<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 12, 1998
BRANDYWINE REALTY TRUST
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Maryland 1-9106 23-2413352
- ---------------------------- ----------- ----------------
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
16 Campus Boulevard, Newtown Square, Pennsylvania 19073
-------------------------------------------------------
(Address of principal executive offices)
(610) 325-5600
-------------------------------------------------------
(Registrant's telephone number, including area code)
Page 1 of 3
<PAGE>
Item 5. Other Events.
Public Offering
On February 12, 1998, Brandywine Realty Trust (the "Company") and
Brandywine Operating Partnership, L.P. (the "Operating Partnership") entered
into an Underwriting Agreement (the "Underwriting Agreement") with Smith Barney
Inc. (the "Underwriter") pursuant to which the Company agreed to sell to the
Underwriter an aggregate of 1,012,820 common shares of beneficial interest, $.01
par value per share (the "Common Shares"). The Common Shares are to be sold
pursuant to the Underwriting Agreement at a price to the public of $24.0625 per
share ($22.859375 after reduction for underwriting discounts and commissions).
The Underwriter intends to deposit the Common Shares with the trustee
of The Equity Focus Trusts - REIT Portfolio Series, 1998-A (the "Trust"), a
registered unit investment trust under the Investment Company Act of 1940, as
amended, to which the Underwriter acts as sponsor and depositor, in exchange for
units in the Trust. The Underwriter is an affiliate of the Trust. In addition,
the Underwriter has engaged, and may in the future engage, in investment banking
activities on behalf of the Company and its affiliates for which customary
compensation has been and will be received.
The net proceeds, less expenses estimated at $75,000, will be
contributed by the Company to the Operating Partnership, which will use such
contribution to repay borrowings under the Company's revolving credit
facility. Closing of the offering of Common Shares pursuant to the Underwriting
Agreement is subject to customary closing conditions.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
1.1 Underwriting Agreement among the Company, Brandywine Operating
Partnership, L.P. and Smith Barney Inc.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Zelenkofske Axelrod & Co., Ltd.
Page 2 of 3
<PAGE>
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BRANDYWINE REALTY TRUST
Date: February 12, 1998 By: /s/ GERARD H. SWEENEY
------------------------
Gerard H. Sweeney
President and Chief Executive Officer
(Principal Executive Officer)
Date: February 12, 1998 By: /s/ MARK S. KRIPKE
---------------------
Mark S. Kripke
Chief Financial Officer and Secretary
(Principal Financial and Accounting
Officer)
Page 3 of 3
<PAGE>
EXHIBIT 1.1
1,012,820 Shares
BRANDYWINE REALTY TRUST
Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
February 12, 1998
SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
Brandywine Realty Trust, a Maryland real estate investment trust (the
"Company"), proposes to issue and sell an aggregate of 1,012,820 shares (the
"Shares") of its common shares of beneficial interest, par value $0.01 per share
(the "Common Shares"), to you (the "Underwriter"). The Underwriter intends to
deposit the Shares with the trustee of The Equity Focus Trusts - REIT Portfolio
Series, 1998-A (the "Trust") a registered unit investment trust under the
Investment Company Act of 1940, as amended, to which Smith Barney Inc. acts as
sponsor and depositor, in exchange for units in the Trust.
The Company, directly and through a wholly-owned subsidiary, is the
sole general partner and a limited partner (with an aggregate 98.709% ownership
interest as of the date hereof, without giving effect to the issuance and sale
of any Shares hereunder) of Brandywine Operating Partnership, L.P., a Delaware
limited partnership (the "Operating Partnership"). The Company will contribute
the net proceeds of the sale of the Shares to the Operating Partnership in
exchange for additional partnership interests in the Operating Partnership. The
Company and the Operating Partnership wish to confirm as follows their agreement
with you, in connection with the purchase of the Shares by the Underwriter.
<PAGE>
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 (Registration No. 333-39155) under
the Act (the "registration statement"), including a prospectus generally
relating to the Shares; and such amendments, if any, to such registration
statement as may have been required prior to the date hereof have been filed
with the Commission, and such amendments, if any, have been similarly prepared.
Such registration statement and any post-effective amendments thereto have
become effective under the Act. The Company also has filed with the Commission
pursuant to Rule 424(b) under the Act, a prospectus supplement relating to the
Shares dated the date hereof.
The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it became effective, or, if the registration statement
became effective prior to the execution of this Agreement, as supplemented or
amended prior to the execution of this Agreement, including all information (if
any) deemed to be a part of such registration at the time it became effective
pursuant to Rule 430A under the Act. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the registration
statement will be filed and must be declared effective before the offering of
the Shares may commence, the term "Registration Statement" as used in this
Agreement means the registration statement as amended by said post-effective
amendment. The term "Prospectus" as used in this Agreement means the base
prospectus included in the Registration Statement at the time it was declared
effective, or, if the prospectus included in the Registration Statement omits
information in reliance on Rule 430A under the Act and such information is
included in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, the term "Prospectus" as used in this Agreement means the prospectus in
the form included in the Registration Statement as supplemented by the addition
of the Rule 430A information contained in the prospectus filed with the
Commission pursuant to Rule 424(b). The term "Prepricing Prospectus" as used in
this Agreement means the prospectus subject to completion in the form included
in the registration statement at the time of the initial filing of the
registration statement with the Commission, and as such prospectus shall have
been amended or supplemented from time to time prior to the date of the
Prospectus. Any reference in this Agreement to the registration statement, the
Registration Statement, any Prepricing Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of the
registration statement, the Registration Statement, such Prepricing Prospectus
or the Prospectus, as the case may be, and any reference to any amendment or
supplement to the registration statement, the Registration Statement, any
Prepricing Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") which, upon filing, are incorporated by
reference therein, as required by paragraph (b) of Item 12 of Form S-3. As used
herein, the term "Incorporated Documents" means the documents that at the time
are incorporated by reference in the registration statement, the Registration
Statement, any Prepricing Prospectus, the Prospectus, or any amendment or
supplement thereto. Capitalized terms used, but not defined, herein shall have
the respective meanings ascribed thereto in the Prospectus.
