2,300,000 Common Shares
of Beneficial Interest
($.01 par value)
Underwriting agreement
BRANDYWINE REALTY TRUST
UNDERWRITING AGREEMENT
New York, New York
January 6, 2004
Bear, ▇▇▇▇▇▇▇ & Co. 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 Bear, ▇▇▇▇▇▇▇ & Co. (the "Bear ▇▇▇▇▇▇▇"), subject to the terms and
conditions stated herein, 2,300,000 common shares (the "Firm Shares") of
beneficial interest, par value $0.01 per share, (the "Common Shares") of the
Company. The Company also proposes to grant to Bear ▇▇▇▇▇▇▇ an option to
purchase up to 345,000 Common Shares to cover over-allotments (the "Additional
Shares"; the Additional Shares, together with the Firm Shares, being hereinafter
called the "Shares"). The use of the neuter in this Agreement shall include the
feminine and masculine wherever appropriate.
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 Bear
▇▇▇▇▇▇▇, in connection with the purchase of the Shares by Bear ▇▇▇▇▇▇▇.
1. Representations and Warranties. The Company and the
Operating Partnership jointly and severally represent and warrant to, and agree
with, Bear ▇▇▇▇▇▇▇, as set forth below in this Section 1.
(a) A registration statement on Form S-3 (File No. 333-56237),
with respect to the Shares, including a base prospectus dated February
9, 1999, was prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations (the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission"), was filed
with the Commission and declared effective. The registration statement
and prospectus may have been amended or supplemented prior to the date
of this Agreement; any such amendment or supplement was prepared and
filed, and any such amendment filed after the effective date of such
registration statement has been declared effective. No stop order
suspending the effectiveness of the registration statement has been
issued, and no proceeding for that purpose has been instituted, or to
the Company's knowledge, threatened by the Commission. A prospectus
supplement (the "Prospectus Supplement") setting forth the terms of the
offering, sale and plan of distribution of the Shares and additional
information concerning the Company and its business has been or will be
prepared and, together with the prospectus included in the registration
statement, will be filed pursuant to Rule 424(b) of the Rules and
Regulations on or before the second business day after the date hereof
(or such earlier time as may be required by the Rules and Regulations).
The registration statement, as it may have heretofore been amended and
at the time it became effective, is referred to herein as the
"Registration Statement," and the final form of prospectus included in
the Registration Statement, as supplemented by the Prospectus
Supplement, in the form filed by the Company with the Commission
pursuant to Rule 424(b) under the Rules and Regulations, is referred to
herein as the "Prospectus", except that if any revised prospectus or
prospectus supplement shall be provided to Bear ▇▇▇▇▇▇▇ by the Company
for use in connection with the offering which differs from the
Prospectus (whether or not such revised prospectus or prospectus
supplement is required to be filed by the Company pursuant to Rule
424(b) of the Rules and Regulations), the term "Prospectus" shall refer
to such revised prospectus or prospectus supplement, as the case may
be, from and after the time it is first provided to Bear ▇▇▇▇▇▇▇ for
such use. Copies of the Registration Statement and the Prospectus, any
amendments or supplements thereto and all documents incorporated by
reference therein that were filed with the Commission on or prior to
the date of this Agreement have been delivered to Bear ▇▇▇▇▇▇▇ and
their counsel. Any preliminary prospectus or prospectus subject to
completion included in the Registration Statement or filed with the
Commission pursuant to Rule 424 under the Securities Act and the Rules
and Regulations is hereafter called a "Preliminary Prospectus." Any
reference herein to the Registration Statement, any 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 Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the Effective Date, the date
of such Preliminary Prospectus or the date of 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 (i) the filing of any document under the Exchange Act after
the Effective Date, the date of such Preliminary Prospectus or the date
of the Prospectus, as the case may be, which is incorporated therein by
reference and (ii) any such document so filed. For purposes of this
Agreement, all references to the Registration Statement, the
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Prospectus, any Preliminary Prospectus or to any amendment or
supplement thereto shall be deemed to include any copy filed with the
Electronic Data Gathering Analysis and Retrieval System (▇▇▇▇▇), and
such copy shall be identical in content to any Prospectus delivered to
Bear ▇▇▇▇▇▇▇ for use in connection with the offering.
(b) The Registration Statement, when it became or becomes
effective, and the Prospectus and any amendment or supplement thereto,
as of its date, on the date of filing thereof with the Commission and
at the Closing Date (as hereinafter defined) and, if later, at any
Additional Closing Date (as hereinafter defined), complied or will
comply in all material respects with the applicable requirements of the
Securities Act and the Rules and Regulations; the Registration
Statement, when it became or becomes effective, or when it was filed
with the Commission, did not or will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Prospectus and any amendment or supplement thereto, as of its date, on
the date of the filing thereof with the Commission and at the Closing
Date and, if later, at any Additional Closing Date, did not or will not
include an untrue statement of a material fact required to be stated
therein or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. When any related Preliminary Prospectus was first
filed with the Commission (whether filed as part of the registration
statement for the registration of the Shares or any amendment thereto
or pursuant to Rule 424(a) under the Securities Act) and when any
amendment thereof or supplement thereto was first filed with the
Commission, such Preliminary Prospectus and any amendments thereof and
supplements thereto complied in all material respects with the
applicable provisions of the Securities Act, the Exchange Act and the
Rules and Regulations and did not contain an untrue statement of a
material fact and did not omit to state any material fact required to
be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading; provided, 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 Bear
▇▇▇▇▇▇▇ specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto).
(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 the Rules and
Regulations, 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 the 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.
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(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.
(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 the Shares being sold hereunder by the Company have
been duly and validly authorized, and, when issued and delivered to and
paid for by Bear ▇▇▇▇▇▇▇ pursuant to this Agreement, will be fully paid
and nonassessable; the certificates for the Shares 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 Shares 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.
