As filed with the Securities and Exchange Commission on September 7, 2004
Registration No. 333-117078
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
PRE-EFFECTIVE
AMENDMENT NO. 1 TO
FORM
S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BRANDYWINE REALTY TRUST
BRANDYWINE OPERATING PARTNERSHIP, L.P.
(Exact name of each Registrant as specified in its charter)
Maryland | 23-2413352 | |
Delaware | 23-2862640 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | |
For Co-Registrants, please see Table of Co-Registrants on the following page.
401 Plymouth Road, Suite 500
Plymouth Meeting, Pennsylvania 19462
Telephone: (610) 325-5600
(Address,
including zip code, and telephone number, including area code, of Registrants principal
executive offices)
Gerard H. Sweeney
President and Chief Executive Officer
401 Plymouth Road, Suite 500
Plymouth
Meeting, Pennsylvania 19462
Telephone: (610) 325-5600
(Name, address, including
zip code, and telephone number, including area code, of agent for service)
With a copy
to:
Michael H. Friedman, Esq.
Pepper Hamilton LLP
3000 Two Logan Square
Philadelphia, Pennsylvania 19103-2799
(215) 981-4000
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective as determined by market conditions and other factors.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box.
The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to Section 8(a), may determine.
TABLE OF CO-REGISTRANTS
State or Other | ||||
Jurisdiction of | ||||
Incorporation | I.R.S. Employer | |||
Name of Registrant as Specified in its Charter | or Organization | Identification Number | ||
AAPOP 2, L.P. | Delaware | 23-2901049 | ||
Brandywine Ambassador, L.P. | Pennsylvania | 23-3012908 | ||
Brandywine Central L.P. | Pennsylvania | 23-1946970 | ||
Brandywine Cira, L.P. | Pennsylvania | 20-0342137 | ||
Brandywine F.C., L.P. | Pennsylvania | 20-1238432 | ||
Brandywine Grande B, L.P. | Delaware | 23-2977952 | ||
Brandywine I.S., L.P. | Pennsylvania | 23-2947774 | ||
Brandywine Metroplex, L.P. | Pennsylvania | 23-3064291 | ||
Brandywine P.M., L.P. | Pennsylvania | 23-2947776 | ||
Brandywine TB Florig, L.P. | Pennsylvania | 23-3076172 | ||
Brandywine TB Inn, L.P. | Pennsylvania | 23-3081409 | ||
Brandywine TB I, L.P. | Pennsylvania | 23-2947784 | ||
Brandywine TB II, L.P. | Pennsylvania | 23-2947790 | ||
Brandywine TB V, L.P. | Pennsylvania | 23-2947794 | ||
Brandywine TB VI, L.P. | Pennsylvania | 23-2971995 | ||
Brandywine TB VIII, L.P. | Pennsylvania | 23-3076170 | ||
C/N Iron Run Limited Partnership III | Pennsylvania | 23-2895861 | ||
C/N Leedom Limited Partnership II | Pennsylvania | 23-2877566 | ||
C/N Oaklands Limited Partnership I | Pennsylvania | 23-2877569 | ||
C/N Oaklands Limited Partnership III | Pennsylvania | 23-2877558 | ||
e-Tenants.com Holding, L.P. | Pennsylvania | 23-3076174 | ||
Fifteen Horsham, L.P. | Pennsylvania | 23-2877570 | ||
Iron Run Limited Partnership V | Pennsylvania | 23-2877557 | ||
LC/N Horsham Limited Partnership | Pennsylvania | 23-2877563 | ||
LC/N Keith Valley Limited Partnership I | Pennsylvania | 23-2877564 | ||
Newtech IV Limited Partnership | Pennsylvania | 23-2877568 | ||
Nichols Lansdale Limited Partnership III | Pennsylvania | 23-2877561 | ||
Witmer Operating Partnership I, L.P. | Delaware | 23-2877571 | ||
100 Arrandale Associates, L.P. | Delaware | 23-2864652 | ||
111 Arrandale Associates, L.P. | Delaware | 23-2853429 | ||
440 Creamery Way Associates, L.P. | Pennsylvania | 23-2565917 | ||
442 Creamery Way Associates, L.P. | Pennsylvania | 23-2561338 | ||
481 John Young Way Associates, L.P. | Pennsylvania | 23-2853426 | ||
Interstate Center Associates | Virginia | 54-1815494 | ||
IR Northlight II Associates | Pennsylvania | 23-2926116 | ||
Plymouth TFC General Partnership | Pennsylvania | 23-2941286 | ||
BTRS, Inc. | Delaware | 23-3084141 | ||
Southpoint Land Holdings, Inc. | Pennsylvania | 23-2557504 | ||
Valleybrooke Land Holdings, Inc. | Pennsylvania | 23-2552215 | ||
Brandywine Ambassador, L.L.C. | Pennsylvania | 23-3012909 | ||
Brandywine Charlottesville LLC | Virginia | 54-1991092 | ||
Brandywine Christina LLC | Delaware | 23-3101977 | ||
Brandywine Cira, LLC | Pennsylvania | 20-0342081 | ||
Brandywine Dabney, L.L.C. | Delaware | 23-2977512 | ||
Brandywine Dominion, L.L.C. | Pennsylvania | 23-2947771 | ||
Brandywine F.C., L.L.C. | Pennsylvania | 20-1238298 | ||
Brandywine Grande B, LLC | Delaware | 20-1244735 | ||
Brandywine Greentree V, LLC | Delaware | 20-1365606 | ||
Brandywine I.S., L.L.C. | Pennsylvania | 23-2947773 | ||
Brandywine Interstate 50, L.L.C. | Delaware | 23-2983152 | ||
Brandywine Main Street, LLC | Delaware | 23-2907342 | ||
Brandywine Metroplex LLC | Pennsylvania | 23-3064290 | ||
Brandywine P.M., L.L.C. | Pennsylvania | 23-2947779 | ||
Brandywine Piazza, L.L.C. | New Jersey | 23-3640190 | ||
Brandywine Plaza 1000, L.L.C. | New Jersey | 22-3640196 |
State or Other | ||||
Jurisdiction of | ||||
Incorporation | I.R.S. Employer | |||
Name of Registrant as Specified in its Charter | or Organization | Identification Number | ||
Brandywine Promenade, L.L.C. | New Jersey | 23-3640188 | ||
Brandywine TB Florig, LLC | Pennsylvania | 23-3076168 | ||
Brandywine TB Inn, L.L.C. | Pennsylvania | 23-3081407 | ||
Brandywine TB I, L.L.C. | Pennsylvania | 23-2947782 | ||
Brandywine TB II, L.L.C. | Pennsylvania | 23-2947787 | ||
Brandywine TB V, L.L.C. | Pennsylvania | 23-2947792 | ||
Brandywine TB VI, L.L.C. | Pennsylvania | 23-2971993 | ||
Brandywine TB VIII, L.L.C. | Pennsylvania | 23-3076169 | ||
Brandywine Trenton Urban Renewal, L.L.C. | Delaware | 52-2088312 | ||
Brandywine Witmer, L.L.C. | Pennsylvania | 23-2947796 | ||
Christiana Center Operating Company III LLC | Delaware | 23-3032421 | ||
e-Tenants LLC | Delaware | 23-3040699 |
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION DATED SEPTEMBER 7, 2004
PROSPECTUS
BRANDYWINE REALTY TRUST
$750,000,000
Preferred Shares, Common Shares, Depositary Shares and Warrants
BRANDYWINE OPERATING PARTNERSHIP, L.P.
$750,000,000
Debt Securities
Brandywine Realty Trust may offer from time to time its common shares, preferred shares, depository shares or warrants with a total initial offering price of up to $750,000,000 under this prospectus.
The common shares of Brandywine Realty Trust are listed on the New York Stock Exchange under the symbol BDN.
Brandywine Operating Partnership, L.P. may offer from time to time its debt securities in one or more series with a total initial offering price of up to $750,000,000 under this prospectus. Brandywine Realty Trust and certain of the wholly-owned subsidiaries of Brandywine Operating Partnership, L.P. will unconditionally guarantee the payment obligations of the debt securities.
We will offer the securities at prices and on the terms to be determined at the time of offering. We will provide specific terms of these securities in prospectus supplements to this prospectus.
We may sell the securities through underwriters, dealers or agents or directly to investors.
You should read this prospectus and the applicable prospectus supplement carefully before you invest in any securities described in this prospectus.
You should carefully read and consider the risk factors included in the applicable prospectus supplement and in our periodic reports and other information that we file with the Securities and Exchange Commission before investing in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2004
TABLE OF CONTENTS
You should rely only on the information contained or incorporated by reference in this prospectus and any prospectus supplement. We have not authorized any dealer, salesman or other person to provide you with additional or different information. This prospectus and any prospectus supplement are not an offer to sell or the solicitation of an offer to buy any securities other than the securities to which they relate and are not an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make an offer or solicitation in that jurisdiction. You should not assume that the information in this prospectus or any prospectus supplement or in any document incorporated by reference in this prospectus or any prospectus supplement is accurate as of any date other than the date of the document containing the information.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission utilizing a shelf registration process. Under the shelf registration statement, Brandywine Realty Trust may sell any combination of common shares, preferred shares, depositary shares and warrants in one or more offerings with a total offering price of up to $750,000,000, and Brandywine Operating Partnership, L.P. may sell debt securities of various terms in one or more offerings with a total offering price of up to $750,000,000.
As used in this prospectus and the registration statement on Form S-3 of which this prospectus is a part, unless the context otherwise requires, references to Brandywine refer to Brandywine Realty Trust, a Maryland real estate investment trust, or REIT; references to the Operating Partnership refer to Brandywine Operating Partnership, L.P., a Delaware limited partnership; and references to we, us, our or similar expressions refer collectively to Brandywine Realty Trust and its consolidated subsidiaries (including the Operating Partnership) unless the context otherwise indicates.
This prospectus provides you with a general description of the securities that we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. Before you invest, you should read both this prospectus and the applicable prospectus supplement together with the additional information described under the next heading.
WHERE YOU CAN FIND MORE INFORMATION
Brandywine files, and the Operating Partnership will file, annual, quarterly and special reports, proxy statements (in the case of Brandywine) and other information with the SEC.
You may read and copy materials that we have filed with the SEC, including the registration statement, at the following location:
Public Reference Room | |
450 Fifth Street, N.W. | |
Room 1024 | |
Washington, D.C. 20549 |
You may obtain information on the operation of the SECs Public Reference Rooms by calling the SEC at 1-800-SEC-0330.
The SEC also maintains an Internet web site that contains reports, proxy statements and other information regarding issuers, including us, that file electronically with the SEC. The address of that site is http://www.sec.gov. In addition, you may inspect reports, proxy statements and other information concerning us at the offices of the New York Stock Exchange, which are located at 20 Broad Street, New York, New York 10005.
The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this prospectus, and information we file later with the SEC will be deemed to automatically update and supersede this information. We incorporate by reference the documents listed below, which we previously have filed with the SEC and which are considered part of this prospectus, and any future filings made by us with the SEC prior to completion of this offering under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the Exchange Act). We also incorporate by reference any filings made under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial registration statement and prior to effectiveness of the registration statement. These filings contain important information about us.
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Report Filed | Date of Filing | |
Annual Report on Form 10-K for the year ended | Filed on March 12, 2004 | |
December 31, 2003 of Brandywine Realty Trust | ||
Annual Report on Form 10-K/A for the year ended | Filed on June 22, 2004 | |
December 31, 2003 of Brandywine Realty Trust | ||
Quarterly Report on Form 10-Q for the quarter ended | Filed on May 10, 2004 | |
March 31, 2004 of Brandywine Realty Trust | ||
Quarterly Report on Form 10-Q for the quarter ended June | Filed on August 6, 2004 | |
30, 2004 of Brandywine Realty Trust | ||
Current Report on Form 8-K of Brandywine Realty Trust | Filed on January 7, 2004 | |
Current Report on Form 8-K of Brandywine Realty Trust | Filed on February 3, 2004 | |
Current Report on Form 8-K of Brandywine Realty Trust | Filed on February 5, 2004 | |
Current Report on Form 8-K of Brandywine Realty Trust | Filed on February 27, 2004 | |
Current Report on Form 8-K of Brandywine Realty Trust | Filed on May 27, 2004 | |
Current Report on Form 8-K of Brandywine Realty Trust | Filed on August 19, 2004 | |
Current Report on Form 8-K of Brandywine Realty Trust | Filed on September 3, 2004 | |
Current Report on Form 8-K of Brandywine Realty Trust | Filed on September 3, 2004 | |
Current Report on Form 8-K of Brandywine Operating Partnership, L.P. | Filed on July 1, 2004 | |
Current Report on Form 8-K of Brandywine Operating Partnership, L.P. | Filed on September 3, 2004 | |
Registration Statement on Form 8-A of Brandywine Realty Trust | Filed on October 14, 1997 | |
Registration Statement on Form 8-A of Brandywine Realty Trust | Filed on December 29, 2003 | |
Registration Statement on Form 8-A of Brandywine Realty Trust | Filed on February 5, 2004 | |
Registration Statement on Form 10 of Brandywine Operating Partnership, L.P. | Filed on June 23, 2004 | |
Registration Statement on Form 10/A of Brandywine Operating Partnership, L.P. | Filed on August 20, 2004 |
You can obtain copies of any of the documents incorporated by reference in this prospectus from us or, as described above, through the SEC or the SECs web site which is at http://www.sec.gov. Documents incorporated by reference are available from us, without charge, excluding all exhibits unless specifically incorporated by reference as an exhibit to this prospectus. You may obtain documents incorporated by reference in this prospectus by writing to us at the following address or calling us at the telephone number listed below:
BRANDYWINE REALTY TRUST or
BRANDYWINE OPERATING PARTNERSHIP, L.P.
401 Plymouth Road, Suite 500
Plymouth Meeting, PA 19462
Attention: General Counsel
Telephone: (610) 325-5600
We also maintain a web site at http://www.brandywinerealty.com through which you can obtain copies of documents that we have filed with the SEC. The contents of that site are not incorporated by reference in or otherwise a part of this prospectus.
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CAUTIONARY STATEMENT CONCERNING
FORWARD-LOOKING STATEMENTS
This prospectus, including the information incorporated by reference into this prospectus, and any prospectus supplement, may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 (the Securities Act) and Section 21E of the Exchange Act. We caution investors that forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements to be materially different from future results, performance or achievements expressed or implied by these forward-looking statements. Forward-looking statements, which are based on certain assumptions and describe our future plans, strategies and expectations, are generally identifiable by use of the words may, will, should, expect, anticipate, estimate, believe, intend, project, or the negative of these words, or other similar words or terms. Factors which could materially and adversely affect us include, but are not limited to the following:
• | changes in economic conditions generally and the real estate market specifically; | |
• | legislative/regulatory changes, including changes to laws governing the taxation of REITs; | |
• | availability of debt and equity capital; | |
• | interest rate fluctuations; | |
• | competition; | |
• | supply and demand for properties in our current and proposed market areas; | |
• | accounting principles; | |
• | policies and guidelines applicable to REITs; and | |
• | environmental risks, tenant bankruptcies and the other matters described under the heading Risk Factors in our Annual Report on Form 10-K for the fiscal year ended December 31, 2003. |
All of these factors should be considered in evaluating any forward-looking statements included or incorporated by reference in this prospectus or any accompanying prospectus supplement.
Given these uncertainties, we caution prospective investors not to place undue reliance on these forward-looking statements. We undertake no obligation to publicly update or revise any forward-looking statements included or incorporated by reference in this prospectus or any accompanying prospectus supplement, whether as a result of new information, future events or otherwise. In light of the factors referred to above, the future events discussed in or incorporated by reference in this prospectus or any accompanying prospectus supplement may not occur and actual results, performance or achievement could differ materially from that anticipated or implied in the forward-looking statements.
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BRANDYWINE AND THE OPERATING PARTNERSHIP
Brandywine is a self-administered and self-managed REIT active in acquiring, developing, redeveloping, leasing and managing office and industrial properties. As of June 30, 2004, we owned 206 office properties, 24 industrial facilities and one mixed-use property containing an aggregate of approximately 15.6 million net rentable square feet (excluding two office properties held by two consolidated real estate ventures). In addition, as of June 30, 2004, we held economic interests in nine unconsolidated real estate ventures that we formed with third parties to develop or own commercial properties. As of June 30, 2004, we had an aggregate investment in these real estate ventures of approximately $13.6 million (net of returns of investment received by us), excluding $2.4 million invested in two of the real estate ventures that were consolidated as of June 30, 2004. We also owned approximately 410 acres of undeveloped land and held options to purchase approximately 61 additional acres. Our properties are located in the office and industrial markets in and surrounding Philadelphia, Pennsylvania, New Jersey and Richmond, Virginia.
Brandywine was organized and commenced operations in 1986 as a Maryland REIT. The Operating Partnership was formed and commenced operations in 1996 as a Delaware limited partnership. Brandywine owns its assets and conducts its operations through the Operating Partnership. Brandywine controls the Operating Partnership as its sole general partner and, as of June 30, 2004, Brandywine owned an approximately 96.4% interest in the Operating Partnership.
Our executive offices are located at 401 Plymouth Road, Suite 500, Plymouth Meeting, Pennsylvania 19462 and our telephone number is (610) 325-5600. We have an internet website at www.brandywinerealty.com. We are not incorporating by reference in this prospectus any material from our website. The reference to our website is an inactive textual reference to the uniform resource locator (URL) and is for your reference only.
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USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, Brandywine Realty Trust will contribute or otherwise transfer the net proceeds of any sale of any of its securities to the Operating Partnership in exchange for additional partnership interests in the Operating Partnership, the economic terms of which will be substantially identical to those of the securities sold. Unless otherwise indicated in the applicable prospectus supplement, the Operating Partnership will use those net proceeds and any net proceeds from the sale of any of its debt securities for general business purposes, including, without limitation, repayment of outstanding debt and the acquisition or development of office and industrial properties.
RATIOS
OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND
PREFERRED SHARE DISTRIBUTIONS
The following table sets forth the Operating Partnerships ratios of earnings to fixed charges for the periods indicated.
For the six | |||||||||||||
months | For the years | ||||||||||||
ended | ended December 31, | ||||||||||||
June 30, | |||||||||||||
2004 | 2003 | 2002 | 2001 | 2000 | 1999 | ||||||||
Ratio of
earnings to fixed charges |
2.17 |
2.34 |
1.78 |
1.30 |
1.48 |
1.38 |
For the purpose of calculating the ratios of earnings to fixed charges, earnings have been calculated by adding fixed charges to income from continuing operations of the Operating Partnership, less capitalized interest and income from unconsolidated equity method investments not distributed. Fixed charges consist of interest costs, whether expensed or capitalized, amortization of deferred financing costs, amortization of discounts or premiums related to indebtedness and the Operating Partnerships share of interest expense from unconsolidated equity method investments.
The following table sets forth Brandywines ratios of earnings to combined fixed charges and preferred share distributions for the periods indicated.
For the six | |||||||||||||
months | For the years | ||||||||||||
ended | ended December 31, | ||||||||||||
June 30, | |||||||||||||
2004 | 2003 | 2002 | 2001 | 2000 | 1999 | ||||||||
Ratio of
earnings to combined fixed charges
and preferred share distributions |
1.80 |
1.79 |
1.40 |
1.04 |
1.19 |
1.20 |
For the purpose of calculating the ratios of earnings to combined fixed charges and preferred share distributions, earnings have been calculated by adding minority interest attributable to continuing operations and fixed charges to income from continuing operations of Brandywine, less capitalized interest, income from unconsolidated equity method investments not distributed and preferred distributions of consolidated subsidiaries. Fixed charges consist of interest costs, whether expensed or capitalized, amortization of deferred financing costs, amortization of discounts or premiums related to indebtedness, Brandywines share of interest expense from unconsolidated equity method investments and preferred distributions of consolidated subsidiaries. Preferred distributions includes income allocated to holders of Brandywines preferred shares.
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DESCRIPTION OF DEBT SECURITIES
The following summary sets forth the general terms and provisions of the indenture under which the debt securities will be issued by the Operating Partnership. The particular terms and provisions of the debt securities with respect to a specific offering of debt securities will be set forth in the applicable prospectus supplement. This summary of general terms and provisions of the indenture and the debt securities does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all provisions of the indenture and those debt securities.
The debt securities will be issued by the Operating Partnership under an indenture, as amended or supplemented from time to time, among the Operating Partnership, Brandywine, certain subsidiaries of the Operating Partnership, as guarantors, and a trustee. The form of indenture is filed as an exhibit to the registration statement of which this prospectus is a part and will be available for inspection at the corporate trust office of the trustee or as described under Where You Can Find More Information. The indenture will be qualified under, subject to, and governed by, the Trust Indenture Act of 1939, as amended.
All section references appearing herein are to sections of the indenture, and capitalized terms used but not defined herein will have the respective meanings set forth in the indenture.
General
The debt securities will be direct, unsecured obligations of the Operating Partnership. Except for any series of debt securities which is expressly subordinated to other indebtedness of the Operating Partnership, the debt securities will rank equally with all other unsecured and unsubordinated indebtedness of the Operating Partnership. Under the indenture, the debt securities may be issued without limit as to aggregate principal amount, in one or more series, as established from time to time pursuant to authority granted by a resolution of the Board of Trustees of Brandywine as sole general partner of the Operating Partnership or as established in one or more supplemental indentures to the indenture. All of the debt securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the holders of the debt securities of that series, for issuances of additional debt securities of that series (Section 301). All debt securities of a particular series shall be substantially identical except as to denomination, date of issuance, issue price and the date from which interest, if any, shall accrue.
All of the debt securities will be fully and unconditionally guaranteed as to payment of principal and premium, if any, and interest by Brandywine and substantially all of the subsidiaries of the Operating Partnership (collectively, the Subsidiary Guarantors and, together with Brandywine, the Guarantors) which on the date hereof guarantee our obligations under the Credit Agreement, dated as of May 24, 2004, among the Operating Partnership, Brandywine, the lenders party thereto and JP Morgan Chase Bank, as administrative agent (which Credit Agreement, together with any successor credit agreement thereto (whether by renewal, replacement, refinancing or otherwise) that is the principal credit agreement of the Operating Partnership or Brandywine (taking into account the maximum principal amount available to be borrowed thereunder, the recourse nature of the agreement, and such other factors as Brandywine and the Operating Partnership deem reasonable in light of the circumstances) is hereinafter referred to as the Credit Agreement). In addition, the indenture provides that if, in the future, any of our other subsidiaries which is a significant subsidiary (as defined in Regulation S-X promulgated under the Securities Act) guarantees our obligations under the Credit Agreement, that subsidiary will be required to provide a full and unconditional guaranty as to payment of principal of and premium, if any, and interest on the debt securities not later than 180 days following the date on which that subsidiary becomes a guarantor under the Credit Agreement. If, for any reason, the obligations of a Subsidiary Guarantor terminate under the Credit Agreement (including, without limitation, upon agreement of the lenders thereunder or upon the replacement thereof with a credit facility not requiring such guarantees or upon such Subsidiary Guarantor ceasing to be a subsidiary of the Operating Partnership), that Subsidiary Guarantor will be deemed released from all of its obligations under the indenture and its guarantee will terminate (Sections 1401 and 1404).
The indenture provides that there may be more than one trustee for any one or more series of debt securities. Any trustee under the indenture may resign or be removed with respect to one or more series of debt securities, and a successor trustee may be appointed to act with respect to that series (Section 610). Except as otherwise indicated in this prospectus or the applicable prospectus supplement, any action to be taken by the trustee may be taken by each such trustee with respect to, and only with respect to, the one or more series of debt securities for which it is trustee under the indenture.
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Terms
The applicable prospectus supplement relating to the series of debt securities being offered will describe the specific terms and provisions of those debt securities, including the following:
(1) | the title of the debt securities; | ||
(2) | the aggregate principal amount of the debt securities and any limit on that aggregate principal amount; | ||
(3) | the percentage of the principal amount at which the debt securities will be issued and, if other than the principal amount thereof, the portion of the principal amount payable upon declaration of acceleration of the maturity thereof; | ||
(4) | the date or dates, or the manner of determining the date or dates, on which the principal of the debt securities will be payable; | ||
(5) | the rate or rates (which may be fixed or variable), or the method by which the rate or rates will be determined, at which the debt securities will bear interest, if any; | ||
(6) | the date or dates, or the method for determining the date or dates, from which any interest will accrue, the interest payment dates on which that interest will be payable, the regular record dates for interest payment dates, or the method by which those dates will be determined, the person to whom interest will be payable, and the basis upon which interest will be calculated if other than that of a 360-day year of twelve 30-day months; | ||
(7) | the place or places where the principal of and premium, if any, and interest, if any, on the debt securities will be payable and where notices or demands to or upon the Operating Partnership in respect of the debt securities and the indenture may be served; | ||
(8) | the period or periods within which, or the date or dates on which, the price or prices at which and the terms and conditions upon which the debt securities may be redeemed, as a whole or in part, at the option of the Operating Partnership, if the Operating Partnership is to have such an option; | ||
(9) | the obligation, if any, of the Operating Partnership to redeem, repay or repurchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of the holders, and the period or periods within which, or the date or dates on which, the price or prices at which and the terms and conditions upon which the debt securities are required to be redeemed, repaid or purchased, in whole or in part, pursuant to that obligation; | ||
(10) | if other than U.S. dollars, the currency or currencies in which the debt securities are denominated and/or payable, which may be a foreign currency or units of two or more foreign currencies or a composite currency or currencies, and the terms and conditions relating thereto; | ||
(11) | whether the amount of payments of principal of and premium, if any, or interest, if any, on the debt securities may be determined with reference to an index, formula or other method (which index, formula or method may, but need not, be based on a currency, currencies, currency unit or units or composite currency or currencies) and the manner in which those amounts will be determined; |
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(12) |
any additions to, modifications of or inapplicability of the terms of the debt securities with respect to the events of default or covenants or other provisions set forth in the indenture; | ||
(13) |
whether the debt securities will be issued in global or book-entry form or definitive certificated form, and whether the debt securities will be issued in bearer form; | ||
(14) |
if other than $5,000 and any integral multiple of $1,000 in excess thereof, the denominations in which the debt securities shall be issuable; | ||
(15) |
the applicability, if any, of the defeasance and covenant defeasance provisions of the indenture, or any modification thereof; | ||
(16) |
the extent and manner, if any, to which payments on the debt securities may be subordinated to other Indebtedness of the Operating Partnership; | ||
(17) |
whether and under what circumstances the Operating Partnership will pay additional amounts as contemplated in the indenture on the debt securities in respect of any tax, assessment or governmental charge and, if so, whether the Operating Partnership will have the option to redeem the debt securities in lieu of paying additional amounts; and | ||
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any other terms of the debt securities not inconsistent with the provisions of the indenture (Section 301). | ||
The debt securities may provide for less than the entire principal amount of those debt securities to be payable upon declaration of acceleration of the maturity thereof (original issue discount securities). The applicable prospectus supplement will describe special U.S. federal income tax, accounting and other considerations applicable to the original issue discount securities.
The indenture does not contain any provisions (other than as described under CovenantsLimitations on Incurrence of Indebtedness) that would limit the ability of the Operating Partnership to incur indebtedness or that would afford holders of debt securities protection in the event of a highly leveraged or similar transaction involving the Operating Partnership. However, restrictions on ownership and transfers of Brandywines common shares and preferred shares, designed to preserve Brandywines status as a REIT, may prevent or hinder a change of control. Reference is made to the applicable prospectus supplement for information with respect to any deletions from, modifications of or additions to the events of default or covenants of the Operating Partnership that are described below, including any addition of a covenant or other provision providing event risk or similar protection.
Guarantees
The Guarantors will, under the indenture, fully and unconditionally guarantee, jointly and severally, the due and punctual payment of principal of and premium, if any, and interest on all debt securities issued by the Operating Partnership, and the due and punctual payment of any sinking fund payments on those debt securities, when and as the same will become due and payable, whether at a maturity date, by declaration of acceleration, call for redemption or otherwise; provided that if for any reason, the obligations of a Subsidiary Guarantor terminate under the Credit Agreement (including, without limitation, upon agreement of the lenders thereunder or upon the replacement thereof with a credit facility not requiring such guarantees or upon that Subsidiary Guarantor ceasing to be a subsidiary of the Operating Partnership), that Subsidiary Guarantor will be deemed released from all its obligations under the indenture and its guarantee will terminate (Sections 1401 and 1404).
The obligations of each Subsidiary Guarantor under its guarantee will be limited as necessary to prevent that guarantee from constituting a fraudulent conveyance or fraudulent transfer under applicable law.
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Denominations
Unless otherwise specified in the applicable prospectus supplement, the debt securities of any series shall be issuable only in registered form without coupons and, other than securities in global form (which may be of any denomination), will be issuable in denominations of $5,000 and integral multiples of $1,000 in excess thereof (Section 302).
Payments
Unless otherwise specified in the applicable prospectus supplement, the principal of and premium, if any, and interest on any series of debt securities will be payable at the corporate trust office of the trustee. However, at the option of the Operating Partnership, payment of interest may be made by check mailed to the address of the person entitled thereto as it appears in the security register or by wire transfer of funds to that person at a bank account maintained within the United States (Sections 307 and 1002).
All amounts paid by the Operating Partnership to a paying agent or a trustee for the payment of the principal of or premium, if any, or interest on any debt security which remain unclaimed at the end of two years after the principal, premium or interest has become due and payable will be repaid to the Operating Partnership, and the holder of the debt security thereafter may look only to the Operating Partnership for payment of these amounts.
Any interest not punctually paid or duly provided for on any interest payment date with respect to a debt security will forthwith cease to be payable to the holder on the applicable regular record date and may either be paid to the person in whose name that debt security is registered at the close of business on a special record date for the payment of that defaulted interest to be fixed by the trustee or may be paid at any time in any other lawful manner, all in accordance with the indenture (Section 307). Notice of any special record date will be given to the holder of that debt security not less than 10 days prior to the special record date.
Registration and Transfer
Subject to certain limitations imposed upon debt securities issued in book-entry form, the debt securities of any series will be exchangeable for other debt securities of the same series, of a like aggregate principal amount and tenor, of different authorized denominations upon surrender of such debt securities at the corporate trust office of the trustee. In addition, subject to certain limitations imposed upon debt securities issued in book-entry form, the debt securities of any series may be surrendered for registration of transfer at the corporate trust office of the trustee.
Every debt security surrendered for registration of transfer or exchange will be duly endorsed or accompanied by a written instrument of transfer. No service charge will be made for any registration of transfer or exchange of any debt securities, but the Operating Partnership may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith (Section 305).
If the applicable prospectus supplement refers to any transfer agent (in addition to the trustee) initially designated by the Operating Partnership and the Guarantors with respect to any series of debt securities, the Operating Partnership may at any time rescind the designation of that transfer agent or approve a change in the location through which that transfer agent acts, except that the Operating Partnership and the Guarantors will be required to maintain a transfer agent in each place of payment for that series. The Operating Partnership and the Guarantors may at any time designate additional transfer agents with respect to any series of debt securities (Section 1002).
Neither the Operating Partnership nor the trustee will be required to:
(1) | issue, register the transfer of or exchange debt securities of any series during a period beginning at the opening of business 15 days before any selection of debt securities of that series to be redeemed and ending at the close of business of the day of mailing of the relevant notice of redemption; |
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(2) | register the transfer of or exchange any debt security, or portion thereof, called for redemption, except the unredeemed portion of any debt security being redeemed in part; or | |
(3) | issue, register the transfer of or exchange any debt security which has been surrendered for repayment at the option of the holder, except that portion, if any, of such debt security which is not to be so repaid (Section 305). |
Merger, Consolidation or Sale
The Operating Partnership may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into, any other entity, provided that the following conditions are satisfied or fulfilled:
(1) | either the Operating Partnership is the continuing entity, or the successor (if other than the Operating Partnership) formed by or resulting from any such consolidation or merger or which has received the transfer of those assets is organized under the laws of the United States of America and expressly assumes payment of the principal of and premium, if any, and interest on all of the debt securities and the due and punctual performance and observance of all of the covenants and conditions contained in the indenture, | |
(2) | immediately after giving effect to the transaction and taking into account any indebtedness which becomes an obligation of the Operating Partnership or any Subsidiary at the time of the transaction, no event of default under the indenture, and no event which, after notice or the lapse of time, or both, would become an event of default, has occurred and is continuing; and | |
(3) | an officers certificate of Brandywine as general partner of the Operating Partnership and a legal opinion covering these conditions is delivered to the trustee (Section 801). |
Brandywine may consolidate with, or sell, lease or convey all or substantially all its assets to, or merge with or into, any other entity, provided that substantially the same conditions as above are satisfied or fulfilled (Section 803).
Covenants
Limitations on Incurrence of Indebtedness
The Operating Partnership will not, and will not permit any of its Subsidiaries to, incur any Indebtedness, other than Intercompany Indebtedness, if, immediately after giving effect to the incurrence of that additional Indebtedness and the application of the proceeds thereof, the aggregate principal amount of all of its outstanding Indebtedness and that of its Subsidiaries on a consolidated basis is greater than 60% of the sum of (without duplication):
(1) | the Total Assets of the Operating Partnership and its Subsidiaries as of the end of the calendar quarter covered in its Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the SEC (or, if such filing is not permitted under the Exchange Act, with the trustee) prior to the incurrence of that additional Indebtedness; and | |
(2) | the purchase price of any assets included in the definition of Total Assets acquired, and the amount of any securities offering proceeds received (to the extent that the proceeds were not used to acquire assets included with Total Assets or used to reduce Indebtedness), by the Operating Partnership or any of its Subsidiaries since the end of that calendar quarter, including those proceeds obtained in connection with the incurrence of that additional Indebtedness. | |
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The Operating Partnership also will not, and will not permit any of its Subsidiaries to, incur any Indebtedness secured by any Encumbrance upon any of its properties or any of its Subsidiaries properties, whether owned at the date of the indenture or thereafter acquired, if, immediately after giving effect to the incurrence of that additional Indebtedness secured by an Encumbrance and the application of the proceeds thereof, the aggregate principal amount of its outstanding Indebtedness and that of its Subsidiaries on a consolidated basis which is secured by any Encumbrance on its properties or any of its Subsidiaries properties is greater than 40% of the sum of (without duplication):
(1) | the Total Assets of the Operating Partnership and its Subsidiaries as of the end of the calendar quarter covered in its Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the SEC (or, if such filing is not permitted under the Exchange Act, with the trustee) prior to the incurrence of that additional Indebtedness; and | |
(2) | the purchase price of any assets included in the definition of Total Assets acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire assets included in the definition of Total Assets or used to reduce Indebtedness), by the Operating Partnership or any of its Subsidiaries since the end of that calendar quarter, including those proceeds obtained in connection with the incurrence of that additional Indebtedness. |
In addition, the Operating Partnership will not, and will not permit any of its Subsidiaries to, incur any Indebtedness if the ratio of Consolidated Income Available for Debt Service to Annual Debt Service Charge for the four consecutive fiscal quarters most recently ended prior to the date on which that additional Indebtedness is to be incurred will be less than 1.5:1 on a pro forma basis after giving effect thereto and to the application of the proceeds therefrom, and calculated on the assumption that:
(1) | that Indebtedness and any other Indebtedness incurred by the Operating Partnership and its Subsidiaries since the first day of that four-quarter period and the application of the proceeds therefrom, including to refinance other Indebtedness, had occurred at the beginning of that four-quarter period; | |
(2) | the repayment or retirement of any other Indebtedness by the Operating Partnership and its Subsidiaries since the first day of that four-quarter period had been repaid or retired at the beginning of that four-quarter period (except that, for purposes of this computation, the amount of Indebtedness under any revolving credit facility will be computed based upon the average daily balance of that Indebtedness during that four-quarter period); | |
(3) | in the case of Acquired Indebtedness or Indebtedness incurred in connection with any acquisition since the first day of that four-quarter period, the acquisition had occurred as of the first day of that four-quarter period with the appropriate adjustments with respect to the acquisition being included in the pro forma calculation; and | |
(4) | in the case of any acquisition or disposition by the Operating Partnership or any of its Subsidiaries of any asset or group of assets since the first day of that four-quarter period, whether by merger, stock purchase or sale, or asset purchase or sale, the acquisition or disposition or any related repayment of Indebtedness had occurred as of the first day of that four-quarter period with the appropriate adjustments with respect to the acquisition or disposition being included in the pro forma calculation (Section 1006). |
Maintenance of Unencumbered Assets
The Operating Partnership and its Subsidiaries will at all times maintain Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of its Unsecured Indebtedness and that of its Subsidiaries on a consolidated basis (Section 1006).