-2-
<PAGE>
2. Agreements to Sell and Purchase. The Company hereby agrees, subject
to all the terms and conditions set forth herein, to issue and sell to the
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company and the Operating Partnership herein contained and
subject to all the terms and conditions set forth herein, the Underwriter agrees
to purchase from the Company, at a purchase price of $22.859375 per Share (the
"Purchase Price per share"), 1,012,820 Shares.
3. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriter of and payment for the Shares shall be made at the office of Smith
Barney Inc., 388 Greenwich Street, New York, NY 10013, at 10:00 A.M., New York
City time, on February 18, 1998 (the "Closing Date"). The place of closing for
the Shares and the Closing Date may be varied by agreement between the
Underwriter and the Company.
Certificates for the Shares to be purchased hereunder shall be
registered in such names and in such denominations as you shall request prior to
9:30 A.M., New York City time, on the second business day preceding the Closing
Date. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date. The certificates evidencing the
Shares to be purchased hereunder shall be delivered to you on the Closing Date
against payment of the purchase price therefor by wire transfer of immediately
available funds to the Company.
4. Agreements of the Company and the Operating Partnership. The Company
and the Operating Partnership jointly and severally agree with the Underwriter
as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the Company will endeavor to cause the Registration Statement or such
post-effective amendment to become effective as soon as possible and will advise
you promptly and, if requested by you, will confirm such advice in writing, when
the Registration Statement or such post-effective amendment has become
effective.
(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the Commission
for amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the happening
of any event, which makes any statement of a material fact made in the
Registration Statement or the Prospectus (as then amended or supplemented)
untrue or which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the Act or the regulations thereunder
to be stated therein or
-3-
<PAGE>
necessary in order to make the statements therein not misleading, or of the
necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, (i) five
copies of the registration statement as originally filed with the Commission and
of each amendment thereto, including financial statements and all exhibits to
the registration statement, (ii) such number of copies of the Prepricing
Prospectus or Prospectus as you may reasonably request, (iii) such number of
copies of the Incorporated Documents as you may reasonably request, and (iv)
such number of conformed copies of the Registration Statement and of each
amendment thereto, but without exhibits, as you may reasonably request.
(d) The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus or,
prior to the end of the period of time referred to in the first sentence of
subsection (f) below, file any document which upon filing becomes an
Incorporated Document, of which you shall not previously have been advised or to
which, after you shall have received a copy of the document proposed to be
filed, you shall object.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of the Prepricing Prospectus. The
Company consents to the use, in accordance with the provisions of the Act and
with the securities or Blue Sky or real estate syndication laws of the
jurisdictions in which the Shares are offered by the Underwriter, prior to the
date of the Prospectus, of each Prepricing Prospectus so furnished by the
Company.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriter a prospectus is required by the Act to be
delivered in connection with sales by the Underwriter or dealer, the Company
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto) as
you may request. The Company consents to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of the Act
and with the securities or Blue Sky or real estate syndication laws of the
jurisdictions in which the Shares are offered by the Underwriter, both in
connection with the offering and sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by an Underwriter or dealer. If during such period of time
any event shall occur that in the judgment of the Company or in the opinion of
counsel for the Underwriter is required to be set forth in the Prospectus (as
then amended or supplemented) or should be set forth therein in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary to supplement or amend the
Prospectus (or to file under the Exchange Act any document which, upon filing,
becomes an Incorporated Document) in order to comply with the Act or any other
law, the
-4-
<PAGE>
Company will forthwith prepare and, subject to the provisions of paragraph (d)
above, file with the Commission an appropriate supplement or amendment thereto
(or to such document), and will expeditiously furnish to the Underwriter a
reasonable number of copies thereof. In the event that the Company and you agree
that the Prospectus should be amended or supplemented, the Company, if requested
by you, will promptly issue a press release announcing or disclosing the matters
to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for
the Underwriter in connection with the registration or qualification of the
Shares for offering and sale by the Underwriter under the securities or Blue Sky
or real estate syndication laws of such jurisdictions as you may designate and
will file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not now so
subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Company
will furnish to you (i) as soon as available, a copy of each report of the
Company mailed to stockholders or filed with the Commission, and (ii) from time
to time such other information concerning the Company as you may reasonably
request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
Section 11 hereof or by notice given by you terminating this Agreement pursuant
to Section 11 or Section 12 hereof) or if this Agreement shall be terminated by
the Underwriter because of any failure or refusal on the part of the Company to
comply with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse you for all out-of-pocket expenses (including fees
and expenses of counsel for the Underwriter) incurred by you in connection
herewith.
(k) The Company will apply the net proceeds from the sale of
the Shares in accordance with the description set forth in the Prospectus.
(l) The Company will timely file with the Commission the
Prospectus pursuant to Rule 424(b) under the Act and will advise you of the time
and manner of such filing.
(m) Except as stated in this Agreement and in any Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take, directly
or indirectly, any action designed
-5-
<PAGE>
to or that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Shares to facilitate the sale or resale
of the Shares.
5. Representations and Warranties of the Company. The Company and the
Operating Partnership, jointly and severally, represent and warrant to the
Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act. The Commission
has not issued any order suspending the effectiveness of the Registration
Statement or any part thereof and no proceeding for that purpose has been
instituted or threatened or, to the best knowledge of the Company, contemplated
by the Commission or the securities authority of any state or other
jurisdiction.