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(h) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required. All of the contracts to which any of
the Company, the Operating Partnership or the Subsidiaries is a party
and which are material to the business and operations of the Company,
the Operating Partnership or the Subsidiaries, taken as a whole, (i)
have been duly authorized, executed and delivered by such entity,
constitute valid and binding obligations of such entity and are
enforceable against such entity in accordance with the terms thereof,
except as such enforcement may be limited by (A) bankruptcy,
insolvency, reorganization or similar other laws affecting creditors'
rights generally and (B) general equity principles and limitations on
the availability of equitable relief, or (ii) in the case of any
contract to be executed on or before the Closing Date, will on the
Closing Date be duly authorized, executed and delivered by the Company
and/or a subsidiary, and constitute valid and binding agreements of
such entity enforceable against each entity in accordance with the
terms thereof, except as such enforcement may be limited by (A)
bankruptcy, insolvency, reorganization or similar other laws affecting
creditors' rights generally and (B) general equity principles and
limitations on the availability of equitable relief.
(i) 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.
(j) This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership.
(k) The Company is not and, after giving effect to the offering
and sale of the Shares 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.
(l) 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 Securities Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Shares by Bear ▇▇▇▇▇▇▇ in the manner contemplated
herein and in the Prospectus.
(m) Neither the issue and sale of the Shares 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
5
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.
(n) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(o) 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.
(p) 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 and Prospectus in accordance
with Regulation S-X under the Rules and Regulations, and which are not
so included or incorporated therein.
(q) 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).
(r) 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
6
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.
(s) 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.
(t) 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 Securities Act and the Rules and
Regulations. PriceWaterhouseCoopers LLP are independent public
accountants with respect to the Company within the meaning of the
Securities Act and the Rules and Regulations.
(u) 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 Shares.
(v) 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
7
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.
(w) 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).
(x) 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).
8
(y) 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.
(z) 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).
(aa) 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.
(bb) 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 Shares.
(cc) (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
9
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.
(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).
(dd) The minimum funding standard under Section 302 of the
Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder ("ERISA"), has
been satisfied by each "pension plan" (as defined in Section 3(2) of
ERISA) which has been established or maintained by the Company and/or
one or more of its subsidiaries, and the trust forming part of each
such plan which is intended to be qualified under Section 401 of the
Code is so qualified; each of the Company and its subsidiaries has
fulfilled its obligations, if any, under Section 515 of ERISA; neither
the Company nor any of its subsidiaries maintains or is required to
contribute to a "welfare plan" (as defined in Section 3(1) of ERISA)
which provides retiree or other post-employment welfare benefits or
insurance coverage (other than "continuation coverage" (as defined in
Section 602 of ERISA)); each pension plan and welfare plan established
or maintained by the Company and/or one or more of its subsidiaries is
in compliance in all material respects with the currently applicable
provisions of ERISA; and neither the Company nor any of its
subsidiaries has incurred or could reasonably be expected to incur any
withdrawal liability under Section 4201 of ERISA, any liability under
Section 4062, 4063, or 4064 of ERISA, or any other liability under
Title IV of ERISA. The assets of the Company and the Subsidiaries do
not, and as of the Closing Date will not, constitute "plan assets"
under ERISA.
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(ee) 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.
(ff) 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.
(gg) 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.
(hh) 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.
(ii) 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.
11
(jj) 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).
(kk) Except as disclosed in the Registration Statement and the
Prospectus, the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of any Underwriter and
(ii) does not intend to use any of the proceeds from the sale of the
Shares hereunder to repay any outstanding debt owed to any affiliate of
any Underwriter.
(ll) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as set forth in the Registration Statement and the Prospectus,
there has been no material adverse change or any development involving
a prospective material adverse change in the business, prospects,
properties, operations, condition (financial or other) or results of
operations of the Company or any of its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, and since the date of the latest balance sheet presented in
the Registration Statement and the Prospectus, neither the Company nor
any of the Subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the Company
and the Subsidiaries, taken as a whole, except for liabilities or
obligations which are reflected in (or in documents incorporated into)
the Registration Statement and the Prospectus.
(mm) No relationship, direct or indirect, exists between or
among any of the Company or any affiliate of the Company, on the one
hand, and any director, officer, stockholder, customer or supplier of
the Company or any affiliate of the Company, on the other hand, which
is required by the Securities Act, the Exchange Act, and the Rules and
Regulations to be described in the Registration Statement or the
Prospectus which is not so described or is not described as required.
There are no outstanding loans, advances (except normal advances for
business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company to or for the benefit of any of the
officers or directors of the Company or any of their respective family
members, except as disclosed in (or in documents incorporated into) the
Registration Statement and the Prospectus.
(nn) On or prior to the Closing Date, the Shares will be
registered pursuant to Section 12(b) of the Exchange Act and will have
been approved for listing, subject to notice of issuance, on the New
York Stock Exchange, Inc. (the "NYSE"), and the Company has not taken
and will not take any action designed to, or likely to have the effect
of, terminating the registration of the Shares under the Exchange Act,
nor has the Company received any notification that the Commission is
contemplating terminating such registration.
12
(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 conditions for use of Form S-3 under the Securities
Act, as set forth in the General Instructions thereto, have been
satisfied. During the period of at least the last 24 calendar months
prior to the date of this Agreement, the Company has timely filed with
the Commission all documents and other material required to be filed
pursuant to Sections 13, 14 and 15(d) under the Exchange Act. During
the period of at least the last 36 calendar months preceding the filing
of the Registration Statement, the Company has filed all reports
required to be filed pursuant to Sections 13, 14 and 15(d) under the
Exchange Act. Immediately preceding the filing of the Registration
Statement, the aggregate market value of the Company's voting stock
held by non-affiliates of the Company was equal to or greater than $150
million.