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Provision of Financial Information
So long as any debt securities are outstanding and whether or not required by the SEC, Brandywine and the Operating Partnership will furnish to the trustee within 15 days of the time periods specified in the SECs rules and regulations:
(1) | all annual and quarterly financial information that would be required to be contained in filings with the SEC on Forms 10-K and 10-Q if Brandywine and the Operating Partnership were required to file those filings, including a Managements Discussion and Analysis of Financial Condition and Results of Operations and, with respect to the annual information only, a report on the annual financial statements by our certified independent accountants; and | |
(2) | all current reports that would be required to be filed with the SEC on Form 8-K if Brandywine and the Operating Partnership were required to file such reports. |
If Brandywine or the Operating Partnership is not subject to Sections 13 and 15(d) of the Exchange Act, Brandywine or the Operating Partnership, as the case may be, will (A) furnish to the holders of the debt securities, without cost to such holders, a copy of the information and reports referred to in clauses (1) and (2) above within 15 days of the time periods specified in the SECs rules and regulations, and (B) upon written request and payment of the reasonable cost of duplication and delivery, promptly supply to any prospective holder of the debt securities a copy of the information and reports referred to in clauses (1) and (2) above.
In addition, whether or not required by the SEC, Brandywine and the Operating Partnership will file a copy of the information and reports referred to in clauses (1) and (2) above with the SEC for public availability within the time periods specified in the SECs rules and regulations (unless the SEC will not accept such a filing) (Section 704).
Waiver of Certain Covenants
The Operating Partnership and the Guarantors may choose not to comply with any term, provision or condition of the preceding covenants, and with any other term, provision or condition with respect to the debt securities (except for any term, provision or condition which could not be amended without the consent of all holders of debt securities), if at any time the holders of at least a majority in principal amount of all the outstanding debt securities, by act of those holders, either waive compliance in that instance or generally waive compliance with that covenant. Except to the extent so expressly waived, and until any waiver becomes effective, the Operating Partnerships and the Guarantors obligations and the duties of the trustee in respect of any such term, provision or condition will remain in full force and effect (Section 1010).
Other Covenants
Existence
Except as permitted under Merger, Consolidation or Sale, each of the Operating Partnership and the Guarantors will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (declaration and statutory) and franchises; provided, however, that neither the Operating Partnership nor any Guarantor will be required to preserve any right or franchise if it determines that the preservation thereof is no longer desirable in the conduct of its business and that the loss of that right or franchise is not disadvantageous in any material respect to the holders of the debt securities (Section 1005).
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Maintenance of Properties
Each of the Operating Partnership and the Guarantors will cause all of its material properties used or useful in the conduct of its business or the business of any of its Subsidiaries to be maintained and kept in good condition, repair and working order, all as in the judgment of the Operating Partnership or the applicable Guarantor may be necessary so that the business carried on in connection with those properties may be properly and advantageously conducted at all times; provided, however, that neither the Operating Partnership nor any Guarantor nor any of their respective Subsidiaries will be prevented from selling or otherwise disposing of their properties for value in the ordinary course of business (Section 1007).
Insurance
Each of the Operating Partnership and the Guarantors will cause each of its and its Subsidiaries insurable properties to be insured in a commercially reasonable amount against loss of damage with insurers of recognized responsibility and, if described in the applicable prospectus supplement, in specified amounts and with insurers having a specified rating from a recognized insurance rating service (Section 1008).
Payment of Taxes and Other Claims
Each of the Operating Partnership and the Guarantors will pay or discharge or cause to be paid or discharged, before becoming delinquent:
(1) | all taxes, assessments and governmental charges levied or imposed upon it or any of its Subsidiaries or upon its income, profits or property or that of any of its Subsidiaries; and | |
(2) | all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon its property or the property of any of its Subsidiaries; |
provided, however, that neither the Operating Partnership nor any Guarantor will be required to pay or discharge or cause to be paid or discharged any tax, assessment, charge or claim whose amount or applicability is being contested in good faith (Section 1009).
Additional Covenants
The applicable prospectus supplement relating to the series of debt securities being offered will describe any additional covenants specific to that series.
Events of Default, Notice and Waiver
Unless otherwise provided in the applicable prospectus supplement, the indenture provides that the following events will be events of default with respect to any series of debt securities issued under the indenture:
(1) | default for 30 days in the payment of any interest on any debt security of that series; | |
(2) | default in the payment of any principal of or premium, if any, on any debt security of that series when due; | |
(3) | default in making any sinking fund payment as required for any debt security of that series; | |
(4) | default in the performance of any other covenant or warranty of the Operating Partnership and/or any of the Guarantors contained in the indenture with respect to any debt security of that series, which continues for 60 days after written notice as provided in the indenture; |
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(5) | default in the payment of an aggregate principal amount exceeding $25,000,000 of any evidence of Indebtedness of the Operating Partnership and/or any of the Guarantors or any mortgage, indenture, note, bond, capitalized lease or other instrument under which that Indebtedness is issued or by which that Indebtedness is secured, such default having continued after the expiration of any applicable grace period or having resulted in the acceleration of the maturity of that Indebtedness, but only if that Indebtedness is not discharged or such acceleration is not rescinded or annulled; | |
(6) | certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of the Operating Partnership, Brandywine, any Subsidiary Guarantor or any other Significant Subsidiary or any of their respective properties; | |
(7) | except as otherwise permitted in the indenture, any guarantee of the debt securities of any series is held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect, or Brandywine or any Subsidiary Guarantor that is a Significant Subsidiary shall deny or disaffirm its obligations under its guarantee with respect to the debt securities of the applicable series; and | |
(8) | any other event of default provided with respect to a particular series of debt securities (Section 501). |
If an event of default (other than as described in clause (6) above) with respect to debt securities of any series at the time outstanding occurs and is continuing, then in each case the trustee or the holders of not less than 25% in principal amount of the outstanding debt securities of that series may declare the principal (or, if the debt securities of that series are original issue discount securities or indexed securities, that portion of the principal amount as may be specified in the terms thereof) of and premium, if any, and accrued and unpaid interest on all of the debt securities of that series to be due and payable immediately by written notice thereof to the Operating Partnership and Brandywine (and to the trustee if given by the holders). If an event of default described in clause (6) above occurs and is continuing, the principal (or such portion thereof) of and premium, if any, and accrued and unpaid interest on all of the debt securities of that series will become and be immediately due and payable without any declaration or other act on the part of the trustee or any holders. However, at any time after any acceleration with respect to debt securities of that series, but before a judgment or decree for payment of the amounts due has been obtained by the trustee, the holders of not less then a majority in principal amount of outstanding debt securities of that series may rescind and annul that acceleration and its consequences if (1) the Operating Partnership or any Guarantor has paid or deposited with the trustee all required payments of the principal of and premium, if any, and interest on the debt securities of that series (without giving effect to the acceleration) plus certain fees, expenses, disbursements and, premium, if any, advances of the trustee and (2) all events of default, other than the nonpayment of accelerated principal, premium, if any, or interest with respect to debt securities of that series, have been cured or waived as provided in the indenture (Section 502). The indenture also provides that the holders of not less than a majority in principal amount of the outstanding debt securities of any series may waive any past default with respect to that series and its consequences, except a default (A) in the payment of the principal of or premium, if any, or interest on any debt security of that series or (B) in respect of a covenant or provision contained in the indenture that cannot be modified or amended without the consent of the holder of each outstanding debt security affected thereby (Section 513).
The trustee will be required to give notice to the holders of debt securities within 90 days of a default under the indenture; provided, however, that the trustee may withhold notice to the holders of any series of debt securities of any default with respect to that series (except a default in the payment of the principal of or premium, if any, or interest on any debt securities of that series or in the payment of any sinking fund installment in respect of any debt securities of that series) if the responsible officers of the trustee consider withholding of notice to be in the interest of the holders (Section 602).
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The indenture provides that no holders of debt securities of any series may institute any judicial or other proceedings with respect to the indenture or for any remedy thereunder, except in the case of failure of the trustee, for 60 days, to act after it has received a written request to institute proceedings in respect of an event of default from the holders of not less than 25% in principal amount of the outstanding debt securities of that series, as well as an offer of reasonable security or indemnity (Section 507). This provision will not prevent, however, any holder of debt securities from instituting suit for the enforcement of payment of the principal of and premium, if any, and interest on the debt securities at the respective due date or dates for payment (Section 508).
Subject to provisions in the indenture relating to its duties in case of default, the trustee is under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any holders of debt securities of any series then outstanding under the indenture, unless the holders offer to the trustee reasonable security or indemnity (Section 603). The holders of not less than a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or of exercising any trust or power conferred upon the trustee for that series. However, the trustee may refuse to follow any direction which is in conflict with any law or the indenture, which may involve the trustee in personal liability or which may be unduly prejudicial to the holders of debt securities of that series not joining in the proceeding (Section 512).
Within 120 days after the end of each fiscal year, the Operating Partnership and Brandywine must deliver to the trustee a certificate, signed by one of several specified officers of the general partner of the Operating Partnership and of Brandywine, stating whether or not such officers have knowledge of any default under the indenture and, if so, specifying each such default and the nature and status thereof (Section 1004).
Modification of the Indenture
Modifications and amendments of provisions of the indenture applicable to any series may be made only with consent of the holders of not less than a majority in principal amount of all outstanding debt securities which are affected by the modification or amendment; provided, however, that no such modification or amendment may, without the consent of the holder of each debt security affected thereby:
(1) | change the stated maturity of the principal of, or any installment of interest or premium, if any, on, that debt security; | |
(2) | reduce the principal amount of, or the rate or amount of interest on, or any premium payable on redemption of, that debt security, or reduce the amount of principal of an original issue discount security that would be due and payable upon declaration of acceleration of the maturity thereof or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of that debt security; | |
(3) | change the place of payment, or the coin or currency, for payment of principal of, premium, if any, or interest on that debt security; | |
(4) | impair the right to institute suit for the enforcement of any payment on or with respect to that debt security on or after the stated maturity thereof; | |
(5) | reduce the above-stated percentage of outstanding debt securities of any series necessary to modify or amend the indenture, to waive compliance with certain provisions thereof or specified defaults and consequences thereunder or to reduce the quorum or voting requirements set forth in the indenture; | |
(6) | modify or affect in any manner adverse to the holders the terms and conditions of the obligations of any of the Guarantors under the guarantees applicable to that debt security (other than releases of guarantees when a Subsidiary Guarantors guarantee under the Credit Agreement is terminated); or | |
(7) | modify any of the foregoing provisions or any of the provisions relating to the waiver of certain past defaults or certain covenants, except to increase the required percentage to effect that action or to provide that certain other provisions may not be modified or waived without the consent of the holder of that debt security (Section 902). |
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The holders of not less than a majority in principal amount of outstanding debt securities of a particular series have the right to waive compliance by the Operating Partnership and the Guarantors with certain covenants in the indenture relating to that series (Section 1010).
Modifications and amendments of the indenture may be made by the Operating Partnership, the Guarantors and the trustee without the consent of any holder of debt securities for any of the following purposes:
(1) | to evidence the succession of another person to the Operating Partnership as obligor, or to any of the Guarantors under the indenture; | |
(2) | to add to the covenants of the Operating Partnership or any of the Guarantors for the benefit of the holders of all or any series of debt securities or to surrender any right or power conferred upon the Operating Partnership or any of the Guarantors in the indenture; | |
(3) | to add events of default for the benefit of the holders of all or any series of debt securities; | |
(4) | to change or eliminate any provisions of the indenture, provided that the change or elimination will become effective only when there are no outstanding debt securities of any series created prior thereto which are entitled to the benefit of such provision; | |
(5) | to secure, or add additional guarantees with respect to, the debt securities; | |
(6) | to establish the form or terms of debt securities of any series; | |
(7) | to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trust under the indenture by more than one trustee; | |
(8) | to cure any ambiguity, defect or inconsistency in the indenture, provided that such action will not adversely affect the interests of holders of debt securities of any series in any material respect; or | |
(9) | to supplement any of the provisions of the indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of such debt securities, provided that such action will not adversely affect the interests of the holders of the debt securities of any series in any material respect (Section 901). |
The indenture provides that, in determining whether the holders of the requisite principal amount of outstanding debt securities of a series have given any request, demand, authorization, direction, notice, consent or waiver thereunder or whether a quorum is present at a meeting of holders of debt securities:
(1) | the principal amount of an original issue discount security that is deemed to be outstanding will be the amount of the principal thereof that would be due and payable as of the date of determination upon declaration of acceleration of the maturity of that debt security; | |
(2) | the principal amount of a debt security denominated in a foreign currency that is deemed outstanding will be the U.S. dollar equivalent, determined on the issue date for that debt security, of the principal amount (or, in the case of an original issue discount security, the U.S. dollar equivalent on the issue date of that debt security of the amount determined as provided in clause (1) above); |
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(3) | the principal amount of an indexed security that is deemed outstanding will be the principal face amount of that indexed security at original issuance, unless otherwise provided with respect to that indexed security pursuant to the indenture; and | |
(4) | debt securities owned by the Operating Partnership, any of the Guarantors or any other obligor upon the debt securities or any affiliate of the Operating Partnership, any of the Guarantors or of that other obligor will be disregarded (Section 101). |
The indenture contains provisions for convening meetings of the holders of debt securities of a series (Article Thirteen). A meeting may be called at any time by the trustee, and also, upon request, by the Operating Partnership or the holders of at least 10% in principal amount of the outstanding debt securities of that series, in each case upon notice given as provided in the indenture (Section 1302). Except for any consent that must be given by the holder of each debt security affected by certain modifications and amendments of the indenture, any resolution presented at a meeting or adjourned meeting duly reconvened at which a quorum is present may be adopted by the affirmative vote of the holders of a majority in principal amount of the outstanding debt securities of that series; provided, however, that, except as referred to above, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that may be made, given or taken by the holders of a specified percentage, which is less than a majority, in principal amount of the outstanding debt securities of a series may be adopted at a meeting or adjourned meeting duly reconvened at which a quorum is present by the affirmative vote of the holders of the debt securities of that series. Any resolution passed or decision taken at any meeting of holders of debt securities of any series duly held in accordance with the indenture will be binding on all holders of debt securities of that series. The quorum at any meeting called to adopt a resolution, and at any reconvened meeting, will be persons holding or representing a majority in principal amount of the outstanding debt securities of a series; provided, however, that if any action is to be taken at such meeting with respect to a consent or waiver which may be given by the holders of not less than a specified percentage in principal amount of the outstanding debt securities of a series, the persons holding or representing such specified percentage in principal amount of the outstanding debt securities of such series will constitute a quorum (Section 1304).
Notwithstanding the foregoing provisions, if any action is to be taken at a meeting of holders of debt securities of any series with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that the indenture expressly provides may be made, given or taken by the holders of a specified percentage in principal amount of all outstanding debt securities affected thereby, or of the holders of that series and one or more additional series:
(1) | there will be no minimum quorum requirement for the meeting; and | |
(2) | the principal amount of the outstanding debt securities of such series that vote in favor of the request, demand, authorization, direction, notice, consent, waiver or other action will be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under the indenture (Section 1304). |
Discharge; Legal Defeasance and Covenant Defeasance
Unless otherwise provided in the applicable prospectus supplement, the Operating Partnership and the Guarantors may discharge certain obligations to holders of any series of debt securities that have not already been delivered to the trustee for cancellation and that either have become due and payable or will become due and payable within one year (or are scheduled for redemption within one year) by irrevocably depositing with the trustee, in trust, funds in such currency or currencies, currency unit or units or composite currency or currencies in which such debt securities are payable in an amount sufficient to pay the entire indebtedness on such debt securities in respect of principal and premium, if any, and interest to the date of such deposit (if such debt securities have become due and payable) or to the stated maturity or redemption date, as the case may be (Section 404).
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In addition, the indenture provides that, unless otherwise provided in the applicable prospectus supplement, if the provisions of Article Four are made applicable to the debt securities of any series pursuant to the indenture, the Operating Partnership may elect either:
(1) | to defease and discharge itself and the Guarantors from any and all obligations with respect to those debt securities (except for the obligation to pay additional amounts, if any, upon the occurrence of certain events of tax, assessment or governmental charge with respect to payments on such debt securities and the obligations to register the transfer or exchange of such debt securities, to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or agency in respect of such debt securities and to hold moneys for payment in trust) (legal defeasance) (Section 402); or | |
(2) | to release itself and the Guarantors from their obligations with respect to those debt securities under Covenants, Other Covenants or their obligations with respect to any other covenant, and any omission to comply with such obligations will not constitute a default or an event of default with respect to those debt securities (covenant defeasance) (Section 403); |
in either case upon the irrevocable deposit by the Operating Partnership or the Guarantors with the trustee, in trust, of any amount, in such currency or currencies, currency unit or units or composite currency or currencies in which those debt securities are payable at stated maturity, or Government Obligations, or both, applicable to those debt securities which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal of and premium, if any, and interest on such debt securities, and any mandatory sinking fund or analogous payments thereon, on the scheduled due dates.
This trust may only be established if, among other conditions, the Operating Partnership has delivered to the trustee an opinion of counsel to the effect that the holders of the debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of legal defeasance or covenant defeasance, as the case may be, and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if legal defeasance or covenant defeasance, as the case may be, had not occurred, and the opinion of counsel, in the case of legal defeasance, must refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable U.S. federal income tax law occurring after the date of the indenture (Section 404).
In the event the Operating Partnership effects covenant defeasance with respect to the debt securities of any series and those debt securities are declared due and payable because of the occurrence of any event of default other than an event of default described in clause (4) under Events of Default, Notice and Waiver with respect to the covenants described under Covenants and Other Covenants (which would no longer be applicable to those debt securities) or described in clause (7) under Events of Default, Notice and Waiver with respect to any other covenant as to which there has been covenant defeasance, the amount in the currency, currency unit or composite currency in which those debt securities are payable, and Government Obligations on deposit with the trustee, will be sufficient to pay amounts due on those debt securities at the time of their stated maturity but may not be sufficient to pay amounts due on those debt securities at the time of the acceleration resulting from such event of default. However, the Operating Partnership and the Guarantors would remain liable to make payment of those amounts due at the time of acceleration.
The applicable prospectus supplement may further describe the provisions, if any, permitting legal defeasance or covenant defeasance, including any modifications to the provisions described above, with respect to the debt securities of a particular series.
Subordination
The terms and conditions, if any, upon which the debt securities of any series will subordinated to other indebtedness of the Operating Partnership, including the debt securities of other series, will be set forth in the applicable prospectus supplement. These terms will include a description of the indebtedness ranking senior to the debt securities of that series, the restrictions on payments to the holders of the debt securities of that series while a default with respect to the senior indebtedness is continuing, the restrictions, if any, on payments to the holders of the debt securities of that series following an event of default, and provisions requiring holders of the debt securities of that series to remit certain payments to holders of senior indebtedness.
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Book-Entry System and Global Securities
The debt securities of a series may be issued in whole or in part in the form of one or more securities in global form that will be deposited with, or on behalf of, a depository identified in the applicable prospectus supplement relating to that series. Global securities, if any, issued in the United States are expected to be deposited with The Depository Trust Company, or DTC, as depository. Unless otherwise indicated, global securities will be issued in fully registered form and in either temporary or permanent form. Unless the applicable prospectus supplement states otherwise, and until it is exchanged in whole or in part for the debt securities represented thereby, a global security may not be transferred except as a whole by the depository for that global security to a nominee of that depository or by a nominee of that depository to that depository or another nominee of such depository or by that depository or any nominee of that depository to a successor depository or any nominee of that successor.
The specific terms of the depository arrangement with respect to a series of debt securities will be described in the applicable prospectus supplement. We anticipate that, unless otherwise indicated in the applicable prospectus supplement, the following provisions will apply to depository arrangements.
The applicable prospectus supplement will state whether the global securities will be issued in certificated or book-entry form. If the global securities are to be issued in book-entry form, we expect that upon the issuance of a global security, the depository for the global security or its nominee will credit on its book-entry registration and transfer system the respective principal amounts of the individual debt securities represented by the global security to the accounts of persons that have accounts with such depository (participants). These accounts will be designated by the underwriters, dealers or agents with respect to the debt securities. Ownership of beneficial interests in a global security will be limited to participants or persons that may hold interests through participants.
We expect that, for the global securities deposited with DTC, pursuant to procedures established by DTC, ownership of beneficial interests in any global security with respect to which DTC is the depository will be shown on, and the transfer of that ownership will be effected only through, records maintained by DTC or its nominee (with respect to beneficial interests of participants) and records of participants (with respect to beneficial interests of persons who hold through participants). None of the Operating Partnership, the Guarantors, the trustee, any paying agent and the security registrar will have any responsibility or liability for any aspect of the records of DTC or for maintaining, supervising or reviewing any records of DTC or any of its participants relating to beneficial ownership interests in the debt securities. The laws of some states require that certain purchasers of securities take physical delivery of such securities in def initive form. These limits and laws may impair the ability to own, pledge or transfer beneficial interest in a global security.
Unless otherwise specified in the applicable prospectus supplement or the actual global security, so long as the depository for a global security or its nominee is the registered owner of the book-entry global security, the depository or that nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by that global security for all purposes under the applicable indenture. Except as described below or in the applicable prospectus supplement or the global security, owners of beneficial interest in a global security will not be entitled to have any of the individual debt securities represented by the global security registered in their names, will not receive or be entitled to receive delivery of debt securities in definitive certificated form and will not be considered the owners or holders thereof under the applicable indenture. Beneficial owners of debt securities evidenced by a global security w ill not be considered the owners or holders thereof under the indenture for any purpose, including with respect to the giving of any direction, instructions or approvals to the trustee thereunder. Accordingly, each person owning a beneficial interest in a global security with respect to which DTC is the depository must rely on the procedures of DTC and, if that person is not a participant, on the procedures of the participant through which that person owns its interests, to exercise any rights of a holder under the applicable indenture. We understand that, under existing industry practice, if we request any action of holders or if an owner of a beneficial interest in a global security desires to give or take any action which a holder is entitled to give or take under the applicable indenture, DTC would authorize the participants holding the relevant beneficial interest to give or take that action, and the participants would authorize beneficial owners through the participants to give or take that action or w ould otherwise act upon the instructions of beneficial owners holding through them.
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Payments of principal of and premium, if any, and interest on debt securities represented by a global security registered in the name of a depository or its nominee will be made to or at the direction of the depository or its nominee, as the case may be, as the registered owner of the global security under the indenture. Under the terms of the indenture, the Operating Partnership, the Guarantors, the trustee, any paying agent and the security registrar may treat the persons in whose name debt securities, including a global security, are registered as the owners thereof for the purpose of receiving such payments. Consequently, none of the Operating Partnership, the Guarantors, the trustee, any paying agent and the security registrar has or will have any responsibility or liability for the payment of those amounts to beneficial owners of debt securities (including principal, premium, if any, and interest). We believe, however, that it is currently the policy of DTC to immediately credit the accounts of relevant participants with payments, in amounts proportionate to their respective holdings of beneficial interests in the relevant global security as shown on the records of DTC or its nominee. Payments by participants to owners of beneficial interests in the global security held through participants will be governed by standing instructions and customary practices, as is the case with securities held for the account of customers in bearer form or registered in street name, and will be the responsibility of the participants. Redemption notices with respect to any debt securities represented by a global security will be sent to the depository or its nominee. If less than all of the debt securities of any series are to be redeemed, we expect the depository to determine the amount of the interest of each participant in the debt securities to be redeemed to be determined by lot. None of the Operating Partnership, the Guarantors, the trustee, any paying agent and the security registrar for the debt securities will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in the global security for the debt securities or for maintaining any records with respect thereto.
None of the Operating Partnership, the Guarantors, the trustee, any paying agent and the security registrar will be liable for any delay by the holders of a global security or the depository in identifying the beneficial owners of debt securities and the Operating Partnership, the Guarantors and the trustee may conclusively rely on, and will be protected in relying on, instructions from the holder of a global security or the depository for all purposes. The rules applicable to DTC and its participants are on file with the SEC.
If a depository for any debt securities is at any time unwilling, unable or ineligible to continue as depository and a successor depository is not appointed by the Operating Partnership within 90 days, the Operating Partnership will issue definitive certificated debt securities in exchange for the global security representing those debt securities. If an event of default has occurred and is continuing with respect to the debt securities of any series, the Operating Partnership will issue definitive certificated debt securities in exchange for the global security or securities representing the debt securities of such series. In addition, the Operating Partnership may at any time and in its sole discretion, subject to any limitations described in the applicable prospectus supplement or the global security relating to the debt securities, determine not to have any of the debt securities represented by one or more global securities and in such event will issue definitive certificated debt securities in exchange for the global security or securities representing the debt securities.
The debt securities of a series may also be issued in whole or in part in the form of one or more bearer global securities that will be deposited outside of the United States with a depository, or with a nominee for the depository, identified in the applicable prospectus supplement and/or global security. Any such bearer global securities may be issued in temporary or permanent form. The specific terms and procedures, including the specific terms of the depository arrangement, with respect to any portion of a series of debt securities to be represented by one or more bearer global securities will be described in the applicable prospectus supplement and/or global security.
Certain Definitions
The following are certain defined terms used in this prospectus and the indenture. We refer you to the indenture for the complete definition of all defined terms, as well as any other capitalized terms used in this prospectus or the applicable prospectus supplement for which no definition is provided (Section 101).
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For purposes of the following definitions and the indenture generally, all calculations and determinations will be made in accordance with generally accepted accounting principles and will be based upon the consolidated financial statements of the Operating Partnership and its Subsidiaries prepared in accordance with generally accepted accounting principles.
Acquired Indebtedness means Indebtedness of a person (1) existing at the time that person becomes a Subsidiary or (2) assumed in connection with the acquisition of assets from that person, in each case, other than Indebtedness incurred in connection with, or in contemplation of, that person becoming a Subsidiary or that acquisition. Acquired Indebtedness will be deemed to be incurred on the date of the related acquisition of assets from any person or the date on which the acquired person becomes a Subsidiary.
Annual Debt Service Charge means, for any period, the aggregate interest expense (including, without limitation, the interest component of rentals on capitalized leases and letter of credit fees, commitment fees and other similar financial charges) for that period in respect of, and the amortization during such period of any original issue discount of, the Operating Partnerships Indebtedness and that of its Subsidiaries.
Consolidated Income Available for Debt Service means, for any period, Earnings from Operations plus amounts which have been deducted, and minus amounts which have been added, for the following (without duplication):
(1) | Annual Debt Service Charge; | ||
(2) | provision for taxes based on income; | ||
(3) | provisions for gains and losses on properties and depreciation and amortization; | ||
(4) | increases in deferred taxes and other non-cash items; | ||
(5) | depreciation and amortization with respect to interests in joint venture and partially owned entity investments; | ||
(6) | the effect of any charge resulting from a change in accounting principles; and | ||
(7) | amortization of deferred charges. |
Earnings from Operations means, for any period, net income or loss of the Operating Partnership and its Subsidiaries, excluding:
(1) | provisions for gains and losses on sales of investments or joint ventures; | |
(2) | provisions for gains and losses on dispositions of discontinued operations; | |
(3) | extraordinary and non-recurring items; and | |
(4) | impairment charges and property valuation losses. |
as reflected in the consolidated financial statements of the Operating Partnership and its Subsidiaries for that period.
Encumbrance means any mortgage, lien, charge, pledge or security interest of any kind.
Government Obligations means securities which are:
(1) | direct obligations of the United States of America or the government which issued the foreign currency in which the debt securities of a particular series are payable; or | |
(2) | obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America, or the government which issued the foreign currency in which the debt securities of that series are payable, the payment of which is unconditionally guaranteed by the United States of America or that other government; |
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which in either case, are full faith and credit obligations of the United States of America or that other government, and are not callable or redeemable at the option of the issuer thereof, and will also include a depositary receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by that custodian for the account of the holder of a depositary receipt, provided that (except as required by law) the custodian is not authorized to make any deduction from the amount payable to the holder of that depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of the Government Obligation evidenced by such depositary receipt.
Indebtedness means, with respect to the Operating Partnership or any of its Subsidiaries (without duplication) any indebtedness of the Operating Partnership or any of its respective Subsidiaries:
(1) | in respect of borrowed money; | |
(2) | evidenced by bonds, notes, debentures or similar instruments; | |
(3) | secured by any mortgage, pledge, lien, charge, encumbrance or any security interest existing on property owned by the Operating Partnership or any of its Subsidiaries; | |
(4) | consisting of letters of credit or amounts representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable; or | |
(5) | consisting of capitalized leases; |
and also includes, to the extent not otherwise included, any obligation by the Operating Partnership or any of its Subsidiaries to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of business), indebtedness of another person (other than the Operating Partnership or its Subsidiaries), it being understood that indebtedness shall be deemed to be incurred by the Operating Partnership or any of its Subsidiaries whenever it or that Subsidiary creates, assumes, guarantees or otherwise becomes liable in respect thereof.
Intercompany Indebtedness means Indebtedness to which the only parties are the Operating Partnership, Brandywine and any Subsidiary (but only so long as such Indebtedness is held solely by any of the Operating Partnership, Brandywine and any Subsidiary) that is subordinate in right of payment to the debt securities.
Significant Subsidiary means each significant subsidiary (as defined in Regulation S-X promulgated under the Securities Act) of the Operating Partnership.
Subsidiary means, as to any person, (a) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time, any class or classes of stock of such corporation shall have or might have voting power by reason of the lapse of time or the happening of any contingency) is at the time owned by such person directly or indirectly through Subsidiaries, and (b) any partnership, association, joint venture, limited liability company, trust or other entity in which such person directly or indirectly through Subsidiaries has more than a 50% equity interest or 50% Capital Percentage at any time. For the purpose of this definition, Capital Percentage means, with respect to the interest of Brandywine, the Operating Partnerhsip or one of its Subsidiaries in any partnership, association, joint venture, limited liability company, trust or other entity, the percentage interest of such partnership, association, joint venture, limited liability company, trust or other entity based on the aggregate amount of net capital contributed by Brandywine, the Operating Partnership or such Subsidiary in such partnership, association, joint venture, limited liability company, trust or other entity at the time of determination relative to all capital contributions made in such partnership, association, joint venture, limited liability company, trust or other entity at such time of determination.
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Total Assets means, as of any date, the sum of:
(1) | the Undepreciated Real Estate Assets; and | |
(2) | all of the other assets of the Operating Partnership and its Subsidiaries determined in accordance with generally accepted accounting principles (but excluding accounts receivable and intangibles). |
Total Unencumbered Assets means the sum of:
(1) | those Undepreciated Real Estate Assets not subject to an Encumbrance for borrowed money; and | |
(2) | all of the other assets of the Operating Partnership and its Subsidiaries not subject to an Encumbrance for borrowed money, determined in accordance with generally accepted accounting principles (but excluding accounts receivable and intangibles). |
Undepreciated Real Estate Assets means, as of any date, the cost (original cost plus capital improvements) of the real estate assets of the Operating Partnership and its Subsidiaries on that date, before depreciation and amortization determined in accordance with generally accepted accounting principles.
Unsecured Indebtedness means Indebtedness which is not secured by any Encumbrance upon any of the properties of the Operating Partnership and its Subsidiaries.
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DESCRIPTION OF SHARES OF BENEFICIAL INTEREST
The following paragraphs summarize provisions of Brandywines shares of beneficial interest. This summary does not completely describe Brandywines shares of beneficial interest. For a complete description of Brandywines shares of beneficial interest, we refer you to Brandywines Declaration of Trust and Bylaws, each of which is incorporated by reference in this prospectus and any accompanying prospectus supplement.
General
Brandywines Declaration of Trust provides that it is authorized to issue up to 110,000,000 shares of beneficial interest, which we refer to in this prospectus collectively as shares, consisting of 100,000,000 common shares, par value $.01 per share, which we refer to in this prospectus as Brandywines common shares, and 10,000,000 preferred shares, par value $.01 per share, which we refer to in this prospectus as Brandywines preferred shares. Of the preferred shares, 750,000 have been designated as 7.25% Series A Cumulative Convertible Preferred Shares and are referred to in this prospectus as the Series A Preferred Shares, 2,000,000 preferred shares have been designated as 7.50% Series C Cumulative Redeemable Preferred Shares and are referred to in this prospectus as the Series C Preferred Shares, and an additional 2,760,000 preferred shares have been designated as 7.375% Series D Cumulative Redeemable Preferred Shares and are referred to in this prospectus as the Series D Preferred Shares. As of the date of this prospectus, 750,000 Series A Preferred Shares, 2,000,000 Series C Preferred Shares and 2,300,000 Series D Preferred Shares are issued and outstanding. Brandywines Declaration of Trust generally may be amended by its Board of Trustees, without shareholder approval, to increase or decrease the aggregate number of authorized shares of any class. The authorized common shares and undesignated preferred shares are generally available for future issuance without further action by our shareholders, unless such action is required by applicable law, the rules of any stock exchange or automated quotation system on which our securities may be listed or traded or pursuant to the preferential rights of the Series A Preferred Shares, the Series C Preferred Shares or the Series D Preferred Shares. Holders of Series A Preferred Shares, Series C Preferred Shares and Series D Preferred Shares have the right to approve certain additional issuances of preferred shares, such as shares that would rank senior to the Series A Preferred Shares, the Series C Preferred Shares or the Series D Preferred Shares as to distributions or upon liquidation.
Both Maryland statutory law governing real estate investment trusts organized under Maryland law (the Maryland REIT Law) and Brandywines Declaration of Trust provide that none of its shareholders will be personally liable, by reason of status as a shareholder, for any of its obligations. Brandywines Bylaws further provide that it will indemnify any shareholder or former shareholder against any claim or liability to which such shareholder may become subject by reason of being or having been a shareholder, and that Brandywine shall reimburse each shareholder who has been successful, on the merits or otherwise, in the defense of a proceeding to which the shareholder has been made a party by reason of status as such for all reasonable expenses incurred by the shareholder in connection with any such claim or liability.
Brandywines Declaration of Trust provides that, subject to the provisions of any class or series of preferred shares then outstanding and to the mandatory provisions of applicable law, its shareholders are entitled to vote only on the following matters:
• | election or removal of trustees; | |
• | amendment of the Declaration of Trust (other than an amendment to increase or decrease the aggregate number of authorized shares of any class); | |
• | a determination by the Trust to invest in commodities contracts (other than interest rate futures intended to hedge us against interest rate risk), engage in securities trading (as compared to investment) activities or hold properties primarily for sale to customers in the ordinary course of business; and | |
• | Brandywines merger with another entity. |
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Except with respect to these matters, no action taken by Brandywines shareholders at any meeting shall in any way bind the Board of Trustees.
Shares
Common Shares of Beneficial Interest
Each outstanding common share entitles the holder to one vote on all matters submitted to a vote of shareholders, including the election of trustees. There is no cumulative voting in the election of trustees. The common shareholders vote as single class. In the future, Brandywine may issue a series of preferred shares that votes together with the common shares as a single class. Holders of Brandywines outstanding preferred shares have voting rights only under limited circumstances and, in such circumstances, vote in a class separate from the common shareholders. See Preferred Shares of Beneficial Interest, below. Subject to (1) the preferential rights of the Series A Preferred Shares, the Series C Preferred Shares and the Series D Preferred Shares and (2) such preferential rights as may be granted by the Board of Trustees in future issuances of additional series of preferred shares, holders o f common shares are entitled to such distributions as may be authorized and declared from time to time by the Board of Trustees out of funds legally available therefor.
Holders of common shares have no conversion, exchange or redemption rights or preemptive rights to subscribe to any of our securities. All outstanding common shares are fully paid and nonassessable. In the event of any liquidation, dissolution or winding-up of our affairs, subject to (1) the preferential rights of the Series A Preferred Shares, the Series C Preferred Shares and the Series D Preferred Shares and (2) such preferential rights as may be granted by the Board of Trustees in future issuances of additional series of preferred shares, holders of common shares will be entitled to share ratably in any of Brandywines assets remaining after provision for payment of liabilities to creditors. All common shares have equal dividend, distribution, liquidation and other rights.
Brandywines common shares are listed on the New York Stock Exchange under the symbol BDN. The transfer agent and registrar for the common shares is currently EquiServe Trust Company, N.A.
Preferred Shares of Beneficial Interest
Brandywines Declaration of Trust authorizes it to issue up to 10,000,000 preferred shares, par value $0.01 per share. The Declaration of Trust generally may be amended by the Board of Trustees, without shareholder approval, to increase or decrease the aggregate number of authorized shares of any class. As of June 30, 2004, the following preferred shares were outstanding:
• | 750,000 Series A Preferred Shares; | |
• | 2,000,000 Series C Preferred Shares; and | |
• | 2,300,000 Series D Preferred Shares. |
The holders of the Series A Preferred Shares, Series C Preferred Shares and Series D Preferred Shares do not have voting rights, except (1) with respect to actions which would have a material adverse effect on holders of such shares, or (2) in the event that Brandywine fails to pay quarterly distributions for six or more quarters to the holders of Series A Preferred Shares, Series C Preferred Shares or Series D Preferred Shares. If the conditions specified in clause (2) exist, then those holders will have the right, voting together as a single class with any other series of Brandywines preferred shares ranking on a parity with the Series A Preferred Shares, Series C Preferred Shares and Series D Preferred Shares and upon which like voting rights have been conferred, to elect two additional members to Brandywines Board of Trustees.