(b) The Company and the transactions contemplated by this
Agreement meet the requirements and conditions for using a registration
statement on Form S-3 under the Act. When any Prepricing Prospectus was filed
with the Commission it (i) contained all statements required to be stated
therein in accordance with, and complied in all material respects with the
requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. When the Registration Statement or any amendment thereto was
declared effective, and on the Closing Date it (i) contained or will contain all
statements required to be stated therein in accordance with, and complied or
will comply in all material respects with the requirements of, the Act and the
rules and regulations of the Commission thereunder and (ii) did not or will not
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading. When the
Prospectus or any amendment or supplement thereto is filed with the Commission
pursuant to Rule 424(b) and at the Closing Date, the Prospectus, as amended or
supplemented at any such time, (i) contained or will contain all statements
required to be stated therein in accordance with, and complied or will comply in
all material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (ii) did not or will not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The representations
and warranties in this paragraph (b) do not apply to statements in or omissions
from the Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by or on behalf
of the Underwriter through you expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such document was filed,
when such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder, any
further Incorporated Documents so filed will, when they are filed, conform in
all material respects with the requirements of the Exchange Act and the rules
and
-6-
<PAGE>
regulations thereunder, no such document when it was filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading and no such further document, when it is filed, will
contain an untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.
(d) The Company is a real estate investment trust duly formed
and validly existing under and by virtue of the laws of the State of Maryland
and is in good standing with the State Department of Assessments and Taxation of
Maryland, with full trust power and authority to own, lease, and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure to be so registered or
qualified would not have a material adverse effect on the condition (financial
or otherwise), business, prospects, properties, net worth or results of
operations of the Company.
(e) Each of the Operating Partnership and the corporations,
limited liability companies, partnerships and limited partnerships listed on
Schedule 5(e) hereto (each, a "Subsidiary") is a corporation, 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 its jurisdiction of incorporation or formation. Each such entity has
full corporate, limited liability company or partnership power and authority, to
own, lease, and operate its properties, and to conduct its business as described
in the Registration Statement and the Prospectus. Each such Subsidiary is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
to be so registered or qualified would not have a material adverse effect on the
condition (financial or otherwise), business, prospects, properties, net worth
or results of operations of such Subsidiary.
(f) All the outstanding Common Shares of the Company have been
duly authorized and validly issued, are fully paid and nonassessable and are
free of any preemptive or similar rights; the Shares have been duly authorized
and, when issued and delivered to the Underwriter against payment therefor in
accordance with the terms hereof, will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights that entitle or will
entitle any person or entity to acquire any Shares upon the issuance thereof by
the Company, and the beneficial interest of the Company conforms to the
description thereof in the Registration Statement and the Prospectus. Except
with regard to 1997 compensation of non-employee trustees of the Company payable
in Common Shares, awards under the Company's 1997 Long-Term Incentive Plan and
as disclosed in the Prospectus, there are no outstanding options, warrants or
other rights calling for the issuance of, or any commitment, plan or arrangement
to issue, any beneficial interest of the Company or any security convertible
into or exchangeable for beneficial interest of the Company.
-7-
<PAGE>
(g) All of the outstanding Units and shares of capital stock
or partnership interests in each of the Subsidiaries have been duly authorized
and validly issued or created under the documents or agreements forming such
entity, are fully paid and, in the case of Subsidiaries that are corporations,
nonassessable, and will be owned or be held by the persons and entities in the
percentage amounts set forth and in the manner described in the Prospectus or
Schedule 5(g). Except as described in the Prospectus or Schedule 5(g), all such
Units, partnership interests and shares of capital stock are owned by the
Company directly, or indirectly through the Operating Partnership or one of the
other Subsidiaries, free and clear of any lien, adverse claim, security
interest, equity, or other encumbrance, and the Company's percentage interest
and ownership in the Operating Partnership, and the Company's and the Operating
Partnership's percentage interest and ownership in each of the Subsidiaries, is
as set forth on Schedule 5(g) attached hereto. Except as described in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), there are no outstanding options, warrants or other rights calling for
the issuance of, or any commitment, plan or arrangement to issue, any equity
interests in any Subsidiary, or any security convertible into, or exchangeable
or exercisable for, any such interests in any such Subsidiary. The terms of the
Units conform in all material respects to statements and descriptions thereof
contained in the Prospectus. The Company is the sole general partner of the
Operating Partnership and has sole voting, management and administrative control
of Brandywine Realty Partners.
(h) The Company has no direct or indirect subsidiaries other
than the Subsidiaries. Other than the Subsidiaries and the entities listed on
Schedule 6(h) attached hereto, neither the Company nor the Operating Partnership
owns, directly or indirectly, more than 2% of the securities of any corporation,
partnership, joint venture, limited liability company, association or other
business association.
(i) There are no actions, suits or proceedings pending or, to
the knowledge of the Company or the Operating Partnership, threatened against or
affecting the Company or any of the Subsidiaries, or any of their respective
partners, directors, trustees or officers in their capacity as such, or to which
the Company or any of the Subsidiaries or any of their respective partners,
directors, trustees or officers in their capacity as such, or to which any of
their respective properties is subject, that are required to be described in the
Registration Statement or the Prospectus but are not described as required, and
there are no agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that are not described
or filed as required by the Act.
(j) Neither the Company nor any of the Subsidiaries is in
violation of its Declaration of Trust, certificate or articles of incorporation
or by-laws, partnership agreement or other organizational documents, or of any
law, ordinance, administrative or governmental rule or regulation applicable to
the Company or any of the Subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over the Company or any of the
Subsidiaries, or in default in any material respect in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any agreement, indenture,
-8-
<PAGE>
lease or other instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective properties may be
bound.
(k) Neither the issuance and offer, and sale or delivery of
the Shares, the execution, delivery or performance of this Agreement, nor the
consummation of the transactions contemplated hereby or thereby by the Company
or any Subsidiary, as applicable, (i) required or requires any consent,
approval, authorization or other order of or registration or filing with, any
court, regulatory body, administrative agency or other governmental body, agency
or official (except such as may be required for the registration of the Shares
under the Act and compliance with the securities or Blue Sky laws of various
jurisdictions, all of which have been or will be effected in accordance with
this Agreement), (ii) conflicted with, conflicts or will conflict with or
constituted, constitutes or will constitute a breach of, or a default under, the
Declaration of Trust, certificate or articles of incorporation or bylaws,
partnership agreement or other organizational documents, of the Company or any
of the Subsidiaries or under any agreement, indenture, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound, (iii) violated,
violates or will violate any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Company or any of the Subsidiaries
or any of their respective properties, or (iv) resulted, results or will result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries pursuant to the
terms of any agreement or instrument to which any of them is a party or by which
any of them may be bound or to which any of the property or assets of any of
them is subject.
