P. -
partnership 1% (7)
BOP -- L.P. - 99% None
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine XX XX, L.P., a Pennsylvania limited BRT XX XX LLC -- G.P. -
partnership 1% (8)
BOP -- L.P. - 99% None
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine TB III, L.P., a Pennsylvania limited BRT TB III LLC -- G.P. -
partnership 1% (9)
BOP -- L.P. - 99% None
-----------------------------------------------------------------------------------------------------------------------------------
C/N Iron Run Limited Partnership III, a Pennsylvania BOP -- G.P. - 2% / 2%
limited partnership BOP -- L.P. - 87% / 97%
TNC -- L.P. - 11% / 1% None
-----------------------------------------------------------------------------------------------------------------------------------
C/N Leedom Limited Partnership II, a Pennsylvania BOP -- 89% / 99%
limited partnership SSI -- L.P. - 11% / 1% None
(6)
-----------------------------------------------------------------------------------------------------------------------------------
C/N Oaklands Limited Partnership I, a Pennsylvania WOP -- G.P. - 88.9% /
limited partnership 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1% None
(4)
-----------------------------------------------------------------------------------------------------------------------------------
C/N Oaklands Limited Partnership III, a Pennsylvania BOP -- L.P. - 89% / 99%
limited partnership TNC -- L.P. - 11% / 1% None
-----------------------------------------------------------------------------------------------------------------------------------
Fifteen Horsham, L.P., a Pennsylvania limited WOP -- G.P. - 1% (2)
partnership BOP -- L.P. 1% (3)
WOP -- L.P. - 98% None
-----------------------------------------------------------------------------------------------------------------------------------
Iron Run Limited Partnership V, a Pennsylvania limited BOP -- L.P. - 89% / 99%
partnership TNC -- L.P. - 11% / 1% None
-----------------------------------------------------------------------------------------------------------------------------------
LC/N Horsham Limited Partnership, a Pennsylvania WOP -- G.P. - 88.9% /
limited partnership 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1% None
-----------------------------------------------------------------------------------------------------------------------------------
LC/N Xxxxx Valley Limited Partnership I, a WOP -- G.P. - 88.9% /
Pennsylvania limited partnership 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1% None
===================================================================================================================================
===================================================================================================================================
PARTNERS FOREIGN JURISDICTIONS IN
PARTNERSHIP SUBSIDIARIES (Capital/Profits) WHICH QUALIFIED
===================================================================================================================================
Newtech III Limited Partnership, a Pennsylvania WOP -- G.P. - 88.9% /
limited partnership 63.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1%
N.E. Leasing -- 0% / 35% None
(5)
-----------------------------------------------------------------------------------------------------------------------------------
Newtech IV Limited Partnership, a Pennsylvania limited WOP -- G.P. - 88.9% /
partnership 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1% None
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Lansdale Limited Partnership III, a WOP -- G.P. - 88.9% /
Pennsylvania limited partnership 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1%
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Operating Partnership I, L.P., a Delaware Brandywine Xxxxxx, LLC - New Jersey
limited partnership - G.P. - 1%/1% Pennsylvania
BOP -- L.P. - 99%/99%
===================================================================================================================================
1. BRT and Brandywine Holdings I, Inc. (a Pennsylvania corporation and a
wholly-owned subsidiary of BRT) collectively own Class A Units that
constitute the percentage shown above.
2. Brandywine Xxxxxx, LLC (a Pennsylvania limited liability company and a
wholly-owned subsidiary of BOP) is General Partner of WOP with a 1%/1%
interest.
3. Brandywine Operating Partnership ("BOP") is a Delaware limited partnership.
4. The Xxxxxxx Company ("TNC") is a Pennsylvania corporation.
5. N. E. Leasing is not an affiliate. N.E. Leasing is entitled to 35% of the
partnership's residual cash flow. "Residual Cash Flow" upon the sale of the
property equals the gross sales price less (i) outstanding indebtedness,
(ii) reserves and (iii) repayment of capital and accrued equity of WOP, BRT
Xxxxxx and TNC (estimated to equal $1,338,468 as of July 1, 1996).
6. Safeguard Scientifics, Inc. ("SSI") is a Pennsylvania corporation.
7. Brandywine TB I, L.L.C. is a Pennsylvania limited liability company in which
BOP is the sole member.
8. Brandywine XX XX, L.L.C. is a Pennsylvania limited liability company in
which BOP is the sole member.
9. Brandywine TB III, L.L.C. is a Pennsylvania limited liability company in
which BOP is the sole member.
