Exhibit 1.1
Brandywine Realty Trust
1,600,000 Common Shares(1)
of Beneficial Interest
($.01 par value)
Underwriting Agreement
New York, New York
February 26, 2004
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Brandywine Realty Trust, a real estate investment trust
organized under the laws of the State of Maryland (the "Company"), proposes to
sell to you (the "Underwriter"), 1,600,000 common shares of beneficial interest,
par value $.01 per share (the "Common Shares") of the Company, (said shares to
be issued and sold by the Company being hereinafter called the "Underwritten
Securities"). The Company also proposes to grant to the Underwriter an option to
purchase up to 240,000 shares of Common Shares to cover over-allotments (the
"Option Securities"; the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities"). The use of the neuter in
this Agreement shall include the feminine and masculine wherever appropriate.
Any reference herein to the Registration Statement, a Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act (as defined herein) on or before the Effective Date
(as defined herein) of the Registration Statement or the issue date of such
Preliminary Prospectus or the Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue date of any
Preliminary Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 16 hereof.
The Company, directly and through a wholly-owned subsidiary,
is the sole general partner and a limited partner of Brandywine Operating
Partnership, L.P., a Delaware limited partnership (the "Operating Partnership").
The Company owns its assets and conducts its operations through the Operating
Partnership and through subsidiaries of the Operating Partnership. As of
September 30, 2003, the Company's ownership interest in the Operating
Partnership entitled the Company to approximately 95.6% of the Operating
Partnership's distributions after distributions by the Operating Partnership to
holders of its preferred units. The Company will contribute the net proceeds of
the sale of the Securities to the Operating Partnership in exchange for
additional partnership interests in the Operating Partnership. The Company and
the Operating Partnership wish to confirm as follows their agreement with you,
in connection with the purchase of the Securities by the Underwriter.
______________________
(1) Plus an option to purchase from the company up to 240,000 additional
Securities to cover over-allotments.
2
1. Representations and Warranties. The Company and the
Operating Partnership jointly and severally represent and warrant to, and agree
with, the Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3
under the Act (as defined herein) and has prepared and filed with the
Commission (as defined herein) a registration statement (file number
333-56237) on Form S-3, including a related preliminary prospectus, for
registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, including a
related preliminary prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission one of
the following: either (i) prior to the Effective Date of such
registration statement, a further amendment to such registration
statement, (including the form of final prospectus) or (ii) after the
Effective Date of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b). In the case of clause (ii), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information (as
defined herein)) required by the Act and the rules thereunder to be
included in such registration statement and the Prospectus. As filed,
such amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Underwriter shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time (as
defined herein) or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the latest Preliminary Prospectus) as
the Company has advised you, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein)
and on any date on which Option Securities are purchased, if such date
is not the Closing Date (a "settlement date"), the Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date and any settlement date, the Prospectus (together with any
supplement thereto) did not or will not, include any untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company and the Operating Partnership make no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to the Company by the Underwriter specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
3
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the Exchange Act, and did not and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(d) The Company is a real estate investment trust duly formed
and validly existing and in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full trust
power and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified to do
business as a foreign trust and is in good standing under the laws of
each jurisdiction which requires such qualification.
(e) Each of the subsidiaries of the Company, including the
Operating Partnership (collectively the "Subsidiaries"), is a
corporation, trust, limited partnership, limited liability company or
general partnership duly incorporated or formed, as the case may be,
validly existing and in good standing under the laws of the
jurisdiction in which it is chartered, formed or organized with full
corporate, trust, limited liability company or partnership power and
authority, to own or lease, as the case may be, and operate its
properties, and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified to do
business and is in good standing under the laws of each jurisdiction
which requires such qualification.
(f) All the outstanding shares of capital stock, beneficial
interests, limited liability company interests or partnership interests
of each Subsidiary have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth in
the Prospectus or on Schedule I attached hereto, all outstanding shares
of capital stock, shares of beneficial interest, limited liability
company interests or partnership interests of the Subsidiaries are
owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest or any
other security interests, claims, liens or encumbrances. The Company's
percentage interest and ownership in the Operating Partnership, and the
Operating Partnership's percentage interest and ownership in each of
the Subsidiaries, is as set forth on Schedule I. Except in respect of
the Operating Partnership and as set forth in the Prospectus, or on
Schedule II attached hereto, no options, warrants or other rights to
purchase, agreements or obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in any Subsidiary are outstanding. The
Company is the sole general partner of the Operating Partnership. The
Subsidiaries set forth on Schedule I include all of the "significant
subsidiaries" of the Company, as such term is defined by Rule 1-02 of
Regulation S-X.
4
(g) The Company's authorized equity capitalization is as set
forth in the Prospectus; the Common Shares conform in all material
respects to the description thereof contained in the Prospectus; the
outstanding Common Shares have been duly and validly authorized and
issued and are fully paid and nonassessable; the Securities being sold
hereunder by the Company have been duly and validly authorized, and,
when issued and delivered to and paid for by the Underwriter pursuant
to this Agreement, will be fully paid and nonassessable; the
certificates for the Securities are in valid and sufficient form to
comply with all applicable Maryland statutory requirements and the
rules and regulations of the New York Stock Exchange; the holders of
outstanding shares of beneficial interest of the Company are not
entitled to preemptive or other rights to subscribe for the Securities
and, except as set forth in the Prospectus, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of beneficial interest or ownership interests in the Company are
outstanding.
(h) The statements in the Prospectus under the headings
"Description of shares of Beneficial Interest," "Certain Provisions of
Maryland Law and our Declaration of Trust and Bylaws," "Federal Income
Tax Considerations" and "Risk Factors - Our Status as a REIT is
dependent on compliance with federal income tax requirements," insofar
as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of such
legal matters, agreements, documents or proceedings.
(i) This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership.
(j) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(k) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriter in the manner
contemplated herein and in the Prospectus.
5
(l) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to (i) the Declaration of Trust, charter or
by-laws, partnership agreements, operating agreements or other
organizational documents of the Company or any of the Subsidiaries,
(ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of the
Subsidiaries is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of its Subsidiaries or any of its or their properties.
(m) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(n) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included in
the Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods
indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein).
The selected financial data set forth under the caption "Selected
Financial Information" in the Prospectus and Registration Statement
fairly present, on the basis stated in the Prospectus and the
Registration Statement, the information included therein.
(o) There are no pro forma, as adjusted, reclassified,
restated or other financial statements which are required to be
included or incorporated in the Registration Statement or the
Prospectus in accordance with Regulation S-X, and which are not so
included or incorporated therein.
(p) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company, the Operating Partnership or any of the other Subsidiaries, or
any of their respective partners, directors, trustees or officers in
their capacity as such, or to which the Company, the Operating
Partnership or any of the other Subsidiaries or its or their property
is pending or, to the best knowledge of the Company and the Operating
Partnership, threatened that (i) could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (ii)
could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
6
(q) There are no agreements, contracts, franchises,
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.
(r) There has not occurred any change, or any development
involving a prospective change, in the financial condition and results
of operation of the Company and the Subsidiaries from that set forth in
the Prospectus, except as would not have a material adverse effect on
the business, properties, financial condition or results of operations
of the Company and the Subsidiaries, taken as a whole.
(s) Each description of a contract, document or other
agreement in the Prospectus fairly reflects in all respects the
material terms of the underlying document, contract or agreement. Each
agreement described in the Prospectus or listed in the exhibits to the
Registration Statement or incorporated by reference is in full force
and effect and is valid and enforceable by and against the Company or a
Subsidiary, as the case may be, in accordance with its terms.
(t) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company or any of
the Subsidiaries and any person that would give rise to a valid claim
against the Company, any of the Subsidiaries or the Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with the offering, issuance and sale of the Securities.
(u) The Company and the Subsidiaries are currently in
compliance with all presently applicable provisions of the Americans
with Disabilities Act, except for such noncompliance which would not
have a material adverse effect on the business, properties, financial
condition or results of operations of the Company and the Subsidiaries,
taken as a whole.