(l) All offers and sales of Units or other partnership
interests in the Operating Partnership, and the offer, sale or issuance by the
Company of Common Shares and Preferred Shares prior to the date hereof have been
duly registered under the Act, or were exempt from the registration requirements
of the Act and state securities and Blue Sky laws.
(m) The accountants, Arthur Andersen LLP and Zelenkofske
Axelrod & Company, Ltd., who have audited the financial statements included or
incorporated by reference in the Registration Statement and the Prospectus (and
any amendment or supplement thereto), are independent public accountants as
required by the Act.
(n) The financial statements, together with related schedules
and notes, included or incorporated by reference in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in cash flows
of the respective entity, entities, property, or properties, as applicable, at
the respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, and comply with the applicable accounting requirements of the
Act (including, without limitation, Rule 3-14 of Regulation S-X promulgated by
the Commission). The other financial and statistical information and data
included in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are accurately presented
-9-
<PAGE>
and prepared on a basis consistent with such financial statements and the books
and records of the relevant entity, entities, property or properties, as
applicable; any pro forma financial statements of the Company included or
incorporated by reference in the Registration Statement and the Prospectus
comply in all material respects with the applicable requirements of Rule 11-02
of Regulation S-X of the Commission, and any pro forma adjustments have been
made upon management's reasonable good faith estimates of the pro forma
adjustments and have been properly applied to the historical amounts in the
compilation of such statements.
(o) The Company has all trust power and authority, and the
Operating Partnership has all partnership power and authority, to enter into
this Agreement and each Transaction Document to which it is a party, and, in the
case of the Company, to issue, sell and deliver the Shares to the Underwriter as
provided in the Underwriting Agreement, and each of the Underwriting Agreement
and each Transaction Document has been duly and validly authorized, executed and
delivered by the Company and the Operating Partnership, as applicable, and, to
the knowledge of the Company, each of the other parties thereto, and is a valid,
legal and binding agreement of each of the Company and the Operating
Partnership, as applicable, enforceable against each of the Company and the
Operating Partnership in accordance with its terms, except as enforcement of
rights to indemnity and contribution hereunder may be limited by Federal or
state securities laws or principles of public policy.
(p) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), neither
the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in the
beneficial interest or capital stock, or material increase in the short-term
debt or long-term debt, of the Company or any of the Subsidiaries, or any
material adverse change, or any development involving or which may reasonably be
expected to involve, a prospective material adverse change, in the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Company and the Subsidiaries taken as a whole.
(q) Each of the Company or the Operating Partnership (either
directly or through a Subsidiary) has, and after giving effect to the
transactions described in the Registration Statement and Prospectus will have,
good and marketable and insurable title to all real property described in the
Prospectus as being or to be owned by it, free and clear of all liens, claims,
security interests or other encumbrances except such as are described in the
Registration Statement and the Prospectus or in a document filed as an exhibit
to, or incorporated by reference in, the Registration Statement. All the
property described in the Prospectus as being held under lease by each of the
Company and the Subsidiaries is held by it under valid, subsisting and
enforceable leases, other than those described in the Registration Statement and
the Prospectus and those which do not and will not have a material adverse
effect on the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Company and the Subsidiaries taken as
a whole.
-10-
<PAGE>
(r) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted by
the Act.
(s) Each of the Company and each of the Subsidiaries has, such
permits, licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its respective properties and to
conduct its business in the manner described in the Prospectus; each of the
Company and each of the Subsidiaries has fulfilled and performed all its
material obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights of
the holder of any such permit, subject in each case to such qualification as may
be set forth in the Prospectus; and, except as described in the Prospectus, none
of such permits contains any restriction that is materially burdensome to the
Company or any of the Subsidiaries.
(t) The Company together with the Subsidiaries maintains and
will maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(u) Neither the Company nor any of its Subsidiaries nor any
employee or agent of the Company or any Subsidiary has made any payment of funds
of the Company or any Subsidiary or received or retained any funds in violation
of any law, rule or regulation, which payment, receipt or retention of funds is
of a character required to be disclosed in the Prospectus.
(v) The Company and each of the Subsidiaries have filed all
tax returns required to be filed, which returns are complete and correct, and
neither the Company nor any Subsidiary is in default in the payment of any taxes
which were payable pursuant to said returns or any assessments with respect
thereto.
(w) Except as described in the Prospectus, there is no holder
of any security of the Company, or the Operating Partnership or any other person
who has the right, contractual or otherwise, to cause the Company to sell or
otherwise issue to them, or to permit them to underwrite the sale of, the Shares
or the right to have any Common Shares or other securities of the Company
included in the Registration Statement or the right, as a result of the filing
of the registration statement or sale of the Shares as contemplated by this
Agreement, to require registration under the Act of any Common Shares or other
securities of the Company.
-11-
<PAGE>
(x) The Company and the Subsidiaries own or possess all
patents, trademarks, trademark registrations, service marks, service mark
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Prospectus as being owned by them or any of them or
necessary for the conduct of their respective businesses, and neither the
Company nor the Operating Partnership is aware of any claim to the contrary or
any challenge by any other person to the rights of the Company and the
Subsidiaries with respect to the foregoing.