If Brandywine issues preferred shares, the shares will be fully paid and non-assessable. Prior to the issuance of a new series of preferred shares, Brandywine will file, with the State Department of Assessments and Taxation of Maryland, Articles Supplementary that will become part of Brandywines Declaration of Trust and that will set forth the terms of the new series. The prospectus supplement relating to any preferred shares offered thereby will describe the specific terms of the preferred shares, including:
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• | the title and stated value; | |
• | the number of shares offered, liquidation preference and offering price; | |
• | the distribution rate, distribution periods and payment dates; | |
• | the date on which distributions begin to accrue, and, if applicable, accumulate; | |
• | any auction and remarketing procedures; | |
• | any retirement or sinking fund requirement; | |
• | the terms and conditions of any redemption right; | |
• | the terms and conditions of any conversion or exchange right; | |
• | any listing of the offered shares on any securities exchange; | |
• | whether interests in the offered shares will be represented by depositary shares; | |
• | any voting rights; | |
• | the relative ranking and preferences of the preferred shares as to distributions, liquidation, dissolution or winding up; | |
• | any limitations on issuances of any other series of preferred shares ranking senior to or on a parity with the series of preferred shares as to distributions, liquidation, dissolution or winding up; | |
• | any limitations on direct or beneficial ownership and restrictions on transfer; and | |
• | any other specific terms, preferences, rights, limitations or restrictions. |
Restrictions on Transfer
In order for Brandywine to qualify as a REIT under the Internal Revenue Code of 1986, as amended (the Code), not more than 50% in value of its outstanding shares may be owned, directly or indirectly, by five or fewer individuals (defined in the Code to include certain entities such as qualified pension plans) during the last half of a taxable year and shares must be beneficially owned by 100 or more persons during at least 335 days of a taxable year of twelve months (or during a proportionate part of a shorter taxable year).
Because Brandywines Board of Trustees believes it is at present important for it to continue to qualify as a REIT, the Declaration of Trust, subject to certain exceptions, contains provisions that restrict the number of shares that a person may own and that are designed to safeguard Brandywine against an inadvertent loss of REIT status. In order to prevent any shareholder from owning shares in an amount that would cause more than 50% in value of the outstanding shares to be held by five or fewer individuals, the Board of Trustees, pursuant to authority granted in Brandywines Declaration of Trust, has passed a resolution that, subject to certain exceptions, provides that no person may own, or be deemed to own by virtue of the attribution provisions of the Code, more than 9.8% in value of the outstanding shares. This limitation is referred to in this prospectus as the ownership limit. Brandywines Board of Trustees, subject to limitations, retains the authority to effect additional increases to, or establish exemptions from, the ownership limit. The Board of Trustees, pursuant to authority granted in the Declaration of Trust, has passed resolutions that exempt the initial holders of the Series A Preferred Shares and Series C Preferred Shares and Cohen & Steers Capital Management, Inc. and related persons from the ownership limit, on the condition that, and for so long as, such holders comply with certain representations, warranties and agreements intended to ensure that no direct or indirect owner of any of such holders owns more than 9.8% in value of the outstanding shares.
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In addition, pursuant to Brandywines Declaration of Trust, no purported transfer of shares may be given effect if it would result in ownership of all of the outstanding shares by fewer than 100 persons (determined without any reference to the rules of attribution) or result in Brandywine being closely held within the meaning of Section 856(h) of the Code. These restrictions are referred to in this prospectus as the ownership restrictions. In the event of a purported transfer or other event that would, if effective, result in the ownership of shares in violation of the ownership limit or the ownership restrictions, such transfer would be deemed void and such shares automatically would be exchanged for excess shares authorized by the Declaration of Trust, according to rules set forth in the Declaration of Trust, to the extent necessary to ensure that the purported transfer or other event does not result in the ownership of shares in violation of the ownership limit or the ownership restrictions.
Holders of excess shares are not entitled to voting rights (except to the extent required by law), dividends or distributions. If, after the purported transfer or other event resulting in an exchange of shares for excess shares and prior to the discovery by Brandywine of such exchange, dividends or distributions are paid with respect to shares that were exchanged for excess shares, then such dividends or distributions would be repayable to Brandywine upon demand. While outstanding, excess shares would be held in trust by Brandywine for the benefit of the ultimate transferee of an interest in such trust, as described below. While excess shares are held in trust, an interest in that trust may be transferred by the purported transferee or other purported holder with respect to such excess shares only to a person whose ownership of the shares would not violate the ownership limit or the ownership restrictions, at which time the excess shares would be exchanged automatically for shares of the same type and class as the shares for which the excess shares were originally exchanged. Brandywines Declaration of Trust contains provisions that are designed to ensure that the purported transferee or other purported holder of the excess shares may not receive in return for such a transfer an amount that reflects any appreciation in the shares for which such excess shares were exchanged during the period that such excess shares were outstanding. Any amount received by a purported transferee or other purported holder in excess of the amount permitted to be received would be required to be turned over to Brandywine.
Brandywines Declaration of Trust also provides that excess shares shall be deemed to have been offered for sale to Brandywine, or its designee, which shall have the right to accept such offer for a period of 90 days after the later of: (1) the date of the purported transfer or event which resulted in an exchange of shares for such excess shares; and (2) the date the Board of Trustees determines that a purported transfer or other event resulting in an exchange of shares for such excess shares has occurred if Brandywine does not receive notice of any such transfer. The price at which Brandywine may purchase such excess shares would be equal to the lesser of: (1) in the case of excess shares resulting from a purported transfer for value, the price per share in the purported transfer that caused the automatic exchange for such excess shares or, in the case of excess shares resulting from some other event, the market price of such shares on the date of the automatic exchange for excess shares; or (2) the market price of such shares on the date that Brandywine accepts the excess shares. Any dividend or distribution paid to a proposed transferee on excess shares prior to the discovery by Brandywine that such shares have been transferred in violation of the provisions of the Declaration of Trust shall be repaid to Brandywine upon its demand. If the foregoing restrictions are determined to be void or invalid by virtue of any legal decision, statute, rule or regulation, then the intended transferee or holder of any excess shares may be deemed, at Brandywines option, to have acted as Brandywines agent and on Brandywines behalf in acquiring or holding such excess shares and to hold such excess shares on Brandywines behalf.
Brandywines trustees may waive the ownership restrictions if evidence satisfactory to the trustees and its tax counsel or tax accountants is presented showing that such waiver will not jeopardize Brandywines status as a REIT under the Code. As a condition of such waiver, Brandywines trustees may require that an intended transferee give written notice to us, furnish such undertakings, agreements and information as may be required by our trustees and/or an undertaking from the applicant with respect to preserving Brandywines status. Any transfer of shares or any security convertible into shares that would create a direct or indirect ownership of shares in excess of the ownership limit or result in the violation of the ownership restrictions will be void with respect to the intended transferee and will result in excess shares as described above.
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Neither the ownership restrictions nor the ownership limit will be removed automatically even if the REIT provisions of the Code are changed so as no longer to contain any ownership concentration limitation or if the ownership concentration limitation is increased. Except as described above, any change in the ownership restrictions would require an amendment to Brandywines Declaration of the Trust. Amendments to Brandywines Declaration of Trust generally require the affirmative vote of holders owning not less than a majority of the outstanding shares entitled to vote thereon. In addition to preserving Brandywines status as a REIT, the ownership restrictions and the ownership limit may have the effect of precluding an acquisition of control of Brandywine without the approval of its Board of Trustees.
All persons who own, directly or by virtue of the applicable attribution provisions of the Code, more than 4.0% of the value of any class of outstanding shares, must file an affidavit with Brandywine containing the information specified in the Declaration of Trust by January 31 of each year. In addition, each shareholder shall upon demand be required to disclose to Brandywine in writing such information with respect to the direct, indirect and constructive ownership of shares as Brandywines trustees deem necessary to comply with the provisions of the Code applicable to REITs, to comply with the requirements of any taxing authority or governmental agency or to determine any such compliance.
The ownership limit could have the effect of delaying, deferring or preventing a transaction or a change in control of Brandywine that might involve a premium price for the common shares or otherwise be in the best interest of Brandywines shareholders.
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DESCRIPTION OF DEPOSITARY SHARES
General
Brandywine may issue receipts (which we refer to in this prospectus as depositary receipts) for the depositary shares (which we refer to in this prospectus as depository shares), each of which will represent a fractional interest of a share of a particular series of preferred shares, as specified in the applicable prospectus supplement. Brandywine will deposit preferred shares of each series represented by depository shares under a separate deposit agreement among Brandywine, the preferred share depositary and the holders from time to time of the depositary receipts. Subject to the terms of the deposit agreement, each owner of a depositary receipt will be entitled, in proportion to the fractional interest of a share of a particular series of preferred shares represented by the depositary shares evidenced by such depositary receipt, to all the rights and preferences of the preferred shares repr esented by such depositary shares (including distribution, voting, conversion, redemption and liquidation rights).
The depositary shares will be evidenced by depositary receipts issued pursuant to the applicable deposit agreement. Immediately following Brandywines issuance and delivery of the preferred shares to the preferred share depositary, Brandywine will cause the preferred share depositary to issue, on Brandywines behalf, the depositary receipts. Copies of the applicable form of deposit agreement and depositary receipt may be obtained from Brandywine upon request, and the following summary of the form thereof filed as an exhibit to the registration statement of which this prospectus is a part is qualified in its entirety by reference to these documents.
Distributions
The preferred share depositary will distribute all cash distributions received in respect of the preferred shares to the record holders of depositary receipts evidencing the related depositary shares in proportion to the number of such depositary receipts owned by such holders, subject to certain obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the preferred share depositary.
In the event of a distribution other than in cash, the preferred share depositary will distribute property received by it to the record holders of depositary receipts entitled to such distributions, subject to certain obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the preferred share depositary, unless the preferred share depositary determines that it is not feasible to make such distribution, in which case the preferred share depositary may, with our approval, sell such property and distribute the net proceeds from such sale to such holders.
No distribution will be made in respect of any depositary share to the extent that it represents any preferred shares converted into excess shares.
Withdrawal of Shares
Upon surrender of the depositary receipts at the corporate trust office of the preferred share depositary (unless the related depositary shares have previously been called for redemption or converted into excess shares), the holders of the depositary receipts will be entitled to delivery at such office, to or upon such holders order, of the number of whole or fractional preferred shares and any money or other property represented by the depositary shares evidenced by such depositary receipts. Holders of depositary receipts will be entitled to receive whole or fractional shares of the related preferred shares on the basis of the proportion of the preferred shares represented by each depositary share as specified in the applicable prospectus supplement, but holders of such preferred shares will not thereafter be entitled to receive depositary shares therefor. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the number of preferred shares to be withdrawn, the preferred share depositary will deliver to such holder at the same time a new depositary receipt evidencing such excess number of depositary shares.
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Redemption of Depositary Shares
Whenever Brandywine redeems preferred shares held by the preferred share depositary, the preferred share depositary will redeem as of the same redemption date the number of depositary shares representing the preferred shares so redeemed, provided Brandywine has paid in full to the preferred share depositary the redemption price of the preferred shares to be redeemed plus an amount equal to any accrued and unpaid distributions thereon to the date fixed for redemption. The redemption price per depositary share will be equal to the redemption price and any other amounts per share payable with respect to the preferred shares. If fewer than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected pro rata (as nearly as may be practicable without creating fractional depositary shares) or by any other equitable method determined by us that will not result in the issuance of any excess shares.
From and after the date fixed for redemption, all distributions in respect of the preferred shares so called for redemption will cease to accrue, the depositary shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the depositary receipts evidencing the depositary shares so called for redemption will cease, except the right to receive any monies payable upon such redemption and any money or other property to which the holders of such depositary receipts were entitled upon such redemption upon surrender thereof to the preferred share depositary.
Voting of the Preferred Shares
Upon receipt of notice of any meeting at which the holders of the preferred shares are entitled to vote, the preferred share depositary will mail the information contained in such notice of meeting to the record holders of the depositary receipts evidencing the depositary shares which represent such preferred shares. Each record holder of depositary receipts evidencing depositary shares on the record date (which will be the same date as the record date for the preferred shares) will be entitled to instruct the preferred share depositary as to the exercise of the voting rights pertaining to the amount of preferred shares represented by such holders depositary shares. The preferred share depositary will vote the amount of preferred shares represented by such depositary shares in accordance with such instructions, and we will agree to take all reasonable actions that may be deemed necessary by the preferred share depositary in order to enable the preferred share depositary to do so. The preferred share depositary will abstain from voting the amount of preferred shares represented by such depositary shares to the extent it does not receive specific instructions from the holders of depositary receipts evidencing such depositary shares. The preferred share depositary will not be responsible for any failure to carry out any instruction to vote, or for the manner or effect of any such vote made, as long as any such action or non-action is in good faith and does not result from negligence or willful misconduct of the preferred share depositary.
Liquidation Preference
In the event of our liquidation, dissolution or winding up, whether voluntary or involuntary, the holders of each depositary receipt will be entitled to the fraction of the liquidation preference, if any, accorded each preferred share represented by the depositary share evidenced by such depositary receipt, as set forth in the applicable prospectus supplement.
Conversion of Preferred Shares
The depositary shares, as such, are not convertible into common shares or any of our other securities or property, except in connection with certain conversions in connection with the preservation of Brandywines status as a REIT. Nevertheless, if so specified in the applicable prospectus supplement relating to an offering of depositary shares, the depositary receipts may be surrendered by holders thereof to the preferred share depositary with written instructions to the preferred share depositary to instruct Brandywine to cause conversion of the preferred shares represented by the depositary shares evidenced by such depositary receipts into whole common shares, other preferred shares (including excess shares) or other shares of beneficial interest. If the depositary shares evidenced by a depositary receipt are to be converted in part only, a new depositary receipt or receipts will be issued for any depositary shares not to be converted. No fractional common shares will be issued upon conversion, and if such conversion will result in a fractional share being issued, we will pay an amount in cash equal to the value of the fractional interest based upon the closing price of the common shares on the last business day prior to the conversion.
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Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares which represent the preferred shares and any provision of the deposit agreement may at any time be amended by agreement between us and the preferred share depositary. However, any amendment that materially and adversely alters the rights of the holders of depositary receipts or that would be materially and adversely inconsistent with the rights granted to the holders of the related preferred shares will not be effective unless such amendment has been approved by the existing holders of at least a majority of the depositary shares evidenced by the depositary receipts then outstanding. No amendment shall impair the right, subject to certain exceptions in the depositary agreement, of any holder of depositary receipts to surrender any depositary receipt with instructions to deliver to the holder the related preferred shares and all money and other property, if any, represented thereby, except in order to comply with law. Every holder of an outstanding depositary receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such depositary receipt, to consent and agree to such amendment and to be bound by the deposit agreement as amended thereby.
Unless otherwise provided in the applicable prospectus supplement, Brandywine may terminate the deposit agreement upon not less than 30 days prior written notice to the preferred share depositary if: (1) such termination is necessary to assist in maintaining Brandywines status as a REIT or (2) a majority of each series of preferred shares affected by such termination consents to such termination, whereupon the preferred share depositary shall deliver or make available to each holder of depositary receipts, upon surrender of the depositary receipts held by such holder, such number of whole or fractional preferred shares as are represented by the depositary shares evidenced by such depositary receipts together with any other property held by the preferred share depositary with respect to such depositary receipts. If the deposit agreement is terminated to assist in maintaining Brandywines status as a REIT, then, if the depositary shares are listed on a national securities exchange, Brandywine will use its best efforts to list the preferred shares issued upon surrender of the related depositary shares on a national securities exchange. In addition, the deposit agreement will automatically terminate if: (1) all outstanding depositary shares shall have been redeemed, (2) there shall have been a final distribution in respect of the related preferred shares in connection with Brandywines liquidation, dissolution or winding up and such distribution shall have been distributed to the holders of depositary receipts evidencing the depositary shares representing such preferred shares, or (3) each share of the related preferred shares shall have been converted into Brandywines shares of beneficial interest not so represented by depositary shares.
Charges of Preferred Share Depositary
Brandywine will pay all transfer and other taxes and governmental charges arising solely from the existence of the deposit agreement. In addition, Brandywine will generally pay the fees and expenses of the preferred share depositary in connection with the performance of its duties under the deposit agreement. However, holders of depositary receipts will pay certain other transfer and other taxes and governmental charges as well as the fees and expenses of the preferred share depositary for any duties requested by such holders to be performed which are outside of those expressly provided for in the deposit agreement.
Resignation and Removal of Depositary
The preferred share depositary may resign at any time by delivering to Brandywine notice of its election to do so, and Brandywine may at any time remove the preferred share depositary, any such resignation or removal to take effect upon the appointment of a successor preferred share depositary. A successor preferred share depositary must be appointed within 60 days after delivery of the notice of resignation or removal and, unless otherwise specified in the applicable prospectus supplement, must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000.
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Miscellaneous
The preferred share depositary will forward to holders of depositary receipts any reports and communications from us which are received by the preferred share depositary with respect to the related preferred shares.
Neither Brandywine nor the preferred share depositary will be liable if it is prevented from or delayed in, by law or any circumstances beyond its control, performing its obligations under the deposit agreement. Brandywines obligations and the preferred share depositarys obligations under the deposit agreement will be limited to performing its respective duties thereunder in good faith and without negligence (in the case of any action or inaction in the voting of preferred shares represented by the depositary shares), gross negligence or willful misconduct, and Brandywine and the preferred share depositary will not be obligated to prosecute or defend any legal proceeding in respect of any depositary receipts, depositary shares or preferred shares represented thereby unless satisfactory indemnity is furnished. Brandywine and the preferred share depositary may rely on written advice of counsel or accountants, or information provided by persons presenting preferred shares represented thereby for deposit, holders of depositary receipts or other persons believed in good faith to be competent to give such information, and on documents believed in good faith to be genuine and signed by a proper party.
In the event the preferred share depositary receives conflicting claims, requests or instructions from Brandywine and any holders of depositary receipts, the preferred share depositary will be entitled to act on such claims, requests or instructions received from Brandywine.
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DESCRIPTION OF WARRANTS
Brandywine may issue warrants to purchase preferred shares, depositary shares or common shares, which we refer to in this prospectus as warrants. Warrants may be issued independently or together with any securities and may be attached to or separate from such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a specified warrant agent. The warrant agent will act solely as Brandywines agent in connection with the warrants of such series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
The applicable prospectus supplement will describe the following terms, where applicable, of the warrants in respect of which this prospectus is being delivered:
• | the title of the warrants; | |
• | the aggregate number of outstanding warrants; | |
• | the price or prices at which the warrants will be issued; the price or prices at which the securities purchasable upon exercise of the warrants may be purchased; | |
• | the designation, amount and terms of the securities purchasable upon exercise of the warrants; | |
• | if applicable, the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable; | |
• | the date on which the right to exercise the warrants shall commence and the date on which such right shall expire; | |
• | the minimum or maximum amount of the warrants which may be exercised at any one time; | |
• | information with respect to book-entry procedures, if any; | |
• | a discussion of federal income tax considerations; and | |
• | any other material terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
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PROVISIONS
OF MARYLAND LAW AND OF
BRANDYWINES DECLARATION OF TRUST AND BYLAWS
The following paragraphs summarize provisions of Maryland law, Brandywines Declaration of Trust and its Bylaws. These paragraphs are a summary, and do not completely describe Maryland law, the Declaration of Trust or the Bylaws. For a complete description of each of the foregoing, we refer you to the Maryland statutes applicable to REITs, and Brandywines Declaration of Trust and Bylaws.
Duration
Under Brandywines Declaration of Trust, Brandywine has a perpetual term of existence and will continue perpetually subject to the authority of its Board of Trustees to terminate its existence and liquidate its assets and subject to termination pursuant to the Maryland REIT Law.
Board of Trustees
Brandywines Declaration of Trust provides that the number of its trustees shall not be less than three nor more than 15. Any vacancy, including a vacancy created by an increase in the number of trustees, may be filled by a majority of the trustees.
Brandywines trustees generally will each serve for a one-year term. In the event that Brandywine fails to pay quarterly distributions for six or more quarters to the holders of Series A Preferred Shares, Series C Preferred Shares and Series D Preferred Shares, those holders will have the right, voting together as a single class with any other series of Brandywines preferred shares ranking on a parity with the Series A Preferred Shares, Series C Preferred Shares and Series D Preferred Shares and upon which like voting rights have been conferred, to elect two additional members to the Board of Trustees. See Description of Shares of Beneficial Interest Preferred Shares of Beneficial Interest.
Brandywines Declaration of Trust generally provides that a trustee may be removed from office only at a meeting of shareholders. However, a trustee elected solely by holders of a series of preferred shares may be removed only by the affirmative vote of a majority of the preferred shares of that series voting as a single class.
Business Combinations
Under Maryland law, as applicable to Maryland real estate investment trusts, certain business combinations (including certain mergers, consolidations, share exchanges, or, in certain circumstances, asset transfers or issuances or reclassifications of equity securities) between a Maryland real estate investment trust and an interested shareholder or an affiliate of the interested shareholder are prohibited for five years after the most recent date on which the interested shareholder becomes an interested shareholder. An interested shareholder includes a person who beneficially owns, and an affiliate or associate (as defined under Maryland law) of the trust who, at any time during the two-year period prior to the date in question, was the beneficial owner of 10% or more of the voting power of the trusts then outstanding voting shares. Thereafter, any such business combination must be recommended by the trustees of such trust and approved by the affirmative vote of at least:
• | 80% of the votes entitled to be cast by holders of outstanding voting shares of beneficial interest of the trust, voting together as a single voting group; and | |
• | two-thirds of the votes entitled to be cast by holders of outstanding voting shares of beneficial interest other than shares held by the interested shareholder with whom or with whose affiliate the business combination is to be effected or by the interested shareholders affiliates or associates, voting together as a single voting group. |
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These super-majority voting requirements do not apply if the trusts common shareholders receive a minimum price (as defined under Maryland law) for their shares and the consideration is received in cash or in the same form as previously paid by the interested shareholder for its shares. These provisions also do not apply to business combinations that are approved or exempted by the Board of Trustees of the trust prior to the time that the interested shareholder becomes an interested shareholder. An amendment to a Maryland REITs declaration of trust electing not to be subject to the foregoing requirements must be approved by the affirmative vote of at least 80% of the votes entitled to be cast by holders of outstanding voting shares of beneficial interest of the trust, voting together as a single voting group, and two-thirds of the votes entitled to be cast by holders of outstanding voting shares of beneficial interest other than sha res of beneficial interest held by interested shareholders. Any such amendment shall not be effective until 18 months after the vote of shareholders and does not apply to any business combination of the trust with an interested shareholder that has such status on the date of the shareholder vote. Brandywines Board of Trustees has previously exempted any business combinations involving Safeguard Scientifics, Inc., Pennsylvania State Employees Retirement System, LF Strategic Realty Investors L.P., Morgan Stanley Asset Management Inc., Five Arrows Realty Securities III L.L.C. and Gerard H. Sweeney and their respective affiliates and associates from the business combination provisions summarized above and, consequently, the five-year prohibition and the super-majority vote requirements will not apply to business combinations between Brandywine and any of them.
The business combination statute could have the effect of delaying, deferring or preventing offers to acquire Brandywine and of increasing the difficulty of consummating any such transaction.
Control Share Acquisitions
Under Maryland law, as applicable to Maryland real estate investment trusts, control shares of a Maryland real estate investment trust acquired in a control share acquisition have no voting rights except to the extent approved by a vote of two-thirds of the votes entitled to be cast on the matter by shareholders, excluding shares owned by the Acquirer, by officers or by trustees who are employees of the trust in question. Control shares are voting shares of beneficial interest which, if aggregated with all other shares previously acquired by such Acquirer or in respect of which the Acquirer is able to exercise or direct the exercise of voting power (except solely by virtue of a revocable proxy), would entitle the Acquirer to exercise the voting power in the election of trustees within one of the following ranges of voting power:
• | one-tenth or more but less than one-third; | |
• | one-third or more but less than a majority; or | |
• | a majority or more of all voting power. |
Control shares do not include shares the acquiring person is then entitled to vote as a result of having previously obtained shareholder approval. A control share acquisition means the acquisition of control shares, subject to certain exceptions.
A person who has made or proposes to make a control share acquisition, upon satisfaction of certain conditions (including an undertaking to pay expenses), may compel Brandywines Board of Trustees to call a special meeting of shareholders to be held within 50 days of demand to consider the voting rights of the shares. If no request for a meeting is made, the trust may itself present the question at any shareholders meeting.
If voting rights are not approved at the meeting or if the acquiring person does not deliver an acquiring person statement as required by the statute, then, subject to certain conditions and limitations, the trust may redeem any or all of the control shares, except those for which voting rights have previously been approved, for fair value determined, without regard to the absence of voting rights for the control shares, as of the date of the last control share acquisition by the acquirer or of any meeting of shareholders at which the voting rights of such shares are considered and not approved. If voting rights for control shares are approved at a shareholders meeting and the acquirer becomes entitled to vote a majority of the shares entitled to vote, all other shareholders may exercise appraisal rights. The fair value of the shares as determined for purposes of such appraisal rights may not be less than the highest price per share paid by the acquirer in the control share acquisition, and certain limitations and restrictions otherwise applicable to the exercise of dissenters rights do not apply in the context of a control share acquisition.
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Brandywines Bylaws contain a provision exempting from the control share acquisition statute any and all acquisitions by any person of our shares. There can be no assurance that this provision will not be amended or eliminated at any time in the future.
Amendment to the Declaration of Trust
Brandywines Declaration of Trust may be amended only by the affirmative vote of the holders of not less than a majority of the shares then outstanding and entitled to vote thereon, except for the provisions of Brandywines Declaration of Trust relating to (1) increases or decreases in the aggregate number of shares of any class, which may generally be made by the Board of Trustees without shareholder approval subject to approval rights of holders of Series A Preferred Shares, Series C Preferred Shares and Series D Preferred Shares with respect to issuances of preferred shares that would rank senior as to distributions or in liquidation and (2) the Maryland General Corporation Law provisions on business combinations, amendment of which requires the affirmative vote of the holders of not less than 80% of the shares then outstanding and entitled to vote. In addition, if Brandywines Board of Trustees determines, with the advice of counsel, that any one or more of the provisions of its Declaration of Trust conflict with the Maryland REIT Law, the Code or other applicable Federal or state law(s), the conflicting provisions of Brandywines Declaration of Trust shall be deemed never to have constituted a part of its Declaration of Trust, even without any amendment thereof.
Termination of Brandywine Realty Trust and REIT Status
Subject to the rights of any outstanding preferred shares and to the provisions of the Maryland REIT Law, Brandywines Declaration of Trust permits its Board of Trustees to terminate Brandywines existence and to discontinue its election to be taxed as a REIT.
Transactions between Brandywine Realty Trust and its Trustee or Officers
Brandywines Declaration of Trust provides that any contract or transaction between it and one or more of its trustees, officers, employees or agents must be approved by a majority of Brandywines trustees who have no interest in the contract or transaction.
Limitation of Liability and Indemnification
The Maryland REIT Law permits a Maryland REIT to include in its Declaration of Trust a provision limiting the liability of its trustees and officers to the trust and its shareholders for money damages except for liability resulting from (1) actual receipt of an improper benefit or profit in money, property or services or (2) active and deliberate dishonesty established by a final judgment as being material to the cause of action. Brandywines Declaration of Trust contains a provision which eliminates such liability to the maximum extent permitted by the Maryland REIT Law.
The Maryland REIT Law permits a Maryland REIT to indemnify and advance expenses to its trustees and officers to the same extent as permitted for directors and officers of a Maryland corporation under the Maryland General Corporation Law. In the case of directors and officers of a Maryland corporation, the Maryland General Corporation Law permits a Maryland corporation to indemnify present and former directors and officers against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made a party by reason of such service, unless it is established that either: (1) the act or omission of the director or officer was material to the matter giving rise to the proceeding and either (a) was committed in bad faith or (b) was the result of active and deliberate dishonesty; (2) the director or officer actually received an improper personal benefit in money, proper ty or services; or (3) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.
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Brandywines Bylaws require Brandywine to indemnify, without a preliminary determination of the ultimate entitlement to indemnification: (1) any present or former trustee, officer or shareholder who has been successful, on the merits or otherwise, in the defense of a proceeding to which he was made a party by reason of such status, against reasonable expenses incurred by him in connection with the proceeding; (2) any present or former trustee or officer against any claim or liability to which he may become subject by reason of such status unless it is established that (a) his act or omission was committed in bad faith or was the result of active and deliberate dishonesty, (b) he actually received an improper personal benefit in money, property or services or (c) in the case of a criminal proceeding, he had reasonable cause to believe that his act or omission was unlawful; and (3) each shareholder or former shareholder against any claim or liability to which he may be subject by reason of such status as a shareholder or former shareholder.
In addition, Brandywines Bylaws require Brandywine to pay or reimburse, in advance of final disposition of a proceeding, reasonable expenses incurred by a present or former trustee, officer or shareholder made a party to a proceeding by reason of his status as a trustee, officer or shareholder provided that, in the case of a trustee or officer, Brandywine shall have received (1) a written affirmation by the trustee or officer of his good faith belief that he has met the applicable standard of conduct necessary for indemnification by Brandywine as authorized by the Bylaws and (2) a written undertaking by him or on his behalf to repay the amount paid or reimbursed by Brandywine if it shall ultimately be determined that the applicable standard of conduct was not met. The Bylaws also (1) permit Brandywine, with the approval of its trustees, to provide indemnification and payment or reimbursement of expenses to a present or former trustee, off icer or shareholder who served Brandywines predecessor in such capacity, and to any of Brandywines employees or agents of its predecessor, (2) provide that any indemnification or payment or reimbursement of the expenses permitted by its Bylaws shall be furnished in accordance with the procedures provided for indemnification and payment or reimbursement of expenses under Section 2-418 of the Maryland General Corporation Law for directors of Maryland corporations and (3) permit Brandywine to provide such other and further indemnification or payment or reimbursement of expenses as may be permitted by the Maryland General Corporation Law for directors of Maryland corporations.
The limited partnership agreement of the Operating Partnership also provides for indemnification by the Operating Partnership of Brandywine, as general partner, for any costs, expenses or liabilities incurred by it by reason of any act performed by it for or on behalf of the Operating Partnership; provided that such persons actions were taken in good faith and in the belief that such conduct was in the best interests of the Operating Partnership and that such person was not guilty of fraud, willful misconduct or gross negligence.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our trustees and officers pursuant to the foregoing provisions or otherwise, we have been advised that, although the validity and scope of the governing statute has not been tested in court, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In addition, state securities laws may limit indemnification.
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MATERIAL FEDERAL INCOME TAX CONSEQUENCES
The following discussion describes the material U.S. federal income tax consequences relating to the taxation of Brandywine Realty Trust as a REIT and the ownership and disposition of Brandywines common shares.
If Brandywine offers one or more series of preferred shares or debt securities under this prospectus, information about any income tax consequences to holders of those preferred shares or debt securities will be included in an applicable prospectus supplement.
Because this is a summary that is intended to address only material federal income tax consequences relating to the ownership and disposition of Brandywines common shares that will apply to all holders, this summary may not contain all the information that may be important to you. As you review this discussion, you should keep in mind that:
• | the tax consequences to you may vary depending on your particular tax situation; | |
• | special rules that are not discussed below may apply to you if, for example, you are a tax-exempt organization, a broker-dealer, a non-U.S. person, a trust, an estate, a regulated investment company, a financial institution, an insurance company, or otherwise subject to special tax treatment under the Code; | |
• | this summary does not address state, local or non-U.S. tax considerations (See Other Tax Consequences); | |
• | this summary deals only with our common shareholders that hold common shares as capital assets within the meaning of Section 1221 of the Code; and | |
• | this discussion is not intended to be, and should not be construed as, tax advice. |
You are urged both to review the following discussion and to consult with your own tax advisor to determine the effect of ownership and disposition of our common shares on your individual tax situation, including any state, local or non-U.S. tax consequences.
As used herein, a U.S. shareholder means a beneficial owner of our common shares that is for U.S. federal income tax purposes (1) a citizen or resident of the U.S., (2) a corporation or partnership created or organized in or under the laws of the U.S. or any political subdivision thereof, (3) an estate the income of which is subject to U.S. federal income taxation regardless of its source or (4) a trust if it (a) is subject to the primary supervision of a court within the U.S. and one or more U.S. persons have the authority to control all substantial decisions of the trust or (b) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person.
The information in this summary is based on the Code, current, temporary and proposed Treasury regulations, the legislative history of the Code, current administrative interpretations and practices of the Internal Revenue Service, including its practices and policies as endorsed in private letter rulings, which are not binding on the Internal Revenue Service, and existing court decisions. Future legislation, regulations, administrative interpretations and court decisions could change current law or adversely affect existing interpretations of current law. Any change could apply retroactively. We have not obtained any rulings from the Internal Revenue Service concerning the tax treatment of the matters discussed in this summary. Therefore, it is possible that the Internal Revenue Service could challenge the statements in this summary, which do not bind the Internal Revenue Service or the courts, and that a court could agree with the Internal Revenue Service.
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Taxation of Brandywine as a REIT
Brandywine first elected to be taxed as a REIT for the taxable year ended December 31, 1986, and has operated and expects to continue to operate in such a manner so as to remain qualified as a REIT for Federal income tax purposes. An entity that qualifies for taxation as a REIT and distributes to its shareholders an amount at least equal to 90% of its REIT taxable income (determined without regard to the deduction for dividends paid and by excluding any net capital gain) plus 90% of its income from foreclosure property (less the tax imposed on such income) is generally not subject to Federal corporate income taxes on net income that it currently distributes to shareholders. This treatment substantially eliminates the double taxation (at the corporate and shareholder levels) that generally results from investment in a corporation. However, we will be subject to Federal income tax as follows:
(1) | We will be taxed at regular corporate rates on any undistributed REIT taxable income, including undistributed net capital gains. | ||
(2) | Under certain circumstances, we may be subject to the alternative minimum tax on our items of tax preference, if any. | ||
(3) | If we have net income from prohibited transactions (which are, in general, certain sales or other dispositions of property, other than foreclosure property, held primarily for sale to customers in the ordinary course of business) such income will be subject to a 100% tax. See Sale of Partnership Property. | ||
(4) | If we should fail to satisfy the 75% gross income test or the 95% gross income test (as discussed below), and nonetheless have maintained our qualification as a REIT because certain other requirements have been met, we will be subject to a 100% tax on the net income attributable to the greater of the amount by which we fail the 75% or 95% test, multiplied by a fraction intended to reflect our profitability. | ||
(5) | If we should fail to distribute during each calendar year at least the sum of (1) 85% of our REIT ordinary income for such year, (2) 95% of our REIT capital gain net income for such year, and (3) any undistributed taxable income from prior years, we would be subject to a 4% excise tax on the excess of such required distribution over the amounts actually distributed. | ||
(6) | If we have (1) net income from the sale or other disposition of foreclosure property (which is, in general, property acquired by us by foreclosure or otherwise or default on a loan secured by the property) which is held primarily for sale to customers in the ordinary course of business or (2) other nonqualifying income from foreclosure property, we will be subject to tax on such income at the highest corporate rate. | ||
(7) | If we were to acquire any asset from a taxable C corporation in a carry-over basis transaction, we could be liable for specified tax liability inherited from that C corporation with respect to that corporations built-in gain in its assets. Built-in gain is the amount by which an assets fair market value exceeds its adjusted tax basis. We would not be subject to tax on the built in gain, however, if we do not dispose of the acquired property within the 10-year period following acquisition of such property. |
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Qualification of Brandywine as a REIT
The Code defines a REIT as a corporation, trust or association:
(1) | that is managed by one or more trustees or directors; | ||
(2) | the beneficial ownership of which is evidenced by transferable shares or by transferable certificates of beneficial interest; | ||
(3) | that would be taxable as a domestic corporation but for Sections 856 through 859 of the Code; | ||
(4) | that is neither a financial institution nor an insurance company subject to certain provisions of the Code; | ||
(5) | the beneficial ownership of which is held by 100 or more persons; | ||
(6) | during the last half of each taxable year not more than 50% in value of the outstanding shares of which is owned, directly or indirectly, by five or fewer individuals (as defined in the Code to include specified entities); | ||
(7) | that makes an election to be taxable as a REIT, or has made this election for a previous taxable year which has not been revoked or terminated, and satisfies all relevant filing and other administrative requirements established by the Internal Revenue Service that must be met to elect and maintain REIT status; | ||
(8) | that uses a calendar year for federal income tax purposes and complies with the record keeping requirements of the Code and the Treasury Regulations; and | ||
(9) | that meets other applicable tests, described below, regarding the nature of its income and assets and the amount of its distributions. |
Conditions (1) through (4) must be satisfied during the entire taxable year, and condition (5) must be satisfied during at least 335 days of a taxable year of 12 months, or during a proportionate part of a taxable year of less than 12 months. We have previously issued Common Shares in sufficient proportions to allow us to satisfy requirements (5) and (6) (the 100 Shareholder and five-or-fewer requirements). In addition, our Declaration of Trust provides restrictions regarding the transfer of our shares that are intended to assist us in continuing to satisfy the requirements described in conditions (5) and (6) above. See Description of Shares of Beneficial Interest Restrictions on Transfer. However, these restrictions may not ensure that we will, in all cases, be able to satisfy the requirements described in conditions (5) and (6) above. In addition, we have not obtained a ruling from the Internal Revenue Service as to whether the provisions of our Declaration of Trust concerning restrictions on transfer and conversion of Common Shares to Excess Shares will allow us to satisfy conditions (5) and (6). If we fail to satisfy such share ownership requirements, our status as a REIT will terminate.