(qq) The Company has not prior to the date hereof offered or
sold any securities which would be "integrated" with the offer and sale
of the Shares pursuant to the Registration Statement. Except as
described in the Registration Statement and the Prospectus or in
filings made by the Company with the Commission prior to the date
hereof, the Company has not sold or issued any of its common shares,
preferred shares, any other equity security of the Company or the
Subsidiaries and any security convertible into, or exercisable or
exchangeable for, any of its common shares, preferred shares or other
such equity security during the six-month period preceding the date of
the Prospectus, including but not limited to any sales pursuant to Rule
144A or Regulation D or S under the Securities Act, other than shares
of Company common stock issued pursuant to employee benefit plans,
qualified stock option plans or the employee compensation plans,
pursuant to outstanding options, rights or warrants as described in the
Prospectus.
Any certificate signed by any officer of the Company and
delivered to Bear ▇▇▇▇▇▇▇ or its counsel in connection with the offering of the
Shares shall be deemed a representation and warranty by the Company and by the
Operating Partnership, as to matters covered thereby, to Bear ▇▇▇▇▇▇▇.
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 Bear ▇▇▇▇▇▇▇, and Bear ▇▇▇▇▇▇▇ agrees to purchase from
the Company, at a purchase price of $26.20 per share, the Firm Shares.
(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 Bear ▇▇▇▇▇▇▇ to purchase up to 345,000 Additional Shares at the same
purchase price per share as Bear ▇▇▇▇▇▇▇ shall pay for the Firm Shares. Such
option may be exercised only to cover over-allotments in the sale of the Firm
Shares by Bear ▇▇▇▇▇▇▇. Such option may be exercised in whole or in part at any
time on or before the 30th day after the date of the Prospectus upon written or
telegraphic notice by Bear ▇▇▇▇▇▇▇ to the Company setting forth the number of
shares of the Additional Shares as to which Bear ▇▇▇▇▇▇▇ is exercising the
option and the settlement date.
13
3. Delivery and Payment. Delivery of and payment for the Firm
Shares and the Additional Shares (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 January 12, 2004, or at such time on such later date not more than
three Business Days after the foregoing date as Bear ▇▇▇▇▇▇▇ shall designate,
which date and time may be postponed by agreement among Bear ▇▇▇▇▇▇▇ and the
Company or as provided in Section 10 hereof (such date and time of delivery and
payment for the Shares being herein called the "Closing Date"). Delivery of the
Shares shall be made to Bear ▇▇▇▇▇▇▇ against payment by Bear ▇▇▇▇▇▇▇ of the
purchase price of the Shares being sold by wire transfer payable in same-day
funds to the account specified by the Company. Delivery of the Firm Shares and
the Additional Shares shall be made through the facilities of The Depository
Trust Company unless Bear ▇▇▇▇▇▇▇ 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 Additional Shares (at the expense of the Company) to Bear ▇▇▇▇▇▇▇, at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the date specified by Bear ▇▇▇▇▇▇▇ (which
shall be within three Business Days after exercise of such option), against
payment by Bear ▇▇▇▇▇▇▇ of the purchase price thereof by wire transfer payable
in same-day funds to the account specified by the Company. If settlement for the
Additional Shares occurs after the Closing Date, the Company will deliver to
Bear ▇▇▇▇▇▇▇ on the settlement date for the Additional Shares and the obligation
of Bear ▇▇▇▇▇▇▇ to purchase the Additional Shares shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 6 hereof.
4. Offering by Bear ▇▇▇▇▇▇▇. It is understood that Bear
▇▇▇▇▇▇▇ proposes to offer the Shares for sale to the public as set forth in the
Prospectus.
5. Agreements. The Company agrees with Bear ▇▇▇▇▇▇▇ that:
(a) The Company will cause the Prospectus Supplement to be
filed as required by Section 1(a) hereof (but only if Bear ▇▇▇▇▇▇▇ or
its Counsel has not reasonably objected thereto by notice to the
Company after having been furnished a copy a reasonable time prior to
filing) and will notify Bear ▇▇▇▇▇▇▇ promptly of such filing.
(b) The Company will notify you (and, if requested by you,
will confirm such notice in writing) of (i) any request by the
Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, (ii) the
mailing or the delivery to the Commission for filing of any amendment
of or supplement to the Registration Statement or the Prospectus, (iii)
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective
amendment thereto or of the initiation, or the threatening, of any
proceedings therefor, (iv) the receipt of any comments from the
Commission, and (v) the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale
in any jurisdiction or the initiation or threatening of any proceeding
for that purpose. If the Commission shall propose or enter a stop order
at any time, the Company will make every reasonable effort to prevent
14
the issuance of any such stop order and, if issued, to obtain the
lifting of such order as soon as possible. The Company will prepare and
file with the Commission, promptly upon Bear ▇▇▇▇▇▇▇' request, any
amendments or supplements to the Registration Statement or the
Prospectus that, in Bear ▇▇▇▇▇▇▇' opinion, may be necessary or
advisable in connection with Bear ▇▇▇▇▇▇▇' distribution of the Shares;
and the Company will not file any amendment to the Registration
Statement or any amendment of or supplement to the Prospectus (other
than any prospectus supplement relating to the offering of other
securities registered under the Registration Statement or any document
required to be filed under the Exchange Act that upon filing is deemed
to be incorporated by reference therein) that differs from the
prospectus on file at the time of the effectiveness of the Registration
Statement before or after the effective date of the Registration
Statement to which you shall reasonably object in writing after being
timely furnished in advance a copy thereof.
(c) The Company shall comply with the Securities Act, the
Exchange Act and the Rules and Regulations to permit completion of the
distribution as contemplated in this Agreement, the Registration
Statement and the Prospectus. If at any time when a prospectus relating
to the Shares is required to be delivered under the Securities Act or
the Exchange Act any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would, in the judgment of
Bear ▇▇▇▇▇▇▇ or the Company, include an untrue statement of a material
fact or omit to state any material fact required to be stated therein
or 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 at any time to amend or supplement the Prospectus or
Registration Statement to comply with the Securities Act or the
Exchange Act or the Rules and Regulations, the Company will notify you
promptly and prepare and file with the Commission an appropriate
amendment or supplement (at the expense of the Company and in form and
substance satisfactory to you) which will correct such statement or
omission and will use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
(d) As soon as practicable, the Company will make generally
available to its security holders and to Bear ▇▇▇▇▇▇▇ 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.