(v) Each of the Company, the Operating Partnership and the
Subsidiaries owns or leases all such properties as are necessary to the
conduct of its operations as presently conducted. Each of the Company
and the Operating Partnership (either directly or through a Subsidiary)
has, and after giving effect to the transactions described in the
Registration Statement and Prospectus will have, good and marketable
and insurable title to all real property described in, or that secure
indebtedness identified in, the Prospectus as being or to be owned by
it, free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the Registration Statement
and the Prospectus or in a document filed as an exhibit to, or
incorporated by reference in, the Registration Statement and except
those which do not and will not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net
worth or results of operations of the Company and the Subsidiaries
taken as a whole. All the property described in the Prospectus as being
held under lease by each of the Company and the Subsidiaries is held by
it under valid, subsisting and enforceable leases, other than those
described in the Registration Statement and the Prospectus and those
which do not and will not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net
worth or results of operations of the Company and the Subsidiaries
taken as a whole.
7
(w) Neither the Company nor any Subsidiary is in violation or
default of (i) any provision of its Declaration of Trust, charter or
bylaws, partnership agreement, limited liability company agreement or
other organizational documents, as applicable, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or such subsidiary or any of its properties, as
applicable.
(x) KPMG LLP, who has audited certain financial statements of
the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial statements
and schedules incorporated by reference into the Prospectus, were
independent public accountants during the periods covered by their
report on the consolidated financial statements with respect to the
Company within the meaning of the Act and the applicable rules and
regulations thereunder. PricewaterhouseCoopers LLP are independent
accountants with respect to the Company within the meaning of the Act
and the applicable rules and regulations thereunder.
(y) There are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Securities.
(z) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto)
and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as
would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement
thereto). The Company and the Subsidiaries are organized and operate in
the manner described in the Registration Statement so that the Company
meets the requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), and the rules and regulations thereunder
as currently in effect. Each Subsidiary, including without limitation,
the Operating Partnership, that is a partnership or limited liability
company will be treated as a partnership, and not as an association
taxable as a corporation or a publicly traded partnership, for federal
income tax purposes, except for e-Tenants LLC, which has elected to be
taxed as a corporation.
8
(aa) No labor problem or dispute with the employees of the
Company or any of the Subsidiaries exists or is threatened or imminent,
and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its Subsidiaries'
principal suppliers, contractors or customers, that could have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto)
and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as
would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement
thereto).
(bb) The Company and each of the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance
insuring the Company or any of the Subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and the Subsidiaries are in compliance with the
terms of such policies and instruments in all material respects; and
there are no claims by the Company or any of the Subsidiaries under any
such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; neither
the Company nor any such Subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company nor any such
Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(cc) No consolidated Subsidiary is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such Subsidiary's capital stock or
other equity, from repaying to the Company any loans or advances to
such Subsidiary from the Company or from transferring any of such
Subsidiary's property or assets to the Company or any other Subsidiary
of the Company, except as described in or contemplated by the
Prospectus (exclusive of any supplement thereto) and except that the
Subsidiaries that are identified as "Joint Ventures" on Schedule I
require the consent of the joint venture partners listed on Schedule I
as a condition to making such payments or transfers and except that
following an event of default under the loan documents encumbering the
properties owned by a Subsidiary such Subsidiary may be prohibited from
making distributions to the Company.
9
(dd) The Company and the Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, and neither the Company nor any
such Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(ee) The Company and each of the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(ff) The Company has not taken, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(gg) (i) The Company and the Subsidiaries are (A) in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (B) have received
and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (C) have not received notice of any actual or
potential liability under any environmental law, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a material adverse effect in the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto). Except as set forth in the
Prospectus, neither the Company nor any of the subsidiaries has been
named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended.
10
(ii) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the
business, operations and properties of the Company and the
Subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any
related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review,
the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate,
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and the Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(hh) The minimum funding standard under Section 302 of the
Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder ("ERISA"), has
been satisfied by each "pension plan" (as defined in Section 3(2) of
ERISA) which has been established or maintained by the Company and/or
one or more of its subsidiaries, and the trust forming part of each
such plan which is intended to be qualified under Section 401 of the
Code is so qualified; each of the Company and its subsidiaries has
fulfilled its obligations, if any, under Section 515 of ERISA; neither
the Company nor any of its subsidiaries maintains or is required to
contribute to a "welfare plan" (as defined in Section 3(1) of ERISA)
which provides retiree or other post-employment welfare benefits or
insurance coverage (other than "continuation coverage" (as defined in
Section 602 of ERISA)); each pension plan and welfare plan established
or maintained by the Company and/or one or more of its subsidiaries is
in compliance in all material respects with the currently applicable
provisions of ERISA; and neither the Company nor any of its
subsidiaries has incurred or could reasonably be expected to incur any
withdrawal liability under Section 4201 of ERISA, any liability under
Section 4062, 4063, or 4064 of ERISA, or any other liability under
Title IV of ERISA. The assets of the Company and the Subsidiaries do
not, and as of the Closing Date will not, constitute "plan assets"
under ERISA.
(ii) There is and has been no failure on the part of the
Company and any of the Company's directors or officers, in their
capacities as such, to comply with any provision of the Sarbanes Oxley
Act of 2002 and the rules and regulations promulgated in connection
therewith (the "Sarbanes Oxley Act"), including Section 402 related to
loans and Sections 302 and 906 related to certifications.
11
(jj) Neither the Company nor any of the Subsidiaries nor, to
the knowledge of the Company and the Operating Partnership, any
director, trustee, officer, agent, employee or affiliate of the Company
or any of the Subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such
Persons of the FCPA, including, without limitation, making use of the
mails or any means or instrumentality of interstate commerce corruptly
in furtherance of an offer, payment, promise to pay or authorization of
the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any "foreign
official" (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have
conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and
which are reasonably expected to continue to ensure, continued
compliance therewith.
"FCPA" means Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder.
(kk) The operations of the Company and the Subsidiaries are
and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency
(collectively, the "Money Laundering Laws") and no action, suit or
proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened.
(ll) Neither the Company nor any of the Subsidiaries nor, to
the knowledge of the Company, any director, trustee, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department ("OFAC"); and
the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject
to any U.S. sanctions administered by OFAC.
(mm) The Company and its Subsidiaries are organized and
operate in a manner so as to enable the Company to qualify as a real
estate investment trust (a "REIT") under Sections 856 through 860 of
the Code and the rules and regulations thereunder as currently in
effect, and the Company has elected to be taxed as a REIT under the
Code commencing with the taxable year ending December 31, 1986. The
Company intends to continue to qualify as a REIT for the foreseeable
future.
12
(nn) The Registration Statement was exempt from filing with
the National Association of Securities Dealers, Inc. pursuant to, and
in full compliance with, Conduct Rule 2710(b)(7)(C).
(oo) The statistical and market-related data, if any, included
in the Prospectus are based on or derived from sources which the
Company believes, in good faith, to be reliable and accurate.
(pp) The Company's Chief Executive Officer ("CEO") and Chief
Financial Officer ("CFO") have reviewed the Prospectus and the
Prospectus Supplement (including, without limitation, all documents
incorporated therein by reference). Based on the knowledge of the CEO
and the CFO, the Prospectus and the Prospectus Supplement do not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading
with respect to the matters discussed therein and, with respect to each
incorporated document, each period covered by such report. Based on the
knowledge of the CEO and CFO, the financial statements, and other
financial information included in the Prospectus and the Prospectus
Supplement, fairly present in all material respects the financial
condition, results of operations and cash flows of the Company as of,
and for, the periods presented. The CEO and CFO are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e) for the Company
and have (i) designed such disclosure controls and procedures, or
caused such disclosure controls and procedures to be designed under
their supervision, to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to them
by others within those entities, particularly during the periods in
which the Prospectus as being prepared, (ii) valuated the effectiveness
of the Company's disclosure controls and procedures and (iii) disclosed
in the Prospectus any change in the Company's internal control over
financial reporting that occurred during the third quarter of 2003 that
has materially affected, or is reasonably likely to materially affect,
the registrant's internal control over financial reporting.