To monitor compliance with condition (6) above, a REIT is required to send annual letters to its shareholders requesting information regarding the actual ownership of its shares. If we comply with the annual letters requirement and do not know or, exercising reasonable diligence, would not have known of our failure to meet condition (6) above, then we will be treated as having met condition (6) above.
Qualified REIT Subsidiaries
We currently have several wholly-owned subsidiaries which are qualified REIT subsidiaries and we may have additional wholly-owned qualified REIT subsidiaries in the future. The Code provides that a corporation that is a qualified REIT subsidiary shall not be treated as a separate corporation, and all assets, liabilities and items of income, deduction and credit of a qualified REIT subsidiary shall be treated as assets, liabilities and items of income, deduction and credit of the REIT. A qualified REIT subsidiary is a corporation, other than a taxable REIT subsidiary (discussed below), all of the capital stock of which is owned by the REIT and that has not elected to be a Taxable REIT Subsidiary. In applying the requirements described herein, all of our qualified REIT subsidiaries will be ignored, and all assets, liabilities and items of income, deduction and credit of such subsidiaries will be treated as our assets, liabilities and items of income, deduction and credit. These subsidiaries, therefore, will not be subject to federal corporate income taxation, although they may be subject to state and local taxation.
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Taxable REIT Subsidiaries
We currently have several taxable REIT subsidiaries, and may have additional taxable REIT subsidiaries in the future. A REIT may hold any direct or indirect interest in a corporation that qualifies as a taxable REIT subsidiary as long as the value of the REITs holdings of taxable REIT subsidiary securities do not exceed 20% of the value of the REITs total assets. To qualify as a taxable REIT subsidiary, the subsidiary and the REIT must make a joint election to treat the subsidiary as a taxable REIT subsidiary. A taxable REIT subsidiary also includes any corporation (other than a REIT or a qualified REIT subsidiary) in which a taxable REIT subsidiary directly or indirectly owns more than 35% of the total voting power or value. See Asset Tests below. A taxable REIT subsidiary will pay tax at regular corporate income rates on any taxable income it earns.
A taxable REIT subsidiary can perform tenant services without causing the REIT to receive impermissible tenant services income under the REIT income tests. However, several provisions regarding the arrangements between a REIT and its taxable REIT subsidiaries ensure that a taxable REIT subsidiary will be subject to an appropriate level of federal income taxation. For example, a taxable REIT subsidiary is limited in its ability to deduct interest payments made to a REIT. In addition, a REIT will be obligated to pay a 100% penalty tax on some payments that it receives or on certain expenses deducted by the taxable REIT subsidiary if the economic arrangements between the REIT, the REITs tenants and the taxable REIT subsidiary are not comparable to similar arrangements among unrelated parties.
Ownership of Partnership Interests by a REIT
A REIT that is a partner in a partnership is deemed to own its proportionate share of the assets of the partnership and is deemed to receive the income of the partnership attributable to such share. In addition, the character of the assets and gross income of the partnership retains the same character in the hands of the REIT. Accordingly, our proportionate share of the assets, liabilities and items of income of the Operating Partnership are treated as assets, liabilities and items of income of ours for purposes of applying the requirements described herein. Brandywine has control over the Operating Partnership and most of the partnership and limited liability company subsidiaries of the Operating Partnership and intends to operate them in a manner that is consistent with the requirements for qualification of Brandywine as a REIT.
Income Tests
In order to qualify as a REIT, Brandywine must generally satisfy two gross income requirements on an annual basis. First, at least 75% of our gross income (excluding gross income from prohibited transactions) for each taxable year must be derived directly or indirectly from investments relating to real property or mortgages on real property (including rents from real property and, in certain circumstances, interest) or from certain types of temporary investments. Second, at least 95% of our gross income (excluding gross income from prohibited transactions) for each taxable year must be derived from the same items which qualify under the 75% gross income test, and from dividends, interest and gain from the sale or disposition of securities.
Rents received by a REIT will qualify as rents from real property in satisfying the gross income requirements described above only if several conditions are met. First, the amount of rent must not be based in whole or in part on the income or profits of any person. However, an amount received or accrued generally will not be excluded from the term rents from real property solely by reason of being based on a fixed percentage or percentages of gross receipts or sales. Second, subject to certain limited exceptions, rents received from a tenant will not qualify as rents from real property in satisfying the gross income tests if the REIT, or a direct or indirect owner of 10% or more of the REIT, directly or constructively, owns 10% or more of such tenant (a Related Party Tenant). Third, if rent attributable to personal property, leased in connection with a lease of real property, is greater than 15% of the total rent received under the lease, then the portion of rent attributable to such personal property will not qualify as rents from real property. Finally, in order for rents received with respect to a property to qualify as rents from real property, the REIT generally must not operate or manage the property or furnish or render services to tenants, except through an independent contractor who is adequately compensated and from whom the REIT derives no income, or through a taxable REIT subsidiary. The independent contractor requirement, however, does not apply to the extent the services provided by the REIT are usually or customarily rendered in connection with the rental of space for occupancy only, and are not otherwise considered rendered to the occupant. In addition, a de minimis rule applies with respect to non-customary services. Specifically, if the value of the non-customary service income with respect to a property (valued at no less than 150% of the direct costs of performing such services) is 1% or less of the total income derived from the property, then all rental income except the non-customary service income will qualify as rents from real property. A taxable REIT subsidiary may provide services (including noncustomary services) to a REITs tenants without tainting any of the rental income received by the REIT, and will be able to manage or operate properties for third parties and generally engage in other activities unrelated to real estate.
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We do not anticipate receiving rent that is based in whole or in part on the income or profits of any person (except by reason of being based on a fixed percentage or percentages of gross receipts or sales consistent with the rules described above). We also do not anticipate receiving more than a de minimis amount of rents from any related party tenant or rents attributable to personal property leased in connection with real property that will exceed 15% of the total rents received with respect to such real property.
We provide services to our properties that we own through the Operating Partnership, and we believe that all of such services will be considered usually or customarily rendered in connection with the rental of space for occupancy only so that the provision of such services will not jeopardize the qualification of rent from the properties as rents from real property. In the case of any services that are not usual and customary under the foregoing rules, we will employ an independent contractor or a taxable REIT subsidiary to provide such services.
The Operating Partnership may receive certain types of income that will not qualify under the 75% or 95% gross income tests. In particular, dividends received from a taxable REIT subsidiary will not qualify under the 75% test. We believe, however, that the aggregate amount of such items and other non-qualifying income in any taxable year will not cause Brandywine to exceed the limits on non-qualifying income under either the 75% or 95% gross income tests.
If Brandywine fails to satisfy one or both of the 75% of 95% gross income tests for any taxable year, Brandywine may nevertheless qualify as a REIT for such year if it is entitled to relief under certain provisions of the Code. These relief provisions will be generally available if (1) the failure to meet such tests was due to reasonable cause and not due to willful neglect, (2) we have attached a schedule of the sources of our income to our return, and (3) any incorrect information on the schedule was not due to fraud with intent to evade tax. It is not possible, however, to state whether in all circumstances Brandywine would be entitled to the benefit of these relief provisions. As discussed above in Taxation of Brandywine as a REIT, even if these relief provisions apply, a tax would be imposed based on the excess net income.
Any gain realized by us on the sale of any property held as inventory or other property held primarily for sale to customers in the ordinary course of business, including Brandywines share of this type of gain realized by the Operating Partnership, will be treated as income from a prohibited transaction that is subject to a 100% penalty tax. Under existing law, whether property is held as inventory or primarily for sale to customers in the ordinary course of a trade or business is a question of fact that depends on all the facts and circumstances of a particular transaction. We intend to hold properties for investment with a view to long-term appreciation, to engage in the business of acquiring, developing, owning and operating properties, and to make occasional sales of properties as are consistent with our investment objectives. We cannot provide any assurance, however, that the Internal Revenue Service might not contend that one or more of these sales are subject to the 100% penalty tax.
Asset Tests
At the close of each quarter of each taxable year, Brandywine must satisfy the following tests relating to the nature of our assets:
First, at least 75% of the value of our total assets must be represented by cash or cash items (which generally include receivables), government securities, real estate assets (which generally include interests in real property, interests in mortgages on real property and shares of other REITs), or, in cases where we receive proceeds from shares of beneficial interest or publicly offered long-term (at least five-year) debt, temporary investments in stock or debt instruments during the one-year period following our receipt of such proceeds.
Second, of the investments not included in the 75% asset class, the value of any one issuers securities we own may not exceed 5% of the value of our total assets; and we may not own more than 10% of the vote or value of any one issuers outstanding securities, except for our interests in the Operating Partnership, noncorporate subsidiaries, taxable REIT subsidiaries and any qualified REIT subsidiaries, and except (with respect to the 10% value test) certain straight debt securities.
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Third, not more than 20% of the value of our assets may be represented by securities of one or more taxable REIT subsidiaries.
For purposes of the 75% asset test, the term interest in real property includes an interest in land and improvements thereon, such as buildings or other inherently permanent structures, including items that are structural components of such buildings or structures, a leasehold of real property, and an option to acquire real property, or a leasehold of real property.
For purposes of the asset tests, we are deemed to own our proportionate share of the assets of the Operating Partnership, any qualified REIT subsidiary, and each noncorporate subsidiary, rather than our interests in those entities. At least 75% of the value of our total assets have been and will be represented by real estate assets, cash and cash items, including receivables and government securities. In addition, except for our interests in the Operating Partnership, the noncorporate subsidiaries, another REIT, any taxable REIT subsidiary and any qualified REIT subsidiary, we have not owned, and will not own (1) securities of any one issuer the value of which exceeds 5% of the value of our total assets, or (2) more than 10% of the vote or value of any one issuers outstanding securities. We have not owned, and will not own, securities of taxable REIT subsidiaries with an aggregate value in excess of 20% of the value of our assets.
As noted above, one of the requirements for qualification as a REIT is that a REIT not own more than 10% of the vote or value of any corporation other than the stock of a qualified REIT subsidiary (of which the REIT is required to own all of such stock), a taxable REIT subsidiary and stock in another REIT. The Operating Partnership owns all or substantially all of the voting securities of several entities that have elected to be taxed as corporations and are taxable REIT subsidiaries. We and each taxable REIT subsidiary have jointly made a taxable REIT subsidiary election and, therefore, ownership of such subsidiaries will not violate the 10% test.
We own 100% of the common shares of Atlantic American Properties Trust, a Maryland business trust that has elected to be treated as a real estate investment trust (AAPT). Provided that AAPT continues to qualify as a REIT (including satisfaction of the ownership, income, asset and distribution tests discussed herein) the common shares of AAPT will qualify as real estate assets under the 75% test. However, if AAPT fails to qualify as a REIT in any year, then the common shares of AAPT will not qualify as real estate assets under the 75% test. In addition, because we own more than 10% of the common shares of AAPT, Brandywine would not satisfy the 10% test if AAPT were to fail to qualify as a REIT. Accordingly, Brandywines qualification as a REIT depends upon the ability of AAPT to continue to qualify as a REIT.
After initially meeting the asset tests at the close of any quarter, Brandywine will not lose its status as a REIT for failure to satisfy the asset tests at the end of a later quarter solely by reason of changes in asset values. If the failure to satisfy the asset tests results from an acquisition of securities or other property during a quarter, the failure can be cured by disposition of sufficient nonqualifying assets within 30 days after the close of that quarter. We intend to maintain adequate records of the value of our assets to ensure compliance with the asset tests, and to take such other action within 30 days after the close of any quarter as may be required to cure any noncompliance. However, there can be no assurance that such other action will always be successful. If we fail to cure any noncompliance with the asset tests within such time period, our status as a REIT would be lost.
Annual Distribution Requirements
In order to qualify as a REIT, Brandywine is required to distribute dividends (other than capital gain dividends) to our shareholders in an amount at least equal to (1) the sum of (a) 90% of its REIT taxable income (computed without regard to the dividends paid deduction and the REITs net capital gain) and (b) 90% of the net income (after tax), if any, from foreclosure property, minus (2) certain excess non-cash income. In addition, if we dispose of a built-in gain asset during the 10 year period following its acquisition, we will be required to distribute at least 90% of the built-in gain (after tax), if any, recognized on the disposition of such asset. Such distributions must be paid in the taxable year to which they relate, or in the following taxable year if declared before Brandywine timely files its tax return for such year and if paid on or before the first regular dividend payment after such declaration. To the extent that we do not distribute all of our net capital gain or we distribute at least 95%, but less than 100%, of our REIT taxable income, as adjusted, we will be subject to tax on the undistributed amount at regular corporate tax rates. Furthermore, if we should fail to distribute during each calendar year at least the sum of (1) 85% of our REIT ordinary income for such year, (2) 95% of our REIT net capital gain income for such year and (3) any undistributed taxable income from prior periods, we would be subject to a 4% excise tax on the excess of such required distribution over the amounts actually distributed.
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Brandywine intends to make timely distributions sufficient to satisfy the annual distribution requirements. In this regard, the limited partnership agreement of the Operating Partnership authorizes Brandywine, as general partner, to operate the partnership in a manner that will enable it to satisfy the REIT requirements and avoid the imposition of any federal income or excise tax liability. It is possible that we, from time to time, may not have sufficient cash or other liquid assets to meet the 90% distribution requirement due primarily to the expenditure of cash for nondeductible items such as principal amortization or capital expenditures. In order to meet the 90% distribution requirement, we may borrow or may cause the Operating Partnership to arrange for short-term or other borrowing to permit the payment of required distributions or declare a consent dividend, which is a hypothetical distribution to shareholders out of our earnings and profits. The effect of such a consent dividend (which, in conjunction with distributions actually paid, must not be preferential to those shareholders who agree to such treatment) would be that such shareholders would be treated for federal income tax purposes as if they had received such amount in cash, and they then had immediately contributed such amount back to Brandywine as additional paid-in capital. This would result in taxable income to those shareholders without the receipt of any actual cash distribution but would also increase their tax basis in their shares by the amount of the taxable income recognized.
Under certain circumstances, Brandywine may be able to rectify a failure to meet the distribution requirement for a given year by paying deficiency dividends to shareholders in a later year that may be included in Brandywines deduction for distributions paid for the earlier year. Thus, Brandywine may be able to avoid being taxed on amounts distributed as deficiency dividends; however, Brandywine will be required to pay to the Internal Revenue Service interest based upon the amount of any deduction taken for deficiency dividends.
Failure to Qualify
If Brandywine fails to qualify for taxation as a REIT in any taxable year and the relief provisions do not apply, it will be subject to tax (including any applicable corporate alternative minimum tax) on its taxable income at regular corporate rates. Distributions to shareholders in any year in which Brandywine fails to qualify will not be deductible to Brandywine. In such event, to the extent of Brandywines current and accumulated earnings and profits, all distributions to shareholders will be taxable to them as ordinary income, and, subject to certain limitations of the Code, corporate distributees may be eligible for the dividends received deduction. Unless entitled to relief under specific statutory provisions, Brandywine also will be disqualified from taxation as a REIT for the four taxable years following the year during which qualification was lost. It is not possible to state whether in all circumstances Brandywine would be entitled to such statutory relief.
Income Taxation of the Operating Partnership, Subsidiary Partnerships and Their Partners
The following discussion summarizes certain Federal income tax considerations applicable to Brandywines investment in the Operating Partnership and the Operating Partnerships subsidiary partnerships and limited liability companies (referred to as the Subsidiary Partnerships).
Classification of the Operating Partnership and Subsidiary Partnerships as Partnerships
Brandywine owns all of its Properties or the economic interests therein through the Operating Partnership. Brandywine will be entitled to include in its income its distributive share of the income and to deduct its distributive share of the losses of the Operating Partnership (including the Operating Partnerships share of the income or losses of the Subsidiary Partnerships) only if the Operating Partnership and the Subsidiary Partnerships (collectively, the Partnerships) are classified for Federal income tax purposes as partnerships rather than as associations taxable as corporations. For taxable periods prior to January 1, 1997, an organization formed as a partnership was treated as a partnership for Federal income tax purposes rather than as a corporation only if it had no more than two of the four corporate characteristics that the Treasury Regulations used to distinguish a partnership from a cor poration for tax purposes. These four characteristics were continuity of life, centralization of management, limited liability and free transferability of interests.
Neither the Operating Partnership nor any of the Subsidiary Partnerships requested a ruling from the Internal Revenue Service that it would be treated as a partnership for Federal income tax purposes.
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Effective January 1, 1997, Treasury Regulations eliminated the four-factor test described above and, instead, permit partnerships and other non-corporate entities to be taxed as partnerships for federal income tax purposes without regard to the number of corporate characteristics possessed by such entity. Under those Treasury Regulations, both the Operating Partnership and each of the Subsidiary Partnerships will be classified as partnerships for federal income tax purposes except for any entity for which an affirmative election is made by the entity to be taxed as a corporation. Under a special transitional rule in the Treasury Regulations, the Internal Revenue Service will not challenge the classification of an existing entity such as the Operating Partnership or a Subsidiary Partnership for periods prior to January 1, 1997 if: (1) the entity has a reasonable basis for its classification; (2) the entity and each of its members recognized the federal income tax consequences of any change in classification of the entity made within the 60 months prior to January 1, 1997; and (3) neither the entity nor any of its members had been notified in writing on or before May 8, 1996 that its classification was under examination by the Internal Revenue Service. Neither the Operating Partnership nor any of the Subsidiary Partnerships changed its classification within the 60 month period preceding May 8, 1996, nor was any one of them notified that its classification as a partnership for federal income tax purposes was under examination by the Internal Revenue Service.
If for any reason the Operating Partnership or a Subsidiary Partnership were classified as an association taxable as a corporation rather than as a partnership for Federal income tax purposes, Brandywine would not be able to satisfy the income and asset requirements for REIT status. See Income Tests and Asset Tests. In addition, any change in any such Partnerships status for tax purposes might be treated as a taxable event, in which case we might incur a tax liability without any related cash distribution. See Annual Distribution Requirements. Further, items of income and deduction of any such Partnership would not pass through to its partner (e.g., Brandywine), and its partners would be treated as shareholders for tax purposes. Any such Partnership would be required to pay income tax at corporate tax rates on its net income and distributions to its pa rtners would constitute dividends that would not be deductible in computing such Partnerships taxable income.
Partnership Allocations
Although a partnership agreement will generally determine the allocation of income and losses among partners, such allocations will be disregarded for tax purposes if they do not comply with the provisions of Section 704(b) of the Code and the Treasury Regulations promulgated thereunder, which require that partnership allocations respect the economic arrangement of the partners.
If an allocation is not recognized for Federal income tax purposes, the item subject to the allocation will be reallocated in accordance with the partners interests in the partnership, which will be determined by taking into account all of the facts and circumstances relating to the economic arrangement of the partners with respect to such item. The Operating Partnerships allocations of taxable income and loss are intended to comply with the requirements of Section 704(b) of the Code and the Treasury Regulations promulgated thereunder.
Tax Allocations With Respect to Contributed Properties
We believe that the fair market values of the properties contributed directly or indirectly to the Operating Partnership in various transactions were different than the tax basis of such Properties. Pursuant to Section 704(c) of the Code, items of income, gain, loss and deduction attributable to appreciated or depreciated property that is contributed to a partnership in exchange for an interest in the partnership must be allocated for Federal income tax purposes in a manner such that the contributor is charged with or benefits from the unrealized gain or unrealized loss associated with the property at the time of the contribution. The amount of such unrealized gain or unrealized loss is generally equal to the difference between the fair market value of the contributed property at the time of contribution and the adjusted tax basis of such property at the time of contribution (the Pre-Contribution Gain or Loss). The partnership agreement of the Operating Partnership requires allocations of income, gain, loss and deduction attributable to such contributed property to be made in a manner that is consistent with Section 704(c) of the Code. Thus, if the Operating Partnership sells contributed property at a gain or loss, such gain or loss will be allocated to the contributing partners, and away from us, generally to the extent of the Pre-Contribution Gain or Loss.
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The Treasury Department has issued final regulations under Section 704(c) of the Code which give partnerships flexibility in ensuring that a partner contributing property to a partnership receives the tax benefits and burdens of any Pre-Contribution Gain or Loss attributable to the contributed property. These regulations permit partnerships to use any reasonable method of accounting for Pre-Contribution Gain or Loss. These regulations specifically describe three reasonable methods, including (1) the traditional method under current law, (2) the traditional method with the use of curative allocations which would permit distortions caused by Pre-Contribution Gain or Loss to be rectified on an annual basis and (3) the remedial allocation method which is similar to the traditional method with curative allocations. The partnership agreement of the Operating Partnership permits us, as general partner, to select one of these methods to account for Pre-Contribution Gain or Loss.
Depreciation
The Operating Partnerships assets other than cash consist largely of appreciated property contributed by its partners. Assets contributed to a partnership in a tax-free transaction generally retain the same depreciation method and recovery period as they had in the hands of the partner who contributed them to the partnership. Accordingly, the Operating Partnerships depreciation deductions for its real property are based largely on the historic tax depreciation schedules for the properties prior to their contribution to the Operating Partnership. The properties are being depreciated over a range of 15 to 40 years using various methods of depreciation which were determined at the time that each item of depreciable property was placed in service. Any depreciable real property purchased by the Partnerships is currently depreciated over 40 years. In certain instances where a partnership interest rather than real property is contributed to the Partnership, the real property may not carry over its recovery period but rather may, similarly, be subject to the lengthier recovery period.
Section 704(c) of the Code requires that depreciation as well as gain and loss be allocated in a manner so as to take into account the variation between the fair market value and tax basis of the property contributed. Thus, because most of the property contributed to the Operating Partnerships is appreciated, we will generally receive allocations of tax depreciation in excess of our percentage interest in the Operating Partnership. Depreciation with respect to any property purchased by the Operating Partnership subsequent to the admission of its partners, however, will be allocated among the partners in accordance with their respective percentage interests in the Operating Partnership.
As described previously, Brandywine, as a general partner of the Operating Partnership, may select any permissible method to account for Pre-Contribution Gain or Loss. The use of certain of these methods may result in us being allocated lower depreciation deductions than if a different method were used. The resulting higher taxable income and earnings and profits, as determined for federal income tax purposes, should decrease the portion of distributions which may be treated as a return of capital. See Taxation of Taxable Domestic Shareholders.
Basis in Operating Partnership Interest
Our adjusted tax basis in each of the partnerships in which we have an interest generally (1) will be equal to the amount of cash and the basis of any other property contributed to such partnership by us, (2) will be increased by (a) our allocable share of such partnerships income and (b) our allocable share of any indebtedness of such partnership, and (3) will be reduced, but not below zero, by our allocable share of (a) such partnerships loss and (b) the amount of cash and the tax basis of any property distributed to us and by constructive distributions resulting from a reduction in our share of indebtedness of such partnership.
If our allocable share of the loss (or portion thereof) of any partnership in which we have an interest would reduce the adjusted tax basis of our partnership interest in such partnership below zero, the recognition of such loss will be deferred until such time as the recognition of such loss (or portion thereof) would not reduce our adjusted tax basis below zero. To the extent that distributions to us from a partnership, or any decrease in our share of the nonrecourse indebtedness of a partnership (each such decrease being considered a constructive cash distribution to the partners), would reduce our adjusted tax basis below zero, such distributions (including such constructive distributions) would constitute taxable income to us. Such distributions and constructive distributions normally would be characterized as long-term capital gain if our interest in such partnership has been held for longer than the long-term capital gain holding period (currently 12 months).
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Sale of Partnership Property
Generally, any gain realized by a partnership on the sale of property held by the partnership for more than 12 months will be long-term capital gain, except for any portion of such gain that is treated as depreciation or cost recovery recapture. However, under requirements applicable to REITs under the Code, our share as a partner of any gain realized by the Operating Partnership on the sale of any property held as inventory or other property held primarily for sale to customers in the ordinary course of a trade or business will be treated as income from a prohibited transaction that is subject to a 100% penalty tax. See Taxation of Brandywine as a REIT. Such prohibited transaction income will also have an adverse effect upon our ability to satisfy the income tests for REIT status. See Income Tests. Whether property is held as inventory or primarily for sale to customers in the ordinary course of a trade or business is a question of fact that depends on all the facts and circumstances with respect to the particular transaction. A safe harbor to avoid classification as a prohibited transaction exists as to real estate assets held for the production of rental income by a REIT if the following requirements are satisfied: (1) the REIT has held the property for at least four years, (2) aggregate expenditures of the REIT during the four-year period preceding the sale which are includible in basis do not exceed 30% of the net selling price of the property, (3) (a) during the taxable year the REIT has made no more than seven sales of property or, in the alternative, (b) the aggregate of the adjusted bases of all properties sold during the year does not exceed 10% of the adjusted bases of all of the REITs properties during the year, (4) in the case of property, not acquired through foreclosure or lease termination, the REIT has held the property for not less than four years for the production of rental income, and (5) if the requirement of clause (3) (a) is not satisfied, substantially all of the marketing and development expenditures were made through an independent contractor. Brandywine, as general partner of the Operating Partnership, believes that the Operating Partnership intends to hold its properties for investment with a view to long-term appreciation, to engage in the business of acquiring, developing, owning, operating and leasing properties and to make such occasional sales of the properties as are consistent with its and the Operating Partnerships investment objectives. No assurance can be given, however, that every property sale by the Partnerships will constitute a sale of property held for investment.
Taxation of Taxable U.S. Shareholders
As long as Brandywine qualifies as a REIT, distributions made to Brandywines taxable U.S. shareholders out of current or accumulated earnings and profits (and not designated as capital gain dividends or qualified dividend income) will be dividends taxable to such U.S. shareholders as ordinary income and will not be eligible for the dividends received deduction for corporations. Distributions that are designated as long-term capital gain dividends will be taxed as long-term capital gains (to the extent they do not exceed our actual net capital gain for the taxable year) without regard to the period for which the U.S. shareholder has held its shares of beneficial interest. However, corporate shareholders may be required to treat up to 20% of certain capital gain dividends as ordinary income. For calendar years 2003 through 2008, distributions that are designated as qualified dividend income will be taxed at the same rate as long-term capital gains. We may designate a distribution as qualified dividend income to the extent of (1) qualified dividend income we receive during the current year (for example, dividends received from a taxable REIT subsidiary), and (2) income on which we have been subject to corporate level tax during the prior year (for example, undistributed REIT taxable income) less the tax paid on that income. We expect that ordinary dividends paid by Brandywine generally will not be eligible for treatment as qualified dividend income to any significant extent. Distributions in excess of current and accumulated earnings and profits will not be taxable to a U.S. shareholder to the extent that they do not exceed the adjusted basis of the shareholders shares, but rather will reduce the adjusted basis of such shares. To the extent that distributions in excess of current and accumulated earnings and profits exceed the adjusted basis of a U.S. shareholders shares, such distributions will be included in income as long-term capital gain (or short-term capital gain if the shares have been held for 12 months or less) assuming the shares are a capital asset in the hands of the shareholder. In addition, any distribution declared by us in October, November or December of any year payable to a shareholder of record on a specified date in any such month shall be treated as both paid by Brandywine and received by the shareholder on December 31 of such year, provided that the distribution is actually paid by Brandywine not later than the end of January of the following calendar year. Shareholders may not include in their individual income tax returns any of Brandywines losses.
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In general, a U.S. shareholder will recognize capital gain or loss on the disposition of common shares equal to the difference between the sales price for such shares and the adjusted tax basis for such shares. Gain or loss recognized upon a sale or exchange of common shares by a U.S. shareholder who has held such shares for more than one year will be treated as long-term capital gain or loss, respectively, and otherwise will be treated as short-term capital gain or loss. However, any loss upon a sale or exchange of shares by a U.S. shareholder who has held such shares for six months or less (after applying certain holding period rules) will be treated as a long-term capital loss to the extent such shareholder has received distributions from us required to be treated as long-term capital gain. U.S. shareholders who realize a loss on the sale or exchange of shares may be required to file IRS Form 8886, Reportable Transaction Disclosure Statement if the loss exceeds certain thresholds (for individual taxpayers, the threshold is $2,000,000 for a loss in a single taxable year). U.S. shareholders should consult with their tax advisors regarding Form 8886 filing requirements.
Distributions from us and gain from the disposition of shares will not be treated as passive activity income and, therefore, U.S. shareholders will not be able to apply any passive losses against such income. Distributions from us (to the extent they do not constitute a return of capital or capital gain dividends) and, on an elective basis, capital gain dividends and gain from the disposition of shares will generally be treated as investment income for purposes of the investment income limitation.
Backup Withholding and Information Reporting
In general, Brandywine will report to its U.S. shareholders and the Internal Revenue Service the amount of distributions paid (unless the U.S. shareholder is an exempt recipient such as a corporation) during each calendar year, and the amount of tax withheld, if any. Under the backup withholding rules, a shareholder may be subject to backup withholding at the rate of 28% with respect to distributions paid unless such shareholder (a) is a corporation or comes within certain other exempt categories and, when required, demonstrates this fact, or (b) provides a taxpayer identification number, certifies as to no loss of exemption from backup withholding and otherwise complies with applicable requirements of the backup withholding rules. A shareholder that does not provide us with his correct taxpayer identification number may also be subject to penalties imposed by the Internal Revenue Service. Any amount paid as backup withholding may be credited against the shareholders income tax liability. In addition, we may be required to withhold a portion of capital gain distributions to any shareholders who fail to certify their non-foreign status to Brandywine. See Taxation of Foreign Shareholders.
Taxation of Tax-Exempt Shareholders
Distributions by us to a shareholder that is a tax-exempt entity should not constitute unrelated business taxable income (UBTI), as defined in Section 512(a) of the Code provided that the tax-exempt entity has not financed the acquisition of its shares with acquisition indebtedness within the meaning of the Code and the shares are not otherwise used in an unrelated trade or business of the tax-exempt entity.
In the case of a qualified trust (generally, a pension or profit-sharing trust) holding shares in a REIT, the beneficiaries of the trust are treated as holding shares in the REIT in proportion to their actuarial interests in the qualified trust, instead of treating the qualified trust as a single individual (the look-through exception). A qualified trust that holds more than 10% of the shares of a REIT is required to treat a percentage of REIT dividends as UBTI if the REIT incurs debt to acquire or improve real property. This rule applies, however, only if (1) the qualification of the REIT depends upon the application of the look through exception (described above) to the restriction on REIT shareholdings by five or fewer individuals, including qualified trusts (see Description of Shares of Beneficial Interest - Restrictions on Transfer) and (2) the REIT is predominantly held by qualif ied trusts, i.e., if either (a) a single qualified trust holds more than 25% by value of the interests in the REIT or (b) one or more qualified trusts, each owning more than 10% by value, holds in the aggregate more than 50% of the interests in the REIT. The percentage of any dividend paid (or treated as paid) to such a qualified trust that is treated as UBTI is equal to the amount of modified gross income (gross income less directly connected expenses) from the unrelated trade or business of the REIT (treating the REIT as if it were a qualified trust), divided by the total modified gross income of the REIT. A de minimis exception applies where the percentage is less than 5%.
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Taxation of Non-U.S. Shareholders
The rules governing United States Federal income taxation of nonresident alien individuals, foreign corporations, foreign partnerships and other shareholders that are not U.S. shareholders (collectively, Non-U.S. Shareholders) are complex and no attempt will be made herein to provide more than a summary of such rules. Prospective Non-U.S. Shareholders should consult with their own tax advisors to determine the impact of Federal, state and local income tax laws with regard to an investment in our shares, including any reporting requirements.
Distributions made by us that are not attributable to gain from sales or exchanges by us of United States real property interests and not designated by us as capital gains dividends will be treated as dividends of ordinary income to the extent that they are made out of current or accumulated earnings and profits of Brandywine. Such distributions will ordinarily be subject to a withholding tax equal to 30% of the gross amount of the distribution unless an applicable tax treaty reduces or eliminates that tax. However, if income from the investment in our shares is treated as effectively connected with the Non-U.S. Shareholders conduct of a United States trade or business, the Non-U.S. Shareholder generally will be subject to a tax at graduated rates, in the same manner as U.S. shareholders are taxed with respect to such distributions (and may also be subject to the 30% branch profits tax in the case of a shareholder that is a foreign corpor ation). We expect to withhold United States income tax at the rate of 30% on the gross amount of any such distributions made to a Non-U.S. Shareholder unless (1) a lower treaty rate applies and the Non-U.S. shareholder files a W-8BEN (or applicable substitute form) or (2) the Non-U.S. Shareholder files an IRS Form W-8ECI with us claiming that the distribution is effectively connected income. Distributions in excess of our current and accumulated earnings and profits will not be taxable to a shareholder to the extent that such distributions do not exceed the adjusted basis of the shareholders shares, but rather will reduce the adjusted basis of the shareholder in such shares. To the extent that distributions in excess of current and accumulated earnings and profits exceed the adjusted basis of a Non-Shareholders shares, such distributions will give rise to tax liability if the Non-U.S. Shareholder would otherwise be subject to tax on any gain from the sale or disposition of its shares, as describe d below. If it cannot be determined at the time a distribution is made whether or not such distribution will be in excess of current and accumulated earnings and profits, the distributions will be subject to withholding at the same rate as dividends. However, amounts thus withheld are refundable to the shareholder if it is subsequently determined that such distribution was, in fact, in excess of our current and accumulated earnings and profits.
For any year in which Brandywine qualifies as a REIT, distributions that are attributable to gain from sales or exchanges by us of United States real property interests will be taxed to a Non-U.S. Shareholder under the provisions of the Foreign Investment in Real Property Tax Act of 1980 (FIRPTA). Under FIRPTA, distributions attributable to gain from sales of United States real property interests are taxed to a Non-U.S. Shareholder as if such gain were effectively connected with a United States business. Individuals who are Non-U.S. Shareholders would thus be taxed at the normal capital gain rates applicable to U.S. individual shareholders (subject to applicable alternative minimum tax and a special alternative minimum tax in the case of nonresident alien individuals). Also, distributions subject to FIRPTA may be subject to a 30% branch profits tax in the hands of a foreign corporate shareholder not entitled to treaty relief. Brandy wine is required by applicable Treasury Regulations to withhold 35% of any distribution that could be designated by us as a capital gains dividend. The amount is creditable against the Non-U.S. Shareholders U.S. tax liability.
Gain recognized by a Non-U.S. Shareholder upon a sale of shares generally will not be taxed under FIRPTA if Brandywine is a domestically controlled REIT, defined generally as a REIT in which at all times during a specified testing period less than 50% in value of the shares of beneficial interest was held directly or indirectly by foreign persons. It is currently anticipated that we will be a domestically controlled REIT, and therefore the sale of shares by a Non-U.S. Shareholder will not be subject to taxation under FIRPTA. However, because the shares may be traded, we cannot be sure that we will continue to be a domestically controlled REIT. Gain not subject to FIRPTA will be taxable to a Non-U.S. Shareholder if (1) investment in the shares is effectively connected with the Non-U.S. Shareholders United States trade or business, in which case the Non-U.S. Shareholder will be subject to the same treatme nt as U.S. shareholders with respect to such gain or (2) the Non-U.S. Shareholder is a nonresident alien individual who was present in the United States for 183 days or more during the taxable year, in which case the nonresident alien individual will be subject to a 30% tax on the individuals capital gains. If the gain on the sale of shares were to be subject to taxation under FIRPTA, the Non-U.S. Shareholder would be subject to the same treatment as U.S. shareholders with respect to such gain (subject to applicable alternative minimum tax and a special alternative minimum tax in the case of nonresident alien individuals).
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If we were not a domestically controlled REIT, a sale of common shares by a Non-U.S. shareholder would not be subject to taxation under FIRPTA as a sale of a U.S. real property interest if (1) our preferred shares or common shares were regularly traded on an established securities market within the meaning of applicable Treasury regulations and (2) the Non-U.S. shareholder did not actually, or constructively under specified attribution rules under the Code, own more than 5% of our preferred shares or common shares at any time during the shorter of the five-year period preceding the disposition or the holders holding period.
Even if our common shares were not regularly traded on an established securities market, a Non-U.S. shareholder would not be subject to taxation under FIRPTA as a sale of a U.S. real property interest if such Non-U.S. shareholders common shares had a fair market value on the date of acquisition that was equal to or less than 5% of our regularly traded class of shares with the lowest fair market value. For purposes of this test, if a Non-U.S. shareholder acquired shares of common shares and subsequently acquired additional shares at a later date, then all such shares would be aggregated and valued as of the date of the subsequent acquisition.
Statement of Share Ownership
Brandywine is required to demand annual written statements from the record holders of designated percentages of our shares disclosing the actual owners of the shares. Brandywine must also maintain, within the Internal Revenue District in which it is required to file its federal income tax return, permanent records showing the information Brandywine has received as to the actual ownership of such shares and a list of those persons failing or refusing to comply with such demand.