(y) None of the Company or any Subsidiary is now, and after
sale of the Shares to be sold by it hereunder and application of the net
proceeds from such sale as described in the Prospectus under the caption "Use of
Proceeds" will be, an "investment company," or entity "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
(z) The Company has filed in a timely manner each document or
report required to be filed by it pursuant to the Exchange Act and the rules and
regulations thereunder; each such document or report at the time it was filed
conformed to the requirements of the Exchange Act and the rules and regulations
thereunder; and none of such documents or reports contained an untrue statement
of any material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(aa) The Company and its Subsidiaries are organized and
operate in the manner described in the Registration Statement so that the
Company meets the requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Code and the rules and regulations
thereunder as currently in effect. Each Subsidiary that is a partnership or
limited liability company will be treated as a partnership, and not as an
association taxable as a corporation or a publicly traded partnership, for
federal income tax purposes.
(bb) The Shares are duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange.
(cc) Except as described in the Prospectus or provided in the
Credit Facility (as defined in the Prospectus), the mortgages and deeds of trust
encumbering certain of the Properties will not be cross-defaulted or
cross-collateralized with any other property not owned directly or indirectly by
the Company or any of the Subsidiaries.
(dd) (1) Each of the Properties, the Company, and each of the
Subsidiaries (i) is, and as of the Closing Date will be, in compliance in all
material respects with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received, or will have received,
as of the Closing Date, as the case may be, all licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective
business, and (iii) is, and will be as of the Closing Date in material
compliance with all terms and conditions of any such permit, license or
approval.
-12-
<PAGE>
(2) Except as may be specifically disclosed in the
Phase I Environmental Site Assessment reports referred to in the Prospectus or
in filings made with the Commission in a Current Report on Form 8-K or a
Quarterly Report on Form 10-Q (the "Environmental Reports"), the Company and the
Subsidiaries have not at any time, and, to the knowledge of the Company, no
other party has at any time, handled, buried, stored, retained, refined,
transported, processed, manufactured, generated, produced, spilled, allowed to
seep, leak, escape or leach, or be pumped, poured, emitted, emptied, discharged,
injected, dumped, transferred or otherwise disposed of or dealt with, Hazardous
Materials (as hereinafter defined) on, to or from the Properties. The Company
and the Subsidiaries do not intend to use the Properties or any subsequently
acquired properties for the purpose of handling, burying, storing (except with
respect to cleaning materials reasonably used to operate the Properties in the
ordinary course, in normal quantities and in full compliance with law),
retaining, refining, transporting, processing, manufacturing, generating,
producing, spilling, seeping, leaking, escaping, leaching, pumping, pouring,
emitting, emptying, discharging, injecting, dumping, transferring or otherwise
disposing of or dealing with Hazardous Materials.
(3) Except as disclosed in the Environmental Reports,
to the knowledge of the Company, there has been no seepage, leaking, escape,
leaching, discharge, injection, release, emission, spill, pumping, pouring,
emptying or dumping of Hazardous Materials into waters on or adjacent to the
Properties or onto lands from which such hazardous or toxic waste or substances
might seep, flow or drain into such waters.
(4) Except as disclosed in the Environmental Reports,
neither the Company nor any Subsidiary has received notice of any occurrence or
circumstance which, with notice or passage of time or both, would give rise to
any claim under or pursuant to any Environmental Law pertaining to hazardous or
toxic waste or substances on or originating from the Properties or arising out
of the conduct of any such party.
(5) No environmental engineering firm which prepared
the Environmental Reports (or amendments thereto) or physical condition
(engineering) reports with respect to the Properties was employed for such
purpose on a contingent basis or has any substantial interest in the Company or
any Subsidiary.
As used herein, "Hazardous Material" shall include, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances or related materials,
asbestos or any related material as defined by any Federal, state or local
environmental law, ordinance, rule, or regulation including, without limitation,
Environmental Laws such as the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Section
1801, et seq.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. Section 9601, et seq.), the New Jersey Industrial Site Recovery Act,
N.J.S.A. Section 13:1K-6, et seq. or and in the regulations adopted and
publications promulgated pursuant to each of the foregoing or by any Federal,
state or local Governmental authority having or claiming jurisdiction over the
Properties as described in the Prospectus.
-13-
<PAGE>
(ee) To the knowledge of the Company, all physical condition
(engineering) reports obtained for the Properties are materially true and
correct. Neither the Company nor any of the Subsidiaries is aware of any
material capital expenditures (other than expenditures for maintenance or tenant
improvements in the ordinary course of business) that will be required in
connection with any of the Properties prior to the fifth anniversary of this
Agreement, except as disclosed in the Registration Statement.
(ff) As of the Closing Date, the Company or the Operating
Partnership, as applicable, will have obtained ALTA Extended Coverage Owner's
Policies of Title Insurance (or its equivalent) from title insurers of
recognized financial responsibility on each of the Properties, in amounts at
least equal to the acquisition price of each such property (or, in the case of
the Property at Delaware Corporate Center I, Freedom Business Center and the
Park 80 Garage, the leasehold interest) (and improvements located on each such
property), and such insurance shall be in full force and effect.
(gg) The assets of the Company and the Subsidiaries do not,
and as of the Closing Date will not, constitute "plan assets" under the Employee
Retirement Income Security Act of 1974, as amended.
(hh) Each partnership agreement, agreement of limited
partnership, other organizational or formation agreement, and each amendment
thereto, of each Subsidiary that is a general or limited partnership (the
"Organizational Documents") has been duly and validly authorized, executed and
delivered by the Company and the applicable Subsidiaries party thereto, and each
such Organizational Document constitutes the legal, valid and binding agreement
of each party thereto, enforceable against each such party in accordance with
its terms.
(ii) Each of the agreements disclosed in the Prospectus under
the caption "Recent Developments -- Pending Acquisitions" as having been
executed has been executed and delivered by the seller thereunder and has been
duly and validly authorized, executed and delivered by each of the Company and
the Subsidiaries that is a party thereto, and each such agreement constitutes
the legal, valid and binding agreement of each such party thereto, enforceable
against each such party in accordance with its terms.
(jj) (i) The Company and its Subsidiaries have their
respective principal business operations in the United States or its
Territories.
(ii) The Company has a class of securities registered
pursuant to Section 12(b) of the Exchange Act.