13
Any certificate signed by any officer of the Company and
delivered to the Underwriter or its counsel in connection with the offering of
the Securities shall be deemed a representation and warranty by the Company and
by the Operating Partnership, as to matters covered thereby, to the Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to the Underwriter, and the Underwriter agrees to
purchase from the Company, at a purchase price of $27.59 per share, the
Underwritten Securities.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the Underwriter to purchase up to 240,000 Option Securities at the
same purchase price per share as the Underwriter shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriter. Said option may be
exercised in whole or in part at any time on or before the 30th day after the
date of the Prospectus upon written or telegraphic notice by the Underwriter to
the Company setting forth the number of shares of the Option Securities as to
which the Underwriter is exercising the option and the settlement date.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the first Business
Day (as defined herein) prior to the Closing Date) shall be made at 10:00 AM,
New York City time, on March 3, 2004, or at such time on such later date not
more than three Business Days after the foregoing date as the Underwriter shall
designate, which date and time may be postponed by agreement among the
Underwriter and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the account of the
Underwriter against payment by the Underwriter of purchase price of the
Securities being sold by the Company by wire transfer payable in same-day funds
to the account specified by the Company. Delivery of the Underwritten Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Underwriter shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the first Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Underwriter, at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the date specified by the
Underwriter (which shall be within three Business Days after exercise of said
option) for the account of the Underwriter, against payment by the Underwriter
of the purchase price thereof by wire transfer payable in same-day funds to the
account specified by the Company. If settlement for the Option Securities occurs
after the Closing Date, the Company will deliver to the Underwriter on the
settlement date for the Option Securities, and the obligation of the Underwriter
to purchase the Option Securities shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
14
4. Offering by Underwriter. It is understood that the
Underwriter proposes to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Company agrees with the Underwriter that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
cause the Prospectus, properly completed, and any supplement thereto to
be filed in a form approved by the Underwriter with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Underwriter of such timely filing. The Company will promptly advise the
Underwriter (i) when the Registration Statement, if not effective at
the Execution Time, shall have become effective, (ii) when the
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the
Commission, (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Prospectus
or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (i) notify the Underwriter
of such event, (ii) prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
15
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriter an earnings
statement or statements of the Company and the Subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Underwriter and counsel
for the Underwriter, without charge, signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Underwriter may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Underwriter may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
the Underwriter, offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company
or any person in privity with the Company or any affiliate of the
Company) directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act, any other shares of Common Shares or
any securities convertible into, or exercisable, or exchangeable for,
Common Shares; or publicly announce an intention to effect any such
transaction, for a period of 30 days after the date of the Underwriting
Agreement; provided, however, that the Company may issue and sell
Common Shares pursuant to any employee or trustee option or long-term
incentive plan, share ownership plan or dividend purchase or
reinvestment plan of the Company in effect at the Execution Time and
the Company may issue Common Shares issuable upon the conversion or
redemption of securities or the exercise of options or warrants
outstanding at the Execution Time or the conversion or redemption of
units in the Operating Partnership outstanding at the Execution Time;
or the conversion of equity in any of the Subsidiaries identified on
Schedule I as "Joint Ventures" pursuant to and in accordance with
conversion rights in effect at the Execution Time.
16
(g) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company, during the period when the Prospectus is
required to be delivered under the Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to the
Act, the Exchange Act and the rules and regulations thereunder within
the time periods required thereby.
(i) The Company will comply with all applicable securities and
other applicable laws, rules and regulations, including, without
limitation, the Sarbanes Oxley Act, and will use its best efforts to
cause the Company's trustees and officers, in their capacities as such,
to comply with such laws, rules and regulations, including, without
limitation, the provisions of the Sarbanes Oxley Act.
(j) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(k) The Company will not be or become, at any time prior to
the expiration of three years after the date of the Agreement, an
"investment company," as such term is defined in the Investment Company
Act.
(l) The Company will use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust" under
the Code for each of its taxable years for so long as the Board of
Trustees of the Company deems it in the best interests of the Company's
stockholders to remain so qualified.
6. Conditions to the Obligations of the Underwriter. The
obligations of the Underwriter to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Operating
Partnership contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company and the Operating Partnership made in any certificates pursuant
to the provisions hereof, to the performance by the Company and the Operating
Partnership of their respective obligations hereunder and to the following
additional conditions:
17
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriter agrees in writing
to a later time, the Registration Statement will become effective not
later than (i) 6:00 PM New York City time on the date of determination
of the public offering price, if such determination occurred at or
prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any
such supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) The Underwriter shall not have advised the Company that
the Registration Statement or any amendment thereto contains an untrue
statement of fact that in the opinion of the Underwriter or its counsel
is material or omits to state a material fact that in the opinion of
the Underwriter or its counsel is required to be stated therein or is
necessary to make the statements therein not misleading, or that the
Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact that in the opinion of the Underwriter or its counsel
is material or omits to state a material fact that in the opinion of
the Underwriter or its counsel is material and is required to be stated
therein or necessary, in the light of the circumstances under which
they were made, to make the statements therein not misleading.
(c) The Company shall have requested and caused ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the
Underwriter their opinion dated the Closing Date and addressed to the
Underwriter to the effect set forth in Exhibit A attached hereto.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
States of Pennsylvania, Maryland and Delaware or the Federal laws of
the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriter and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and
public officials. References to the Prospectus in this paragraph (b)
shall also include any supplements thereto at the Closing Date.
(d) The Underwriter shall have received from Paul, Hastings,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or
opinions, dated the Closing Date and addressed to the Underwriter, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus (together with any supplement thereto) and
other related matters as the Underwriter may reasonably require, and
the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
18
(e) The Company shall have furnished to the Underwriter a
certificate of the Company, signed by the President and Chief Executive
Officer and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of the Closing
Date with the same effect as if made on the Closing Date and
the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at
or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened;
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto);
(iv) each signer of such certificate has carefully
examined the Registration Statement and the Prospectus
(including any documents filed under the Exchange Act and
deemed to be incorporated by reference into the Prospectus)
and (A) believes that as of the date of such certificate, such
documents are true and correct in all material respects and do
not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein
not untrue or misleading and (B) does not know of any event
that has occurred as a result of which it is necessary to
amend or supplement the Prospectus in order to make the
statements therein not untrue or misleading in any material
respect and there has been no document required to be filed
under the Exchange Act and the rules and regulations
thereunder that upon such filing would be deemed to be
incorporated by reference into the Prospectus that has not
been so filed; and
(v) Since the execution and delivery of this Agreement
and prior to the Closing Date and the Option Closing Date,
there has not occurred any downgrading in the rating accorded
the Company or any securities of the Company by any rating
agency nor has any notice been given to the Company or any of
the Subsidiaries of (A) any intended or potential downgrading
by any rating agency in such securities, or (B) any review or
possible change by any rating agency that does not indicate a
stable, positive or improving rating accorded such securities.
19
(f) The Company shall have requested and caused KPMG LLP and
Pricewaterhouse Coopers LLP ("PWC") to have furnished to the
Underwriter, at the Execution Time and at the Closing Date, letters,
dated respectively as of the Execution Time and as of the Closing Date,
in form and substance satisfactory to the Underwriter.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(e) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Underwriter, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date, the Company shall have
furnished to the Underwriter such further information, certificates and
documents as the Underwriter may reasonably request.
(i) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(j) The Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the Underwriter.