Other Tax Consequences
Brandywine, the Operating Partnership, the Subsidiary Partnerships and Brandywines shareholders may be subject to state or local taxation in various state or local jurisdictions, including those in which it or they transact business or reside. The state and local tax treatment of Brandywine, the Operating Partnership, the Subsidiary Partnerships and Brandywines shareholders may not conform to the Federal income tax consequences discussed above. Consequently, prospective shareholders should consult their own tax advisors regarding the effect of state and local tax laws on an investment in our securities.
Possible Federal Tax Developments
The rules dealing with Federal income taxation are constantly under review by the Internal Revenue Service, the Treasury Department and the Congress. New Federal tax legislation or other provisions may be enacted into law or new interpretations, rulings, Treasury Regulations or court decisions could be adopted, all of which could adversely affect the taxation of Brandywine or of its shareholders. We cannot predict the likelihood of passage of any new tax legislation or other provisions or court decisions either directly or indirectly affecting us or our shareholders. Consequently, the tax treatment described herein may be modified prospectively or retroactively by legislative, judicial or administrative action.
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PLAN OF DISTRIBUTION
We may sell the securities to one or more underwriters for public offering and sale by them or may sell the securities directly to one or more investors or through agents or through a combination of any of such methods. Any such underwriter or agent involved in the offer and sale of the securities will be named in the applicable prospectus supplement.
We or underwriters may offer and sell the securities at a fixed price or prices, which may be changed, at prices related to the prevailing market prices at the time of sale or at negotiated prices for cash or assets. We also may, from time to time, authorize underwriters acting as our agents to offer and sell the securities upon the terms and conditions as are set forth in the applicable prospectus supplement. In connection with the sale of the securities, underwriters may be deemed to have received compensation from us in the form of underwriting discounts or commissions and may also receive commissions from purchasers of the securities for whom they may act as agent. Underwriters may sell securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent.
We may engage Brinson Patrick Securities Corporation, Cantor Fitzgerald & Co. and/or one or more other firms to act as our agent (the Offering Agent) for one or more offerings, from time to time, of our common shares. If we reach agreement with the Offering Agent with respect to a specific offering, including the number of common shares and any minimum price below which sales may not be made, then the Offering Agent would agree to use its commercially reasonable efforts, consistent with its normal trading and sales practices, to try to sell such common shares on the agreed terms. The Offering Agent could make sales in privately negotiated transactions and/or any other method permitted by law, including sales deemed to be an at the market offering as defined in Rule 415 promulgated under the Securities Act, sales made directly on the New York Stock Exchange or sales made to or through a market maker other than on an exchange. At-the-market offerings may not exceed 10% of the aggregate market value of our outstanding voting securities held by non-affiliates on a date within 60 days prior to the filing of the registration statement of which this prospectus is a part. The Offering Agent will be deemed to be an underwriter within the meaning of the Securities Act, with respect to any sales effected through an at the market offering.
Any underwriting compensation paid by us to underwriters or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be set forth or described in the applicable prospectus supplement. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements entered into with us, to indemnification against and contribution toward certain civil liabilities, including liabilities under the Securities Act.
Unless otherwise specified in the applicable prospectus supplement, each series of securities will be a new issue with no established trading market, other than the common shares, the Series C Preferred Shares and the Series D Preferred Shares, which are listed on the NYSE, as of the date of this prospectus. We may elect to list any series of preferred shares or American Depository Receipts representing depository shares on an exchange, but are not obligated to do so. It is possible that one or more underwriters may make a market in a series of securities, but will not be obligated to do so and may discontinue any market making at any time without notice. Therefore, no assurance can be given as to the liquidity of, or the trading market for, the securities.
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If so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by certain institutions to purchase securities from us at the public offering price set forth in such prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated in such prospectus supplement. Institutions with whom delayed delivery contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions, and other institutions but will in all cases be subject to our approval. Delayed delivery contracts will not be subject to any conditions except (1) the purchase by an institution of the securities covered by its contracts shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution is subject, and (2) if the securities are being sold to underwriters, we will have sold to such underwriters the total principal amount of the securities less the principal amount thereof covered by contracts.
Underwriters, dealers and agents and their affiliates may engage in transactions with, or perform services for, or be tenants of, or be lenders to, us in the ordinary course of business.
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EXPERTS
The financial statements and financial statement schedules of Brandywine Realty Trust as of December 31, 2003 and 2002 and for each of the three years ended December 31, 2003 incorporated in this prospectus by reference to Brandywine Realty Trusts Annual Report on Form 10-K/A dated June 22, 2004 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm, given on the authority of said firm as experts in auditing and accounting.
The financial statements and financial statement schedules of Brandywine Operating Partnership, L.P. as of December 31, 2003 and 2002 and for each of the three years ended December 31, 2003 incorporated in this prospectus by reference to Brandywine Operating Partnership L.P.s Registration Statement on Form 10/A dated August 20, 2004 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm, given on the authority of said firm as experts in auditing and accounting.
LEGAL MATTERS
The validity of the securities offered will be passed upon for us by Pepper Hamilton LLP.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other than underwriting discounts and commissions, incurred in connection with the distribution of the securities being registered (all amounts are estimated except the SEC registration fee).
SEC registration fee | $ | 190,050 | |
Printing and engraving expenses | $ | 50,000 | |
Legal fees and expenses | $ | 300,000 | |
Accounting fees and expenses | $ | 100,000 | |
Trustees and transfer agents fees | $ | 50,000 | |
Miscellaneous | $ | 50,000 | |
Total | $ | 740,050 | |
Item 15. Indemnification of Directors and Officers.
Brandywine Realty Trust
The Maryland REIT Law permits a Maryland real estate investment trust to include in its Declaration of Trust a provision limiting the liability of its trustees and officers to the trust and its shareholders for money damages except for liability resulting from (1) actual receipt of an improper benefit or profit in money, property or services or (2) active and deliberate dishonesty established by a final judgment as being material to the cause of action. Brandywines Declaration of Trust contains a provision which eliminates such liability to the maximum extent permitted by the Maryland REIT Law.
The Maryland REIT Law permits a Maryland REIT to indemnify and advance expenses to its trustees and officers to the same extent as permitted for directors and officers of a Maryland corporation under the Maryland General Corporation Law. In the case of directors and officers of a Maryland corporation, the Maryland General Corporation Law permits a Maryland corporation to indemnify present and former directors and officers against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made a party by reason of such service, unless it is established that either: (1) the act or omission of the director or officer was material to the matter giving rise to the proceeding and either (a) was committed in bad faith or (b) was the result of active and deliberate dishonesty; (2) the director or officer actually received an improper personal benefit in money, property or services; or (3) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.
Brandywines Bylaws require Brandywine to indemnify, without a preliminary determination of the ultimate entitlement to indemnification: (1) any present or former trustee, officer or shareholder who has been successful, on the merits or otherwise, in the defense of a proceeding to which he was made a party by reason of such status, against reasonable expenses incurred by him in connection with the proceeding; (2) any present or former trustee or officer against any claim or liability to which he may become subject by reason of such status unless it is established that (a) his act or omission was committed in bad faith or was the result of active and deliberate dishonesty, (b) he actually received an improper personal benefit in money, property or services or (c) in the case of a criminal proceeding, he had reasonable cause to believe that his act or omission was unlawful; and (3) each shareholder or former shareholder against any claim or liability to which he may be subject by reason of such status as a shareholder or former shareholder.
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In addition, Brandywines Bylaws require Brandywine to pay or reimburse, in advance of final disposition of a proceeding, reasonable expenses incurred by a present or former trustee, officer or shareholder made a party to a proceeding by reason of his status as a trustee, officer or shareholder provided that, in the case of a trustee or officer, Brandywine shall have received (1) a written affirmation by the trustee or officer of his good faith belief that he has met the applicable standard of conduct necessary for indemnification by Brandywine as authorized by the Bylaws and (2) a written undertaking by him or on his behalf to repay the amount paid or reimbursed by Brandywine if it shall ultimately be determined that the applicable standard of conduct was not met. The Bylaws also (1) permit Brandywine, with the approval of its trustees, to provide indemnification and payment or reimbursement of expenses to a present or former trustee, officer or shareholder who served Brandywines predecessor in such capacity, and to any of Brandywines employees or agents of its predecessor, (2) provide that any indemnification or payment or reimbursement of the expenses permitted by our Bylaws shall be furnished in accordance with the procedures provided for indemnification and payment or reimbursement of expenses under Section 2-418 of the Maryland General Corporation Law for directors of Maryland corporations and (3) permit Brandywine to provide such other and further indemnification or payment or reimbursement of expenses as may be permitted by the Maryland General Corporation Law for directors of Maryland corporations.
Brandywine Operating Partnership, L.P.
The limited partnership agreement of Brandywine Operating Partnership, L.P., referred to in the prospectus as the Operating Partnership, also provides for indemnification by the Operating Partnership of Brandywine and its trustees and officers for any costs, expenses or liabilities incurred by them by reason of any act performed by them for or on behalf of the Operating Partnership; provided that such persons conduct was taken in good faith and in the belief that such conduct was in the best interests of the Operating Partnership and that such person was not guilty of fraud, willful misconduct or gross negligence.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our trustees and officers pursuant to the foregoing provisions or otherwise, we have been advised that, although the validity and scope of the governing statute has not been tested in court, in the opinion of the SEC, such indemnification is against public policy as expressed in Securities Act and is, therefore, unenforceable. In addition, indemnification may be limited by state securities laws.
Item 16. Exhibits.
Exhibit No. | Description | |
1.1 | Form of Underwriting Agreement relating to Debt Securities. | |
1.2 | Form of Underwriting Agreement relating to Preferred Shares, Common Shares, Depository Shares and Warrants.* | |
1.3 | Form of Sales Agreement relating to Common Shares. | |
3.1 | Amended and Restated Declaration of Trust of Brandywine (Incorporated by reference to Exhibit 3.1 to Brandywines Current Report on Form 8-K dated June 9, 1997). | |
3.2 | Articles of Amendment to Declaration of Trust of Brandywine (Incorporated by reference to Exhibit 3.1 to Brandywines Current Report on Form 8-K dated September 10, 1997). | |
3.3 | Articles of Amendment to Declaration of Trust of Brandywine (No. 2) (Incorporated by reference to Exhibit 3.1 of Brandywines Current Report on Form 8-K dated June 3, 1998). | |
3.4 | Articles Supplementary to Declaration of Trust (Incorporated by reference to Exhibit 3.1 to Brandywines Current Report on Form 8-K dated October 13, 1998). |
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Exhibit No. | Description | |
3.5 | Articles of Amendment to Declaration of Trust of Brandywine (Incorporated by reference to Exhibit 3.1.5 of Brandywines Annual Report on Form 10-K for the year ended December 31, 1998). | |
3.6 | Articles Supplementary to Declaration of Trust (Incorporated by reference to Exhibit 3.1 of Brandywines Current Report on Form 8-K dated April 26, 1999). | |
3.7 | Articles Supplementary to Declaration of Trust (Incorporated by reference to Exhibit 3.7 of Brandywines Form 8-A dated December 29, 2003). | |
3.8 | Articles Supplementary to Declaration of Trust (Incorporated by reference to Exhibit 3.8 of Brandywines Form 8-A dated February 5, 2004). | |
3.9 | Amended and Restated Bylaws of Brandywine (Incorporated by reference to Exhibit 3.2 of he Companys Current Report on Form 8-K dated October 14, 2003). | |
3.10 | Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.1 to Brandywines Current Report on Form 8-K dated December 17, 1997). | |
3.11 | First Amendment to Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.12 to Brandywines Current Report on Form 8-K dated December 17, 1997). | |
3.12 | Second Amendment to Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.3 to Brandywines Current Report on Form 8-K dated April 13, 1998). | |
3.13 | Third Amendment to Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.4 to Brandywines Current Report on Form 8-K dated May 14, 1998). | |
3.14 | Fourth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.4 to Brandywines Current Report on Form 8-K dated October 13, 1998). | |
3.15 | Fifth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.5 to Brandywines Current Report on Form 8-K dated October 13, 1998). | |
3.16 | Sixth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.6 to Brandywines Current Report on Form 8-K dated October 13, 1998). | |
3.17 | Seventh Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.14 to Brandywines Annual Report on Form 10-K for the year ended December 31, 2003). | |
3.18 | Eighth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.15 to Brandywines Annual Report on Form 10-K for the year ended December 31, 2003). |
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Exhibit No. | Description | |
3.19 | Ninth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.16 to Brandywines Annual Report on Form 10-K for the year ended December 31, 2003). | |
3.20 | Tenth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.17 to Brandywines Annual Report on Form 10-K for the year ended December 31, 2003). | |
3.21 | Eleventh Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.18 to Brandywines Annual Report on Form 10-K for the year ended December 31, 2003). | |
3.22 | Twelfth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.19 to Brandywines Annual Report on Form 10-K for the year ended December 31, 2003). | |
3.23 | Amended and Restated Certificate of Limited Partnership as amended for AAPOP 2, L.P. | |
3.24 | Amended and Restated Agreement of Limited Partnership of AAPOP 2, L.P. | |
3.25 | Certificate of Limited Partnership as amended of Brandywine Ambassador, L.P. | |
3.26 | Agreement of Limited Partnership for Brandywine Ambassador, L.P. | |
3.27 | Certificate of Limited Partnership as amended for Brandywine Central, L.P. | |
3.28 | Second Amended and Restated Agreement of Limited Partnership for Brandywine Central, L.P. | |
3.29 | Certificate of Limited Partnership for Brandywine Cira, L.P. | |
3.30 | Agreement of Limited Partnership of Brandywine Cira, L.P. | |
3.31 | Certificate of Limited Partnership as amended for Brandywine F.C., L.P. | |
3.32 | Agreement of Limited Partnership of Brandywine F.C., L.P. | |
3.33 | Certificate of Limited Partnership as amended for Brandywine Grande B, L.P. | |
3.34 | Second Amended and Restated Agreement of Limited Partnership for Brandywine Grande B, L.P. | |
3.35 | Certificate of Limited Partnership as amended for Brandywine I.S., L.P. | |
3.36 | Agreement of Limited Partnership for Brandywine I.S., L.P. | |
3.37 | Certificate of Limited Partnership as amended for Brandywine Metroplex, L.P. | |
3.38 | Agreement of Limited Partnership for Brandywine Metroplex, L.P. | |
3.39 | Certificate of Limited Partnership, as amended for Brandywine Operating Partnership, L.P. | |
3.40 | Certificate of Limited Partnership as amended for Brandywine P.M., L.P. | |
3.41 | Agreement of Limited Partnership for Brandywine P.M., L.P. |
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Exhibit No. | Description | |
3.42 | Certificate of Limited Partnership as amended for Brandywine TB Florig, L.P. | |
3.43 | Agreement of Limited Partnership for Brandywine TB Florig, L.P. | |
3.44 | Certificate of Limited Partnership as amended for Brandywine TB Inn L.P. | |
3.45 | Agreement of Limited Partnership for Brandywine TB Inn, L.P. | |
3.46 | Certificate of Limited Partnership as amended for Brandywine TB I, L.P. | |
3.47 | Agreement of Limited Partnership for Brandywine TB I, L.P. | |
3.48 | Certificate of Limited Partnership as amended for Brandywine TB II, L.P. | |
3.49 | Agreement of Limited Partnership for Brandywine TB II, L.P. | |
3.50 | Certificate of Limited Partnership as amended for Brandywine TB V, L.P. | |
3.51 | Agreement of Limited Partnership for Brandywine TB V, L.P. | |
3.52 | Certificate of Limited Partnership as amended for Brandywine TB VI, L.P. | |
3.53 | Agreement of Limited Partnership for Brandywine TB VI, L.P. | |
3.54 | Certificate of Limited Partnership as amended for Brandywine TB VIII, L.P. | |
3.55 | Agreement of Limited Partnership for Brandywine TB VIII, L.P. | |
3.56 | Amended and Restated Certificate of Limited Partnership as amended for C/N Iron Run Limited Partnership III. | |
3.57 | Amended and Restated Agreement of Limited Partnership for C/N Iron Run Limited Partnership III. | |
3.58 | Amended and Restated Certificate of Limited Partnership as amended for C/N Leedom Limited Partnership II. | |
3.59 | Amended and Restated Agreement of Limited Partnership for C/N Leedom Limited Partnership II. | |
3.60 | Amended and Restated Certificate of Limited Partnership I. | |
3.61 | Amended and Restated Agreement of Limited Partnership for C/N Oaklands Limited Partnership I. | |
3.62 | Restated Certificate of Limited Partnership as amended for C/N Oaklands Limited Partnership III. | |
3.63 | Amended and Restated Agreement of Limited Partnership for C/N Oaklands Limited Partnership III. | |
3.64 | Certificate of Limited Partnership as amended for e-Tenants.com Holding, L.P. | |
3.65 | Amended and Restated Agreement of Limited Partnership for e-Tenants.com Holding, L.P. | |
3.66 | Amended and Restated Certificate of Limited Partnership as amended for Fifteen Horsham, L.P. |
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Exhibit No. | Description | |
3.67 | Agreement of Limited Partnership for Fifteen Horsham, L.P. | |
3.68 | Amended and Restated Certificate of Limited Partnership, as amended for Iron Run Limited Partnership V. | |
3.69 | Amended and Restated Agreement of Limited Partnership for Iron Run Limited Partnership V. | |
3.70 | Amended and Restated Certificate of Limited Partnership as amended for LC/N Horsham Limited Partnership. | |
3.71 | Amended and Restated Agreement of Limited Partnership for LC/N Horsham Limited Partnership. | |
3.72 | Amended and Restated Certificate of Limited Partnership as amended for LC/N Keith Valley Limited Partnership I. | |
3.73 | Amended and Restated Agreement of Limited Partnership for LC/N Keith Valley Limited Partnership I. | |
3.74 | Amended and Restated Certificate of Limited Partnership as amended for Newtech IV Limited Partnership. | |
3.75 | Amended and Restated Agreement of Limited Partnership for Newtech IV Limited Partnership. | |
3.76 | Amended and Restated Certificate of Limited Partnership as amended for Nichols Lansdale Limited Partnership III. | |
3.77 | Amended and Restated Agreement of Limited Partnership for Nichols Lansdale Limited Partnership III. | |
3.78 | Amended and Restated Certificate of Limited Partnership as amended for Witmer Operating Partnership I, L.P. | |
3.79 | Amended and Restated Agreement of Limited Partnership for Witmer Operating Partnership I, L.P. | |
3.80 | Certificate of Limited Partnership as amended for 100 Arrandale Associates, L.P. | |
3.81 | Second Amended and Restated Agreement of Limited Partnership for 100 Arrandale Associates, L.P. | |
3.82 | Certificate of Limited Partnership as amended for 111 Arrandale Associates, L.P. | |
3.83 | Second Amended and Restated Agreement of Limited Partnership for 111 Arrandale Associates, L.P. | |
3.84 | Certificate of Limited Partnership as amended for 440 Creamery Way Associates, L.P. | |
3.85 | Second Amended and Restated Agreement of Limited Partnership for 440 Creamery Way Associates, L.P. | |
3.86 | Certificate of Limited Partnership as amended for 442 Creamery Way Associates, L.P. |
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Exhibit No. | Description | |
3.87 | Second Amended and Restated Agreement of Limited Partnership for 442 Creamery Way Associates, L.P. | |
3.88 | Certificate of Limited Partnership as amended for 481 John Young Way Associates, L.P. | |
3.89 | Second Amended and Restated Agreement of Limited Partnership for 481 John Young Way Associates, L.P. | |
3.90 | Amended and Restated General Partnership Agreement for Interstate Center Associates. | |
3.91 | Second Amendment to the General Partnership Agreement for IR Northlight II Associates. | |
3.92 | Third Amended and Restated General Partnership Agreement for Plymouth TFC General Partnership. | |
3.93 | Certificate of Incorporation for BTRS, Inc. | |
3.94 | Bylaws of BTRS, Inc. | |
3.95 | Articles of Incorporation as amended for Southpoint Land Holdings, Inc. | |
3.96 | Bylaws of Southpoint Land Holdings, Inc. | |
3.97 | Articles of Incorporation as amended for Valleybrooke Land Holdings, Inc. | |
3.98 | Bylaws of Valleybrooke Land Holdings, Inc. | |
3.99 | Certificate of Organization as amended for Brandywine Ambassador, L.L.C. | |
3.100 | Operating Agreement for Brandywine Ambassador, L.L.C. | |
3.101 | Articles of Organization for Brandywine Charlottesville LLC. | |
3.102 | Operating Agreement for Brandywine Charlottesville LLC. | |
3.103 | Certificate of Formation for Brandywine Christina LLC. | |
3.104 | Operating Agreement for Brandywine Christina LLC. | |
3.105 | Certificate of Organization for Brandywine Cira, LLC. | |
3.106 | Operating Agreement for Brandywine Cira, LLC. | |
3.107 | Certificate of Formation as amended for Brandywine Dabney, LLC. | |
3.108 | Limited Liability Company Agreement for Brandywine Dabney, LLC. | |
3.109 | Certificate of Organization as amended for Brandywine Dominion, LLC. | |
3.110 | Operating Agreement for Brandywine Dominion, LLC. | |
3.111 | Certificate of Organization as amended for Brandywine F.C., LLC. | |
3.112 | Operating Agreement for Brandywine F.C., LLC. |
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Exhibit No. | Description | |
3.113 | Certificate of Organization as amended for Brandywine I.S., LLC. | |
3.114 | Operating Agreement for Brandywine I.S., LLC. | |
3.115 | Certificate of Formation for Brandywine Interstate 50, L.L.C. | |
3.116 | Limited Liability Company Agreement for Brandywine Interstate 50, L.L.C. | |
3.117 | Certificate of Formation as amended for Brandywine Main Street, LLC. | |
3.118 | Second Amended and Restated Operating Agreement for Brandywine Main Street, LLC. | |
3.119 | Certificate of Organization as amended for Brandywine Metroplex, LLC. | |
3.120 | Operating Agreement for Brandywine Metroplex, LLC. | |
3.121 | Certificate of Organization as amended for Brandywine P.M., LLC. | |
3.122 | Operating Agreement for Brandywine P.M., LLC. | |
3.123 | Limited Liability Company Agreement for Brandywine Piazza, L.L.C. | |
3.125 | Certificate of Formation for Brandywine Plaza 1000, L.L.C. | |
3.126 | Limited Liability Company Agreement for Brandywine Plaza 1000, L.L.C. | |
3.127 | Certificate of Formation for Brandywine Promenade, L.L.C. | |
3.128 | Limited Liability Company Agreement for Brandywine Promenade, L.L.C. | |
3.129 | Certificate of Organization as amended for Brandywine TB Florig, LLC. | |
3.130 | Operating Agreement of Brandywine TB Florig, LLC. | |
3.119 | Certificate of Organization as amended for Brandywine Metroplex, LLC. | |
3.120 | Operating Agreement for Brandywine Metroplex, LLC. | |
3.121 | Certificate of Organization as amended for Brandywine P.M., LLC. | |
3.122 | Operating Agreement for Brandywine P.M., LLC. | |
3.123 | Limited Liability Company Agreement for Brandywine Piazza, L.L.C. | |
3.125 | Certificate of Formation for Brandywine Plaza 1000, L.L.C. | |
3.126 | Limited Liability Company Agreement for Brandywine Plaza 1000, L.L.C. | |
3.127 | Certificate of Formation for Brandywine Promenade, L.L.C. | |
3.128 | Limited Liability Company Agreement for Brandywine Promenade, L.L.C. | |
3.129 | Certificate of Organization as amended for Brandywine TB Florig, LLC. | |
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Exhibit No. | Description | |
3.130 | Operating Agreement of Brandywine TB Florig, LLC. | |
3.131 | Certificate of Organization as amended for Brandywine TB Inn, LLC. | |
3.132 | Operating Agreement of Brandywine TB Inn, LLC. | |
3.133 | Certificate of Organization as amended for Brandywine TB I, LLC. | |
3.134 | Operating Agreement of Brandywine TB I, LLC. | |
3.135 | Certificate of Organization as amended for Brandywine TB II, LLC. | |
3.136 | Operating Agreement of Brandywine TB II, LLC. | |
3.137 | Certificate of Organization as amended for Brandywine TB V, LLC. | |
3.138 | Operating Agreement of Brandywine TB V, LLC. | |
3.139 | Certificate of Organization as amended for Brandywine TB VI, LLC. | |
3.140 | Operating Agreement of Brandywine TB VI, LLC. | |
3.141 | Certificate of Organization as amended for Brandywine TB VIII, LLC. | |
3.142 | Operating Agreement of Brandywine TB VIII, LLC. | |
3.143 | Certificate of Formation as amended for Brandywine Trenton Urban Renewal, L.L.C. | |
3.144 | Amended and Restated Operating Agreement of Brandywine Trenton Urban Renewal, L.L.C. | |
3.145 | Certificate of Organization as amended for Brandywine Witmer, L.L.C. | |
3.146 | Operating Agreement of Brandywine Witmer, L.L.C. | |
3.147 | Certificate of Formation for Christiana Center Operating Company III, LLC. | |
3.148 | Amended and Restated Operating Agreement for Christiana Center Operating Company III, LLC. | |
3.149 | Certificate of Formation as amended for e-Tenants LLC. | |
3.150 | Amended and Restated Limited Liability Company Agreement for e-Tenants LLC. | |
3.151 | Certificate of Formation for Brandywine Greentree V, LLC. | |
3.152 | Operating Agreement for Brandywine Greentree V, LLC. | |
3.153 | Certificate of Formation of Brandywine Grande B, LLC. | |
3.154 | Operating Agreement of Brandywine Grande B, LLC. | |
4.1 | Form of Common Share Warrant Agreement. | |
4.2 | Form of Deposit Agreement. |
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Exhibit No. | Description | |
4.3 | Form of Indenture. | |
4.4 | Form of Note. | |
5.1 | Opinion of Pepper Hamilton LLP regarding the validity of the securities being registered.** | |
8.1 | Opinion of Pepper Hamilton LLP regarding tax matters.** | |
12.1 | Statement of computation of ratios of earnings to combined fixed charges and preferred share distributions of Brandywine. | |
12.2 | Statement of computation of ratios of earnings to fixed charges of the Operating Partnership. | |
23.1 | Consent of PricewaterhouseCoopers LLP. | |
23.2 | Consent of Ernst & Young LLP (Incorporated by reference to Exhibit 23.1 to each of Brandywines and the Operating Partnerships Current Reports on Form 8-K filed September 3, 2004). | |
23.3 | Consent of Pepper Hamilton LLP (included in Exhibit 5.1).** | |
23.4 | Consent of Pepper Hamilton LLP (included in Exhibit 8.1).** | |
24.1 | Power of Attorney.** | |
25.1 | Statement of Eligibility of Trustee. |
* | To be filed by amendment or by a report on Form 8-K pursuant to Regulation S-K, Item 601(b). |
** | Previously filed as an exhibit to this Registration Statement. |
Item 17. Undertakings.
Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(A) | To include any prospectus required by section 10(a)(3) of the Securities Act; | |
(B) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of the prospectus filed with the SEC pursuant to Rule 424(b) under the Securities Act if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; and | |
(C) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
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provided, however, that paragraphs (1)(A) and (1)(B) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. | |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. | |
(4) | That, for purposes of determining any liability under the Securities Act, each filing of the registrants annual report pursuant to section 13(a) or section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. | |
(5) | To deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. | |
(6) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to trustees, officers, and controlling persons of any registrant pursuant to the foregoing provisions, or otherwise, each registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by the trustee, officer or controlling person of any registrant in the successful defense of any action, suit or proceeding) is asserted by such trustee, officer, or controlling person in connection with the securities being registered, the applicable registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by them is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. | |
(7) | To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act (Act) in accordance with the rules and regulations prescribed by the SEC under section 305(b)(2) of the Act. |
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SIGNATURES
Pursuant to the requirements of the Securities Act, each registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on this 7th day of September, 2004.
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 |
Co- Registrants: | AAPOP 2, L.P. | ||||
By: | Witmer Operating Partnership I, L.P., a Delaware limited partnership, one of its general partners | ||||
By: | Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
By: | Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, one of its general partners | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE AMBASSADOR, L.P. | |||||
By: | Brandywine Ambassador, L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
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BRANDYWINE CENTRAL L.P. | |||||
By: | Brandywine F.C., L.P., a Pennsylvania limited partnership, its general partner | ||||
By: | Brandywine F.C., L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE CIRA, L.P. | |||||
By: | Brandywine Cira, LLC, a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE F.C., L.P. | |||||
By: | Brandywine F.C., L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE GRANDE B, L.P. | |||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE I.S., L.P. | |||||
By: | Brandywine I.S., L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
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BRANDYWINE METROPLEX, L.P. | |||||
By: | Brandywine Metroplex, LLC, a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE P.M., L.P. | |||||
By: | Brandywine P.M., L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE TB FLORIG, L.P. | |||||
By: | Brandywine TB Florig, LLC, a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE TB INN, L.P. | |||||
By: | Brandywine TB Inn, L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE TB I, L.P. | |||||
By: | Brandywine TB I, L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
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BRANDYWINE TB II, L.P. | ||||
By: | Brandywine TB II, L.L.C., a Pennsylvania limited liability company, its general partner | |||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | |||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | |||
BRANDYWINE TB V, L.P. | ||||
By: | Brandywine TB V, L.L.C., a Pennsylvania limited liability company, its general partner | |||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | |||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | |||
BRANDYWINE TB VI, L.P. | ||||
By: | Brandywine TB VI, L.L.C., a Pennsylvania limited liability company, its general partner | |||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | |||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | |||
BRANDYWINE TB VIII, L.P. | ||||
By: | Brandywine TB VIII, L.L.C., a Pennsylvania limited liability company, its general partner | |||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | |||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | |||
C/N IRON RUN LIMITED PARTNERSHIP III | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner | |||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
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C/N LEEDOM LIMITED PARTNERSHIP II | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
C/N OAKLANDS LIMITED PARTNERSHIP I | |||||
By: | Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
C/N OAKLANDS LIMITED PARTNERSHIP III | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
E-TENANTS.COM HOLDING, L.P. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
FIFTEEN HORSHAM, L.P. | |||||
By: | Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
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IRON RUN LIMITED PARTNERSHIP V | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
LC/N HORSHAM LIMITED PARTNERSHIP | |||||
By: | Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
LC/N KEITH VALLEY LIMITED PARTNERSHIP I | |||||
By: | Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
NEWTECH IV LIMITED PARTNERSHIP | |||||
By: | Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
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NICHOLS LANSDALE LIMITED PARTNERSHIP III |
|||||
By: | Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
||||
By: | Brandywine Witmer L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
WITMER OPERATING PARTNERSHIP I, L.P. | |||||
By: | Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
100 ARRANDALE ASSOCIATES, L.P. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
111 ARRANDALE ASSOCIATES, L.P. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
440 CREAMERY WAY ASSOCIATES, L.P. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
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442 CREAMERY WAY ASSOCIATES, L.P. |
|||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
481 JOHN YOUNG WAY ASSOCIATES, L.P. |
|||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
||||
INTERSTATE CENTER ASSOCIATES | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, one of its general partners |
||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
||||
By: | Brandywine Interstate 50, L.L.C., a Delaware limited liability company, one of its general partners | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
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IR NORTHLIGHT II ASSOCIATES | ||||||
By: | AAPOP 2, L.P., a Delaware limited partnership, one of its general partners |
|||||
By: | Witmer Operating Partnership I, L.P., a Delaware limited partnership, one of its general partners | |||||
By: | Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | |||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | |||||
By: | Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, one of its general partners | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | |||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, one of its general partners | |||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | |||||
II-20
PLYMOUTH TFC GENERAL PARTNERSHIP | |||||
By: | Brandywine P.M., L.P., a Pennsylvania Limited Partnership, its general partner | ||||
By: | Brandywine P.M., L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
By: | Witmer Operating Partnership I, L.P., a Delaware limited partnership, one of its general partners | ||||
By: | Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BTRS, INC. | |||||
SOUTHPOINT LAND HOLDINGS, INC. | |||||
VALLEYBROOKE LAND HOLDINGS, INC. | |||||
BRANDYWINE AMBASSADOR, L.L.C. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE CHARLOTTESVILLE LLC | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
II-21
BRANDYWINE CHRISTINA LLC | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE CIRA, LLC | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE DABNEY, L.L.C. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE DOMINION, L.L.C. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE F.C., L.L.C. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE GRANDE B, LLC | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE GREENTREE V, LLC | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
II-22
BRANDYWINE I.S., L.L.C. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE INTERSTATE 50, L.L.C. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINEMAIN STREET, LLC | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE METROPLEX LLC | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE P.M., L.L.C. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE PIAZZA, L.L.C. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||||
BRANDYWINE PLAZA 1000, L.L.C. | |||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
II-23
BRANDYWINE PROMENADE, L.L.C. | |||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||
BRANDYWINE TB FLORIG, LLC | |||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||
BRANDYWINE TB INN, L.L.C. | |||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||
BRANDYWINE TB I, L.L.C. | |||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||
BRANDYWINE TB II, L.L.C. | |||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||
BRANDYWINE TB V, L.L.C. | |||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | ||
BRANDYWINE TB VI, L.L.C. | |||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | ||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
II-24
BRANDYWINE TB VIII, L.L.C. | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | |||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | |||
BRANDYWINE TRENTON URBAN RENEWAL, L.L.C. | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | |||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | |||
BRANDYWINE WITMER, L.L.C. | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | |||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | |||
CHRISTIANA CENTER OPERATING COMPANY III LLC | ||||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member | |||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | |||
E-TENANTS LLC | ||||
By: | e-Tenants.com Holding, L.P., a Pennsylvania limited partnership, its sole member | |||
By: | Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner | |||
By: | Brandywine Realty Trust, a Maryland real estate investment trust, its general partner | |||
By: /s/ Gerard H. Sweeney | ||||
Name: Gerard H. Sweeney | ||||
Title: President and Chief Executive Officer of each of the above-named co-registrants |
II-25
SIGNATURES
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons on September 7, 2004 in the capacities indicated.