(e) The Company consents to the use and delivery of the
Preliminary Prospectus by Bear ▇▇▇▇▇▇▇ in accordance with Section 5(b)
of the Securities Act.
(f) The Company will furnish to Bear ▇▇▇▇▇▇▇ and its counsel,
without charge, signed copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus by an
underwriter or a dealer may be required by the Act, as many copies of
each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will
pay the expenses of printing or other production of all documents
relating to the offering.
15
(g) During the period of two years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to security
holders, and the Company will deliver to you (i) as soon as practicable
after the filing thereof, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company are
listed (but only to the extent such reports and financial statements
are not publicly available on ▇▇▇▇▇); and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request; provided,
however, in the case of clause (ii), that to the extent that the
furnishing of such information to you would, in the reasonable judgment
of the Company, require the Company to make public disclosure thereof
pursuant to Regulation FD under the Exchange Act, you shall execute and
deliver to the Company a confidentiality agreement in form and
substance reasonably satisfactory to the Company as a precondition to
receipt of the requested information.
(h) The Company will arrange, if necessary, for the
qualification of the Shares for sale under the laws of such
jurisdictions as Bear ▇▇▇▇▇▇▇ may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Shares 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 Shares, in any jurisdiction where it is not now so subject.
(i) The Company will apply the net proceeds from the sale of
the Shares as set forth under "Use of Proceeds" in the Prospectus.
(j) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act or the Exchange Act,
will file all documents required to be filed with the Commission
pursuant to the Securities Act, the Exchange Act and the Rules and
Regulations within the time periods required thereby.
(k) 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.
(l) 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 Shares.
(m) 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.
16
(n) 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.
(o) The Company will not, without the prior written consent of
Bear ▇▇▇▇▇▇▇, 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 45 days after the date of the Underwriting
Agreement; provided, however, that the Company may issue and sell
Common Shares pursuant to any employee or trustee option or long-term
incentive plan, share ownership plan or dividend purchase or
reinvestment plan of the Company in effect at the Execution Time and
the Company may issue Common Shares issuable upon the conversion or
redemption of securities or the exercise of options or warrants
outstanding at the Execution Time or the conversion or redemption of
units in the Operating Partnership outstanding at the Execution Time;
or the conversion of equity in any of the Subsidiaries identified on
Schedule II as "Joint Ventures" pursuant to and in accordance with
conversion rights in effect at the Execution Time.
(p) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit B
attached hereto from each officer and trustee of the Company addressed
to the Representatives.
(q) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance
of the obligations of the Company hereunder, including the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the
Securities Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to
Bear ▇▇▇▇▇▇▇ and dealers; (ii) the cost of producing this Agreement,
Blue Sky Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale
under state securities laws, including the fees and disbursements of
counsel for Bear ▇▇▇▇▇▇▇ in connection with such qualification and in
connection with any Blue Sky survey; (iv) all fees and expenses in
connection with listing the Shares on the NYSE; (v) all travel expenses
of the Company's officers and employees and any other expense of the
17
Company incurred in connection with attending or hosting meetings with
prospective purchasers of the Shares (other than as shall have been
specifically approved by Bear ▇▇▇▇▇▇▇ in writing to be paid for by Bear
▇▇▇▇▇▇▇); (vi) any stock transfer taxes incurred in connection with
this Agreement or the offering; and (vii) the filing fees incident to,
and the fees and disbursements of counsel for Bear ▇▇▇▇▇▇▇ in
connection with, securing any required review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of
the sale of the Shares, if any. The Company also will pay or cause to
be paid: (i) the cost of preparing stock certificates representing the
Shares; (ii) the cost and charges of any transfer agent or registrar
for the Shares; and (iii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this paragraph.
6. Conditions to the Obligations of Bear ▇▇▇▇▇▇▇. The
obligations of Bear ▇▇▇▇▇▇▇ to purchase the Firm Shares and the Additional
Shares, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Operating
Partnership contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company and the Operating Partnership made in any certificates pursuant
to the provisions hereof, to the performance by the Company and the Operating
Partnership of their respective obligations hereunder and to the following
additional conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for a post-effective amendment to the Registration
Statement to be declared effective before the offering may commence,
such post-effective amendment shall have become effective not later
than 5:30 P.M., New York time, on the date of this Agreement, or at
such later time and date as shall have been consented to in writing by
you; at the Closing Date, the Shares shall have been approved for
listing on the NYSE upon official notice of issuance; the Prospectus
containing information relating to the description of the Shares and
the method of distribution and similar matters shall have been filed
with the Commission pursuant to Rule 424(b) in a timely fashion in
accordance with Section 4(a) hereof; and, at or prior to the Closing
Date, no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof shall have been
issued and no proceedings therefor shall have been initiated or
threatened by the Commission, nor shall any state securities authority
have suspended the qualification or registration of the Shares for
offering or sale in any jurisdiction and any request of the Commission
for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with
to the satisfaction of Bear ▇▇▇▇▇▇▇ and its counsel.
(b) Bear ▇▇▇▇▇▇▇ 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 Bear ▇▇▇▇▇▇▇ or Bear ▇▇▇▇▇▇▇
counsel is material or omits to state a material fact that in the
opinion of Bear ▇▇▇▇▇▇▇ or Bear ▇▇▇▇▇▇▇ 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
Bear ▇▇▇▇▇▇▇ or Bear ▇▇▇▇▇▇▇ counsel is material or omits to state a
material fact that in the opinion of Bear ▇▇▇▇▇▇▇ or Bear ▇▇▇▇▇▇▇ 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.