(k) At the Execution Time, the Company shall have furnished to
the Underwriter a letter substantially in the form of Exhibit B
attached hereto from each officer and trustee of the Company addressed
to the Underwriter.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Underwriter and
counsel for the Underwriter, this Agreement and all obligations of the
Underwriter hereunder may be canceled at, or at any time prior to, the Closing
Date by the Underwriter. Notice of such cancelation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
20
The documents required to be delivered by this Section 6 shall
be delivered at the office of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for
the Underwriter, at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the
Closing Date.
7. Reimbursement of Underwriter's Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by the Underwriter, the Company will reimburse the Underwriter on demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company and the
Operating Partnership jointly and severally agree to indemnify and hold harmless
the Underwriter, the directors, officers, employees and agents of the
Underwriter and each person who controls the Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities
as originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Operating
Partnership will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by the Underwriter specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company and
the Operating Partnership may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless
the Company, each of its trustees, each of its officers who signs the
Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act to the same extent as
the foregoing indemnity to the Underwriter, but only with reference to
written information relating to the Underwriter furnished to the
Company by or on behalf of the Underwriter specifically for inclusion
in the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which the Underwriter
may otherwise have. The Company acknowledges that the statements set
forth on the cover page regarding delivery of the Securities and, under
the heading "Underwriting," (i) the sentences related to concessions
and reallowances and (ii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary
Prospectus and the Prospectus constitute the only information furnished
in writing by or on behalf of the Underwriter for inclusion in any
Preliminary Prospectus or the Prospectus.
21
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a), (b) or (c) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the Operating
Partnership, jointly and severally, and the Underwriter agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
22
(collectively "Losses") to which the Company, the Operating Partnership and the
Underwriter, may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Operating Partnership on the
one hand, and by the Underwriter on the other from the offering of the
Securities; provided, however, that in no case shall (i) the Underwriter (except
as may be provided in any agreement among underwriters relating to the offering
of the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by the Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Operating Partnership, jointly
and severally, and the Underwriter shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Operating Partnership on the one hand and of the
Underwriter on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Operating Partnership shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriter shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company and the
Operating Partnership on the one hand or the Underwriter on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Operating Partnership and the Underwriter agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls the Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of the Underwriter shall have the same rights to contribution as the
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each trustee of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Underwriter, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Shares shall have been suspended
by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on the New York Stock Exchange, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Underwriter, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Prospectus (exclusive of any supplement thereto).
23
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or the Operating Partnership or its officers or partners and of the
Underwriter set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the
Underwriter, the Operating Partnership or the Company or any of the officers,
directors, trustees, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and if sent to the Underwriter, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to Brandywine Realty Trust General Counsel (fax no. ▇▇▇-▇▇▇-▇▇▇▇) and
confirmed to it at Brandywine Realty Trust, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Legal Department.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, trustees, employees, agents and controlling persons
referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
14. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
24
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(i)(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or
any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended
or such Rule 462(b) Registration Statement, as the case may be. Such
term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
* * * * * *
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Operating Partnership and the Underwriter.
Very truly yours,
BRANDYWINE REALTY TRUST
By:______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
BRANDYWINE OPERATING
PARTNERSHIP, L.P.
By: Brandywine Realty Trust, its general
partner
By:______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.
By:___________________________
Name:
Title:
SCHEDULE I
----------
BRANDYWINE REALTY TRUST
SUBSIDIARIES
-------------------------------------------- -----------------------------------------------
PARTNERS
LIMITED PARTNERSHIP SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
AAPOP 1, L.P., a Delaware limited AAP Sub One, Inc.-- GP - 1%
partnership
Atlantic American Properties Trust-- GP - 98%
and LP - 1%
-------------------------------------------- -----------------------------------------------
AAPOP 2, L.P., a Delaware limited Brandywine ▇▇▇▇▇▇, L.L.C.-- GP - 0.5%
partnership
▇▇▇▇▇▇ Operating Partnership I, L.P. -- GP -
98.5% and LP - 1%
-------------------------------------------- -----------------------------------------------
Brandywine Ambassador, L.P., a Brandywine Ambassador, L.L.C. - GP-1%
Pennsylvania limited partnership
BOP - LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine Central, L.P., a Pennsylvania Brandywine F.C., LP-- GP. - 98%
limited partnership
BTRS, Inc. -- LP. - 2%
-------------------------------------------- -----------------------------------------------
Brandywine Cira, L.P., a Pennsylvania BOP -- LP 99%
limited partnership
Brandywine ▇▇▇▇, LLC -- GP -- 1%
-------------------------------------------- -----------------------------------------------
Brandywine Croton, L.P., a Pennsylvania Brandywine Grande B, L.P.
limited partnership
LP - 99%
Brandywine Croton, LLC - GP-1%
-------------------------------------------- -----------------------------------------------
Brandywine Dominion, L.P., a Pennsylvania Brandywine Dominion, LLC-- GP - 1%
limited partnership
BOP(1) -- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine F.C., L.P., a Pennsylvania Brandywine F.C., L.L.C.-- GP - 1%
limited partnership
BOP-- LP-- 99%
-------------------------------------------- -----------------------------------------------
Brandywine Grande B, L.P., a Delaware Brandywine Grande B Corp.-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
2
-------------------------------------------- -----------------------------------------------
PARTNERS
LIMITED PARTNERSHIP SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
Brandywine Grande C, L.P., a Delaware Brandywine Grande C Corp. - GP 1%
limited partnership
BOP - LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine I.S., L.P., a Pennsylvania Brandywine I.S., LLC-- GP - 1%
limited partnership
BOP-- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine Metroplex, L.P., a Pennsylvania Brandywine Metroplex, LLC - GP - 1%
limited partnership
BOP - LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine Norriton, L.P., a Pennsylvania Brandywine Norriton, L.L.C.-- GP 1%
limited partnership
BOP -- 99%
-------------------------------------------- -----------------------------------------------
Brandywine Operating Partnership, L.P., a BRT-- GP and LP(2)
Delaware limited partnership
LP's (other than BRT)(2)
-------------------------------------------- -----------------------------------------------
Brandywine P.M., L.P., a Pennsylvania Brandywine P.M., LLC-- GP - 1%
limited partnership
BOP-- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine ▇▇ ▇▇▇▇▇▇, L.P., a Pennsylvania Brandywine ▇▇ ▇▇▇▇▇▇, LLC - GP - 1%
limited partnership
BOP-- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB Inn, L.P., a Pennsylvania Brandywine TB Inn, L.L.C.-- GP - 1%
limited partnership
BOP - LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB I, L.P., a Pennsylvania Brandywine TB I LLC-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine ▇▇ ▇▇, L.P., a Pennsylvania Brandywine ▇▇ ▇▇ LLC-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
3
-------------------------------------------- -----------------------------------------------
PARTNERS
LIMITED PARTNERSHIP SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
Brandywine TB V, L.P., a Pennsylvania Brandywine TB V, L.L.C.-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB VI, L.P., a Pennsylvania Brandywine TB VI, L.L.C.-- GP - 1%
limited partnership
BOP-- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB VIII, L.P., a Pennsylvania Brandywine TB VIII, L.L.C. - GP - 1%
limited partnership
BOP--LP-99%
-------------------------------------------- -----------------------------------------------
C/N Iron Run Limited Partnership III, a BOP-- GP - 2%
Pennsylvania limited partnership
BOP-- LP - 87%
WOP(3) -- LP - 11%
-------------------------------------------- -----------------------------------------------
C/N ▇▇▇▇▇▇ Limited Partnership II, a BOP-- GP - 89%
Pennsylvania limited partnership
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
C/N Oaklands Limited Partnership I, a WOP-- GP - 88.9%
Pennsylvania limited partnership
BOP-- LP - .1%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
C/N Oaklands Limited Partnership III, a BOP-- GP - 2%
Pennsylvania limited partnership
BOP-- LP - 87%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
Eight ▇▇▇▇▇▇/Brandywine Partner, L.P., a Brandywine TB VIII L.P. - LP - 50%