* * *
Signature | Title(s) | ||
/s/ Gerard H. Sweeney | President, Chief Executive Officer and | ||
Trustee (Principal Executive Officer) | |||
Gerard H. Sweeney | |||
* | Senior Vice President and Chief Financial | ||
Officer | |||
Christopher P. Marr | |||
* | Vice President Finance and Chief | ||
Accounting Officer | |||
Timothy M. Martin | |||
* | Chairman of the Board of Trustees | ||
Walter DAlessio | |||
* | Trustee | ||
D. Pike Aloian | |||
* | Trustee | ||
Donald E. Axinn | |||
* | Trustee | ||
Michael J. Joyce | |||
* | Trustee | ||
Robert C. Larson | |||
* | Trustee | ||
Anthony A. Nichols, Sr. | |||
* | Trustee | ||
Charles P. Pizzi | |||
*By: Attorney-in-fact pursuant to power of attorney filed as part of this registration statement. | |||
/s/ Gerard H. Sweeney | |||
Gerard H. Sweeney |
II-26
EXHIBIT INDEX
Exhibit No. | Description | |
1.1 | Form of Underwriting Agreement relating to Debt Securities. | |
1.2 | Form of Underwriting Agreement relating to Preferred Shares, Common Shares, Depository Shares and Warrants.* | |
1.3 | Form of Sales Agreement relating to Common Shares. | |
3.1 | Amended and Restated Declaration of Trust of Brandywine (Incorporated by reference to Exhibit 3.1 to Brandywines Current Report on Form 8-K dated June 9, 1997). | |
3.2 | Articles of Amendment to Declaration of Trust of Brandywine (Incorporated by reference to Exhibit 3.1 to Brandywines Current Report on Form 8-K dated September 10, 1997). | |
3.3 | Articles of Amendment to Declaration of Trust of Brandywine (No. 2) (Incorporated by reference to Exhibit 3.1 of Brandywines Current Report on Form 8-K dated June 3, 1998). | |
3.4 | Articles Supplementary to Declaration of Trust (Incorporated by reference to Exhibit 3.1 to Brandywines Current Report on Form 8-K dated October 13, 1998). | |
3.5 | Articles of Amendment to Declaration of Trust of Brandywine (Incorporated by reference to Exhibit 3.1.5 of Brandywines Annual Report on Form 10-K for the year ended December 31, 1998). | |
3.6 | Articles Supplementary to Declaration of Trust (Incorporated by reference to Exhibit 3.1 of Brandywines Current Report on Form 8-K dated April 26, 1999). | |
3.7 | Articles Supplementary to Declaration of Trust (Incorporated by reference to Exhibit 3.7 of Brandywines Form 8-A dated December 29, 2003). | |
3.8 | Articles Supplementary to Declaration of Trust (Incorporated by reference to Exhibit 3.8 of Brandywines Form 8-A dated February 5, 2004). | |
3.9 | Amended and Restated Bylaws of Brandywine (Incorporated by reference to Exhibit 3.2 of he Companys Current Report on Form 8-K dated October 14, 2003). | |
3.10 | Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.1 to Brandywines Current Report on Form 8-K dated December 17, 1997). | |
3.11 | First Amendment to Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.12 to Brandywines Current Report on Form 8-K dated December 17, 1997). | |
3.12 | Second Amendment to Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.3 to Brandywines Current Report on Form 8-K dated April 13, 1998). | |
3.13 | Third Amendment to Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.4 to Brandywines Current Report on Form 8-K dated May 14, 1998). | |
3.14 | Fourth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.4 to Brandywines Current Report on Form 8-K dated October 13, 1998). | |
3.15 | Fifth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.5 to Brandywines Current Report on Form 8-K dated October 13, 1998). | |
Exhibit No. | Description | |
3.16 | Sixth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.6 to Brandywines Current Report on Form 8-K dated October 13, 1998). | |
3.17 | Seventh Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.14 to Brandywines Annual Report on Form 10-K for the year ended December 31, 2003). | |
3.18 | Eighth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.15 to Brandywines Annual Report on Form 10-K for the year ended December 31, 2003). | |
3.19 | Ninth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.16 to Brandywines Annual Report on Form 10-K for the year ended December 31, 2003). | |
3.20 | Tenth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.17 to Brandywines Annual Report on Form 10-K for the year ended December 31, 2003). | |
3.21 | Eleventh Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.18 to Brandywines Annual Report on Form 10-K for the year ended December 31, 2003). | |
3.22 | Twelfth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (Incorporated by reference to Exhibit 10.19 to Brandywines Annual Report on Form 10-K for the year ended December 31, 2003). | |
3.23 | Amended and Restated Certificate of Limited Partnership as amended for AAPOP 2, L.P. | |
3.24 | Amended and Restated Agreement of Limited Partnership of AAPOP 2, L.P. | |
3.25 | Certificate of Limited Partnership as amended of Brandywine Ambassador, L.P. | |
3.26 | Agreement of Limited Partnership for Brandywine Ambassador, L.P. | |
3.27 | Certificate of Limited Partnership as amended for Brandywine Central, L.P. | |
3.28 | Second Amended and Restated Agreement of Limited Partnership for Brandywine Central, L.P. | |
3.29 | Certificate of Limited Partnership for Brandywine Cira, L.P. | |
3.30 | Agreement of Limited Partnership of Brandywine Cira, L.P. | |
3.31 | Certificate of Limited Partnership as amended for Brandywine F.C., L.P. | |
3.32 | Agreement of Limited Partnership of Brandywine F.C., L.P. | |
3.33 | Certificate of Limited Partnership as amended for Brandywine Grande B, L.P. | |
3.34 | Third Amended and Restated Agreement of Limited Partnership for Brandywine Grande B, L.P. | |
3.35 | Certificate of Limited Partnership as amended for Brandywine I.S., L.P. | |
3.36 | Agreement of Limited Partnership for Brandywine I.S., L.P. | |
3.37 | Certificate of Limited Partnership as amended for Brandywine Metroplex, L.P. |
Exhibit No. | Description | |
3.38 | Agreement of Limited Partnership for Brandywine Metroplex, L.P. | |
3.39 | Certificate of Limited Partnership, as amended for Brandywine Operating Partnership, L.P. | |
3.40 | Certificate of Limited Partnership as amended for Brandywine P.M., L.P. | |
3.41 | Agreement of Limited Partnership for Brandywine P.M., L.P. | |
3.42 | Certificate of Limited Partnership as amended for Brandywine TB Florig, L.P. | |
3.43 | Agreement of Limited Partnership for Brandywine TB Florig, L.P. | |
3.44 | Certificate of Limited Partnership as amended for Brandywine TB Inn L.P. | |
3.45 | Agreement of Limited Partnership for Brandywine TB Inn, L.P. | |
3.46 | Certificate of Limited Partnership as amended for Brandywine TB I, L.P. | |
3.47 | Agreement of Limited Partnership for Brandywine TB I, L.P. | |
3.48 | Certificate of Limited Partnership as amended for Brandywine TB II, L.P. | |
3.49 | Agreement of Limited Partnership for Brandywine TB II, L.P. | |
3.50 | Certificate of Limited Partnership as amended for Brandywine TB V, L.P. | |
3.51 | Agreement of Limited Partnership for Brandywine TB V, L.P. | |
3.52 | Certificate of Limited Partnership as amended for Brandywine TB VI, L.P. | |
3.53 | Agreement of Limited Partnership for Brandywine TB VI, L.P. | |
3.54 | Certificate of Limited Partnership as amended for Brandywine TB VIII, L.P. | |
3.55 | Agreement of Limited Partnership for Brandywine TB VIII, L.P. | |
3.56 | Amended and Restated Certificate of Limited Partnership as amended for C/N Iron Run Limited Partnership III. | |
3.57 | Amended and Restated Agreement of Limited Partnership for C/N Iron Run Limited Partnership III. | |
3.58 | Amended and Restated Certificate of Limited Partnership as amended for C/N Leedom Limited Partnership II. | |
3.59 | Amended and Restated Agreement of Limited Partnership for C/N Leedom Limited Partnership II. | |
3.60 | Amended and Restated Certificate of Limited Partnership for C/N Oaklands Limited Partnership I. | |
3.61 | Amended and Restated Agreement of Limited Partnership for C/N Oaklands Limited Partnership I. | |
3.62 | Restated Certificate of Limited Partnership as amended for C/N Oaklands Limited Partnership III. | |
3.63 | Amended and Restated Agreement of Limited Partnership for C/N Oaklands Limited Partnership III. |
Exhibit No. | Description |
|
3.64 | Certificate of Limited Partnership as amended for e-Tenants.com Holding, L.P. | |
3.65 | Amended and Restated Agreement of Limited Partnership for e-Tenants.com Holding, L.P. | |
3.66 | Amended and Restated Certificate of Limited Partnership as amended for Fifteen Horsham, L.P. | |
3.67 | Agreement of Limited Partnership for Fifteen Horsham, L.P. | |
3.68 | Amended and Restated Certificate of Limited Partnership, as amended for Iron Run Limited Partnership V. | |
3.69 | Amended and Restated Agreement of Limited Partnership for Iron Run Limited Partnership V. | |
3.70 | Amended and Restated Certificate of Limited Partnership as amended for LC/N Horsham Limited Partnership. | |
3.71 | Amended and Restated Agreement of Limited Partnership for LC/N Horsham Limited Partnership. | |
3.72 | Amended and Restated Certificate of Limited Partnership as amended for LC/N Keith Valley Limited Partnership I. | |
3.73 | Amended and Restated Agreement of Limited Partnership for LC/N Keith Valley Limited Partnership I. | |
3.74 | Amended and Restated Certificate of Limited Partnership as amended for Newtech IV Limited Partnership. | |
3.75 | Amended and Restated Agreement of Limited Partnership for Newtech IV Limited Partnership. | |
3.76 | Amended and Restated Certificate of Limited Partnership as amended for Nichols Lansdale Limited Partnership III. | |
3.77 | Amended and Restated Agreement of Limited Partnership for Nichols Lansdale Limited Partnership III. | |
3.78 | Amended and Restated Certificate of Limited Partnership as amended for Witmer Operating Partnership I, L.P. | |
3.79 | Amended and Restated Agreement of Limited Partnership for Witmer Operating Partnership I, L.P. | |
3.80 | Certificate of Limited Partnership as amended for 100 Arrandale Associates, L.P. | |
3.81 | Second Amended and Restated Agreement of Limited Partnership for 100 Arrandale Associates, L.P. | |
3.82 | Certificate of Limited Partnership as amended for 111 Arrandale Associates, L.P. | |
3.83 | Second Amended and Restated Agreement of Limited Partnership for 111 Arrandale Associates, L.P. | |
3.84 | Certificate of Limited Partnership as amended for 440 Creamery Way Associates, L.P. | |
3.85 | Second Amended and Restated Agreement of Limited Partnership for 440 Creamery Way Associates, L.P. | |
3.86 | Certificate of Limited Partnership as amended for 442 Creamery Way Associates, L.P. |
Exhibit No. | Description | |
3.87 | Second Amended and Restated Agreement of Limited Partnership for 442 Creamery Way Associates, L.P. | |
3.88 | Certificate of Limited Partnership as amended for 481 John Young Way Associates, L.P. | |
3.89 | Second Amended and Restated Agreement of Limited Partnership for 481 John Young Way Associates, L.P. | |
3.90 | Amended and Restated General Partnership Agreement for Interstate Center Associates. | |
3.91 | Second Amendment to the General Partnership Agreement for IR Northlight II Associates. | |
3.92 | Third Amended and Restated General Partnership Agreement for Plymouth TFC General Partnership. | |
3.93 | Certificate of Incorporation for BTRS, Inc. | |
3.94 | Bylaws of BTRS, Inc. | |
3.95 | Articles of Incorporation as amended for Southpoint Land Holdings, Inc. | |
3.96 | Bylaws of Southpoint Land Holdings, Inc. | |
3.97 | Articles of Incorporation as amended for Valleybrooke Land Holdings, Inc. | |
3.98 | Bylaws of Valleybrooke Land Holdings, Inc. | |
3.99 | Certificate of Organization as amended for Brandywine Ambassador, L.L.C. | |
3.100 | Operating Agreement for Brandywine Ambassador, L.L.C. | |
3.101 | Articles of Organization for Brandywine Charlottesville LLC. | |
3.102 | Operating Agreement for Brandywine Charlottesville LLC. | |
3.103 | Certificate of Formation for Brandywine Christina LLC. | |
3.104 | Operating Agreement for Brandywine Christina LLC. | |
3.105 | Certificate of Organization for Brandywine Cira, LLC. | |
3.106 | First Amended and Restated Operating Agreement for Brandywine Cira, LLC. | |
3.107 | Certificate of Formation as amended for Brandywine Dabney, LLC. | |
3.108 | Limited Liability Company Agreement for Brandywine Dabney, LLC. | |
3.109 | Certificate of Organization as amended for Brandywine Dominion, LLC. | |
3.110 | Operating Agreement for Brandywine Dominion, LLC. | |
3.111 | Certificate of Organization as amended for Brandywine F.C., LLC. | |
3.112 | Operating Agreement for Brandywine F.C., LLC. | |
3.113 | Certificate of Organization as amended for Brandywine I.S., LLC. | |
3.114 | Operating Agreement for Brandywine I.S., LLC. |
Exhibit No. | Description | |
3.115 | Certificate of Formation for Brandywine Interstate 50, L.L.C. | |
3.116 | Limited Liability Company Agreement for Brandywine Interstate 50, L.L.C. | |
3.117 | Certificate of Formation as amended for Brandywine Main Street, LLC. | |
3.118 | Second Amended and Restated Operating Agreement for Brandywine Main Street, LLC. | |
3.119 | Certificate of Organization as amended for Brandywine Metroplex, LLC. | |
3.120 | Operating Agreement for Brandywine Metroplex, LLC. | |
3.121 | Certificate of Organization as amended for Brandywine P.M., LLC. | |
3.122 | Operating Agreement for Brandywine P.M., LLC. | |
3.123 | Certificate of Formation for Brandywine Piazza, L.L.C. | |
3.124 | Limited Liability Company Agreement for Brandywine Piazza, L.L.C. | |
3.125 | Certificate of Formation for Brandywine Plaza 1000, L.L.C. | |
3.126 | Limited Liability Company Agreement for Brandywine Plaza 1000, L.L.C. | |
3.127 | Certificate of Formation for Brandywine Promenade, L.L.C. | |
3.128 | Limited Liability Company Agreement for Brandywine Promenade, L.L.C. | |
3.129 | Certificate of Organization as amended for Brandywine TB Florig, LLC. | |
3.130 | Operating Agreement of Brandywine TB Florig, LLC. | |
3.131 | Certificate of Organization as amended for Brandywine TB Inn, LLC. | |
3.132 | Operating Agreement of Brandywine TB Inn, LLC. | |
3.133 | Certificate of Organization as amended for Brandywine TB I, LLC. | |
3.134 | Operating Agreement of Brandywine TB I, LLC. | |
3.135 | Certificate of Organization as amended for Brandywine TB II, LLC. | |
3.136 | Operating Agreement of Brandywine TB II, LLC. | |
3.137 | Certificate of Organization as amended for Brandywine TB V, LLC. | |
3.138 | Operating Agreement of Brandywine TB V, LLC. | |
3.139 | Certificate of Organization as amended for Brandywine TB VI, LLC. | |
3.140 | Operating Agreement of Brandywine TB VI, LLC. | |
3.141 | Certificate of Organization as amended for Brandywine TB VIII, LLC. | |
3.142 | Operating Agreement of Brandywine TB VIII, LLC. | |
3.143 | Certificate of Formation as amended for Brandywine Trenton Urban Renewal, L.L.C. | |
3.144 | Amended and Restated Operating Agreement of Brandywine Trenton Urban Renewal, L.L.C. |
Exhibit No. | Description | |
3.145 | Certificate of Organization as amended for Brandywine Witmer, L.L.C. | |
3.146 | Operating Agreement of Brandywine Witmer, L.L.C. | |
3.147 | Certificate of Formation for Christiana Center Operating Company III, LLC. | |
3.148 | Amended and Restated Operating Agreement for Christiana Center Operating Company III, LLC. | |
3.149 | Certificate of Formation as amended for e-Tenants LLC. | |
3.150 | Amended and Restated Limited Liability Company Agreement for e-Tenants LLC. | |
3.151 | Certificate of Formation for Brandywine Greentree V, LLC. | |
3.152 | Operating Agreement for Brandywine Greentree V, LLC. | |
3.153 | Certificate of Formation of Brandywine Grande B, LLC. | |
3.154 | Operating Agreement of Brandywine Grande B, LLC. | |
4.1 | Form of Common Share Warrant Agreement. | |
4.2 | Form of Deposit Agreement. | |
4.3 | Form of Indenture. | |
4.4 | Form of Note. | |
5.1 | Opinion of Pepper Hamilton LLP regarding the validity of the securities being registered.** | |
8.1 | Opinion of Pepper Hamilton LLP regarding tax matters.** | |
12.1 | Statement of computation of ratios of earnings to combined fixed charges and preferred share distributions of Brandywine. | |
12.2 | Statement of computation of ratios of earnings to fixed charges of the Operating Partnership. | |
23.1 | Consent of PricewaterhouseCoopers LLP. | |
23.2 | Consent of Ernst & Young LLP (Incorporated by reference to Exhibit 23.1 to each of Brandywines and the Operating Partnerships Current Reports on Form 8-K filed September 3, 2004). | |
23.3 | Consent of Pepper Hamilton LLP (included in Exhibit 5.1).** | |
23.4 | Consent of Pepper Hamilton LLP (included in Exhibit 8.1).** | |
24.1 | Power of Attorney.** | |
25.1 | Statement of Eligibility of Trustee. |
* | To be filed by amendment or by a report on Form 8-K pursuant to Regulation S-K, Item 601(b). |
** | Previously filed as an exhibit to this Registration Statement. |
BRANDYWINE OPERATING PARTNERSHIP, L.P.
DEBT SECURITIES
UNDERWRITING AGREEMENT
________ __, 2004
Ladies and Gentlemen:
From time to time Brandywine Operating Partnership, L.P., a Delaware limited partnership (the “Operating Partnership”), may enter into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the “Underwriters” with respect to such Pricing Agreement and the securities specified therein) certain of its debt securities (the “Securities”) specified in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, the “Designated Securities”). The Securities shall be unconditionally guaranteed (the “Guarantees”) by Brandywine Realty Trust, a Maryland real estate investment trust and the sole general partner and a limited partner of the Operating Partnership (the “Parent Guarantor”), and certain of the Operating Partnerships subsidiaries (the “Subsidiary Guarantors” and, together with the Parent Guarantor, the “Guarantors”).
The terms and conditions of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto and in or pursuant to the Indenture (the “Indenture”) identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to time to the Underwriters of such Designated Securities, for whom the firms designated as representatives of the Underwriters of such Designated Securities in the Pricing Agreement relating thereto shall act as representatives (the “Representatives”). The term “Representatives” also refers to a single firm acting as sole representative of the Underwriters and to an Underwriter or Underwriters who act without any firm being designated as its or their representatives. This Underwriting Agreement (the “Agreement”) shall not be construed as an obligation of the Operating Partnership to offer, issue or sell any of the Securities or as an obligation of any of the Underwriters to purchase the Securities. The obligation of the Operating Partnership to issue and sell any of the Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters and the principal amount of such Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The Pricing Agreement shall also specify (to the extent not set forth in the Indenture and registration statement and prospectus with respect thereto) the terms and conditions of such Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of facsimile communications or any other rapid transmission device designed to produce a written record of communications transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint. |
2. The Operating Partnership and the Guarantors, jointly and severally, represent and warrant to, and agree with, each of the Underwriters as follows: |
(a) A registration statement on Form S-3 (File No. 333-117078) (the “Initial Registration”) in respect of the Securities and the Guarantees has been (i) prepared by the Operating Partnership, the Parent Guarantor and the Subsidiary Guarantors in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations of the Securities and Exchange Commission (the “Commission”) thereunder, (ii) filed with the Commission under the Securities Act and (iii) declared effective by the Commission; no stop order suspending the effectiveness of the registration statement or any post-effective amendment thereto, if any, has been issued, and no proceeding for that purpose has been initiated or threatened by the Commission; and the Operating Partnership and the Guarantors propose to file with the Commission pursuant to Rule 424(b) under the Securities Act (“Rule 424(b)”) a prospectus supplement to the form of prospectus included in such registration statement and have previously advised you of all information (financial and other) with respect to the Operating Partnership and the Guarantors to be set forth therein. The term “Registration Statement” means the Initial Registration Statement, as amended at the time such registration statement became effective and as further amended as of the date of this Agreement, including the exhibits thereto and the documents incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 (the “Incorporated Documents”), but excluding the statement of eligibility and qualification on Form T-1; the prospectus contained in the Registration Statement is hereinafter referred to as the “Base Prospectus”; and the prospectus supplement to such prospectus (including the Base Prospectus), in the form filed with the Commission pursuant to Rule 424(b), is hereinafter called the “Prospectus”. If the Operating Partnership and the Guarantors shall have filed an abbreviated registration statement to register additional Securities pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement“), then any reference herein to the term Registration Statement shall be deemed to include such Rule 462 Registration Statement. The Base Prospectus, as the same may be amended or supplemented from time to time by a preliminary form of prospectus supplement relating to the Designated Securities, as and if filed pursuant to Rule 424(b), is hereinafter called a “Preliminary Prospectus”. Any reference herein to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the Incorporated Documents that were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or the Securities Act, as the case may be, on or before the date of the Base Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be; any reference herein to the terms “amendment” or “supplement”, or similar terms, with respect to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the filing of any Incorporated Documents under the Exchange Act or the Securities Act, as the case may be, after the issue date of any Preliminary Prospectus or the Prospectus, as the case may be, and deemed to be incorporated therein by reference; and any reference to any amendment to the Registration Statement shall be deemed to include any annual report on Form 10-K of the Operating Partnership or the Parent Guarantor filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement. |
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(b) The Incorporated Documents, when they were filed with the Commission or became effective, as the case may be, conformed in all material respects to the requirements of the Exchange Act or the Securities Act, as applicable, and the rules and regulations of the Commission thereunder; none of such documents 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; and any further documents so filed and incorporated by reference in the Prospectus, when such documents are filed with the Commission or become effective, as the case may be, shall conform in all material respects to the requirements of the Exchange Act or the Securities Act, as applicable, and shall 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; |
(c) The Registration Statement and the Prospectus conform, and any further amendments or supplements to the Registration Statement or the Prospectus shall conform, in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder; the Registration Statement and any amendment thereto do not and shall not, as of the applicable effective date, 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; and the Prospectus does not contain and as amended or supplemented shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Operating Partnership by an Underwriter of Designated Securities through the Representatives expressly for use in the Prospectus relating to such Designated Securities. |
(d) Except as noted therein, the consolidated financial statements (including the related notes thereto) incorporated by reference in the Prospectus present fairly in all material respects the consolidated financial condition of the Operating Partnership and its consolidated subsidiaries and the Parent Guarantor and its consolidated subsidiaries, as applicable, as of the dates indicated and the results of their operations and changes in their consolidated cash flows for the periods specified; such financial statements have been prepared in conformity with accounting principles generally accepted in the United States applied on a consistent basis; any supporting schedules incorporated by reference in the Registration Statement present fairly in all material respects the information required to be stated therein; and any pro forma financial information (including the related notes thereto) contained or incorporated by reference in the Prospectus present fairly in all material respects the information contained therein and have been prepared on a reasonable basis using reasonable assumptions and in accordance with the applicable requirements of the Securities Act and the Exchange Act. |
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(e) The Parent Guarantor and its subsidiaries (including the Operating Partnership), taken as a whole, have not sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) except as set forth on Schedule III, there has not been any change in the beneficial interests of the Parent Guarantor (other than issuances of beneficial interests (A) pursuant to equity-based awards granted in the ordinary course of business to trustees or employees of the Parent Guarantor or the Operating Partnership, (B) upon exercise of options and upon conversion or redemption of convertible or redeemable securities, in each case which were outstanding as of the date of the latest audited financial statements included or incorporated by reference in the Prospectus, and (C) upon the exchange of Operating Partnership interests for beneficial interests in the Parent Guarantor) or in the partnership interests in the Operating Partnership or the capital stock, partnership, membership or beneficial interests of any of its consolidated subsidiaries, or any change in the long-term debt of the Parent Guarantor and its consolidated subsidiaries (including the Operating Partnership), taken as a whole, and (ii) there has not been any material adverse change in the business, properties, management, results of operations, financial condition or prospects of the Parent Guarantor and its consolidated subsidiaries (including the Operating Partnership), taken as a whole, except as set forth in the Prospectus. |
(f) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, with limited partnership power and authority to own its properties and conduct its business as described in the Prospectus, and has been duly qualified or registered as a foreign limited partnership for the transaction of business and is in good standing or subsisting under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or registration except where the failure to so qualify or register or be in good standing or subsisting could not reasonably be expected, individually or in the aggregate, to have a (i) material adverse effect on the business, properties, management, results of operations, financial condition or prospects of the Parent Guarantor and its subsidiaries (including the Operating Partnership), taken as a whole, or (ii) an adverse effect on the ability to perform on the part of, or the performance by, the Operating Partnership and the Guarantors of their respective obligations hereunder and under the Indenture, the Securities and the Guarantees (collectively, a “Material Adverse Effect”); the Parent Guarantor has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the State of Maryland, with trust power and authority to own its properties and conduct its business as described in the Prospectus, and has been duly qualified or registered as a foreign real estate investment trust for the transaction of business and is in good standing or subsisting under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or registration except where the failure to so qualify or register or be in good standing or subsisting could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and each consolidated subsidiary has been duly incorporated, formed or organized and is validly existing as a corporation or other entity in good standing or subsisting under the laws of its jurisdiction of incorporation, formation or organization, with corporate, partnership or limited liability company power and authority to own its properties and conduct its business as described in the Prospectus, and has been duly qualified or registered as a foreign corporation or other foreign entity for the transaction of business and is in good standing or subsisting under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or registration except where the failure to so qualify or register or be in good standing or subsisting could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. |
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(g) The Operating Partnership has an authorized capitalization as set forth in the Prospectus, and all of the issued partnership interests of the Operating Partnership have been duly and validly authorized and issued and are fully paid; the Parent Guarantor has an authorized capitalization as set forth in the Prospectus, and all of the issued beneficial interests of the Parent Guarantor have been duly and validly authorized and issued and are fully paid; all of the issued shares of capital stock, partnership, membership or beneficial interests of each consolidated subsidiary have been duly and validly authorized and issued, are fully paid and, if applicable, non-assessable and are owned directly or indirectly by the Operating Partnership, free and clear of all liens, encumbrances or claims (collectively, “Liens”); and the Parent Guarantor is the sole general partner of the Operating Partnership and its ownership percentage in the Operating Partnership is as set forth in the Prospectus. |
(h) This Agreement and the Pricing Agreement with respect to the Designated Shares have been duly authorized, executed and delivered by each of the Operating Partnership and the Guarantors. |
(i) The Indenture has been duly authorized by the Operating Partnership and the Guarantors and qualified under the Trust Indenture Act and, at the Time of Delivery (as defined in Section 4 hereof) for such Designated Securities, the Indenture shall constitute a valid and legally binding instrument enforceable against the Operating Partnership and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
(j) The Securities have been duly authorized by the Operating Partnership, and, when Designated Securities are issued and delivered pursuant to this Agreement and the Pricing Agreement with respect to such Designated Securities, such Designated Securities shall have been duly executed, authenticated, issued and delivered and shall constitute valid and legally binding obligations of the Operating Partnership entitled to the benefits provided by the Indenture and enforceable in accordance with their terms and entitled to the benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
(k) The Guarantees have been duly authorized by the Guarantors and, when the Securities are issued and delivered pursuant to this Agreement, the Guarantees shall have been duly executed, issued and delivered and shall constitute valid and legally binding obligations of each of the Guarantors enforceable in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
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(l) The Indenture conforms and the Designated Securities and the Guarantees shall conform, in all material respects, to the descriptions thereof contained in the Prospectus. |
(m) Neither the Parent Guarantor nor any of its consolidated subsidiaries (including the Operating Partnership) is, or with the giving of notice or lapse of time or both would be, in violation of or in default under its declaration of trust, charter, by-laws, partnership agreement, operating agreement or other organizational documents, as applicable, except where, in the case of any subsidiary that is not the Operating Partnership or a Subsidiary Guarantor, the violation or default could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, or any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Parent Guarantor or any of its consolidated subsidiaries (including the Operating Partnership) is a party or by which it or any of them or any of their respective properties is bound, except where the violation or default could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; the issue and sale of the Designated Securities, the issue of the Guarantees, the compliance by the Operating Partnership and the Guarantors with all of the provisions of the Designated Securities, the Guarantees, the Indenture, this Agreement and the applicable Pricing Agreement and the consummation of the transactions herein and therein contemplated shall not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Parent Guarantor or any of its subsidiaries (including the Operating Partnership) is a party or by which the Parent Guarantor or any of its subsidiaries (including the Operating Partnership) is bound or to which any of the property or assets of the Parent Guarantor or any of its subsidiaries (including the Operating Partnership) is subject, nor shall such actions result in any violation of the provisions of the declaration of trust or the by-laws of the Parent Guarantor, the certificate of limited partnership or partnership agreement of the Operating Partnership, the charter or by-laws or other organizational documents of any of the Subsidiary Guarantors or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Parent Guarantor or any of its subsidiaries (including the Operating Partnership) or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Designated Securities, the issue of the Guarantees or the consummation by the Operating Partnership and the Guarantors of the other transactions contemplated by this Agreement, the applicable Pricing Agreement or the Indenture, except such as have been, or shall have been prior to the Time of Delivery, obtained under the Securities Act or the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters. |
(n) Other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Parent Guarantor or any of its consolidated subsidiaries (including the Operating Partnership) is a party or to which any property of the Parent Guarantor or any of its consolidated subsidiaries (including the Operating Partnership) is subject, which could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and, to the knowledge of the Operating Partnership and the Guarantors, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. |
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(o) (i) PricewaterhouseCoopers, the independent certified public accountants of the Operating Partnership and the Parent Guarantor, who have audited certain financial statements of the Operating Partnership and its consolidated subsidiaries and of the Parent Guarantor and its consolidated subsidiaries, are independent public accountants as required by the Securities Act and the rules and regulations of the Commission thereunder; and (ii) Ernst & Young, the independent certified public accountants of The Rubenstein Company, L.P., who have audited certain financial statements of The Rubenstein Company, L.P. and its consolidated subsidiaries, are independent public accountants as required by the Securities Act and the rules and regulations of the Commission thereunder. |
(p) The Parent Guarantor and its subsidiaries (including the Operating Partnership) have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of real and personal property that is material to their respective businesses, in each case free and clear of all Liens except (A) those Liens which have been reflected generally or in the aggregate in the financial statements of the Operating Partnership and of the Parent Guarantor as disclosed in the Prospectus or as are described specifically, generally or in the aggregate in the Prospectus, or (B) such Liens not required by generally accepted accounting principles to be disclosed in the financial statements of the Operating Partnership or of the Parent Guarantor, which do not (a) materially adversely interfere with the use made or proposed to be made of such property by the Parent Guarantor and its subsidiaries (including the Operating Partnership) or (b) could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. |
(q) None of the Operating Partnership, the Parent Guarantor or any of the Subsidiary Guarantors is, and after giving effect to each offering and sale of the Securities and the issuance of the Guarantees is, or shall be required to register as, an “investment company” under the Investment Company Act of 1940, as amended (the “Investment Company Act”). |
(r) At all times commencing with the Parent Guarantor’s taxable year ended December 31, 1986, the Parent Guarantor has been and after giving effect to the offering and the sale of the Designated Securities and the issuance of the Guarantees shall continue to be, organized and operated in conformity with the requirements for qualification of the Parent Guarantor as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and the proposed method of operation of the Parent Guarantor shall enable the Parent Guarantor to continue to meet the requirements for qualification and taxation as a REIT under the Code. |
(s) The Parent Guarantor and its consolidated subsidiaries (including the Operating Partnership) (A) have filed all federal, state, local and foreign tax returns that are required to be filed or have requested extensions thereof except in any case in which the failure so to file could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, except as set forth in the Prospectus, and (B) have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, 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 could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, except as set forth in the Prospectus. |
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(t) The Parent Guarantor and its consolidated subsidiaries (including the Operating Partnership) possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Parent Guarantor nor any such consolidated subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to have a Material Adverse Effect on the Parent Guarantor and its subsidiaries (including the Operating Partnership), taken as a whole, except as set forth in the Prospectus. |
(u) No labor dispute or disturbance involving the employees of the Parent Guarantor or any of its subsidiaries (including the Operating Partnership) or of any other entity exists or is threatened or imminent that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, except as set forth in the Prospectus. |
(v) The Parent Guarantor and its consolidated subsidiaries (including the Operating Partnership) (A) are in compliance with applicable federal, state, local and foreign laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (Environmental Laws), (B) have received, and are in compliance with, all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) have not received notice of any actual or potential liability under any environmental law, except in each case where such non-compliance with Environmental Laws, failure to receive or comply with required permits, licenses or other approvals, or liability could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, except as set forth in the Prospectus; except as set forth in the Prospectus, neither the Parent Guarantor nor any of its consolidated subsidiaries (including the Operating Partnership) has been named as a potentially responsible party under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended; in the ordinary course of its business, the Operating Partnership and the Parent Guarantor periodically review the effect of Environmental Laws on the business, operations and properties of the Operating Partnership, Parent Guarantor and their respective consolidated subsidiaries, in the course of which they identify and evaluate 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 Operating Partnership and the Parent Guarantor have reasonably concluded that such associated costs and liabilities could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, except as set forth in the Prospectus. |
(w) 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 Parent Guarantor and/or one or more of its subsidiaries (including the Operating Partnership), 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 Parent Guarantor and its subsidiaries (including the Operating Partnership) has fulfilled its obligations, if any, under Section 515 of ERISA; neither the Parent Guarantor nor any of its subsidiaries (including the Operating Partnership) 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 Parent Guarantor and/or one or more of its subsidiaries (including the Operating Partnership) is in compliance in all material respects with the currently applicable provisions of ERISA; neither the Parent Guarantor nor any of its subsidiaries (including the Operating Partnership) 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; and the assets of the Parent Guarantor and its subsidiaries (including the Operating Partnership) do not, and as of the Time of Delivery shall not, constitute plan assets under ERISA. |
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(x) The Parent Guarantor and its consolidated subsidiaries (including the Operating Partnership) are currently in compliance with all presently applicable provisions of the Americans with Disabilities Act, as amended, except for any such non-compliance that could not reasonably be expected, individually or in aggregate, to have a Material Adverse Effect. |
(y) There is, and has been, no failure on the part of the Parent Guarantor and its subsidiaries (including the Operating Partnership), and any of their respective trustees, 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, including, without limitation, Section 402 related to loans and Sections 302 and 906 related to certifications. |
(z) The Parent Guarantor and its consolidated subsidiaries (including the Operating Partnership) maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements 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 managements 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. |
(aa) The Parent Guarantor and each of its consolidated subsidiaries (including the Operating Partnership) 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; to the knowledge of the Parent Guarantors and its subsidiaries (including the Operating Partnership) all policies of insurance insuring the Parent Guarantor and its consolidated subsidiaries (including the Operating Partnership) or their respective businesses, assets, employees, officers and directors are in full force and effect; the Parent Guarantor and its consolidated subsidiaries (including the Operating Partnership) are in compliance with the terms of such policies and instruments in all material respects; neither the Parent Guarantor nor any of its consolidated subsidiaries (including the Operating Partnership) has received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such coverage; and neither the Parent Guarantor nor any of its consolidated subsidiaries (including the Operating Partnership) has any reason to believe that it shall 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 could not reasonably be expected, individually or in aggregate, to have a Material Adverse Effect, except as set forth in the Prospectus. |
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(bb) No consolidated subsidiary of the Parent Guarantor (including the Operating Partnership) is currently prohibited, directly or indirectly, from paying any dividends to the Operating Partnership, from making any other distribution on such subsidiarys capital stock or other equity, from repaying to the Operating Partnership any loans or advances to such subsidiary from the Operating Partnership, or from transferring any of such subsidiary’s property or assets to the Operating Partnership or any other subsidiary of the Operating Partnership, [except that, as set forth in the Prospectus, _______, ________ and __________ require the consent of their respective joint venture partners as a condition to making such payments or transfers and that following an event of default under the loan documents encumbering the properties owned by a subsidiary of the Parent Guarantor (including the Operating Partnership) such subsidiary may be prohibited from making distributions to the Operating Partnership]. |
(cc) Neither the Parent Guarantor nor any of its affiliates (including the Operating Partnership) does any business with the government of Cuba or with any person or affiliate located in Cuba within the meaning of Section 517.075, Florida Statutes. [Note: this representation to be deleted in the case of listed securities.] |
(dd) The statistical and market-related data, if any, included in the Prospectus is based on or derived from sources which the Operating Partnership and the Guarantors believe, in good faith, to be reliable and accurate in all material respects. |
3. Upon the execution of the Pricing Agreement applicable to any Designated Securities and authorization by the Representatives of the release of such Designated Securities and the Guarantees thereof, the several Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set forth in the Prospectus. |
4. Designated Securities to be purchased by each Underwriter pursuant to the Pricing Agreement relating thereto, in the form specified in such Pricing Agreement, and in such authorized denominations and registered in such names as the Representatives may request upon at least 24 hours’ prior notice to the Operating Partnership, shall be delivered by or on behalf of the Operating Partnership to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor by wire transfer in federal or other same day funds, payable to the order of the Operating Partnership in the funds specified in such Pricing Agreement, all in the manner and at the place and time and date specified in such Pricing Agreement or at such other place and time and date as the Representatives and the Operating Partnership may agree upon in writing, such time and date being herein called the “Time of Delivery” for such Designated Securities. |
5. The Operating Partnership and the Guarantors, jointly and severally, agree with each of the Underwriters of any Designated Securities as follows: |
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(a) To prepare the Prospectus in relation to the applicable Designated Securities and the Guarantees in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act no later than the Commission’s close of business on the second business day following the execution and delivery of the Pricing Agreement relating to the applicable Designated Securities or, if applicable, such earlier time as may be required by Rule 424(b); to make no further amendment or any supplement to the Registration Statement or Prospectus after the date of the Pricing Agreement relating to such Designated Securities and prior to the Time of Delivery for such Designated Securities which shall be disapproved by the Representatives for such Designated Securities promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after the Time of Delivery for such Designated Securities and furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Operating Partnership or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required in connection with the offering or sale of such Designated Securities; and during such same period to advise the Representatives, promptly after it receives notice thereof, of (i) the time when any amendment to the Registration Statement has been filed or becomes effective or any prospectus supplement to the Prospectus or any amended Prospectus has been filed with the Commission, (ii) the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to such Designated Securities, (iii) the suspension of the qualification of such Designated Securities for offering or sale in any jurisdiction, (iv) the initiation or threatening of any proceeding for any such purpose, or (v) any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus relating to such Designated Securities or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order; |
(b) Promptly from time to time to take such action as the Representatives may reasonably request to qualify such Designated Securities and Guarantees for offering and sale under the securities laws of such jurisdictions within the United States as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein for as long as may be necessary to complete the distribution of such Designated Securities and Guarantees; provided, however, that in connection therewith neither the Operating Partnership nor any of the Guarantors shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; |
(c) To furnish the Underwriters with (i) two copies of the Registration Statement (as originally filed) and each amendment thereto, and all exhibits and documents incorporated or deemed to be incorporated by reference therein and (ii) copies of the Prospectus in such quantities as the Representatives may from time to time reasonably request, and, if the delivery of a prospectus is required at any time in connection with the offering or sale of the Designated Securities and the issuance of the Guarantees; and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an 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 when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated or deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act, the Exchange Act or the Trust Indenture Act, to notify the Representatives and upon their request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended Prospectus or a prospectus supplement to the Prospectus, which shall correct such statement or omission or effect such compliance; |
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(d) During the period beginning from the date of the Pricing Agreement for the Designated Securities and continuing to and including the date specified in the Pricing Agreement for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Operating Partnership or any of the Guarantors that mature more than one year after the Time of Delivery and that are substantially similar to such Designated Securities, without the prior written consent of the Representatives; |
(e) To make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Operating Partnership and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Operating Partnership, Rule 158); |
(f) To apply the net proceeds from the sale of the Designated Securities as described in the Preliminary Prospectus and the Prospectus; |
(g) Neither the Operating Partnership nor any of the Guarantors shall 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, which is contrary to any applicable law, of the price of any security of the Operating Partnership to facilitate the sale or resale of the Securities. |
(h) Neither the Operating Partnership nor any of the Guarantors shall be or become, at any time prior to the expiration of three years after the Time of Delivery, an “investment company” or an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act. |