18
(c) The Company shall have requested and caused ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to Bear
▇▇▇▇▇▇▇, their opinion dated the Closing Date and addressed to Bear
▇▇▇▇▇▇▇ 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 Bear
▇▇▇▇▇▇▇ 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) Bear ▇▇▇▇▇▇▇ shall have received from Paul, Hastings,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to Bear ▇▇▇▇▇▇▇, such opinion or
opinions, dated the Closing Date and addressed to Bear ▇▇▇▇▇▇▇, with
respect to the issuance and sale of the Shares, the Registration
Statement, the Prospectus (together with any supplement thereto) and
other related matters as Bear ▇▇▇▇▇▇▇ 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.
(e) The Company shall have furnished to Bear ▇▇▇▇▇▇▇ 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; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
19
(f) The Company shall have requested and caused KPMG LLP and
PriceWaterhouseCoopers LLP ("PWC") to have furnished to Bear ▇▇▇▇▇▇▇,
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 Bear ▇▇▇▇▇▇▇.
(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 letters referred to in paragraph (f) 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 Bear ▇▇▇▇▇▇▇, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the shares 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 Bear ▇▇▇▇▇▇▇ such further information, certificates and
documents as the Representatives 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 Bear ▇▇▇▇▇▇▇.
(k) The Company shall have complied with the provisions of
Section 4(d) hereof with respect to the furnishing of Prospectuses.
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 Bear ▇▇▇▇▇▇▇ and its
counsel, this Agreement and all obligations of Bear ▇▇▇▇▇▇▇ hereunder may be
canceled at, or at any time prior to, the Closing Date by Bear ▇▇▇▇▇▇▇. Notice
of such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for
Bear ▇▇▇▇▇▇▇, at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing
Date.
20
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of Bear ▇▇▇▇▇▇▇ set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by Bear ▇▇▇▇▇▇▇, the Company will reimburse Bear ▇▇▇▇▇▇▇ 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 Shares.
8. Indemnification and Contribution. (a) The Company and the
Operating Partnership jointly and severally agree to indemnify and hold harmless
Bear ▇▇▇▇▇▇▇, the directors, officers, employees and agents of Bear ▇▇▇▇▇▇▇ and
each person who controls Bear ▇▇▇▇▇▇▇ 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
Securities 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 Shares 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 Bear ▇▇▇▇▇▇▇ 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) Bear ▇▇▇▇▇▇▇ 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 Bear ▇▇▇▇▇▇▇, but only with reference to
written information relating to Bear ▇▇▇▇▇▇▇ furnished to the Company
by or on behalf of Bear ▇▇▇▇▇▇▇ specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which Bear ▇▇▇▇▇▇▇ may
otherwise have. The Company acknowledges that the statements set forth
on the cover page regarding delivery of the Shares and, under the
heading "Underwriting," the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary
Prospectus and the Prospectus constitute the only information furnished
in writing by or on behalf of Bear ▇▇▇▇▇▇▇ 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 Bear ▇▇▇▇▇▇▇ agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which
the Company, the Operating Partnership and Bear ▇▇▇▇▇▇▇, 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 Bear ▇▇▇▇▇▇▇ on the other from the offering of the Shares;
provided, however, that in no case shall (i) Bear ▇▇▇▇▇▇▇ be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Shares purchased by Bear ▇▇▇▇▇▇▇
hereunder. If the allocation provided by the immediately preceding
22
sentence is unavailable for any reason, the Company and the Operating
Partnership, jointly and severally, and Bear ▇▇▇▇▇▇▇ 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 Bear ▇▇▇▇▇▇▇, 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 Bear
▇▇▇▇▇▇▇ 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 Bear ▇▇▇▇▇▇▇ 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 Bear ▇▇▇▇▇▇▇ 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 Securities 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 Bear ▇▇▇▇▇▇▇ within the
meaning of either the Securities Act or the Exchange Act and each
director, officer, employee and agent of Bear ▇▇▇▇▇▇▇ shall have the
same rights to contribution as Bear ▇▇▇▇▇▇▇, and each person who
controls the Company within the meaning of either the Securities 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. [Intentionally omitted]
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of Bear ▇▇▇▇▇▇▇, by notice given to the
Company prior to delivery of and payment for the Shares if at any time prior to
such time (A) there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the
earnings business affairs or business prospects of the Company; or (B) any
domestic or international event or act or occurrence has materially disrupted,
or in your opinion will in the immediate future materially disrupt, the market
for the Company's securities or securities in general; or (C) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the NYSE, or if trading on the NYSE shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by the NYSE or by order of
the Commission or any other governmental authority having jurisdiction; or (D)
if a banking moratorium has been declared by any state or federal authority or
if any new restriction materially adversely affecting the distribution of the
Firm Shares or the Additional Shares, as the case may be, shall have become
23
effective or if a material disruption in commercial banking or securities
settlement or clearance services shall have occurred; or (E) (i) there has
occurred any outbreak or escalation of hostilities or acts of terrorism
involving the United States or there is a declaration of a national emergency or
war by the United States or (ii) there shall have been any other such calamity
or crisis or any change in political, financial or economic conditions, if the
effect of any such event in (i) or (ii) as in your judgment makes it
impracticable or inadvisable to proceed with the offering, sale and delivery of
the Firm Shares or the Additional Shares, as the case may be, on the terms and
in the manner contemplated by the Prospectus.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities, contribution agreements
and other statements of the Company or the Operating Partnership or its officers
or partners and of Bear ▇▇▇▇▇▇▇ 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 Bear ▇▇▇▇▇▇▇, 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 Shares. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. Notices. All communications hereunder, except as
may be otherwise specifically provided herein, shall be in writing, and:
(a) if sent to Bear ▇▇▇▇▇▇▇, shall be mailed, delivered, or
faxed and confirmed in writing, to Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Equity Capital
Markets, with a copy to Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, III,
Esq.;
(b) if sent to the Company, shall be mailed, delivered, or
faxed and confirmed in writing to such party c/o Brandywine Realty
Trust, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of the Legal Department, with a copy to ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, 3000 Two ▇▇▇▇▇ Square, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, trustees, employees, agents and controlling persons
referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
24
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(i)(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Shares
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 Shares 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 Shares and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
25
"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.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
* * * * * *
26
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 Bear ▇▇▇▇▇▇▇.