(iii) The Company (A) since prior to December 31, 1994,
has been subject to the requirements of Section 12 of the Exchange Act
and has filed all the material required to be filed pursuant to
Sections 13 and 14 of the Exchange Act, and (B) since prior to December
-14-
<PAGE>
31, 1996, has filed in a timely manner all reports required to be filed
under Sections 13 and 14 of the Exchange Act, and has not used Rule
12b-25(b) under the Exchange Act.
(iv) Neither the Company nor any Subsidiary has,
since December 31, 1996, (A) failed to pay any dividend or sinking fund
installment on preferred stock, or (B) defaulted (I) on any installment
or installments on indebtedness for borrowed money, or (II) on any
rental on one or more long term leases.
(v) The aggregate market value of the Company's
voting stock held by non-affiliates of the Company is $100 million or
more and the Company had a trading volume of such stock of 3,000,000
shares or more during the 12 month period ended the date hereof.
6. Indemnification and Contribution. (a) The Company and the Operating
Partnership, jointly and severally, agree to indemnify and hold harmless the
Underwriter, the directors, officers, employees and agents of the Underwriter,
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Prepricing
Prospectus or in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon and in
conformity with the information relating to the Underwriter furnished in writing
to the Company by or on behalf of the Underwriter through you expressly for use
in connection therewith (which information is described in its entirety in
Section 12 below); provided, however, that the indemnification contained in this
paragraph (a) with respect to any Prepricing Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling the
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by the Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such person within
the time required by the Act and the regulations thereunder, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Company has delivered the Prospectus to the
Underwriter in requisite quantity on a timely basis to permit such delivery or
sending within the time required by the Act. The foregoing indemnity agreement
shall be in addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against the
Underwriter or any person controlling the Underwriter in respect of which
indemnity may be sought against the Company or the Operating Partnership, the
Underwriter or such controlling person shall promptly notify the Company or the
Operating Partnership, and the Company or the Operating Partnership shall assume
the defense thereof, including the employment of counsel and payment of all fees
and expenses. The
-15-
<PAGE>
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the Underwriter or such controlling person unless (i) the Company and
the Operating Partnership have agreed in writing to pay such fees and expenses,
(ii) the Company and the Operating Partnership have failed to assume the defense
and employ counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both the Underwriter or
such controlling person and the Company or the Operating Partnership and the
Underwriter or such controlling person shall have been advised by its counsel
that representation of such indemnified party and the Company or the Operating
Partnership by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by the
same counsel has been proposed) due to actual or potential differing interests
between them (in which case the Company and the Operating Partnership shall not
have the right to assume the defense of such action, suit or proceeding on
behalf of such Underwriter or such controlling person). It is understood,
however, that the Company shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
the Underwriter and controlling persons not having actual or potential differing
interests with you or among themselves, which firm shall be designated in
writing by the Underwriter, and that all such fees and expenses shall be
reimbursed as they are incurred. The Company and the Operating Partnership shall
not be liable for any settlement of any such action, suit or proceeding effected
without its written consent, but if settled with such written consent, or if
there shall be a final judgment for the plaintiff in any such action, suit or
proceeding, the Company and the Operating Partnership agree to indemnify and
hold harmless the Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
(c) The Underwriter agrees to indemnify and hold harmless the Company,
its trustees and officers who sign the Registration Statement, and any person
who controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, to the same extent as the foregoing indemnity from the
Company and the Operating Partnership to the Underwriter, but only with respect
to losses, claims, damages, liabilities and expenses arising out of or based on
information relating to the Underwriter furnished in writing by or on behalf of
the Underwriter through you expressly for use in the Registration Statement, the
Prospectus or any Prepricing Prospectus or any amendment or supplement thereto.
If any action, suit or proceeding shall be brought against the Company, any of
its directors or officers, or any such controlling person based on the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be sought
against the Underwriter pursuant to this paragraph (c), the Underwriter shall
have the rights and duties given to the Company and the Operating Partnership by
paragraph (b) above (except that if the Company or the Operating Partnership
shall have assumed the defense thereof such Underwriter shall not be required to
do so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the Underwriter's
expense), and the Company, its trustees and officers, and any
-16-
<PAGE>
such controlling person shall have the rights and duties given to the
Underwriter by paragraph (b) above. The foregoing indemnity agreement shall be
in addition to any liability which the Underwriter may otherwise have.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Operating Partnership, on the one hand, and the Underwriter, on
the other hand, from the offering of the Shares, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Operating Partnership, on the one hand, and the Underwriter, on the other, in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Operating Partnership, on the one hand, and the Underwriter, on the other, shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the Operating
Partnership bear to the total underwriting discounts and commissions received by
the Underwriter, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriter on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Underwriter on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company, the Operating Partnership and the Underwriter agree
that it would not be just and equitable if contribution pursuant to this Section
6 were determined by a pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 6, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price of the Shares underwritten by it exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
-17-
<PAGE>
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 6 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 6 and the
representations and warranties of the Company and the Operating Partnership set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of the Underwriter or
any person controlling the Underwriter, the Company and its trustees or
officers, the Operating Partnership and its officers, or any person controlling
the Company or the Operating Partnership, (ii) acceptance of any Shares and
payment therefor hereunder, and (iii) any termination of this Agreement. A
successor to the Underwriter or any person controlling the Underwriter, or to
the Company and its trustees or officers, the Operating Partnership and its
officers, or any person controlling the Company or the Operating Partnership,
shall be entitled to the benefits of the indemnity, contribution, and
reimbursement agreements contained in this Section 6.