(i) The Parent Guarantor shall use its best efforts to continue to be organized and operated in conformity with the requirements for qualification as a REIT under the Code for each of its taxable years for so long as the Board of Trustees of the Parent Guarantor deems it in the best interests of the Parent Guarantor’s shareholders to remain so qualified and not to be materially and adversely against the interests of the holders of the Designated Securities to fail to be so qualified. |
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6. The Operating Partnership and the Guarantors, jointly and severally, covenant and agree with the several Underwriters that the Operating Partnership and the Guarantors shall pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Operating Partnerships and the Guarantors counsel and accountants in connection with the registration of the Securities and the Guarantees under the Securities Act; (ii) all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and all other amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (iii) the cost of printing and producing any Agreement among Underwriters, this Agreement, any Pricing Agreement, the Indenture, any Blue Sky and legal investment memoranda, closing documents (including any compilations thereof) and any other documents so long as such documents have been approved by the Operating Partnership or the Parent Guarantor in connection with the offering, purchase, sale and delivery of the Securities and the Guarantees; (iv) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(b) hereof, including the fees and disbursements of the counsel to the Underwriters, in connection with such qualification and in connection with any Blue Sky and legal investment surveys; (v) any fees charged by securities rating agencies for rating the Securities; (vi) any filing fees incident to, and the reasonable fees and disbursements of the counsel to the Underwriters, in connection with any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Securities; (vii) the cost of preparing the Securities and the Guarantees; (viii) the reasonable fees and expenses of any Trustee identified in a Pricing Agreement (the “Trustee”) and any agent of any Trustee and any transfer or paying agent of the Operating Partnership and the Guarantors and the reasonable fees and disbursements of counsel to the Trustee or such agent in connection with any Indenture, the Securities and the Guarantees; (ix) any transfer or similar taxes payable in connection with the issuance, sale and delivery of the Designated Securities and the Guarantees to the Underwriters; and (x) all other costs and expenses incident to the performance of its obligations hereunder, which are not otherwise specifically provided for in this Section. It is understood, however, that, except as otherwise specifically provided in this Section 6 and Sections 8 and 11 hereof, the Underwriters shall pay all of their own costs and expenses, including the fees of the counsel to the Underwriters, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make. |
7. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to such Designated Securities shall be subject, in the Representatives’ discretion, to the condition that all representations and warranties and other statements of the Operating Partnership and the Guarantors included or incorporated by reference in the Pricing Agreement relating to such Designated Securities are true and correct at and as of the Time of Delivery for such Designated Securities and the condition that prior to such Time of Delivery the Operating Partnership and the Guarantors shall have performed all of their obligations hereunder theretofore to be performed, and the following additional conditions: |
(a) (i) The Prospectus in relation to the applicable Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; (ii) no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and (iii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives; |
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(b) The counsel to the Underwriters shall have furnished to the Representatives such opinion or opinions, dated the Time of Delivery, with respect to the good standing status of the Operating Partnership and the Guarantors, the Indenture, the Securities, the Guarantees, the Registration Statement, the Prospectus and such other related matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters; |
(c) Pepper Hamilton LLP, counsel to the Operating Partnership and the Guarantors, shall have furnished to the Representatives their written opinion dated the Time of Delivery in form and substance reasonably satisfactory to the Representatives, to the following effect: |
(i) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, with limited partnership power and authority to own its properties and conduct its business as described in the Prospectus; |
(ii) The Parent Guarantor has been duly formed and is validly existing as a real estate investment trust in good standing under the laws of the State of Maryland, with trust power and authority to own its properties and conduct its business as described in the Prospectus; |
(iii) Each Subsidiary Guarantor has been duly incorporated, formed or organized and is validly existing as a corporation or other entity in good standing under the laws of its jurisdiction of incorporation, formation or organization, with corporate, limited liability company or partnership power and authority to own its properties and conduct its business as described in the Prospectus; and all of the issued shares of capital stock, limited liability company, partnership or beneficial interests of each Subsidiary Guarantor have been duly and validly authorized and issued, are fully paid and, as applicable, non-assessable; |
(iv) All of the issued partnership interests of the Operating Partnership have been duly and validly authorized and issued and are fully paid; all of the issued beneficial interests of the Parent Guarantor have been duly and validly authorized and issued and are fully paid; and the Parent Guarantor is the sole general partner of the Operating Partnership and its percentage interest and ownership in the Operating Partnership is as set forth in the Prospectus; |
(v) The Operating Partnership has been duly qualified or registered as a foreign partnership for the transaction of business and is in good standing or subsisting under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business so as to require such qualification or registration, except where the failure to so qualify or register or be in good standing or subsisting could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; the Parent Guarantor has been duly qualified or registered as a foreign trust for the transaction of business and is in good standing or subsisting under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or registration, except where the failure to so qualify or register or be in good standing or subsisting could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and each Subsidiary Guarantor has been duly qualified or registered as a foreign corporation or other entity for the transaction of business and is in good standing or subsisting under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or registration, except where the failure to so qualify or register or be in good standing or subsisting could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Operating Partnership and Guarantors, provided that such counsel shall state that they believe that both the Representatives and they are justified in relying upon such opinions and certificates); |
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(vi) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Parent Guarantor or any of its subsidiaries (including the Operating Partnership) is a party, or of which any property of the Parent Guarantor or any of its subsidiaries (including the Operating Partnership) is the subject, which are required, individually or in the aggregate, to be disclosed in the Registration Statement or the Prospectus which are not fairly described therein as required; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; |
(vii) This Agreement and the applicable Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Operating Partnership and the Guarantors; |
(viii) The Indenture has been duly authorized, executed and delivered by the Operating Partnership and the Guarantors and constitutes a valid and legally binding instrument, enforceable against the Operating Partnership and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, receivership, moratorium or other laws (including, without limitation, the effect of statutory and other laws regarding fraudulent conveyances, fraudulent transfers and preferential matters) and as may be limited by the exercise of judicial discretion and application of principles of equity, including, without limitation, requirements of good faith, fair dealing, conscionability and materiality (regardless of whether the enforceability of the Indenture is considered in a proceeding at law or equity); and the Indenture has been duly qualified under the Trust Indenture Act; |
(ix) The Designated Securities have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Operating Partnership entitled to the benefits provided by the Indenture and are enforceable against the Operating Partnership in accordance with the terms of the Designated Securities, subject, as to enforcement, to bankruptcy, insolvency, reorganization, receivership, moratorium or other laws (including, without limitation, the effect of statutory and other laws regarding fraudulent conveyances, fraudulent transfers and preferential matters) and as may be limited by the exercise of judicial discretion and application of principles of equity, including, without limitation, requirements of good faith, fair dealing, conscionability and materiality (regardless of whether the enforceability of the Designated Securities is considered in a proceeding at law or equity); |
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(x) The Guarantees have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Guarantors and are enforceable against the Guarantors in accordance with the terms of the Guarantees, subject, as to enforcement, to bankruptcy, insolvency, reorganization, receivership, moratorium or other laws (including, without limitation, the effect of statutory and other laws regarding fraudulent conveyances, fraudulent transfers and preferential matters) and as may be limited by the exercise of judicial discretion and application of principles of equity, including, without limitation, requirements of good faith, fair dealing, conscionability and materiality (regardless of whether the enforceability of the Guarantees is considered in a proceeding at law or equity); |
(xi) The Designated Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof in the Prospectus as amended or supplemented; |
(xii) The issue and sale of the Designated Securities, the issue of the Guarantees, the compliance by the Operating Partnership and the Guarantors with all of the provisions of the Designated Securities, the Guarantees, the Indenture, this Agreement and the applicable Pricing Agreement and the consummation of the transactions herein and therein contemplated do not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Parent Guarantor or any of its subsidiaries (including the Operating Partnership) is a party or by which the Parent Guarantor or any of its subsidiaries (including the Operating Partnership) is bound or to which any of the property or assets of the Parent Guarantor or any of its subsidiaries (including the Operating Partnership) is subject, nor do such actions result in any violation of the provisions of the declaration of trust or the by-laws of the Parent Guarantor, the certificate of limited partnership or partnership agreement of the Operating Partnership, the charter or by-laws or other organizational documents of any of the Subsidiary Guarantors or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Parent Guarantor or any of its subsidiaries (including the Operating Partnership) or any of their properties; |
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(xiii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Designated Securities, the issue of the Guarantees, or the consummation by the Operating Partnership and the Guarantors of the other transactions contemplated by this Agreement, the applicable Pricing Agreement or the Indenture, except such as have been obtained under the Securities Act or the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters; |
(xiv) The Registration Statement and the Prospectus and any amendments and supplements thereto made by the Operating Partnership and the Guarantors prior to the Time of Delivery for the Designated Securities (other than the financial statements and related notes and schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations thereunder; |
(xv) The Incorporated Documents (other than the financial statements and related notes and schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission or became effective, as the case may be, complied as to form in all material respects with the requirements of the Exchange Act or the Securities Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel have no reason to believe that any of the Incorporated Documents, when they were so filed or became effective, as the case may be, 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; |
(xvi) The statements made under the caption under “Material Federal Income Tax Consequences” in the Prospectus, insofar as they purport to constitute summaries of matters of U.S. federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects; |
(xvii) The Registration Statement has become effective under the Securities Act; the Prospectus relating to the Designated Securities and the Guarantees was filed with the Commission within the prescribed time periods pursuant to Rule 424(b) of the rules and regulations under the Securities Act; and, to such counsels knowledge, no stop order suspending the effectiveness of the Registration Statements has been issued or proceeding for the purpose has been instituted or threatened by the Commission; |
(xviii) Such counsel have no reason to believe that, as of their respective effective dates, the Registration Statement or any amendment thereto made by the Operating Partnership and the Guarantors prior to the Time of Delivery (other than the financial statements and related notes and schedules therein, as to which such counsel need express no belief) 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 its date and as of the Time of Delivery, the Prospectus or any amendment or prospectus supplement thereto |
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made by the Operating Partnership and the Guarantors prior to the Time of Delivery (other than the financial statements and related notes and schedules therein, as to which such counsel need express no belief) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; and such counsel 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 that are not filed or incorporated by reference or described as required. |
The opinions as to enforceability expressed in paragraphs (viii), (ix) and (x) above shall be understood to mean only that if there is a default in performance of an obligation, (A) if a failure to pay or other damages can be shown and (B) if the defaulting party can be brought into a court which will hear the case and apply the governing law, then, subject to the availability of defenses and to the exceptions set forth in paragraphs (viii), (ix) and (x) above, the court will provide a money damage (or perhaps injunctive or specific performance) remedy.
(d) (i) On the date of the applicable Pricing Agreement for such Designated Securities and at the Time of Delivery for such Designated Securities, Pricewaterhouse Coppers LLP, the independent certified public accountants of the Operating Partnership and the Parent Guarantor, who have audited the financial statements of the Operating Partnership and its consolidated subsidiaries and of the Parent Guarantor and its consolidated subsidiaries, included or incorporated by reference in the Registration Statement, shall have furnished to the Representatives letters, dated the respective dates of delivery, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement and the Prospectus; and (ii) on the date of the applicable Pricing Agreement for such Designated Securities and at the Time of Delivery for such Designated Securities, Ernst & Young, the independent certified public accountants of The Rubenstein Company, L.P., who have audited the financial statements of The Rubenstein Company, L.P. and its consolidated subsidiaries, included or incorporated by reference in the Registration Statement, shall have furnished to the Representatives letters, dated the respective dates of delivery, in form and substance satisfactory to the Representatives, containing statements and information of the type customarily included in accountants comfort letters to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement and the Prospectus; |
(e) (i) The Parent Guarantor and its subsidiaries (including the Operating Partnership), taken as a whole, have not sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Prospectus and (ii) since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the beneficial interests of the Parent Guarantor (other than issuances of beneficial interests (A) pursuant to equity-based awards granted in the ordinary course of business, (B) upon exercise of options and upon conversion or redemption of convertible or redeemable securities, in each case which were outstanding as of the date of the latest audited financial statements included or incorporated by reference in the Prospectus, and (C) upon the exchange of Operating Partnership interests for beneficial interests in the Parent Guarantor) or in the partnership interests in the Operating Partnership or the capital stock, partnership, membership or beneficial interests of any of its consolidated subsidiaries, or any change in the long-term debt of the Parent Guarantor and its consolidated subsidiaries (including the Operating Partnership), taken as a whole, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, results of operations, financial condition or prospects of the Parent Guarantor and its consolidated subsidiaries (including the Operating Partnership), taken as a whole, except as set forth in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities and the Guarantees on the terms and in the manner contemplated in the Prospectus; |
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(f) On or after the date of the Pricing Agreement relating to the Designated Securities, (i) no downgrading shall have occurred in the rating accorded the Operating Partnerships debt securities or the Parent Guarantor’s debt securities or, if applicable, preferred shares of beneficial interest by any “nationally recognized statistical rating organization”, as the term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Operating Partnerships debt securities or the Parent Guarantor’s debt securities or preferred shares; |
(g) On or after the date of the Pricing Agreement relating to the Designated Securities, there shall not have occurred any of the following: (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Operating Partnership or the Parent Guarantor shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Designated Securities on the terms and in the manner contemplated by this Agreement and the Prospectus; and |
(h) The Operating Partnership and the Guarantors shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the Designated Securities a certificate or certificates of officers of the Operating Partnership and the Guarantors in such form and executed by such officers of the Operating Partnership and the Guarantors as shall be satisfactory to the Representatives, as to the accuracy of the representations and warranties of the Operating Partnership and the Guarantors herein at and as of such Time of Delivery, as to the performance by the Operating Partnership and the Guarantors of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in Sections 7(a), (g) and (h) and as to such other matters (including, without limitation, with respect to compliance with debt agreements and instruments) as the Representatives may reasonably request. |
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8. (a) The Operating Partnership, the Parent Guarantor and the Subsidiary Guarantors, jointly and severally, shall indemnify and hold harmless each Underwriter, its directors, officers and employees and each person, if any, who controls any Underwriter within the meaning of the Securities Act, from and against any losses, claims, damages or liabilities, joint or several, or any action in respect thereof to which such Underwriter, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities or actions arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus and any other prospectus relating to the Designated Securities, or any amendment or supplement thereto, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus and any other prospectus relating to the Designated Securities, or any amendments or supplements thereto a material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each Underwriter and each such director, officer, employee and controlling person promptly upon demand for any legal or other expenses reasonably incurred by such Underwriter and each such director, officer, employee and controlling person in connection with investigating or defending any such loss, damage, liability, action or claim as such expenses are incurred; provided, however, that the Operating Partnership, the Parent Guarantor and the Subsidiary Guarantors shall 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 an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus and any other prospectus relating to the Designated Securities, or any such amendment or supplement, in reliance upon and in conformity with information furnished in writing to the Operating Partnership by any Underwriter of Designated Securities through the Representatives expressly for use in the Prospectus relating to such Designated Securities. |
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Operating Partnership, the Parent Guarantor and the Subsidiary Guarantors against any losses, claims, damages or liabilities to which the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus and any other prospectus relating to the Designated Securities, or any amendment or supplement thereto, or (ii) 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, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus and any other prospectus relating to the Designated Securities, or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Operating Partnership by such Underwriter through the Representatives expressly for use therein, and shall reimburse the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor for any legal or other expenses reasonably incurred by the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor in connection with investigating or defending any such action or claim as such expenses are incurred. |
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(c) Promptly after receipt by an indemnified party under Section 8(a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation provided, however, that any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the employment thereof has been specifically authorized by the indemnifying party in writing, (ii) such indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party and in the reasonable judgment of such counsel it is advisable for such indemnified party to employ separate counsel or (iii) the indemnifying party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party, in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate counsel (plus local counsel in each such jurisdiction) at any time for all such indemnified parties. If the indemnifying party does not assume the defense of such action, it is understood that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate counsel (plus local counsel in each such jurisdiction) at any time for all such indemnified parties, which firms shall be designated in writing by you, if the indemnified parties under this Section 8 consist of any Underwriter of the Designated Securities or any of its respective directors, officers, employees or controlling persons, or by the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor, if the indemnified parties under this Section 8 consist of the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor or any of their directors, officers, administrative trustees or controlling persons. The indemnifying party shall not be liable for any settlement of an action or claim for monetary damages which an indemnified party may effect without the consent of the indemnifying party, which consent shall not be unreasonably withheld. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim), unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. For purposes of this Section 8, references to “counsel” shall include a firm of attorneys. |
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(d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Operating Partnership, the Parent Guarantor and the Subsidiary Guarantors on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under Section 8(c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits referred to in the immediately preceding sentence but also the relative fault of the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor bear to the total commissions or discounts received by such Underwriters in respect thereof. The relative fault 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 required to be stated therein or necessary in order to make the statements therein not misleading relates to information supplied by the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor on the one hand or by any such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Operating Partnership, the Parent Guarantor, the Subsidiary Guarantors and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total public offering price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this Section 8(d) to contribute are several in proportion to their respective underwriting obligations with respect to such Designated Securities and not joint. |
22
(e) The obligations of the Operating Partnership, the Parent Guarantor and the Subsidiary Guarantors under this Section 8 shall be in addition to any liability which the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Securities Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor and to each person, if any, who controls the Operating Partnership, the Parent Guarantor or any Subsidiary Guarantor within the meaning of the Securities Act. |
9. (a) If any Underwriter shall default in its obligation to purchase the Designated Securities which it has agreed to purchase under the Pricing Agreement relating to such Designated Securities, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Designated Securities on the terms contained herein. If within 36 hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Designated Securities, then the Operating Partnership shall be entitled to a further period of 36 hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Operating Partnership that they have so arranged for the purchase of such Designated Securities, or the Operating Partnership notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives or the Operating Partnership shall have the right to postpone the Time of Delivery for such Designated Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Operating Partnership agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to the Pricing Agreement with respect to such Designated Securities. |
(b) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Operating Partnership as provided in subsection (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated Securities, then the Operating Partnership shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated Securities which such Underwriter agreed to purchase under the Pricing Agreement relating to such Designated Securities and, in addition, to require each non-defaulting Underwriter to purchase its pro-rata share (based on the principal amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Designated Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. |
23
(c) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Operating Partnership as provided in subsection (a) above, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Designated Securities as referred to in subsection (b) above, or if the Operating Partnership shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Operating Partnership, except for the expenses to be borne by the Operating Partnership and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. |
10. The respective indemnities, agreements, representations, warranties and other statements of the Operating Partnership, the Guarantors and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any officer or director or controlling person of any Underwriter, or the Operating Partnership or any Guarantor, or any officer or director or controlling person of the Operating Partnership or any Guarantor, and shall survive delivery of and payment for the Securities. |
11. If any Pricing Agreement shall be terminated pursuant to Section 9 hereof or if the condition in Section 7(i) is not satisfied, the Operating Partnership and the Guarantors shall not then be under any liability to any Underwriter with respect to the Designated Securities covered by such Pricing Agreement except as provided in Sections 6 and 8 hereof, but, if for any other reason, Designated Securities are not delivered by or on behalf of the Operating Partnership as provided herein, the Operating Partnership or the Guarantors shall reimburse the Underwriters through the Representatives for all out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but the Operating Partnership and the Guarantors shall then be under no further liability to any Underwriter with respect to such Designated Securities except as provided in Sections 6 and 8 hereof. |
24
12. In all dealings hereunder, the Representatives of the Underwriters of Designated Securities shall act on behalf of each of such Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such of the Representatives, if any, as may be designated for such purpose in the Pricing Agreement. |
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the address of the Representatives as set forth in the Pricing Agreement; and if to the Operating Partnership or the Guarantors shall be delivered or sent by mail, telex or facsimile transmission to the address of the Operating Partnership and the Guarantors set forth in the Registration Statement, Attention: General Counsel; provided, however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its underwriters’ questionnaire, or telex constituting such questionnaire, which address shall be supplied to the Operating Partnership by the Representatives upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Operating Partnership, the Guarantors and, to the extent provided in Sections 8 and 10 hereof, the directors, officers and employees of the Operating Partnership, the Guarantors or any Underwriter and each person who controls the Operating Partnership, the Guarantors or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement or any such Pricing Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. |
14. Time shall be of the essence of each Pricing Agreement. As used herein, “business day” shall mean any day on which the New York Stock Exchange, Inc. is open for trading. |
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. |
16. This Agreement and each Pricing Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. |
25
Very truly yours, |
BRANDYWINE OPERATING PARTNERSHIP, L.P. |
By: Brandywine Realty Trust, its General Partner |
By: ________________________________________ Name: Title: |
BRANDYWINE REALTY TRUST |
By: ________________________________________ Name: Title: |
AAPOP 2, L.P. | ||||||
By: |
Witmer Operating Partnership I, L.P., a Delaware
limited partnership, one of its general partners |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania
limited liability company, its general partner |
By: |
Brandywine Operating Partnership,
L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust,
a Maryland real estate investment trust, its general partner* |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, one of its general partners |
By: |
Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust,
a Maryland real estate investment trust, its general partner* |
26
BRANDYWINE AMBASSADOR, L.P. |
By: |
Brandywine Ambassador, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE CENTRAL L.P. |
By: |
Brandywine F.C., L.P., a Pennsylvania limited partnership, its general partner |
By: |
Brandywine F.C., L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
27
BRANDYWINE CIRA, L.P. |
By: |
Brandywine Cira, LLC, a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE F.C., L.P. |
By: |
Brandywine F.C., L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE GRANDE B, L.P. |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE GREENTREE V, LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
28
BRANDYWINE I.S., L.P. |
By: |
Brandywine I.S., L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE METROPLEX, L.P. |
By: |
Brandywine Metroplex, LLC, a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE P.M., L.P. |
By: |
Brandywine P.M., L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
29
BRANDYWINE TB FLORIG, L.P. |
By: |
Brandywine TB Florig, LLC, a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB INN, L.P. |
By: |
Brandywine TB Inn, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB I, L.P. |
By: |
Brandywine TB I, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
30
BRANDYWINE TB II, L.P. |
By: |
Brandywine TB II, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB V, L.P. |
By: |
Brandywine TB V, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB VI, L.P. |
By: |
Brandywine TB VI, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
31
BRANDYWINE TB VIII, L.P. | ||||||
By: |
Brandywine TB VIII, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
C/N IRON RUN LIMITED PARTNERSHIP III |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
C/N LEEDOM LIMITED PARTNERSHIP II |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
C/N OAKLANDS LIMITED PARTNERSHIP I |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
32
C/N OAKLANDS LIMITED PARTNERSHIP III |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
E-TENANTS.COM HOLDING, L.P. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
FIFTEEN HORSHAM, L.P. |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
IRON RUN LIMITED PARTNERSHIP V |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
33
LC/N HORSHAM LIMITED PARTNERSHIP |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
LC/N KEITH VALLEY LIMITED PARTNERSHIP I |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
34
NEWTECH IV LIMITED PARTNERSHIP |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
NICHOLS LANSDALE LIMITED PARTNERSHIP III |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Witmer L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
35
WITMER OPERATING PARTNERSHIP I, L.P. |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
100 ARRANDALE ASSOCIATES, L.P. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
111 ARRANDALE ASSOCIATES, L.P. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
440 CREAMERY WAY ASSOCIATES, L.P. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
442 CREAMERY WAY ASSOCIATES, L.P. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
36
481 JOHN YOUNG WAY ASSOCIATES, L.P. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
INTERSTATE CENTER ASSOCIATES |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, one of its general partners |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
By: |
Brandywine Interstate 50, L.L.C., a Delaware limited liability company, one of its general partners |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
37
IR NORTHLIGHT II ASSOCIATES |
By: |
AAPOP 2, L.P., a Delaware limited partnership, one of its general partners |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, one of its general partners |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, one of its general partners |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, one of its general partners |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
38
PLYMOUTH TFC GENERAL PARTNERSHIP |
By: |
Brandywine P.M., L.P., a Pennsylvania Limited Partnership, its general partner |
By: |
Brandywine P.M., L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, one of its general partners |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BTRS, INC.* |
SOUTHPOINT LAND HOLDINGS, INC.* |
VALLEYBROOKE LAND HOLDINGS, INC.* |
BRANDYWINE AMBASSADOR, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
39
BRANDYWINE CHARLOTTESVILLE LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE CHRISTINA LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE CIRA, LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE DABNEY, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE DOMINION, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
40
BRANDYWINE F.C., L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE GRANDE B, LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE I.S., L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE INTERSTATE 50, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINEMAIN STREET, LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
41
BRANDYWINE METROPLEX LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE P.M., L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust,
a Maryland real estate investment trust, its general partner* |
BRANDYWINE PIAZZA, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE PLAZA 1000, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE PROMENADE, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
42
BRANDYWINE TB FLORIG, LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust,
a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB INN, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB I, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB II, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB V, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust,
a Maryland real estate investment trust, its general partner* |
43
BRANDYWINE TB VI, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB VIII, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust,
a Maryland real estate investment trust, its general partner* |
BRANDYWINE TRENTON URBAN RENEWAL, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust,
a Maryland real estate investment trust, its general partner |
BRANDYWINE WITMER, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust,
a Maryland real estate investment trust, its general partner* |
44
CHRISTIANA CENTER OPERATING COMPANY III LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
E-TENANTS LLC |
By: |
e-Tenants.com Holding, L.P., a Pennsylvania limited partnership, its sole member |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
* |
By: _________________________________________ Name: Title: |
[INSERT SIGNATURE BLOCKS FOR
REPRESENTATIVES OF THE UNDERWRITERS]
By: ________________________________________
Name:
Title:
On behalf of itself and each of the other several Underwriters
45
ANNEX I
PRICING AGREEMENT
_____________ __, 20__
[INSERT NAME OF REPRESENTATIVES]
As Representatives of the several
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
Brandywine Operating Partnership, L.P., a Delaware limited partnership (the “Operating Partnership”), proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated _________ __, 2004 (the “Underwriting Agreement”), among the Operating Partnership, Brandywine Realty Trust, a Maryland real estate investment trust and sole general partner and a limited partner of the Operating Partnership (the “Parent Guarantor”), each of the subsidiaries of the Operating Partnership parties thereto (the “Subsidiary Guarantors”; and, together with the Parent Guarantor, the “Guarantors”) and you to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) the Securities specified in Schedule II hereto (the “Designated Securities”). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein, and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty which refers to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Prospectus (as therein defined), and also a representation and warranty as of the date of this Pricing Agreement in relation to the Prospectus relating to the Designated Securities which are the subject of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of the Underwriters of the Designated Securities pursuant to Section 12 of the Underwriting Agreement and the address of the Representatives referred to in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a prospectus supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Operating Partnership and the Guarantors agree to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Operating Partnership and the Guarantors, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and return to us ___ counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and the Operating Partnership and the Guarantors.
Very truly yours, |
BRANDYWINE OPERATING PARTNERSHIP, L.P. |
By: Brandywine Realty Trust, its General Partner |
By: ________________________________________ Name: Title: |
BRANDYWINE REALTY TRUST |
By: ________________________________________ Name: Title: |
AAPOP 2, L.P. | ||||||
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, one of its general partners |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-2
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, one of its general partners |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE AMBASSADOR, L.P. |
By: |
Brandywine Ambassador, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE CENTRAL L.P. |
By: |
Brandywine F.C., L.P., a Pennsylvania limited partnership, its general partner |
By: |
Brandywine F.C., L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-3
BRANDYWINE CIRA, L.P. |
By: |
Brandywine Cira, LLC, a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE F.C., L.P. |
By: |
Brandywine F.C., L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE GRANDE B, L.P. |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE GREENTREE V. LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-4
BRANDYWINE I.S., L.P. |
By: |
Brandywine I.S., L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE METROPLEX, L.P. |
By: |
Brandywine Metroplex, LLC, a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE P.M., L.P. |
By: |
Brandywine P.M., L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-5
BRANDYWINE TB FLORIG, L.P. |
By: |
Brandywine TB Florig, LLC, a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB INN, L.P. |
By: |
Brandywine TB Inn, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB I, L.P. |
By: |
Brandywine TB I, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-6
BRANDYWINE TB II, L.P. |
By: |
Brandywine TB II, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB V, L.P. |
By: |
Brandywine TB V, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB VI, L.P. |
By: |
Brandywine TB VI, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-7
BRANDYWINE TB VIII, L.P. |
By: |
Brandywine TB VIII, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
C/N IRON RUN LIMITED PARTNERSHIP III |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
C/N LEEDOM LIMITED PARTNERSHIP II |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
C/N OAKLANDS LIMITED PARTNERSHIP I |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-8
C/N OAKLANDS LIMITED PARTNERSHIP III |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
E-TENANTS.COM HOLDING, L.P. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
FIFTEEN HORSHAM, L.P. |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
IRON RUN LIMITED PARTNERSHIP V |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-9
LC/N HORSHAM LIMITED PARTNERSHIP |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
LC/N KEITH VALLEY LIMITED PARTNERSHIP I |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-10
NEWTECH IV LIMITED PARTNERSHIP |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
NICHOLS LANSDALE LIMITED PARTNERSHIP III |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Witmer L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-11
WITMER OPERATING PARTNERSHIP I, L.P. |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
100 ARRANDALE ASSOCIATES, L.P. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
111 ARRANDALE ASSOCIATES, L.P. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
440 CREAMERY WAY ASSOCIATES, L.P. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
442 CREAMERY WAY ASSOCIATES, L.P. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-12
481 JOHN YOUNG WAY ASSOCIATES, L.P. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
INTERSTATE CENTER ASSOCIATES |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, one of its general partners |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
By: |
Brandywine Interstate 50, L.L.C., a Delaware limited liability company, one of its general partners |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-13
IR NORTHLIGHT II ASSOCIATES |
By: |
AAPOP 2, L.P., a Delaware limited partnership, one of its general partners |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, one of its general partners |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, one of its general partners |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, one of its general partners |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-14
PLYMOUTH TFC GENERAL PARTNERSHIP |
By: |
Brandywine P.M., L.P., a Pennsylvania Limited Partnership, its general partner |
By: |
Brandywine P.M., L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
By: |
Witmer Operating Partnership I, L.P., a Delaware limited partnership, one of its general partners |
By: |
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company, its general partner |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BTRS, INC.* |
SOUTHPOINT LAND HOLDINGS, INC.* |
VALLEYBROOKE LAND HOLDINGS, INC.* |
BRANDYWINE AMBASSADOR, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-15
BRANDYWINE CHARLOTTESVILLE LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE CHRISTINA LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE CIRA, LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE DABNEY, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE DOMINION, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-16
BRANDYWINE F.C., L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE GRANDE B, LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE I.S., L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE INTERSTATE 50, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINEMAIN STREET, LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-17
BRANDYWINE METROPLEX LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE P.M., L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE PIAZZA, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE PLAZA 1000, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE PROMENADE, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-18
BRANDYWINE TB FLORIG, LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB INN, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB I, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB II, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB V, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-19
BRANDYWINE TB VI, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TB VIII, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
BRANDYWINE TRENTON URBAN RENEWAL, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner |
BRANDYWINE WITMER, L.L.C. |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
I-20
CHRISTIANA CENTER OPERATING COMPANY III LLC |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its sole member |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
E-TENANTS LLC |
By: |
e-Tenants.com Holding, L.P., a Pennsylvania limited partnership, its sole member |
By: |
Brandywine Operating Partnership, L.P., a Delaware limited partnership, its general partner |
By: |
Brandywine Realty Trust, a Maryland real estate investment trust, its general partner* |
* |
By: ________________________________________ Name: Title: |
[INSERT SIGNATURE BLOCKS FOR
REPRESENTATIVES OF THE UNDERWRITERS]
By: ________________________________________
Name:
Title:
On behalf of itself and each of the other several Underwriters
I-21
SCHEDULE I
Underwriter | Principal Amount of Designated Securities to be Purchased |
[Insert Underwriters] | $ _________ |
Total | $__________ |
I-22
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
______% Notes due 20__
AGGREGATE PRINCIPAL AMOUNT:
$___________________
PRICE TO PUBLIC:
____% of the principal amount of the Designated Securities, plus accrued interest, if any, from _____________, 20__ |
PURCHASE PRICE BY UNDERWRITERS:
___% of the principal amount of the Designated Securities, plus accrued interest, if any, from _____________, 20__ |
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities deposited with The Depository Trust Company (“DTC”) or its designated custodian, to be made available for checking by the Representatives at least twenty-four hours prior to the Time of Delivery at the office of DTC. |
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal or other same day funds |
TIME OF DELIVERY:
9:30 a.m. (New York City time), ___________ __, 20__ |
INDENTURE:
Indenture, dated as of ___________ __, 20__ (the “Indenture”) among the Operating Partnership, the Guarantors and __________________, as Trustee |
MATURITY:
___________ __, 20__
I-23
INTEREST RATE:
___% per annum |
INTEREST PAYMENT DATES:
___________ __ and ___________ __, beginning on ___________ __, 20__ |
REDEMPTION PROVISIONS:
[Insert as appropriate.] |
SINKING FUND PROVISIONS:
[Insert as appropriate.]
CONVERTIBILITY OR EXCHANGEABILITY PROVISIONS:
[Insert as appropriate.]
DEFEASANCE PROVISIONS:
As set forth in the Indenture.
OTHER TERMS AND CONDITIONS:
[Insert as appropriate.]
CLEAR MARKET PERIOD (Section 5(d) of the Underwriting Agreement):
From date hereof through ________, 200_.
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
[Insert address of counsel to Underwriters]
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
[Insert names of Representatives] |
I-24
Address for Notices, etc.:
[Insert addresses of Representatives]
UNDERWRITERS COUNSEL:
[Insert name of counsel to Underwriters]
I-25
Exhibit 1.3
BRANDYWINE REALTY TRUST
DOCS® Financing Program
3,000,000 Common Shares of Beneficial Interest,
$.01 par value
SALES AGREEMENT
______ __, 2004
THIS SALES AGREEMENT (the “Agreement”) dated as of __, 2004 between Brinson Patrick Securities Corporation, having its principal office at 330 Madison Avenue, 9th Floor, New York, New York 10017 (the “Sales Manager”) and Brandywine Realty Trust, a real estate investment trust formed under the laws of the State of Maryland (the “Company”).
WHEREAS, the Company desires to issue and sell through the Sales Manager up to 3,000,000 (the “Maximum Amount”) of its shares (the “Shares”) of common shares of beneficial interest, par value $.01 per share (“Common Shares”), on the terms set forth in Article II below. The Maximum Amount shall be appropriately adjusted for share splits and reverse splits.