Pennsylvania limited partnership
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ LP - 1%
Eight ▇▇▇▇▇▇ Tower Associates - GP - 49%
-------------------------------------------- -----------------------------------------------
▇-▇▇▇▇▇▇▇.▇▇▇ Holding, L.P., a BOP - GP - 99%
Pennsylvania limited partnership
BTRS, Inc. - LP - 1%
-------------------------------------------- -----------------------------------------------
4
-------------------------------------------- -----------------------------------------------
PARTNERS
LIMITED PARTNERSHIP SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
Fifteen Horsham, L.P., a Pennsylvania WOP-- GP - 1%
limited partnership
BOP-- LP 1%
WOP-- LP - 98%
-------------------------------------------- -----------------------------------------------
Iron Run Limited Partnership V, a BOP-- GP - 2%
Pennsylvania limited partnership
BOP-- LP - 87%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
LC/N Horsham Limited Partnership, a WOP-- GP - 88.9%
Pennsylvania limited partnership
BOP-- LP - .1%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
LC/N ▇▇▇▇▇ Valley Limited Partnership I, a WOP -- GP - 88.9%
Pennsylvania limited partnership
BOP-- LP - .1%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
Newtech IV Limited Partnership, a WOP-- GP - 88.9%
Pennsylvania limited partnership
BOP-- LP - .1%
WOP-- LP - 11%
-------------------------------------------- -----------------------------------------------
▇▇▇▇▇▇▇ Lansdale Limited Partnership III, WOP-- GP - 88.9% / 98.9%
a Pennsylvania limited partnership
BOP-- LP - 11.1% / 1.1%
-------------------------------------------- -----------------------------------------------
▇▇▇▇▇▇ Operating Partnership I, L.P., a Brandywine ▇▇▇▇▇▇, LLC-- GP - 1% /1%
Delaware limited partnership
BOP-- LP - 99% / 99%
-------------------------------------------- -----------------------------------------------
100 Arrandale Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
▇▇▇▇▇▇▇▇ -- 11% / 1%
-------------------------------------------- -----------------------------------------------
111 Arrandale Associates, L.P., a BOP-- GP-- 2% / 2%
-------------------------------------------- -----------------------------------------------
5
-------------------------------------------- -----------------------------------------------
PARTNERS
LIMITED PARTNERSHIP SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
▇▇▇▇▇▇▇▇ -- 11% / 1%
-------------------------------------------- -----------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
▇▇▇▇▇▇▇▇ -- 11% / 1%
-------------------------------------------- -----------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
▇▇▇▇▇▇▇▇ -- 11% / 1%
-------------------------------------------- -----------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ Associates, L.P., a BOP-- GP-- 2% / 2%
Pennsylvania limited partnership(4)
BOP-- LP-- 87% / 97%
▇▇▇▇▇▇▇▇ -- 11% / 1%
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
GENERAL PARTNERSHIP OWNERSHIP STRUCTURE
-------------------------------------------- -----------------------------------------------
Brandywine ▇▇ ▇▇▇▇ ▇▇▇▇▇ Partnership, a Brandywine ▇▇▇▇▇ I, LLC-- GP - 50%
New York general partnership
Brandywine ▇▇▇▇▇ II, LLC -- GP - 50%
-------------------------------------------- -----------------------------------------------
Brandywine Broad Street Partnership, a New Brandywine ▇▇▇▇▇ I, LLC-- GP - 50%
York general partnership
Brandywine ▇▇▇▇▇ II, LLC -- GP - 50%
-------------------------------------------- -----------------------------------------------
Interstate Center Associates, a Virginia BOP-- 50%
general partnership
Brandywine Interstate 50, L.L.C. - 50%
▇▇-▇▇▇▇▇▇▇
-------------------------------------------- -----------------------------------------------
Iron Run Venture II, a Pennsylvania Atlantic American Land Development, Inc. -
general partnership 44.2617%
AAPOP 1, LP - GP - 55.7383%
-------------------------------------------- -----------------------------------------------
6
-------------------------------------------- -----------------------------------------------
GENERAL PARTNERSHIP OWNERSHIP STRUCTURE
-------------------------------------------- -----------------------------------------------
IR Northlight II Associates, a AAPOP 2, LP-- GP - 50%
Pennsylvania general partnership
BOP-- GP - 50%
▇▇-▇▇▇▇▇▇▇
-------------------------------------------- -----------------------------------------------
Plymouth TFC, General Partnership, a Brandywine P.M. LP-- GP - 50%
Pennsylvania general partnership
WOP -- 50%
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------
CORPORATE SUBSIDIARIES SHAREHOLDERS
-------------------------------------------- -----------------------------------
AAP Sub One, Inc., a Delaware corporation Atlantic American Properties
Trust - 100%
-------------------------------------------- -----------------------------------
Atlantic American Land Development, Inc., AAPOP 1, LP - 100%
a Delaware corporation
-------------------------------------------- -----------------------------------
Brandywine Grande B Corp., a Delaware BRT -- 100%
corporation
-------------------------------------------- -----------------------------------
Brandywine Grande C Corp., a Delaware BRT 100%
corporation
-------------------------------------------- -----------------------------------
Brandywine Holdings, I, Inc., a BRT -- 100%
Pennsylvania corporation
-------------------------------------------- -----------------------------------
Brandywine Realty Services Corporation, a BOP -- 9,500 Common Shares
Pennsylvania corporation
BRSP(8) -- 500 Common Shares
-------------------------------------------- -----------------------------------
BTRS, Inc., a Delaware corporation BOP - 100%
-------------------------------------------- -----------------------------------
7
-------------------------------------------- -----------------------------------
CORPORATE SUBSIDIARIES SHAREHOLDERS
-------------------------------------------- -----------------------------------
Southpoint Land Holdings, Inc., a BOP -- 89 Shares
Pennsylvania corporation(7)
▇▇▇▇▇▇▇▇ - 11 Shares
-------------------------------------------- -----------------------------------
Valleybrooke Land Holdings, Inc., a BOP-- 89 Shares
Pennsylvania corporation(7)
▇▇▇▇▇▇▇▇ - 11 Shares
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
-------------------------------------------- -----------------------------------
Brandywine Ambassador, L.L.C., a BOP - 100%
Pennsylvania limited liability company
-------------------------------------------- -----------------------------------
Brandywine ▇▇▇▇▇ I, LLC, a Delaware BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine ▇▇▇▇▇ II, LLC, a Delaware BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine Brokerage Services, LLC, a New BRSCO - - 100%
Jersey limited liability company
-------------------------------------------- -----------------------------------
Brandywine Charlottesville LLC, a Virginia BOP - 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine ▇▇▇▇▇▇▇▇▇ LLC, a Delaware BOP - 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine ▇▇▇▇, LLC, a Pennsylvania BOP -- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine Croton, LLC, a Pennsylvania Brandywine Grande B, L.P. - 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine ▇▇▇▇▇▇, L.L.C., a Delaware BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine Dominion, L.L.C., a BOP-- 100%
Pennsylvania limited liability company
-------------------------------------------- -----------------------------------
8
-------------------------------------------- -----------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
-------------------------------------------- -----------------------------------
Brandywine F.C., L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine I.S., L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine Interstate 50, L.L.C., a BOP-- 100%
Delaware limited liability company
-------------------------------------------- -----------------------------------
Brandywine - Main Street, LLC, a Delaware BOP -- 99%
limited liability company
Brandywine Acquisitions, LLC -- 1%
-------------------------------------------- -----------------------------------
Brandywine Metroplex LLC., a Pennsylvania BOP - 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine Norriton, L.L.C., a BOP-- 99%
Pennsylvania limited liability company
Norriton Corp. -- 1%
-------------------------------------------- -----------------------------------
Brandywine P.M., L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine Piazza, L.L.C., a New Jersey BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine Plaza 1000, L.L.C., a New BOP-- 100%
Jersey limited liability company
-------------------------------------------- -----------------------------------
Brandywine Promenade, L.L.C., a New Jersey BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine ▇▇ ▇▇▇▇▇▇, LLC, a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine TB Inn, L.L.C., a Pennsylvania BOP - 100%
limited liability company
-------------------------------------------- -----------------------------------
9
-------------------------------------------- -----------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
-------------------------------------------- -----------------------------------
Brandywine TB I, L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine ▇▇ ▇▇, L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine TB V, L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine TB VI, L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine TB VIII, L.L.C., a Pennsylvania BOP --100%
limited liability company
-------------------------------------------- -----------------------------------
Brandywine Trenton Urban Renewal, L.L.C., BOP -BRT
a Delaware limited liability company
-------------------------------------------- -----------------------------------
Brandywine ▇▇▇▇▇▇, L.L.C., a Pennsylvania BOP-- 100%
limited liability company
-------------------------------------------- -----------------------------------
Christiana Center Operating Company I LLC, BOP -- Member - 100%
a Delaware limited liability company
-------------------------------------------- -----------------------------------
Christiana Center Operating Company II LLC, BOP -- Member - 100%
a Delaware limited liability company
-------------------------------------------- -----------------------------------
Christiana Center Operating Company III LLC, BOP -- Member - 100%
a Delaware limited liability company
-------------------------------------------- -----------------------------------
10
-------------------------------------------- -----------------------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
-------------------------------------------- -----------------------------------------------
e-Tenants LLC, a Delaware limited ▇-▇▇▇▇▇▇▇.▇▇▇ Holding, L.P.