7. Conditions of Underwriter's Obligations. The obligation of the
Underwriter to purchase the Shares hereunder are subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the registration statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the registration
statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, prospects, properties, net worth, or results of operations of the
Company or the Subsidiaries not contemplated by the Prospectus, which in your
opinion would materially, adversely affect the market for the Shares, or (ii)
any event or development relating to or involving the Company or any officer or
trustee of the Company or the Operating Partnership which makes any statement
made in the Prospectus untrue or which, in the opinion of the Company and its
-18-
<PAGE>
counsel or the Underwriter and their counsel, requires the making of any
addition to or change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or necessary in order
to make the statements therein, in light of the circumstances in which they were
made, not misleading, if amending or supplementing the Prospectus to reflect
such event or development would, in your opinion, materially, adversely affect
the market for the Shares.
(c) You shall have received on the Closing Date, the opinion
of Pepper Hamilton LLP, counsel for the Company, the Operating Partnership and
the other Subsidiaries, dated the Closing Date and addressed to you, in the form
set forth on Exhibit 7(c) attached hereto.
In rendering their opinion as aforesaid, such counsel may rely
upon an opinion or opinions, each dated the Closing Date, of other counsel
retained by them or the Company as to laws of any jurisdiction other than the
United States, the State of New York, the Commonwealth of Pennsylvania and the
State of Delaware, provided that (1) each such local counsel is reasonably
acceptable to you, (2) such reliance is expressly authorized by each opinion so
relied upon and a copy of each such opinion is delivered to you and is, in form
and substance, satisfactory to you and your counsel, and (3) such counsel shall
state in their opinion that they believe that they and the Underwriter are
justified in relying thereon.
(d) You shall have received on the Closing Date an opinion of
Arthur Andersen LLP, special tax advisor to the Company, satisfactory in form
and substance to you, to the effect that (i) the descriptions of the Federal
income tax conclusions contained in the Prospectus under the caption "Federal
Income Tax Considerations" are correct in all material respects, and the
discussion contained therein fairly summarizes the Federal income tax
considerations that may be material to a holder of the common shares; (ii)
assuming the Company is operated in accordance with the assumptions and
representations of management regarding its activities and intended activities,
the Company will continue to qualify as a REIT under the Code; and (iii) the
Operating Partnership and the Title Holding Partnerships will be treated for
Federal income tax purposes as partnerships and not as associations taxable as
corporations or as publicly-traded partnerships.
(e) You shall have received on the Closing Date an opinion of
Battle Fowler LLP, counsel for the Underwriter, dated the Closing Date and
addressed to you, with respect to the Registration Statement, the Prospectus and
this Agreement and such other related matters as you may request.
(f) You shall have received comfort letters, including, but
not limited to, certain agreed upon procedures, addressed to you and dated the
date hereof and the Closing Date from Arthur Andersen LLP and Zelenkofske
Axelrod & Company Ltd., independent public accountants, substantially in the
forms heretofore approved by you.
(g) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company or the
Underwriter, shall be contemplated by the Commission at or prior to the
-19-
<PAGE>
Closing Date; (ii) there shall not have been any change in the beneficial
interest of the Company nor any material increase in the short-term or long-term
debt of the Company (other than in the ordinary course of business) from that
set forth or contemplated in the Registration Statement or the Prospectus (or
any amendment or supplement thereto); (iii) there shall not have been, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus (or any amendment or supplement thereto), except as may
otherwise be stated in the Registration Statement and Prospectus (or any
amendment or supplement thereto), any material adverse change in the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Properties or the Company and the Subsidiaries taken as a
whole; (iv) the Company and the Subsidiaries shall not have any liabilities or
obligations, direct or contingent (whether or not in the ordinary course of
business), that are material to the Company and the Subsidiaries, taken as a
whole, other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of the Company and the Operating Partnership
contained in this Agreement shall be true and correct on and as of the date
hereof and on and as of the Closing Date as if made on and as of the Closing
Date, and you shall have received a certificate, dated the Closing Date and
signed by the chief executive officer and the chief financial officer of the
Company (or such other officers as are acceptable to you), to the effect set
forth in this Section 7(g) and in Section 7(h) hereof.
(h) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
(i) The Shares shall have been listed or approved for listing
upon notice of issuance on the New York Stock Exchange.
(j) The Company and the Operating Partnership shall have
furnished or caused to be furnished to you such further certificates and
documents as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
the Operating Partnership and delivered to you, or to counsel for the
Underwriter, shall be deemed a representation and warranty by the Company or the
Operating Partnership, as applicable, to each Underwriter as to the statements
made therein.
8. Expenses. The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the
-20-
<PAGE>
Registration Statement, each Prepricing Prospectus, the Prospectus, and all
amendments or supplements to any of them as may be reasonably requested for use
in connection with the offering and sale of the Shares; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Shares,
including any stamp taxes in connection with the original issuance and sale of
the Shares; (iv) if required, the printing (or reproduction) and delivery of
this Agreement, the preliminary and supplemental Blue Sky Memoranda and all
other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Shares; (v) the listing of the Shares on the
American Stock Exchange; (vi) if required, the registration or qualification of
the Shares for offer and sale under the securities or Blue Sky laws of the
several states as provided in Section 4(g) hereof (including the reasonable
fees, expenses and disbursements of counsel for the Underwriter relating to the
preparation, printing or reproduction, and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification); (vii)
if required, the filing fees and the fees and expenses of counsel for the
Underwriter in connection with any filings required to be made with the National
Association of Securities Dealers, Inc.; (viii) the transportation and other
expenses incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Shares; and (ix) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company.
9. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Company, by notifying you, or
by you, by notifying the Company.
10. Default of Underwriter. If the Underwriter shall fail or refuse to
purchase the Shares that it is obligated to purchase hereunder on the Closing
Date, this Agreement will terminate without liability on the part of the
Company. Any action taken under this paragraph shall not relieve the Underwriter
from liability in respect of any such default of the Underwriter under this
Agreement.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of the
Underwriter to the Company, by notice to the Company, if prior to the Closing
Date or any Option Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities in New York or Pennsylvania
shall have been declared by either federal or state authorities, or (iii) there
shall have occurred any outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in political, financial or
economic conditions, the effect of which on the
-21-
<PAGE>
financial markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable (x) to commence or continue the offering of the
units of the Trust to the public, or (y) to enforce contracts for the sale of
the units of the Trust. Notice of such termination may be given to the Company
by telegram, telecopy or telephone and shall be subsequently confirmed by
letter.