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.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: _______________________________
Name:
Title:
SCHEDULE I
----------
BRANDYWINE REALTY TRUST
SUBSIDIARIES
-------------------------------------------- -----------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
AAPOP 1, L.P., a Delaware limited AAP Sub One, Inc.-- GP - 1%
partnership
Atlantic American Properties Trust-- GP - 98%
and LP - 1%
-------------------------------------------- -----------------------------------------------
AAPOP 2, L.P., a Delaware limited Brandywine ▇▇▇▇▇▇, 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 Brandywine F.C., LP-- GP. - 98%
Pennsylvania 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 Brandywine Grande B, L.P.
Pennsylvania limited partnership
LP -- 99%
Brandywine Croton, LLC - GP-1%
-------------------------------------------- -----------------------------------------------
Brandywine Dominion, L.P., a Pennsylvania Brandywine Dominion, LLC-- GP - 1%
limited partnership
BOP(1) -- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine F.C., L.P., a Pennsylvania Brandywine F.C., L.L.C.-- GP - 1%
limited partnership
BOP -- LP-- 99%
-------------------------------------------- -----------------------------------------------
Brandywine Grande B, L.P., a Delaware Brandywine Grande B Corp.-- GP - 1%
limited partnership
BOP -- LP - 99%
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
Brandywine Grande C, L.P., a Delaware Brandywine Grande C Corp. - GP 1%
limited partnership
BOP -- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine I.S., L.P., a Pennsylvania Brandywine I.S., LLC-- GP - 1%
limited partnership
BOP -- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine Metroplex, L.P., a Pennsylvania Brandywine Metroplex, LLC - GP - 1%
limited partnership
BOP -- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine Norriton, L.P., a Pennsylvania Brandywine Norriton, L.L.C.-- GP 1%
limited partnership
BOP -- 99%
-------------------------------------------- -----------------------------------------------
Brandywine Operating Partnership, L.P., a BRT -- GP and LP(2)
Delaware limited partnership
LP's (other than BRT)(2)
-------------------------------------------- -----------------------------------------------
Brandywine P.M., L.P., a Pennsylvania Brandywine P.M., LLC-- GP - 1%
limited partnership
BOP -- LP 99%
-------------------------------------------- -----------------------------------------------
Brandywine ▇▇ ▇▇▇▇▇▇, 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%
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
Brandywine TB V, L.P., a Pennsylvania Brandywine TB V, L.L.C.-- GP - 1%
limited partnership
BOP -- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB VI, L.P., a Pennsylvania Brandywine TB VI, L.L.C.-- GP - 1%
limited partnership
BOP -- LP - 99%
-------------------------------------------- -----------------------------------------------
Brandywine TB VIII, L.P., a Pennsylvania Brandywine TB VIII, L.L.C. - GP - 1%
limited partnership
BOP -- LP-99%
-------------------------------------------- -----------------------------------------------
C/N Iron Run Limited Partnership III, a BOP -- GP - 2%
Pennsylvania limited partnership
BOP -- LP - 87%
WOP(3) -- LP - 11%
-------------------------------------------- -----------------------------------------------
C/N ▇▇▇▇▇▇ 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%
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
Fifteen Horsham, L.P., a Pennsylvania WOP -- GP - 1%
limited partnership
BOP -- LP 1%
WOP -- LP - 98%
-------------------------------------------- -----------------------------------------------
Iron Run Limited Partnership V, a BOP -- GP - 2%
Pennsylvania limited partnership
BOP -- LP - 87%
WOP -- LP - 11%
-------------------------------------------- -----------------------------------------------
LC/N Horsham Limited Partnership, a WOP -- GP - 88.9%
Pennsylvania limited partnership
BOP -- LP - .1%
WOP -- LP - 11%
-------------------------------------------- -----------------------------------------------
LC/N ▇▇▇▇▇ 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%
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
LIMITED PARTNERSHIP PARTNERS
SUBSIDIARIES (Capital/Profits)
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
111 Arrandale 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%
-------------------------------------------- -----------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ 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%
▇▇-▇▇▇▇▇▇▇
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
GENERAL PARTNERSHIP OWNERSHIP STRUCTURE
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
Iron Run Venture II, a Pennsylvania Atlantic American Land Development, Inc. -
general partnership 44.2617%
AAPOP 1, LP - GP - 55.7383%
-------------------------------------------- -----------------------------------------------
IR Northlight II Associates, a AAPOP 2, LP-- GP - 50%
Pennsylvania general partnership
BOP -- GP - 50%
▇▇-▇▇▇▇▇▇▇
-------------------------------------------- -----------------------------------------------
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
-------------------------------------------- -----------------------------------------------
-------------------------------------------- -----------------------------------------------
CORPORATE SUBSIDIARIES SHAREHOLDERS
-------------------------------------------- -----------------------------------------------
BTRS, Inc., a Delaware corporation BOP -- 100%
-------------------------------------------- -----------------------------------------------
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
-------------------------------------------- ------------------------------------------------
-------------------------------------------- ------------------------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
-------------------------------------------- ------------------------------------------------
Brandywine Dominion, L.L.C., a BOP -- 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine F.C., L.L.C., a Pennsylvania BOP -- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine I.S., L.L.C., a Pennsylvania BOP -- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Interstate 50, L.L.C., a BOP -- 100%
Delaware limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine - Main Street, LLC, a BOP -- 99%
Delaware limited liability company
Brandywine Acquisitions, LLC -- 1%
-------------------------------------------- ------------------------------------------------
Brandywine Metroplex LLC., a BOP -- 100%
Pennsylvania 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 BOP -- 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Piazza, L.L.C., a New BOP -- 100%
Jersey limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Plaza 1000, L.L.C., a New BOP -- 100%
Jersey limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Promenade, L.L.C., a New BOP -- 100%
Jersey limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine ▇▇ ▇▇▇▇▇▇, LLC, a BOP -- 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
-------------------------------------------- ------------------------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