liability company
-------------------------------------------- -----------------------------------------------
--------------------------------------------------------------------------------------------
JOINT VENTURES BRANDYWINE MEMBERS/PARTNERS
--------------------------------------------------------------------------------------------
Brandywine Industrial Partnership, L.P., BB&K GP, BB&K LP Business Trust, BOP
a Delaware limited partnership and ▇▇▇▇▇▇▇ Lansdale Limited
Partnership III
--------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Partnership, a Brandywine Dominion, LP -- GP - 50%
Pennsylvania general partnership
--------------------------------------------------------------------------------------------
PJP Building Two, L.C., a Virginia limited Brandywine Charlottesville, LLC-- 30%
liability company
Pavilion Holdings, LLC -- 20%
▇▇▇▇▇▇▇ Land Development Company, L.C. f/k/a
▇▇▇▇▇▇▇ Land and Cattle Company, L.C. -- 50%
--------------------------------------------------------------------------------------------
PJP Building Five, L.C., a Virginia Brandywine Charlottesville, LLC-- 25%
limited liability company
Pavilion Holdings, LLC -- 25%
▇▇▇▇▇▇▇ Land and Development Company, L.C. --
50%
--------------------------------------------------------------------------------------------
Two Tower Bridge Associates, a Brandywine ▇▇ ▇▇, LP-- GP - 35%
Pennsylvania limited partnership
--------------------------------------------------------------------------------------------
Four Tower Bridge Associates, a Brandywine TB I, LP-- GP - 65%
Pennsylvania limited partnership
--------------------------------------------------------------------------------------------
Five ▇▇▇▇▇▇/Brandywine Partner, L.P., a Brandywine TB V, L.P.-- GP - 50%
Pennsylvania Limited Partnership
Five ▇▇▇▇▇▇ Tower Associates -- GP - 49%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇-- LP - 1%
--------------------------------------------------------------------------------------------
Five Tower Bridge Associates, a Five ▇▇▇▇▇▇/Brandywine Partner, L.P. - - LP -
Pennsylvania limited partnership - 30%
--------------------------------------------------------------------------------------------
11
--------------------------------------------------------------------------------------------
JOINT VENTURES BRANDYWINE MEMBERS/PARTNERS
--------------------------------------------------------------------------------------------
Six Tower Bridge Associates, a Brandywine TB VI, LP-- GP - 65%
Pennsylvania limited partnership
--------------------------------------------------------------------------------------------
Eight Tower Bridge Development Associates, Eight ▇▇▇▇▇▇/Brandywine Partner, L.P.-- GP--
a Pennsylvania limited partnership 11% [A BRT subsidiary, Brandywine TB VIII,
L.P., is a 50% limited partner in this entity.]
Eight Tower Bridge - VEF II, LLC-- LP-- 89%
--------------------------------------------------------------------------------------------
Tower Bridge Inn Associates, a Brandywine TB Inn, L.P.-- GP - 50%
Pennsylvania limited partnership
▇▇▇▇▇▇ Tower Inn Associates -- GP - 23.1829%
Tower Bridge Partners -- LP - 23.1889%
Centre Consho, LLC -- LP - 3.6222%
--------------------------------------------------------------------------------------------
Macquarie BDN LLC, a Delaware limited BOP - 20%; Macquarie Office LLC - 80%
liability company
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
CONDOMINIUM UNIT OWNERS
--------------------------------------------------------------------------------------------
Allendale Road Corporate Center, a BOP owns all units
Pennsylvania Condominium Association
--------------------------------------------------------------------------------------------
Greentree Executive Campus 1001-03 BOP owns 2 units
Association, Inc., a New Jersey
non-profit corporation 1001 Greentree Associates, L.L.C. owns 1 Unit.
--------------------------------------------------------------------------------------------
Princeton Pike V, VI & VII Condominium BOP owns all units
Association, Inc., a New Jersey
condominium association
--------------------------------------------------------------------------------------------
12
--------------------------------------------------------------------------------------------
TRUST TRUSTEES
--------------------------------------------------------------------------------------------
Atlantic American Properties Trust, a BOP -- Common Shares - 100% Maryland real
estate investment trust
100 BRT Employees -- Preferred Shares - 100%
--------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
PARENT TRUSTEES
----------------------------------------------------------------------------------------------
Brandywine Realty Trust, a Maryland
real estate investment trust
----------------------------------------------------------------------------------------------
13
(1) Brandywine Operating Partnership, LP, referred to as "BOP," is a
Delaware limited partnership.
(2) Per BOP Unit Registry.
(3) ▇▇▇▇▇▇ Operating Partnership I, L.P., referred to as "WOP," is a
Delaware limited partnership.
(4) The minority interest in these entities is subject to put/call rights
under which BOP will ultimately acquire the minority interests.