12. Information Furnished by the Underwriter. The Company and the
Operating Partnership acknowledge and agree that the statements set forth in the
last paragraph on the cover page, the stabilization legend on the inside cover
page and the statements in the first and third paragraphs under the caption
"Underwriting" in any Prepricing Prospectus and in the Prospectus, constitute
the only information furnished by or on behalf of the Underwriter as such
information is referred to in Sections 5(b) and 6 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company or the Operating
Partnership, at the office of the Company at 16 Campus Boulevard, Newtown
Square, Pennsylvania 19073, Attention: Gerard H. Sweeney, President and Chief
Executive Officer; or (ii) if to you, in care of Smith Barney Inc., 388
Greenwich Street, New York, New York 10013, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of the
Underwriter, the Company, its trustees and officers, the Operating Partnership
and the other controlling persons referred to in Section 6 hereof and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from the Underwriter of any of the
Shares in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
-22-
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Operating Partnership and the Underwriter.
Very truly yours,
BRANDYWINE REALTY TRUST
By: /s/ Gerard H. Sweeney
------------------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust,
its general partner
By: /s/ Gerard H. Sweeney
---------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief Executive Officer
Confirmed as of the date first
above mentioned.
SMITH BARNEY INC.
By: /s/ Jeffery D. Horowitz
-------------------------
Name: Jeffrey D. Horowitz
Title: Director
-23-
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Prospectus Supplement dated December 18, 1997 to the Prospectus
dated November 13, 1997 (the "Prospectus") of Brandywine Realty Trust (the
"Company") of: our report dated February 22, 1997, on the consolidated financial
statements of the Company, included in the Company's Annual Report on Form 10-K
for the year ended December 31, 1996; our reports dated October 31, 1996 on the
combined statements of revenue and certain expenses of Equivest Management Inc.
Acquisition Properties, the Commonwealth of Pennsylvania State Employees'
Retirement System Acquisition Properties, and of Delaware Corporate Center for
the year ended December 31, 1995, included in the Company's Prospectus filed on
November 27, 1996 relating to the Company's Registration Statement on Form S-11
(No. 333-13969) declared effective November 25, 1996; our report dated February
11, 1997 on the combined financial statements of revenue and certain expenses of
Columbia Acquisition Properties for the year ended December 31, 1996, included
in the Company's Form 8-K/A (No.1) dated February 13, 1997 and Form 8-K/A (No.
2) dated February 24, 1997; our report dated January 29, 1997 on the combined
financial statements of revenue and certain expenses of Main Street Properties
for the year ended December 31, 1996, included in the Company's Form 8-K/A (No.
1) dated April 29, 1997; our report dated May 29, 1997 on the combined financial
statements of revenue and certain expenses of TA Properties for the year ended
December 31, 1996, included in the Company's Form 8-K dated June 9, 1997; our
report dated June 3, 1997 on the combined financial statements of revenue and
certain expenses of Emmes Properties for the year ended December 31, 1996,
included in the Company's Form 8-K dated June 9, 1997; our report dated June 23,
1997 on the combined financial statements of revenue and certain expenses of 748
& 855 Springdale Drive for the year ended December 31, 1996 included in the
Company's Form 8-K dated June 26, 1997; our report dated July 21, 1997 on the
combined financial statements of revenue and certain expenses of the Green Hills
Properties for the year ended December 31, 1996 included in the Company's Form
10-Q for the quarter ended June 30, 1997; our report dated July 21, 1997 on the
combined financial statements of revenue and certain expenses of the Berwyn Park
Properties for the year ended December 31, 1996, included in the Company's Form
10-Q for the quarter ended June 30, 1997; our report dated August 21, 1997 on
the combined financial statements of revenue and certain expenses of 500 & 501
Office Center Drive for the year ended December 31, 1996 included in the
Company's Form 8-K dated September 10, 1997; our report dated October 15, 1997
on the combined financial statements of revenue and certain expenses of
Metropolitan Industrial Center for the year ended December 31, 1996, included in
the Company's Form 8-K dated October 30, 1997; our report dated October 27, 1997
on the combined financial statements of revenue and certain expenses of Atrium I
for the year ended December 31, 1996, included in the Company's Form 8-K dated
October 30, 1997; our report dated November 14, 1997 on the combined financial
statements of revenue and certain expenses of Scarborough Properties for the
year ended December 31, 1996, included in the Company's Form 8-K dated December
16, 1997; our report dated December 3, 1997 on the financial statement of
revenue and certain expenses of Bala Pointe Office Centre for the year ended
December 15, 1996, included in the Company's Form 8-K dated December 16, 1997;
our report dated December 13, 1997 on the combined financial statement of
revenue and certain expenses of GMH Properties for the year ended December 31,
1996, included in the Company's Form 8-K dated December 16, 1997; our report
dated January 22, 1998 on the financial statements of revenue and certain
expenses of the RREEF Properties for the year ended December 31, 1996, included
in the Company's Form 8-K dated January 27, 1998; and to all references to our
Firm included in the Prospectus or Prospectus Supplement.
Philadelphia, Pa., ARTHUR ANDERSEN LLP
February 10, 1998
-24-
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the reference to our firm and our report dated June 19,
1997 with respect to the financial statements of the Greentree Executive Campus
Acquisition Properties under the "Experts" heading of a Prospectus Supplement to
the Prospectus dated November 13, 1997 of Brandywine Realty Trust to be filed
with the Securities and Exchange Commission and consent to the filing of this
Consent as an Exhibit to a Current Report on Form 8-K of Brandywine Realty
Trust.
/s/ ZELENKOFSKE, AXELROD & COMPANY, LTD.
Zelenkofske, Axelrod & Company, Ltd.
Jenkintown, Pennsylvania
February 11, 1998
-25-