-------------------------------------------- ------------------------------------------------
-------------------------------------------- ------------------------------------------------
Brandywine TB Inn, L.L.C., a BOP -- 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine TB I, L.L.C., a BOP -- 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine ▇▇ ▇▇, L.L.C., a BOP -- 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine TB V, L.L.C., a BOP -- 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine TB VI, L.L.C., a Pennsylvania BOP -- 100%
limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine TB VIII, L.L.C., a BOP -- 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
Brandywine Trenton Urban Renewal, BOP -- BRT
L.L.C., a Delaware limited liability
company
-------------------------------------------- ------------------------------------------------
Brandywine ▇▇▇▇▇▇, L.L.C., a BOP -- 100%
Pennsylvania limited liability company
-------------------------------------------- ------------------------------------------------
Christiana Center Operating Company I BOP -- Member - 100%
LLC, a Delaware limited liability
company
-------------------------------------------- ------------------------------------------------
Christiana Center Operating Company II BOP -- Member - 100%
LLC, a Delaware limited liability
company
-------------------------------------------- ------------------------------------------------
-------------------------------------------- ------------------------------------------------
LIMITED LIABILITY COMPANY
SUBSIDIARIES MEMBERS
-------------------------------------------- ------------------------------------------------
-------------------------------------------- ------------------------------------------------
Christiana Center Operating Company III, BOP -- Member - 100% LLC
a Delaware limited liability company
-------------------------------------------- ------------------------------------------------
e-Tenants LLC, a Delaware limited ▇-▇▇▇▇▇▇▇.▇▇▇ Holding, L.P.
liability company
-------------------------------------------- ------------------------------------------------
--------------------------------------------------------------------------------------------
JOINT VENTURES BRANDYWINE MEMBERS/PARTNERS
--------------------------------------------------------------------------------------------
Brandywine Industrial Partnership, L.P., a BB&K GP, BB&K LP Business Trust, BOP and
Delaware limited partnership ▇▇▇▇▇▇▇ Lansdale Limited Partnership III
--------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Partnership, a Brandywine Dominion, LP -- GP - 50%
Pennsylvania general partnership
--------------------------------------------------------------------------------------------
PJP Building Two, L.C., a Virginia Brandywine Charlottesville, LLC-- 30%
limited 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%
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
JOINT VENTURES BRANDYWINE MEMBERS/PARTNERS
--------------------------------------------------------------------------------------------
Five Tower Bridge Associates, a Five ▇▇▇▇▇▇/Brandywine Partner, L.P. - - LP -
Pennsylvania limited partnership - 30%
--------------------------------------------------------------------------------------------
Six Tower Bridge Associates, a Brandywine TB VI, LP-- GP - 65%
Pennsylvania limited partnership
--------------------------------------------------------------------------------------------
Eight Tower Bridge Development Associates, Eight ▇▇▇▇▇▇/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 BOP - 20%; Macquarie Office LLC - 80%
limited 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
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
TRUST TRUSTEES
--------------------------------------------------------------------------------------------
Atlantic American Properties Trust, a BOP -- Common Shares - 100%
Maryland real estate investment trust
100 BRT Employees-- Preferred Shares - 100%
--------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
PARENT TRUSTEES
----------------------------------------------------------------------------------------------
Brandywine Realty Trust, a Maryland
real estate investment trust
----------------------------------------------------------------------------------------------
(1) Brandywine Operating Partnership, LP, referred to as "BOP," is a
Delaware limited partnership.
(2) Per BOP Unit Registry.
(3) ▇▇▇▇▇▇ 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
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇ 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
------------------------------------------------------------ ---------------------------------------------------------
UNITS
-----
----------------------------------------------------------------------------------------------------------------------
Totals for All Units
----------------------------------------------------------------------------------------------------------------------
Total General Partnership Units Outstanding: 39,706,271
------------------------------------------------------------------------ ---------------------------------------------
Total Class A Limited Partnership Units Outstanding: 3,598,186
------------------------------------------------------------------------ ---------------------------------------------
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 B Preferred Units Outstanding 1,950,000 Units
------------------------------------------------------------------------ ---------------------------------------------
Total Series D Preferred Mirror Units Outstanding: 2,000,000 Units
------------------------------------------------------------------------ ---------------------------------------------
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.
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 Bear ▇▇▇▇▇▇▇ 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.
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 I 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 I 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 I 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 Bear ▇▇▇▇▇▇▇ as provided in the Agreement, and the
Agreement has been duly and validly authorized, executed and delivered by the
Company and the Operating Partnership, as applicable, and is the legal, valid
and binding agreement of each of the Company and the Operating Partnership, as
applicable, enforceable against them in accordance with its terms.
8. The form of certificate representing the Shares is in due
and proper form and complies in all material respects with all applicable
Maryland statutory requirements and the rules and regulations of the New York
Stock Exchange.
9. To our knowledge after due inquiry, neither the Company nor
any of the Subsidiaries is in violation of its respective Declaration of Trust,
certificate or articles of incorporation or bylaws, partnership agreement,
operating agreement or other organizational documents or is in default in the
performance of any material obligation, agreement or condition contained in any
bond, debenture, note or other evidence of indebtedness.