===================================================================================================================================
CORPORATE SUBSIDIARIES SHAREHOLDERS FOREIGN JURISDICTION
IN WHICH QUALIFIED
===================================================================================================================================
Brandywine Holdings, I, Inc., a Pennsylvania BRT -- 100% None
corporation
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Holdings II, Inc., a Pennsylvania BRT -- 100%(1) None
corporation
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Holdings III, Inc., a Pennsylvania BRT -- 100%(2) None
corporation
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Realty Services Corporation, a BOP -- 9,473 Preferred Shares Delaware
Pennsylvania corporation 27 Common Shares Maryland
BRSP(3) -- 500 Common Shares New Jersey
Ohio
===================================================================================================================================
1. To be dissolved.
2. To be dissolved.
3. BRSP is Brandywine Realty Services Partnership.
===================================================================================================================================
LIMITED LIABILITY COMPANY SUBSIDIARIES MEMBERS FOREIGN JURISDICTIONS IN
WHICH QUALIFIED
===================================================================================================================================
1100 Brandywine, LLC, a Delaware limited liability BOP -- 100% Pennsylvania
company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Acquisitions, LLC, a Delaware limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Dominion, L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
-2-
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine I.S., L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Leasing, LLC, a Delaware limited liability BOP -- 100% Pennsylvania
company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine - Main Street, L.L.C, a Delaware limited BOP -- 99% New Jersey
liability company BA LLC -- 1%
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine P.M., L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine TB I, L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine XX XX, L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine TB III, L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Xxxxxx, L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
===================================================================================================================================
PARENT CORPORATION TRUSTEES FOREIGN JURISDICTIONS IN
WHICH QUALIFIED
===================================================================================================================================
Brandywine Realty Trust, a Maryland New Jersey
real estate investment trust Pennsylvania
-----------------------------------------------------------------------------------------------------------------------------------
-3-
SCHEDULE 6(g)
Ownership Interests in Subsidiaries
See Attached
BRANDYWINE REALTY TRUST
SUBSIDIARIES (January 21, 1998)
===================================================================================================================================
PARTNERS FOREIGN JURISDICTIONS IN
PARTNERSHIP SUBSIDIARIES (Capital/Profits) WHICH QUALIFIED
===================================================================================================================================
Brandywine Dominion, L.P., a Pennsylvania limited Brandywine Dominion, LLC
partnership -- G.P. - 1%
BOP -- L.P. - 99% None
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine I.S., L.P., a Pennsylvania limited Brandywine I.S., LLC --
partnership G.P. - 1%
BOP -- L.P. 99% None
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Operating Partnership, a Delaware limited BRT -- G.P. - 96.550% Maryland
partnership BRT -- L.P. - 1.647% (1) New Jersey
Class A (other than BRT) Ohio
- L.P. - 1.803% Pennsylvania
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine P.M., L.P., a Pennsylvania limited Brandywine P.M., LLC --
partnership G.P. - 1%
BOP -- L.P. 99% None
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Realty Partners, a Pennsylvania general BOP -- G.P. - 70% / 98%
partnership Outside partner -- 30% / None
2%
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine TB I, L.P., a Pennsylvania limited BRT TB I LLC -- G.P. -
partnership 1% (7)
BOP -- L.P. - 99% None
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine XX XX, L.P., a Pennsylvania limited BRT XX XX LLC -- G.P. -
partnership 1% (8)
BOP -- L.P. - 99% None
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine TB III, L.P., a Pennsylvania limited BRT TB III LLC -- G.P. -
partnership 1% (9)
BOP -- L.P. - 99% None
-----------------------------------------------------------------------------------------------------------------------------------
C/N Iron Run Limited Partnership III, a Pennsylvania BOP -- G.P. - 2% / 2%
limited partnership BOP -- L.P. - 87% / 97%
TNC -- L.P. - 11% / 1% None
-----------------------------------------------------------------------------------------------------------------------------------
C/N Leedom Limited Partnership II, a Pennsylvania BOP -- 89% / 99%
limited partnership SSI -- L.P. - 11% / 1% None
(6)
-----------------------------------------------------------------------------------------------------------------------------------
C/N Oaklands Limited Partnership I, a Pennsylvania WOP -- G.P. - 88.9% /
limited partnership 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1% None
(4)
-----------------------------------------------------------------------------------------------------------------------------------
C/N Oaklands Limited Partnership III, a Pennsylvania BOP -- L.P. - 89% / 99%
limited partnership TNC -- L.P. - 11% / 1% None
-----------------------------------------------------------------------------------------------------------------------------------
Fifteen Horsham, L.P., a Pennsylvania limited WOP -- G.P. - 1% (2)
partnership BOP -- L.P. 1% (3)
WOP -- L.P. - 98% None
-----------------------------------------------------------------------------------------------------------------------------------
Iron Run Limited Partnership V, a Pennsylvania limited BOP -- L.P. - 89% / 99%
partnership TNC -- L.P. - 11% / 1% None
-----------------------------------------------------------------------------------------------------------------------------------
LC/N Horsham Limited Partnership, a Pennsylvania WOP -- G.P. - 88.9% /
limited partnership 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1% None
-----------------------------------------------------------------------------------------------------------------------------------
LC/N Xxxxx Valley Limited Partnership I, a WOP -- G.P. - 88.9% /
Pennsylvania limited partnership 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1% None
-----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
PARTNERS FOREIGN JURISDICTIONS IN
PARTNERSHIP SUBSIDIARIES (Capital/Profits) WHICH QUALIFIED
===================================================================================================================================
Newtech III Limited Partnership, a Pennsylvania WOP -- G.P. - 88.9% /
limited partnership 63.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1%
N.E. Leasing -- 0% / 35% None
(5)
-----------------------------------------------------------------------------------------------------------------------------------
Newtech IV Limited Partnership, a Pennsylvania limited WOP -- G.P. - 88.9% /
partnership 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1% None
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Lansdale Limited Partnership III, a WOP -- G.P. - 88.9% /
Pennsylvania limited partnership 98.9%
BOP -- L.P. - .1% / .1%
TNC -- L.P. - 11% / 1%
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Operating Partnership I, L.P., a Delaware Brandywine Xxxxxx, LLC - New Jersey
limited partnership - G.P. - 1%/1% Pennsylvania
BOP -- L.P. - 99%/99%
===================================================================================================================================
1. BRT and Brandywine Holdings I, Inc. (a Pennsylvania corporation and a
wholly-owned subsidiary of BRT) collectively own Class A Units that
constitute the percentage shown above.