SCHEDULE II
-----------
List of Options, Warrants
and Other Convertible Securities
Options
-------
------------------------------- ---------------------------- ---------------------------- ----------------------------
Name Date of Grant Exercise Price Ending Balance
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇, ▇▇▇ 10/6/98 24.00 50,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇, ▇▇▇ 10/6/98 26.40 50,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 100,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇ 1/2/98 25.25 6,587
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇ 7/1/99 25.25 3,297
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇ 1/2/98 27.78 7,708
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇ 7/1/99 27.78 3,857
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇ 1/2/98 29.04 8,314
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇ 7/1/99 29.04 4,161
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 33,924
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, Jr., Al 1/2/98 27.78 2,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 2,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇, ▇▇▇▇ 10/6/98 24.00 50,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇, ▇▇▇▇ 10/6/98 26.40 50,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 100,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇, ▇▇▇ 1/2/98 27.78 7,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 7,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇ 1/2/98 27.78 5,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 5,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇ 7/1/99 25.25 6,594
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇ 1/2/98 27.78 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇ 7/1/99 27.78 7,715
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇ 1/2/98 29.04 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇ 7/1/99 29.04 8,322
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 47,631
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, Jr., ▇▇▇▇ 1/2/98 25.25 19,792
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, Jr., ▇▇▇▇ 1/2/98 27.78 23,159
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, Jr., ▇▇▇▇ 1/2/98 29.04 24,944
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 67,895
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, Sr., ▇▇▇▇ 1/2/98 25.25 197,923
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, Sr., ▇▇▇▇ 1/2/98 27.78 231,597
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, Sr., ▇▇▇▇ 1/2/98 29.04 249,438
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 678,958
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇, ▇▇▇▇▇▇▇ 6/1/99 25.25 6,726
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇, ▇▇▇▇▇▇▇ 6/1/99 27.78 7,870
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇, ▇▇▇▇▇▇▇ 6/1/99 29.04 8,489
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 23,085
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇ 7/1/99 25.25 6,594
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇ 1/2/98 27.78 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇ 7/1/99 27.78 7,715
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇ 1/2/98 29.04 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇ 7/1/99 29.04 8,322
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 47,631
------------------------------- ---------------------------- ---------------------------- ----------------------------
2
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇ 6/1/99 25.25 6,726
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇ 6/1/99 27.78 7,870
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇ 6/1/99 29.04 8,489
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 23,085
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇, ▇▇▇▇▇▇ 7/1/99 25.25 6,594
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇, ▇▇▇▇▇▇ 7/1/99 27.78 7,715
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇, ▇▇▇▇▇▇ 7/1/99 29.04 8,322
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 22,631
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ 8/8/94 6.21 13,333
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ 8/8/94 14.31 33,334
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ 7/25/02 19.50 100,000
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ 1/2/98 25.25 296,736
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ 1/2/98 27.78 347,222
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ 1/2/98 29.04 374,531
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 1,165,156
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 7/1/99 25.25 6,594
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 1/2/98 27.78 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 7/1/99 27.78 7,715
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 1/2/98 29.04 12,500
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 7/1/99 29.04 8,322
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total 47,631
------------------------------- ---------------------------- ---------------------------- ----------------------------
Grand Total 2,372,627
------------------------------- ---------------------------- ---------------------------- ----------------------------
WARRANTS
--------
------------------------------------------------------------ ---------------------------------------------------------
Name Number of Underlying Common Shares
------------------------------------------------------------ ---------------------------------------------------------
Five Arrows Realty Securities L.L.C. 250,000
------------------------------------------------------------ ---------------------------------------------------------
Total
------------------------------------------------------------ ---------------------------------------------------------
3
UNITS
-----
----------------------------------------------------------------------------------------------------------------------
Totals for All Units
------------------------------------------------------------------------ ---------------------------------------------
Total General Partnership Units Outstanding: 42,353,026
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Limited Partnership Units Outstanding: 3,433,962
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Units to BRT 1,696,755
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Units to Holdings I 5
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Units to outside limited partners 1,737,202
------------------------------------------------------------------------ ---------------------------------------------
Total Reserved Units for redemption/conversion of Series A Preferred 1,415,094 Units
Mirror Units:
------------------------------------------------------------------------ ---------------------------------------------
Total Reserved Units for redemption conversion of Series B Preferred 3,679,245 Units
Units:
------------------------------------------------------------------------ ---------------------------------------------
Total Series A Preferred Mirror Units Outstanding: 750,000 Units
------------------------------------------------------------------------ ---------------------------------------------
Total Series D Preferred Mirror Units Outstanding: 2,000,000 Units
------------------------------------------------------------------------ ---------------------------------------------
Total Series E Preferred Mirror Units Outstanding 2,300,000 Units2
------------------------------------------------------------------------ ---------------------------------------------
OTHER
-----
Partners in ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Partnership have the right,
under certain circumstances, to have the partnership interests valued and to
convert these interests into Class A Units of Brandywine Operating Partnership,
L.P.
______________________________
(2) As of February 27, 2004 and conditioned on the closing of the Series D
Preferred Share offering scheduled to close on February 27, 2004.
EXHIBIT A
1. The Company is a real estate investment trust duly formed and
existing under and by virtue of the laws of the State of Maryland and is in good
standing under the laws of the State of Maryland, including with the State
Department of Assessments and Taxation of Maryland. The Company has the full
trust power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business as described in the Registration
Statement and the Prospectus requires such registration or qualification, except
where the failure to so qualify would not have a material adverse effect on the
condition (financial or otherwise), business, prospects, properties or earnings
of the Company.
2. Each of the Subsidiaries is a corporation, limited liability
company, limited partnership or general partnership duly incorporated or formed,
as the case may be, validly existing and in good standing, as the case may be,
under the laws of its jurisdiction of incorporation or formation, with full
corporate, limited liability company, or partnership power and authority, as the
case may be, to own, lease, and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus, and is
duly registered and qualified to conduct its business in each jurisdiction or
place where the nature of its properties or the conduct of its business as
described in the Registration Statement and the Prospectus requires such
registration or qualification, except where the failure to so qualify would not
have a material adverse effect on the condition (financial or otherwise),
business, prospects, properties or earnings of such Subsidiary.
3. The authorized beneficial interest of the Company (including, but
not limited to, any options, warrants or other securities convertible into or
exchangeable shares of beneficial interest of the Company) is as set forth in
the Registration Statement and the Prospectus Supplement, and the Shares conform
in all material respects to the description thereof in the Registration
Statement and the Prospectus Supplement. All the outstanding shares of
beneficial interest of the Company outstanding prior to the issuance of the
Shares have been duly and validly authorized and issued, are fully paid and
nonassessable, and are free of any preemptive or other rights to subscribe for
the Shares under Maryland law or any agreements entered into by the Company and
identified under Item 15 to the Company's Annual Report on Form 10-K for the
year ended December 31, 2002, as amended by the Annual Report on Form 10-K/A-1.
4. The Shares have been duly and validly authorized and, when issued
and delivered to the Underwriter against payment therefor in accordance with the
terms of the Agreement, will be validly issued, fully paid and nonassessable and
free of any preemptive or other rights to subscribe for the Shares under
Maryland law or any agreements entered into by the Company and identified under
Item 15 to the Company's Annual Report on Form 10-K for the year ended December
31, 2002, as amended by the Annual Report on Form 10-K/A-1.
2
5. To our knowledge after due inquiry, except as set forth on Schedule
I to the Officer's Certificate, there are no outstanding options, warrants or
other rights to purchase, calling for the issuance of, or any commitment, plan
or arrangement to issue, any shares of beneficial interest of the Company or any
security or other right or obligation convertible into or exchangeable or
exercisable for shares of beneficial interest of the Company. There is no holder
of any security of the Company or any other person who has the statutory right
or, to our knowledge after due inquiry, the contractual or other right, to cause
the Company to sell or otherwise issue to him, or to permit him to underwrite
the sale of, the Shares or the right to have any Common Shares or other
securities of the Company included in the Registration Statement or the right,
as a result of the filing of the Registration Statement or sale of the Shares as
provided in the Agreement, to require registration under the Act of any Common
Shares or other securities of the Company.
6. All of the outstanding units of limited and general partnership
interests of the Operating Partnership (the "Units"), and the partnership and
membership interests in each of the other Subsidiaries that is a partnership or
limited liability company, as the case may be, were created under the agreements
forming the Operating Partnership and such other Subsidiaries, as the case may
be, and all of the issued and outstanding shares of capital stock of each of the
Subsidiaries that is a corporation have been duly authorized and validly issued,
and are fully paid and nonassessable. To our knowledge after due inquiry, except
as described in the Registration Statement and the Prospectus (or any amendment
or supplement thereto) or Schedule II to the Officer's Certificate, all such
Units, partnership interests and shares of capital stock are owned by the
Company directly, or indirectly through one of the Subsidiaries, free and clear
of any security interest, lien, adverse claim, equity or other encumbrance, and,
to our knowledge after due inquiry, the Company's ownership interest in the
Operating Partnership, and the Company's and the Operating Partnership's
respective ownership interest in each of the Subsidiaries, is as set forth on
Schedule II attached hereto (without giving effect to the issuance of the
Shares). Except as described in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), there are no outstanding options,
warrants or other rights to purchase, calling for the issuance of, or any
commitment, plan or arrangement to issue, any equity interests in any
Subsidiary, or any security or other right or obligation convertible into or
exchangeable or exercisable for any such interests in any such Subsidiary. The
terms of the Units conform in all material respects to statements and
descriptions thereof contained in the Registration Statement and the Prospectus.