10. With respect to the Company and the Subsidiaries, neither
the offer, sale or delivery of the Shares, the execution, delivery or
performance of the Agreement, nor the consummation of the transactions
contemplated thereby by the Company or the Subsidiaries, as applicable: (i)
required or requires, with respect to the Company or the Subsidiaries, any
consent, approval, authorization or other order of, or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official, or the New York Stock Exchange (except (a) such as has
been made or obtained and (b) as to state securities or Blue Sky laws, as to
which we express no opinion); (ii) conflicted with or conflicts with,
constituted or constitutes, or resulted in or results in, a breach or violation
of, or a default under, the Declaration of Trust, Articles Supplementary,
certificate or articles of incorporation or bylaws, partnership agreement or
other organizational documents, of any of such entities, or under any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition covenant or instrument to which any of
such entities is a party or by which any of them or any of their respective
properties or assets are bound or subject to; (iii) violated or violates any
statute, law, rule, regulation, judgment, injunction, order or decree applicable
to any of such entities or any of their respective properties or assets; or (iv)
resulted or will result in the creation or imposition of any lien, charge or
encumbrance upon the property or assets of any of such entities pursuant to the
terms of any agreement or instrument to which any of them is a party or by which
any of them may be bound or to which any of the property or assets of any of
them is subject.
11. Neither the Company nor any of the Subsidiaries is, and
after giving effect to the offering and sale of the Shares and the application
of the proceeds thereof as described in the Prospectus (and any amendment or
supplement thereto) will be, an "investment company" as defined in the
Investment Company Act of 1940, as amended.
12. To our knowledge after due inquiry, (i) there are no
pending or threatened actions, suits or proceedings against the Company or any
of the Subsidiaries or any of their respective trustees, directors or officers
in their capacity as such, or to which the Company or any of the Subsidiaries or
any of their respective trustees, directors or officers in their capacity as
such, or any of their respective properties or assets, is subject, that are of a
character which is required to be described in the Registration Statement or
Prospectus (or any amendment or supplement thereto) other than any that are
described or incorporated therein by reference and (ii) there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to the Registration Statement
that are not described or filed as required by the Act.
13. The statements in the Registration Statement and
Prospectus Supplement set forth under the headings "Description of Shares of
Beneficial Interest", "Certain Provisions of Maryland Law and of our Declaration
of Trust and Bylaws" and "Federal Income Tax Considerations", and the statements
in the Company's Annual Report on Form 10-K for the year ended December 31, 2002
and incorporated by reference in the Registration Statement under the heading
"Risk Factors--Our status as a REIT is dependent on compliance with federal
income tax requirements", to the extent they constitute matters of law or
descriptions or summaries of contracts, agreements or other legal documents, or
refer to or constitute statements of matters of law, descriptions of statutes,
rules or regulations, or legal conclusions, each, respectively, are accurate and
fair summaries of the information disclosed therein.
14. The Registration Statement has become effective under the
Act and any required filing of the Prospectus (or any amendment or supplement
thereto) pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b). To our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened. The Registration Statement and
the Prospectus (or any amendment or supplement thereto) (other than the
financial statements and other financial and statistical information contained
therein, as to which we express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the Exchange Act and
the respective rules thereunder.
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 Securities 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 January 6, 2004, 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
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 Securities 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 Securities
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.
EXHIBIT B
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Form of Lock-Up Agreement
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Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Equity Capital Markets
Brandywine Realty Trust Lock-Up Agreement
-----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement") relates to the proposed public
offering (the "Offering") by Brandywine Realty Trust, a real estate investment
trust organized under the laws of the state of Maryland (the "Company"), of its
common shares of beneficial interest, par value $.01 per share (the "Stock").
In order to induce you (the "Underwriters") to underwrite the Offering,
the undersigned hereby agrees that, without the prior written consent of Bear,
▇▇▇▇▇▇▇ & Co. Inc. ("Bear ▇▇▇▇▇▇▇"), during the period from the date hereof
until forty-five (45) days from the date of the final prospectus for the
Offering (the "Lock-Up Period"), the undersigned (a) will not, directly or
indirectly, offer, sell, agree to offer or sell, solicit offers to purchase,
grant any call option or purchase any put option with respect to, pledge, borrow
or otherwise dispose of any Relevant Security (as defined below), and (b) will
not establish or increase any "put equivalent position" or liquidate or decrease
any "call equivalent position" with respect to any Relevant Security (in each
case within the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder), or otherwise
enter into any swap, derivative or other transaction or arrangement that
transfers to another, in whole or in part, any economic consequence of ownership
of a Relevant Security, whether or not such transaction is to be settled by
delivery of Relevant Securities, other securities, cash or other consideration.
As used herein "Relevant Security" means the Stock, any other equity security of
the Company or any of its subsidiaries and any security convertible into, or
exercisable or exchangeable for, any Stock or other such equity security.
The undersigned hereby authorizes the Company during the Lock-Up Period
to cause any transfer agent for the Relevant Securities to decline to transfer,
and to note stop transfer restrictions on the stock register and other records
relating to, Relevant Securities for which the undersigned is the record holder
and, in the case of Relevant Securities for which the undersigned is the
beneficial but not the record holder, agrees during the Lock-Up Period to cause
the record holder to cause the relevant transfer agent to decline to transfer,
and to note stop transfer restrictions on the stock register and other records
relating to, such Relevant Securities. The undersigned hereby further agrees
that, without the prior written consent of Bear ▇▇▇▇▇▇▇, during the Lock-up
Period the undersigned (x) will not file or participate in the filing with the
Securities and Exchange Commission of any registration statement, or circulate
or participate in the circulation of any preliminary or final prospectus or
other disclosure document with respect to any proposed offering or sale of a
Relevant Security and (y) will not exercise any rights the undersigned may have
to require registration with the Securities and Exchange Commission of any
proposed offering or sale of a Relevant Security.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Agreement and that this Agreement
constitutes the legal, valid and binding obligation of the undersigned,
enforceable in accordance with its terms. Upon request, the undersigned will
execute any additional documents necessary in connection with enforcement
hereof. Any obligations of the undersigned shall be binding upon the successors
and assigns of the undersigned from the date first above written.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. Delivery of a signed copy of this letter by
facsimile transmission shall be effective as delivery of the original hereof.
Very truly yours,
By: _____________________________
Print Name: _______________________