2. Brandywine Xxxxxx, LLC (a Pennsylvania limited liability company and a
wholly-owned subsidiary of BOP) is General Partner of WOP with a 1%/1%
interest.
3. Brandywine Operating Partnership ("BOP") is a Delaware limited partnership.
4. The Xxxxxxx Company ("TNC") is a Pennsylvania corporation.
5. N. E. Leasing is not an affiliate. N.E. Leasing is entitled to 35% of the
partnership's residual cash flow. "Residual Cash Flow" upon the sale of the
property equals the gross sales price less (i) outstanding indebtedness,
(ii) reserves and (iii) repayment of capital and accrued equity of WOP, BRT
Xxxxxx and TNC (estimated to equal $1,338,468 as of July 1, 1996).
6. Safeguard Scientifics, Inc. ("SSI") is a Pennsylvania corporation.
7. Brandywine TB I, L.L.C. is a Pennsylvania limited liability company in which
BOP is the sole member.
8. Brandywine XX XX, L.L.C. is a Pennsylvania limited liability company in
which BOP is the sole member.
9. Brandywine TB III, L.L.C. is a Pennsylvania limited liability company in
which BOP is the sole member.
===================================================================================================================================
CORPORATE SUBSIDIARIES SHAREHOLDERS FOREIGN JURISDICTION
IN WHICH QUALIFIED
===================================================================================================================================
Brandywine Holdings, I, Inc., a Pennsylvania BRT -- 100% None
corporation
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Holdings II, Inc., a Pennsylvania BRT -- 100%(1) None
corporation
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Holdings III, Inc., a Pennsylvania BRT -- 100%(2) None
corporation
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Realty Services Corporation, a BOP -- 9,473 Preferred Shares Delaware
Pennsylvania corporation 27 Common Shares Maryland
BRSP(3) -- 500 Common Shares New Jersey
Ohio
===================================================================================================================================
1. To be dissolved.
2. To be dissolved.
3. BRSP is Brandywine Realty Services Partnership.
===================================================================================================================================
LIMITED LIABILITY COMPANY SUBSIDIARIES MEMBERS FOREIGN JURISDICTIONS IN
WHICH QUALIFIED
===================================================================================================================================
1100 Brandywine, LLC, a Delaware limited liability BOP -- 100% Pennsylvania
company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Acquisitions, LLC, a Delaware limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Dominion, L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
-2-
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine I.S., L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Leasing, LLC, a Delaware limited liability BOP -- 100% Pennsylvania
company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine - Main Street, L.L.C, a Delaware limited BOP -- 99% New Jersey
liability company BA LLC -- 1%
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine P.M., L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine TB I, L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine XX XX, L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine TB III, L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
-----------------------------------------------------------------------------------------------------------------------------------
Brandywine Xxxxxx, L.L.C., a Pennsylvania limited BOP -- 100% None
liability company
===================================================================================================================================
===================================================================================================================================
PARENT CORPORATION TRUSTEES FOREIGN JURISDICTIONS IN
WHICH QUALIFIED
===================================================================================================================================
Brandywine Realty Trust, a Maryland New Jersey
real estate investment trust Pennsylvania
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SCHEDULE 6(h)
Joint Ventures and Investments of the Company
1. Christiana Center Operating Company I LLC (a Delaware limited liability
company).
2. Christiana Center Operating Company II LLC (a Delaware limited liability
company).
3. Four Tower Bridge Associates (a Pennsylvania limited partnership).
4. Five Tower Bridge Associates (a Pennsylvania limited partnership).
5. Interstate 202 General Partnership (a Pennsylvania general partnership).
6. Plymouth Meeting General Partnership (a Pennsylvania general partnership).