The Company is the sole general partner of the Operating Partnership. The
Subsidiaries set forth on Schedule II attached hereto include all of the
"significant subsidiaries" of the Company, as such term is defined by Rule 1-02
of Regulation S-X.
7. The Company has the full trust power and authority, and the
Operating Partnership has the requisite partnership power and authority, to
enter into the Agreement, and in the case of the Company, to issue, sell and
deliver the Shares to the Underwriter as provided in the Agreement, and the
Agreement has been duly and validly authorized, executed and delivered by the
Company and the Operating Partnership, as applicable, and is the legal, valid
and binding agreement of each of the Company and the Operating Partnership, as
applicable, enforceable against them in accordance with its terms.
3
8. The form of certificate representing the Common Shares is in due and
proper form and complies in all material respects with all applicable Maryland
statutory requirements and the rules and regulations of the New York Stock
Exchange.
9. To our knowledge after due inquiry, neither the Company nor any of
the Subsidiaries is in violation of its respective Declaration of Trust,
certificate or articles of incorporation or bylaws, partnership agreement,
operating agreement or other organizational documents or is in default in the
performance of any material obligation, agreement or condition contained in any
bond, debenture, note or other evidence of indebtedness.
10. With respect to the Company and the Subsidiaries, neither the
offer, sale or delivery of the Shares, the execution, delivery or performance of
the Agreement, nor the consummation of the transactions contemplated thereby by
the Company or the Subsidiaries, as applicable: (i) required or requires, with
respect to the Company or the Subsidiaries, any consent, approval, authorization
or other order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official, or the New
York Stock Exchange (except (a) such as has been made or obtained and (b) as to
state securities or Blue Sky laws, as to which we express no opinion); (ii)
conflicted with or conflicts with, constituted or constitutes, or resulted in or
results in, a breach or violation of, or a default under, the Declaration of
Trust, Articles Supplementary, certificate or articles of incorporation or
bylaws, partnership agreement or other organizational documents, of any of such
entities, or under any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition covenant or
instrument to which any of such entities is a party or by which any of them or
any of their respective properties or assets are bound or subject to; (iii)
violated or violates any statute, law, rule, regulation, judgment, injunction,
order or decree applicable to any of such entities or any of their respective
properties or assets; or (iv) resulted or will result in the creation or
imposition of any lien, charge or encumbrance upon the property or assets of any
of such entities pursuant to the terms of any agreement or instrument to which
any of them is a party or by which any of them may be bound or to which any of
the property or assets of any of them is subject.
11. Neither the Company nor any of the Subsidiaries is, and after
giving effect to the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus (and any amendment or supplement
thereto) will be, an "investment company" as defined in the Investment Company
Act of 1940, as amended.
12. To our knowledge after due inquiry, (i) there are no pending or
threatened actions, suits or proceedings against the Company or any of the
Subsidiaries or any of their respective trustees, directors or officers in their
capacity as such, or to which the Company or any of the Subsidiaries or any of
their respective trustees, directors or officers in their capacity as such, or
any of their respective properties or assets, is subject, that are of a
character which is required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto) other than any that are
described or incorporated therein by reference and (ii) there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to the Registration Statement
that are not described or filed as required by the Act.
4
13. The statements in the Registration Statement and Prospectus
Supplement set forth under the headings "Description of Shares of Beneficial
Interest", "Certain Provisions of Maryland Law and of our Declaration of Trust
and Bylaws" and "Federal Income Tax Considerations", and the statements in the
Company's Annual Report on Form 10-K for the year ended December 31, 2002 and
incorporated by reference in the Registration Statement under the heading "Risk
Factors--Our status as a REIT is dependent on compliance with federal income tax
requirements", to the extent they constitute matters of law or descriptions or
summaries of contracts, agreements or other legal documents, or refer to or
constitute statements of matters of law, descriptions of statutes, rules or
regulations, or legal conclusions, each, respectively, are accurate and fair
summaries of the information disclosed therein.
14. The Registration Statement has become effective under the Act and
any required filing of the Prospectus (or any amendment or supplement thereto)
pursuant to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b). To our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened and the Registration Statement
and the Prospectus (or any amendment or supplement thereto) (other than the
financial statements and other financial and statistical information contained
therein, as to which we express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the Exchange Act and
the respective rules thereunder.
15. The Shares are duly listed, admitted and authorized for trading on
the New York Stock Exchange, subject to official notice of issuance.
16. The Company was organized in conformity with the requirements for
qualification as a REIT for federal income tax purposes, and, based on the facts
and assumptions set forth in the Prospectus (and any amendment or supplement
thereto) and certain representations by the Company regarding certain federal
income tax matters, its method of operation has enabled it, and its proposed
method of operation will enable it, to meet the requirements under the Internal
Revenue Code of 1986, as amended, for qualification and taxation as a REIT.
In addition, the Registration Statement and the Prospectus (other than
the financial statements and related schedules and other financial data therein,
as to which we express no view) comply as to form in all material respects with
the requirements of the Act and the rules and regulations thereunder; although
we do not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in paragraph 13 above, no facts have
come to our attention that have led us to believe that, as of its effective
date, the Registration Statement (other than the financial statements and
related schedules therein and other financial data, as to which we express no
view) contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that, as of the date of the Prospectus Supplement
dated the date hereof, the Prospectus (other than the financial statements and
related schedules therein and other financial data, as to which we express no
view), contained an untrue statement of a material fact or omitted to state a
5
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of the date
hereof, the Prospectus (other than the financial statements and related
schedules therein and other financial data, as to which we express no view)
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; the documents incorporated by
reference in either the Registration Statement or the Prospectus (other than the
financial statements and related schedules therein and other financial data, as
to which we express no view), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and no facts have come to
our attention that have led us to believe that any of such documents, when they
became effective or were so filed, as the case may be, contained, in the case of
a registration statement which became effective under the Act, an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or,
in the case of other documents which were filed under the Securities Act or the
Exchange Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
documents were so filed, not misleading; and we do not know of any amendment to
the Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the Prospectus or
required to be described in the Registration Statement or the Prospectus which
are not filed or incorporated by reference or described as required.
With respect to the prior paragraph, our statements are based upon our
representation of the Company and our participation in the preparation of the
Registration Statement and the Prospectus and review and discussion thereof, and
we do not pass upon or assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus, subject to the opinion set forth above in paragraph 13.
[Form of Lock-Up Agreement]
EXHIBIT B
[Letterhead of officer or trustee(3) of
the Company]
Brandywine Realty Trust
-----------------------
Public Offering of Common Shares
--------------------------------
February 26, 2004
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between
Brandywine Realty Trust, a real estate investment trust organized under the laws
of Maryland (the "Company"), Brandywine Operating Partnership, L.P., a Delaware
limited partnership, and you as the underwriter named therein (the
"Underwriter"), relating to an underwritten public offering of common shares of
beneficial interest, par value $.01 per share (the "Common Shares"), of the
Company.
In order to induce you to enter into the Underwriting
Agreement, the undersigned will not, without the prior written consent of the
Underwriter, offer, sell, contract to sell, pledge or otherwise dispose of, (or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the undersigned or
any affiliate of the undersigned or any person in privity with the undersigned
or any affiliate of the undersigned), directly or indirectly, including the
filing (or participation in the filing) of a registration statement with the
Securities and Exchange Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder with respect to, any shares of beneficial interest in the
Company or any securities convertible into, or exercisable or exchangeable for
such shares of beneficial interest, or publicly announce an intention to effect
any such transaction, for a period of 30 days after the date of the Underwriting
Agreement, other than Common Shares disposed of as bona fide gifts approved by
the Underwriter.
________________________________________
(3) Solely in such individual's capacity as a trustee.
[Form of Lock-Up Agreement] EXHIBIT A
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement),
the agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer or trustee]
[Name and address of officer or trustee]