IN CONSIDERATION of the mutual covenants contained in this Agreement, the Company and the Sales Manager agree as follows:
ARTICLE I. REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
1.1 For purposes of this Agreement, unless the context requires to the contrary, the term “Company” shall also include all significant subsidiaries (as defined by Section 1-02 of Regulation S-X) of the Company. The Company represents and warrants to, and agrees with, the Sales Manager that as of the date of this Agreement, as of the date the Registration Statement is declared effective, and as of each date that the Sales Manager is selling shares, that: |
(a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended (the “Act”), and the rules and regulations thereunder (“Rules and Regulations”). A registration statement on Form S-3 with respect to, among other securities, the Shares, including a form of prospectus, will be prepared by the Company in conformity with the requirements of the Act and the Rules and Regulations and will be filed with the Securities and Exchange Commission (the “Commission”). Copies of such registration statement and prospectus, any such amendment or supplement thereto and all documents incorporated by reference therein that are filed shall be delivered to the Sales Manager or will be available to the Sales Manager on the Commission’s internet website. Such registration statement, as it may hereafter be amended, is referred to herein as the “Registration Statement,” and the final form of prospectus included in the Registration Statement for purposes of offers and sales of the Shares contemplated herein, as amended or supplemented from time to time, is referred to herein as the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus, or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated (or deemed to be incorporated) by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. |
(b) Each part of the Registration Statement, when such part becomes effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission and at each Settlement Date (as hereinafter defined), will conform in all material respects with the requirements of the Act and the Rules and Regulations; each part of the Registration Statement, when such part becomes effective, 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; and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission and at each Settlement Date, will not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the foregoing shall not apply to statements in or omissions from any such document in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of the Sales Manager, specifically for use in the Registration Statement, the Prospectus or any amendment or supplement thereto. |
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(c) The documents incorporated by reference in the Registration Statement or the Prospectus, or any amendment or supplement thereto, when they are filed with the Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), will conform in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. |
(d) The financial statements of the Company, together with the related schedules and notes thereto, set forth or included in the Registration Statement and Prospectus, fairly present the financial condition of the Company as of the dates indicated and the results of operations, changes in financial position, shareholders’ equity, and cash flows for the periods therein specified, in conformity with generally accepted accounting principles consistently applied throughout the periods involved (except as otherwise stated therein). The summary and selected financial and statistical data included in the Registration Statement and the Prospectus present fairly the information shown therein and, to the extent based upon or derived from the financial statements, have been compiled on a basis consistent with the financial statements presented therein. |
(e) The accountants who certified the financial statements and the supporting schedules included in the Registration Statement are and, during the periods covered by their reports, were qualified and independent public accountants as required by Rule 2-01 of Regulation S-X. |
(f) The Company has been duly formed and is validly existing as a real estate investment trust 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. The Company is duly qualified and in good standing in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary (including every jurisdiction in which it owns or leases real property), except for such jurisdictions where the failure to so qualify would not have a Material Adverse Effect on the Company. For purposes of this Agreement, “Material Adverse Effect” means any adverse effect on the business, operations, properties or financial condition of the Company that is (either alone or together with all other adverse effects) material to the Company, and any material adverse effect on the transactions contemplated under this Agreement or any other agreement or document contemplated hereby or thereby. Each of the Company’s significant subsidiaries is validly existing as a trust, corporation, limited liability company or partnership, as applicable, in its respective jurisdiction of formation. Schedule 1.1(f) hereto identifies each of the Company’s subsidiaries that is a significant subsidiary (as defined in Section 1-02 of Regulation S-X) of the Company. All of the issued and outstanding shares of beneficial interest, capital stock, limited liability company interests or partnership interests, as applicable, of each significant subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and (except as otherwise disclosed in the Registration Statement and the Prospectus) is owned by the Company, directly or indirectly, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. Except as disclosed in the Registration Statement and the Prospectus, the Company does not own, lease or license any asset or property or conduct any business outside the United States of America. The Company has all requisite real estate investment trust power and authority and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental orders or regulatory bodies or any other person or entity, to own, lease, license and operate its assets and properties and conduct its business as now being conducted and as described in the Registration Statement and the Prospectus; except for such authorizations, approvals, consents, orders, licenses, certificates and permits the absence of which would not have a Material Adverse Effect on the Company; and no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus. |
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(g) The Company has good and marketable title to, or leasehold interests in, all properties and assets (including, without limitation, mortgaged assets) as described in the Registration Statement and the Prospectus owned by the Company, free and clear of all liens, charges, encumbrances or restrictions, except such as are described in the Registration Statement and the Prospectus and except such as would not have a Material Adverse Effect on the Company. The Company has such consents, easements, rights-of-way or licenses (collectively, “rights-of-way”) from any person as are necessary to conduct its business in the manner described in the Registration Statement, except for those which if not obtained would not, singly or in the aggregate, have a Material Adverse Effect on the Company, and none of such rights-of-way contains any restriction that is materially burdensome to the Company. |
(h) There is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the knowledge of the Company, threatened against, or involving the assets, properties or businesses of the Company which would materially adversely affect the value or the operation of any such assets or otherwise have a Material Adverse Effect on the Company except as described in the Registration Statement. |
(i) The Company maintains insurance (issued by insurers of recognized financial responsibility) of the types and in the amounts generally deemed adequate for its businesses and, to the knowledge of the Company, consistent with insurance coverage maintained by similar companies in similar businesses, including, but not limited to, insurance covering real and personal property owned or leased by the Company against theft, damage, destruction, acts of vandalism and all other risks customarily insured against, all of which insurance is in full force and effect. |
(j) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (i) there has not been any material adverse change in the assets or properties, business, results of operations, or condition (financial or otherwise) of the Company, whether or not arising from transactions in the ordinary course of business; (ii) the Company has not sustained any material loss or interference with its assets, businesses or properties (whether owned or leased) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; (iii) since the date of the latest balance sheet, included or incorporated by reference in the Registration Statement and the Prospectus, except as reflected therein, the Company has not undertaken any liability or obligation, direct or contingent, except such liabilities or obligations undertaken in the ordinary course of business; and (iv) there has not been any transaction that is material to the Company, except transactions in the ordinary course of business or as otherwise disclosed in the Registration Statement and the Prospectus. |
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(k) There is no document or contract of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described or filed as required. Each document, instrument, contract and agreement of the Company described in the Registration Statement or the Prospectus or incorporated by reference therein or listed as exhibits to the Registration Statement is in full force and effect and is valid and enforceable by and against the Company in accordance with their terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto except as otherwise disclosed in the Registration Statement or Prospectus. The Company is not, nor to the knowledge of the Company is any other party, in default in the observance or performance of any term or obligation to be performed by it under any such agreement, and no event has occurred which with notice or lapse of time or both would constitute such a default, which default or event would have a Material Adverse Effect. No default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition, by the Company of any other agreement or instrument to which the Company is a party or by which it or its properties or business may be bound or affected, which default or event would have a Material Adverse Effect. |
(l) The Company is not in violation of any term or provision of its declaration of trust, by-laws or operating agreement, as applicable. The Company is not in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. |
(m) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge, encumbrance, claim, security interest, restriction or defect upon any properties or assets of the Company pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party or by which the Company is bound, or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or violate any provision of the declaration of trust or by-laws of the Company, except for such consents or waivers which have already been obtained and are in full force and effect. |
(n) All of the outstanding Common Shares of the Company have been duly authorized and validly issued and are fully paid and nonassessable and none of such shares were issued in violation of any preemptive or other similar right. The Shares, when issued and sold pursuant to this Agreement, will be duly authorized and validly issued, fully paid and nonassessable and will not be issued in violation of any preemptive or other similar right. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of beneficial interest of the Company or any security convertible into or exercisable or exchangeable for such shares of beneficial interest, except for standard dividend and reinvestment and share purchase plans and employee and trustee incentive plans. The Shares conform in all material respects to all statements relating thereto contained in the Registration Statement and the Prospectus. |
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(o) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as (x) described or referred to therein, or (y) are not material (as to clauses (i) and (ii) only), are consistent with past practice (as to clauses (i) and (ii) only), and are publicly disclosed, the Company has not (i) issued any securities or incurred any liability or obligation, direct or contingent, except such liabilities or obligations incurred in the ordinary course of business including, without limitation, debt financing to acquire and develop properties, (ii) entered into any transaction not in the ordinary course of business or (iii) declared or paid any dividend or made any distribution on any of its shares of beneficial interest or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any of its shares of beneficial interest. |
(p) Except as disclosed in the Registration Statement and Prospectus, no holder of any security of the Company has the right, which has not been waived, to have any security owned by such holder included in the Registration Statement. |
(q) All necessary real estate investment trust action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares by the Company. This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes and will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. Except for the post-effective amendment to the Registration Statement contemplated by Section 3.1(a) below (and any “blue sky” filings or Stock Exchange listing applications to be filed pursuant hereto), each approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body necessary in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and the issuance and sale of the Shares by the Company has been obtained or made and is in full force and effect. The Company will use its best reasonable efforts to cause the Shares to be listed for trading on the Trading Market. For purposes of this Agreement, the “Trading Market” is (i) the New York Stock Exchange, Inc., and (ii) each other securities exchange or market on which the Common Shares of the Company trade or are admitted for trading. |
(r) The Company has not incurred any liability for a fee, commission or other compensation on account of the employment of a broker or finder in connection with the transactions contemplated by this Agreement other than as contemplated hereby or as described in the Registration Statement. |
(s) The Company is conducting its business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, except where the failure to be so in compliance would not have a Material Adverse Effect. |
(t) No transaction has occurred between or among the Company and any of its officers or trustees or any affiliate or affiliates of any such officer or trustee that is required to be described in and is not described in the Registration Statement and the Prospectus. |
(u) The Company has not taken, nor will it take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the Common Shares of the Company to facilitate the sale or resale of any of the Shares. |
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(v) The Company has filed all federal, state, local and foreign tax returns that are required to be filed through the date hereof (and will file all such tax returns when and as required to be filed after the date hereof), or has received extensions thereof, and has paid all taxes shown on such returns to be due on or prior to the date hereof (and will pay all taxes shown on such returns to be due after the date hereof) and all assessments received by it to the extent that the same are material and have become due except where the failure to file such a return or pay such amount would not have a Material Adverse Effect. |
(w) The Company has met the qualification requirements for a “real estate investment trust” during its taxable years ending on or after December 31, 1999 and its proposed method of operations will enable it to continue to meet the requirements for qualification and taxation as a “real estate investment trust” under the Internal Revenue Code of 1986, as amended (the “Code”), assuming no change in the applicable underlying law. The Company does not know of any event that would cause or is likely to cause the Company to fail to qualify as a “real estate investment trust” at any time. |
(x) The Company is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended. |
(y) The Company’s systems of internal accounting controls taken as a whole are sufficient to meet the broad objectives of internal accounting control insofar as those objectives pertain to the prevention or detection of errors or irregularities in amounts that would be material in relation to the Company’s financial statements; and, to the best of the Company’s knowledge, neither the Company nor any employee or agent thereof has made any payment of funds of the Company or received or retained any funds, and no funds of the Company have been set aside to be used for any payment, in each case in violation of any law, rule or regulation. |
(z) The Company is not involved in any labor dispute and, to the knowledge of the Company, no such dispute has been threatened, except for such disputes as would not have a Material Adverse Effect on the Company, or subject the Company or its shareholders to any material liability or disability. |
Except as disclosed in the Registration Statement or the Prospectus, (i) there has been no storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, hazardous wastes or hazardous substances by the Company or any of its subsidiaries (or to the knowledge of the Company, any of their predecessors in interest) at, upon or from any of the property now or previously owned or leased by the Company or its subsidiaries in violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or which would require remedial action under any applicable law, ordinance, rule, regulation, order, judgment, decree or permit, except for any violation or remedial action which would not have a Material Adverse Effect; (ii) there has been no material spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environment surrounding such property of any toxic wastes, solid wastes, hazardous wastes or hazardous substances due to or caused by the Company or any of its subsidiaries, except for any such spill, discharge, leak emission, injection, escape, dumping or release which would not have a Material Adverse Effect; and (iii) the terms “hazardous wastes,” “toxic wastes” and “hazardous substances” shall have the meanings specified in any applicable local, state, federal and foreign laws or regulations with respect to environmental protection.
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ARTICLE II. SALE AND DELIVERY OF SECURITIES |
2.1 Sale and Delivery of Securities. |
(a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell through the Sales Manager, as agent, and the Sales Manager agrees to sell, as agent for the Company, on a best efforts basis, up to the Maximum Amount of the Shares during the term of this Agreement on the terms set forth herein. The Shares will be sold from time to time as described in the Registration Statement and Prospectus, in amounts, and subject to price limitations, as directed by the Company and as agreed to by the Sales Manager. |
(b) The Company or the Sales Manager may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy), at any time and from time to time suspend the offering of Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. |
(c) The compensation to the Sales Manager for sales of Shares shall be at a fixed commission rate of 3% of the gross sales price per share for the Shares sold under this Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect to such sale shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). |
(d) The Company shall open and maintain a trading account (the “Trading Account”) at a clearing agent designated by the Sales Manager to facilitate the transactions contemplated by this Agreement. The Company shall, with respect to each sale of Shares, effect delivery of the applicable number of Shares to the Trading Account, on or before the third business day (or such other day as is industry practice for regular-way trading) following each sale of the Shares (each, a “Settlement Date”). The Net Proceeds from the sale of the Shares shall be available in the Trading Account following the settlement of the sale on the Settlement Date. The Sales Manager’s compensation shall be withheld from the sales proceeds on each Settlement Date and shall be paid to the Sales Manager. |
(e) At each Settlement Date, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. Any obligation of the Sales Manager under this Agreement shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Article IV below. |
(f) If the Company shall default on its obligation to deliver Shares on any Settlement Date, the Company shall (i) hold the Sales Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Sales Manager any commission to which it would otherwise be entitled absent such default. |
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ARTICLE III. COVENANTS OF THE COMPANY |
3.1 The Company covenants and agrees with the Sales Manager that: |
(a) As promptly as practicable after the date of this Agreement, the Company will file the Registration Statement naming the Sales Manager as an underwriter, to permit sales of the Shares under the Act. The Company will use its best reasonable efforts to cause such Registration Statement to become effective as promptly as possible thereafter. The Sales Manager shall have a reasonable opportunity to review and comment upon the Registration Statement before it is filed with the Commission. |
(b) During the period in which a prospectus relating to the Shares is required to be delivered under the Act, the Company will notify the Sales Manager promptly of the time when any subsequent amendment to the Registration Statement has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or the Prospectus or for additional information; the Company will prepare and file with the Commission, promptly upon the Sales Manager’s reasonable request, any amendments or supplements to the Registration Statement or Prospectus that, in the Sales Manager’s reasonable opinion, may be necessary or advisable in connection with the sale of the Shares pursuant to this Agreement; the Company will not file any amendment or supplement to the Registration Statement or Prospectus (other than a supplement to the Prospectus that (i) relates solely to the issuance of securities other than the Shares of the Company and (ii) does not materially change the information about the Company or its business, operations, properties or financial condition disclosed in the Registration Statement or Prospectus previously thereto (an “Excluded Supplement”)) unless a copy thereof has been submitted to the Sales Manager a reasonable period of time before the filing; and it will notify the Sales Manager at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference in the Registration Statement or Prospectus, which will then be available on the Company’s website at www.brandywinerealty.com(and will furnish to the Sales Manager any such document that is not available on the Company’s website). The Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed. |
(c) The Company will advise the Sales Manager, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and it will promptly use its best reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. |
(d) Within the time during which a prospectus relating to the Shares is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If during such period any event occurs as a result of which the Prospectus, as then amended or supplemented, would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Act, the Company will promptly notify the Sales Manager to suspend the offering of Shares during such period and the Company will amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance and will use its best reasonable efforts to have any amendment or supplement to the Registration Statement or Prospectus declared effective as soon as possible, unless the Company has reasonable business reasons to defer public disclosure of the relevant information. |
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(e) The Company will use its best reasonable efforts to qualify the Shares for sale under the securities laws of such jurisdictions within the United States as the Sales Manager designates and to continue such qualifications in effect so long as required for the sale of the Shares, except that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction. |
(f) The Company will furnish to the Sales Manager and its legal counsel (at the expense of the Company) copies of the Registration Statement and the Prospectus during the period in which a prospectus relating to the Shares is required to be delivered under the Act, in each case as soon as available and in such quantities as the Sales Manager may from time to time reasonably request and, in the case when the Trading Market is a national securities exchange, the Company will also furnish copies of the Prospectus to such exchange in accordance with Rule 153 of the Rules and Regulations. |
(g) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that satisfies the provisions of Section 11(a) of the Act and Rule 158 of the Rules and Regulations. |
(h) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all of its expenses incident to the performance of its obligations hereunder (including, but not limited to, any transaction fees imposed by any governmental or self-regulatory organization with respect to transactions contemplated by this Agreement and any blue sky fees) and will pay the expenses of printing all documents relating to the offering. The Company will reimburse the Sales Manager for its reasonable out-of-pocket costs and expenses incurred in connection with entering into this Agreement, including, without limitation, reasonable travel, reproduction, printing and similar expenses, initial and ongoing due diligence, and reasonable fees and disbursements of its legal counsel; provided, however, that the Sales Manager shall not incur such expenses without the prior consent of the Company, if in excess of $10,000. |
(i) The Company shall use its best reasonable efforts to list, subject to notice of issuance, the Shares on each applicable Trading Market. |
(j) The Company will apply the Net Proceeds from the sale of the Shares as set forth in the Prospectus. |
(k) The Company will not, directly or indirectly, offer or sell any Common Shares (other than the Shares) or securities convertible into or exchangeable for, or any rights to purchase or acquire, Common Shares, during the period from the date of this Agreement through the final Settlement Date for the sale of Shares hereunder without (i) giving the Sales Manager at least one business day prior written notice specifying the nature of the proposed sale and the date of such proposed sale and (ii) unless otherwise agreed by the Sales Manager, suspending activity under this program, until any public offering of Common Shares has been completed; provided, however, that no such notice and suspension shall be required in connection with the Company’s issuance or sale of (i) Common Shares pursuant to any employee or trustee share option or benefits plan, share ownership plan, dividend reinvestment and share purchase plan, as such plans may be amended from time to time, and (ii) Common Shares issuable upon conversion of securities or the exercise of warrants, options or other rights in effect or outstanding from time to time. Notwithstanding the foregoing, this paragraph (k) shall not apply during periods that the Company is neither selling Shares through the Sales Manager nor has requested the Sales Manager to sell Shares. |
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(l) The Company will, at any time during the term of this Agreement, as supplemented from time to time, advise the Sales Manager immediately after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any opinion, certificate, letter and other document provided to the Sales Manager pursuant to Article IV below. |
(m) Each time that the Registration Statement or the Prospectus shall be amended or supplemented (other than an Excluded Supplement and other than via documents that are incorporated by reference into the Registration Statement or Prospectus), the Company shall (unless the Company is not then selling Shares through the Sales Manager and has not requested the Sales Manager to sell Shares) furnish or cause to be furnished to the Sales Manager forthwith a certificate dated the date of filing with the Commission of such amendment or supplement or the date of effectiveness of amendment, as the case may be, in form satisfactory to the Sales Manager to the effect that the statements contained in the certificates referred to in Section 4.1(f) below that were last furnished to the Sales Manager are true and correct in all material respects at the time of such amendment, supplement, filing, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such time) or, in lieu of such certificates, certificates of the same tenor as the certificates referred to in said Section 4.1(f) below, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate. |
(n) Each time that a post-effective amendment to the Registration Statement is declared effective or the Company files a Form 10-K,and at such other times as may be reasonably requested by the Sales Manager, the Company shall (unless the Company is not then selling Shares through the Sales Manager and has not requested the Sales Manager to sell Shares) furnish or cause to be furnished forthwith to the Sales Manager and to its legal counsel, a written opinion of Pepper Hamilton, LLP, counsel to the Company (“Company Counsel”), or other counsel reasonably satisfactory to the Sales Manager, dated the date of effectiveness of such amendment or the date of filing with the Commission of such document, as the case may be, in form and substance satisfactory to the Sales Manager, of the same tenor as the opinion referred to in Section 4.1(d) below (“Opinion”), but modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion. In addition, each time the Company files a Form 10-Q, Company Counsel shall deliver to the Sales Manager a letter of the same tenor as the last paragraph of the Opinion and covering the matters covered therein, but modified as necessary to relate to the Registration Statement and Prospectus as amended and supplemented to the time of delivery of such letter. |
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(o) Each time that a post-effective amendment to the Registration Statement is declared effective, the Company files a Form 10-K, and at such other times as may be reasonably requested by the Sales Manager, the Company shall (unless the Company is not then selling Shares through the Sales Manager and has not requested the Sales Manager to sell Shares) cause [Accountant], or other independent accountants then retained by the Company, forthwith to furnish to the Sales Manager a letter, dated the date of effectiveness of such amendment, or the date of filing of such supplement or other document with the Commission, as the case may be, in form satisfactory to the Sales Manager, of the same tenor as the letter referred to in Section 4.1(e) below but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter. |
ARTICLE IV. CONDITIONS OF THE SALES MANAGER’S OBLIGATIONS |
4.1 The obligations of the Sales Manager to sell the Shares as provided herein shall be subject to the accuracy, as of the date hereof, and as of each Settlement Date contemplated under this Agreement, of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the following additional conditions: |
(a) The post-effective amendment to the Registration Statement contemplated by Section 3.1(a) above shall have been declared effective. 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 the Sales Manager, 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 the Sales Manager’s reasonable satisfaction. |
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager. |
(c) Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material adverse change in the shares of beneficial interest of the Company, or any material adverse change, or any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, net worth or results of operations of the Company, or any adverse change in the rating assigned to any securities of the Company. |
(d) (1) The Sales Manager shall have received at the date of the first sale of Shares hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) above, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in the form of Schedule A hereto. | ||
(2) The Sales Manager shall have received a letter from Company Counsel authorizing the Sales Manager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement. |
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager shall have received a “comfort letter” from [Accountant], independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of delivery thereof, in form and substance satisfactory to the Sales Manager. |
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(f) The Sales Manager shall have received from the Company a certificate, or certificates, signed by the Chief Financial Officer and President or Chief Executive Officer or any Vice President of the Company, dated as of the Commencement Date and (unless the Company is not then selling Shares through the Sales Manager and has not requested the Sales Manager to sell Shares) dated as of the first business day of each calendar month thereafter (each a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation: |
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Commencement Date or the Certificate Date (as the case may be), 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 Commencement Date and each such Certificate Date (as the case may be); |
(ii) 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 knowledge of such officer after due inquiry, is threatened, by the Commission; |
(iii) Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and |
(iv) Since the date of this Agreement, there has not been any material adverse change in the assets or properties, business, results of operations, or condition (financial or otherwise) of the Company, which has not been described in an amendment or supplement to the Registration Statement or Prospectus (directly or by incorporation). |
(g) At the Commencement Date and on each Settlement Date, the Company shall have furnished to the Sales Manager such appropriate further information, certificates and documents as the Sales Manager may reasonably request. |
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 the Sales Manager. The Company will furnish the Sales Manager with such conformed copies of such opinions, certificates, letters and other documents, as the Sales Manager shall reasonably request.
ARTICLE V. INDEMNIFICATION AND CONTRIBUTION |
5.1 (a) The Company agrees to indemnify and hold harmless the Sales Manager and each person, if any, who controls the Sales Manager within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, as follows: |
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(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the representations in this Agreement or contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; |
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and |
(iii) against any and all expense whatsoever, as incurred (including, subject to Section 5.1(c) below, the reasonable fees and disbursements of legal counsel chosen by the Sales Manager), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; |
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Sales Manager expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(b) The Sales Manager agrees to indemnify and hold harmless the Company and its trustees and each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 5.1(a) above, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Sales Manager expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The total liability of the Sales Manager under this Section 5.1(b) shall not exceed the total actual sales price of Shares sold by the Sales Manager that is the subject of the dispute. |
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(c) Any indemnified party that proposes to assert the right to be indemnified under this Article V will, promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Article V, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from any liability that it might have to any indemnified party to the extent it is not materially prejudiced as a result thereof. If any such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with legal counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as provided below. The indemnified party will have the right to employ its own legal counsel in any such action, but the fees, expenses and other charges of such legal counsel will be at the expense of such indemnified party unless (1) the employment of legal counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on the written advice of legal counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict exists (based on the written advice of legal counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed legal counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of legal counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). |
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs of this Article V is applicable in accordance with its terms but for any reason is held to be unavailable from the Company or the Sales Manager, the Company and the Sales Manager will contribute to the total losses, claims, liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other than the Sales Manager, such as persons who control the Company within the meaning of the Act, officers of the Company who signed the Registration Statement and trustees of the Company, who also may be liable for contribution) to which the Company and the Sales Manager may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and the Sales Manager on the other. The relative benefits received by the Company on the one hand and the Sales Manager on the other hand shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total compensation (before deducting expenses) received by the Sales Manager from the sale of Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one hand, and the Sales Manager, on the other, with respect to the statements or omission which resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Sales Manager, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Sales Manager agree that it would not be just and equitable if contributions pursuant to this Section 5.1(d) were to be determined by pro rata allocation or by any other method of allocation, which does not take into account, the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense or damage, or action in respect thereof, referred to above in this Section 5.1(d) shall be deemed to include, for the purpose of this Section 5.1(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the foregoing provisions of this Section 5.1(d), the Sales Manager shall not be required to contribute any amount in excess of the amount by which the total actual sales price at which Shares sold by the Sales Manager exceeds the amount of any damages that the Sales Manager has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 5.1(d), any person who controls a party to this Agreement within the meaning of the Act will have the same rights to contribution as that party, and each officer and director of the Company who signed the Registration Statement will have the same rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party in respect of which a claim for contribution may be made under this Section 5.1(d), will notify any such party or parties from whom contribution may be sought, but the omission so to notify will not relieve that party or parties from whom contribution may be sought from any other obligation it or they may have under this Section 5.1(d). No party will be liable for contribution with respect to any action or claim settled without its written consent (which consent will not be unreasonably withheld). |
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(e) The indemnity and contribution provided by this Article V shall not relieve the Company and the Sales Manager from any liability the Company and the Sales Manager may otherwise have (including, without limitation, any liability the Sales Manager may have for a breach of its obligations under Article II above). |
ARTICLE VI. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY |
6.1 All representations, warranties and agreements of the Company herein or in certificates delivered pursuant hereto, and the agreements of the Sales Manager contained in Article V above, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Sales Manager or any controlling persons, or the Company (or any of their officers, trustees or controlling persons), and shall survive delivery of and payment for the Shares. |
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ARTICLE VII. TERMINATION |
7.1 The Company shall have the right, by giving notice as hereinafter specified, to terminate this Agreement in its sole discretion at any time. Any such termination shall be without liability of any party to any other party except that the provisions of Section 3.1(h), Article V and Article VI above shall remain in full force and effect notwithstanding such termination. |
7.2 The Sales Manager shall have the right, by giving notice as hereinafter specified, to terminate this Agreement in its sole discretion at any time. Any such termination shall be without liability of any party to any other party except that the provisions of Section 3.1(h), Article V and Article VI above shall remain in full force and effect notwithstanding such termination. |
7.3 This Agreement shall remain in full force and effect unless terminated pursuant to Sections 7.1 or 7.2 above or otherwise by mutual agreement of the parties; provided that any such termination by mutual agreement shall in all cases be deemed to provide that Section 3.1(h), Article V and Article VI above shall remain in full force and effect. |
7.4 Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination shall not be effective until the close of business on the date of receipt of such notice by the Sales Manager or the Company, as the case may be. If such termination shall occur during a period when sales of Shares are being made pursuant to this Agreement, any sales of Shares made prior to the termination of this Agreement shall settle in accordance with the provisions of this Agreement. |
ARTICLE VIII. NOTICES |
8.1 All notices or communications hereunder shall be in writing and if sent to the Sales Manager shall be mailed, delivered or telecopied and confirmed to the Sales Manager at Brinson Patrick Securities Corporation, 330 Madison Avenue, 9th Floor, New York, New York 10017, facsimile number (212) 453-5555, Attention: Corporate Finance, or if sent to the Company, shall be mailed, delivered or telecopied and confirmed to the Company at 401 Plymouth Road, Suite 500, Plymouth Meeting, Pennsylvania 19462, Attention: Chief Financial Officer; facsimile number (610) 832-4919. Each party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. |
ARTICLE IX. MISCELLANEOUS |
9.1 This Agreement shall inure to the benefit of and be binding upon the Company and the Sales Manager and their respective successors and the controlling persons, officers, trustees and directors referred to in Article V above, and no other person will have any right or obligation hereunder. |
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9.2 This Agreement constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, between the parties hereto with regard to the subject matter hereof. |
9.3 THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. |
9.4 This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties agree that this Agreement will be considered signed when the signature of a party is delivered by facsimile transmission. Such facsimile transmission shall be treated in all respects as having the same effect as an original signature. |
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date hereof.
BRANDYWINE REALTY TRUST |
By: _______________________________ |
Name: Gerard H. Sweeney |
Title: President and Chief Executive Officer |
BRINSON PATRICK SECURITIES CORPORATION |
By: _______________________________ |
Name: |
Title: |
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SCHEDULE 1.1(f)
List of Significant Subsidiaries
SCHEDULE A
Form of Legal Opinion
_________ ___, 2004 |
Brinson Patrick Securities Corporation
330 Madison Avenue, 9th Floor
New York, New York 10017
Gentlemen:
We have acted as legal counsel to Brandywine Realty Trust, a real estate investment trust formed under and by virtue of the laws of the State of Maryland (the “Company”), in connection with the negotiation of the Sales Agreement dated as of [Date of Execution] between the Company and you (the “Agreement”). This letter is being furnished to you pursuant to Section 4.1(d) of the Agreement. Capitalized terms used herein and not otherwise defined shall have the meanings given them in the Agreement.
For purposes of rendering the opinions expressed below, we have examined the executed original, or a copy certified or otherwise authenticated to our satisfaction, of the Agreement. We have also examined originals or copies, certified or otherwise authenticated to our satisfaction, of such other documents and certificates of public officials and officers of the Company, as we have deemed necessary or appropriate for purposes of this letter.
In rendering the opinions expressed herein, we have assumed without independent verification the legal capacity of all natural persons, the genuineness of all signatures, the authenticity, completeness and accuracy of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or facsimile copies thereof and the authenticity, completeness and accuracy of the originals of such certified, photostatic or facsimile copies. In making our examination of documents executed by parties other than the Company, we have assumed that such parties had the power to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, and due execution and delivery by such parties of such documents and the validity and binding effect thereof. We have no knowledge of any fraud and have assumed that no fraud exists regarding the documents referenced herein or the transactions evidenced or contemplated thereby or otherwise regarding any matters relevant to the opinions set forth herein. As to questions of fact material to such opinions, we have also, when relevant facts were not independently established, relied upon the documents, trust records, agreements, instruments and certificates referenced in the second paragraph of this letter.
With respect to the opinions set forth below, we have further assumed that the Company will continue (as it does on the date hereof) to have a sufficient number of Common Shares of Beneficial Interest (the “Shares”), $.01 par value, authorized for issuance under its declaration of trust from time to time to accommodate the issuances contemplated by the Agreement.
Based upon the foregoing and subject to the assumptions and qualifications set forth herein, and with due regard to such legal considerations as we deem relevant, we are of the opinion that:
1. 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 conduct its business as described in the Registration Statement and Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which it owns or leases real property, except where the failure to so qualify and be in good standing would not result in a Material Adverse Effect. |
2. The Board of Trustees of the Company has duly and validly authorized the issuance of the Shares at market price at the time of the transaction, and when issued and delivered to and paid for by the purchaser thereof pursuant to the Agreement, the Shares will be fully paid and nonassessable and will conform to the description thereof in the Prospectus. All trust action required to be taken for the authorization, issuance and sale of the Shares pursuant to the Agreement has been validly and sufficiently taken. The shareholders of the Company have no preemptive rights with respect to the Shares. The Shares are the subject of an effective registration statement permitting its sale in the manner contemplated by the Agreement. |
3. The Registration Statement has become effective under the Act; (B) to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission; (C) if applicable, the filing of the Prospectus supplements have been made in the manner and within the time period required by the Rules and Regulations; and (D) the Shares have been approved for listing on the New York Stock Exchange. |
4. The Registration Statement, when it became effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission and at the date hereof (except for the financial statements and notes and schedules and other financial information included therein), complied as to form in all material respects with the requirements of the Act and the Rules and Regulations; and the documents incorporated by reference in the Registration Statement or Prospectus or any amendment or supplement thereto, when filed with the Commission under the Exchange Act (except for the financial statements and notes and schedules and other financial information included therein), complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. |
5. The description in the Registration Statement and Prospectus of statutes, legal and governmental proceedings, contracts and other documents are accurate in all material respects; and we do not know of any statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required, or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus (or required to be filed under the Exchange Act if upon such filing they would be incorporated by reference therein) or to be filed as exhibits to the Registration Statement that are not described and filed as required. |
6. The Agreement has been duly authorized, executed and delivered by the Company. |
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7. The execution, delivery and performance of the Agreement by the Company and the consummation of the transactions contemplated therein by the Company do not and will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any agreement or instrument known to us to which the Company is a party or by which the Company is bound or to which any of the property of the Company is subject, except for such breaches or defaults that would not in the aggregate have a Material Adverse Effect on the Company, nor will such action result in the violation of the Company’s declaration of trust or by-laws, or any statute or any order, rule or regulation known to us of any court or governmental agency or body having jurisdiction over the Company or any of its properties. |
8. Except for permits and similar authorizations required under the securities or “blue sky” laws of certain states (as to which we express no opinion), no consent, waiver, approval, authorization or other order of any regulatory body, administrative agency or other governmental body is legally required for (i) the issuance or sale of the Shares by the Company, or (ii) the sale of the Shares by the Sales Manager, each as contemplated by the Agreement and the Prospectus. |
9. We know of no actions, suits or proceedings pending or threatened against or affecting the Company or the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company or any of its officers in their capacity as such, before or by any federal or state or foreign court, commission, regulatory body, wherein an unfavorable ruling, decision or finding might have a Material Adverse Effect on the Company. |
10. The Company is not, and upon issuance and sale of the Shares and the application of the net proceeds from the sale thereof in the manner described in the Prospectus will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. |
In rendering the foregoing opinions we express no opinion as to the laws of any jurisdiction other than applicable federal law and the laws of the State of New York, and we assume no responsibility as to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction.
This letter and the matters addressed herein are as of the date hereof, and we undertake no, and hereby disclaim any, obligation to advise you of any change in any matter set forth herein occurring after the date hereof. This letter is solely for your benefit, and no other persons shall be entitled to rely upon the opinions herein expressed. This letter is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated. Without our prior written consent, this letter may not be quoted in whole or in part or otherwise referred to in any document and may not be furnished to any other person or entity.
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We have participated in conferences with trustees, officers and other representatives of the Company, representatives of the Sales Manager and representatives of the Sales Manager’s legal counsel, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed, and, although we have not independently verified and are not passing upon and assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except to the extent specified in the foregoing opinions), no facts have come to our attention that lead us to believe that the Registration Statement, at the time it became effective, 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 the Prospectus, on the date of filing thereof with the Commission and at the date hereof, included 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; it being understood that we express no opinion or view as to the financial statements and related notes, the financial statement schedules or other financial and statistical data included in any of the documents mentioned in this paragraph.
Very truly yours, |
[Legal Counsel] |
By: |
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Exhibit 10.1
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 02:00 PM 04/30/1997 971140786 2744833 |
AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
OF
AAPOP 2, L.P.
Adopted in accordance with the provisions of Section
17-210
of the Delaware Revised Uniform Limited Partnership Act
WE, the general partners and the limited partner of AAPOP 2, L.P. (the Partnership), a limited partnership existing under the laws of the State of Delaware, do hereby certify as follows:
FIRST: That the name of the Partnership is AAPOP 2, L.P.
SECOND: That the original certificate of limited partnership of the Partnership was filed on April 25, 1997.
THIRD: That the certificate of limited partnership of the Partnership has been amended and restated in its entirety as follows:
1. Name. The name of the limited partnership shall be AAPOP 2, L.P.
2. Registered Office. The address of the registered office of the Partnership in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
3. Registered Agent. The name and address of the registered agent of the Partnership for service of process on the Partnership in the State of Delaware is The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
4. Partners. AAP Sub Three, Inc., a Delaware corporation (Sub Three), shall be a general partner of the Partnership. AAPOP Umbrella, L.P., a Delaware
limited partnership (AAPOP Umbrella), shall be both a general partner and the limited partner of the Partnership (Sub Three and Umbrella together, the Partners). The names and the business, residence or mailing addresses of the Partners are as follows:
General Partner |
|
General Partner and Limited Partner AAPOP Umbrella, L.P. c/o Lazard Frères Real Estate Investors LLC 30 Rockefeller Plaza, 63rd Floor New York, NY 10020 Attention: Robert P. Freeman Murry N. Gunty |
5. Term. The Partnership shall dissolve, and its affairs shall be wound up, upon the cancellation of this Amended and Restated Certificate of Limited Partnership.
FOURTH: That this Amended and Restated Certificate of Limited Partnership has been duly executed and is being filed in accordance with Section 17-210 of the Delaware Revised Uniform Limited Partnership Act.
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IN WITNESS WHEREOF, we have signed this Amended and Restated Certificate of Limited Partnership on this 30th of April, 1997.
GENERAL PARTNER: | |
AAP SUB THREE, INC., | |
a Delaware corporation | |
By: /s/ Murry N. Gunty | |
Name: Murry N. Gunty | |
Title: Vice President | |
GENERAL PARTNER AND LIMITED PARTNER: | |
AAPOP UMBRELLA, L.P., | |
a Delaware limited partnership | |
By: /s/ Murry N. Gunty | |
Name: Murry N. Gunty | |
Title: Vice President of General Partner | |
ATLANTIC AMERICAN PROPERTIES TRUST, | |
a Maryland real estate investment trust |
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 02:00 PM 08/26/1998 981335726 2744833 |
CERTIFICATE TO RESTORE TO GOOD
STANDING
A DELAWARE LIMITED PARTNERSHIP
PURSUANT TO TITLE 6, SEC. 17-1109
1. | Name of Limited Partnership: AAPOP 2, L.P. |
2. | Date of filing with Delaware Secretary of State: April 25, 1997. |
AAP Sub Three, Inc., General Partner of the above named limited partnership does hereby certify that this limited partnership is paying all annual taxes, penalties and interest due to the State of Delaware. | |
AAP Sub Three. Inc. does hereby request this limited partnership be restored to Good Standing. |
AAPOP 2. L.P., a Delaware limited partnership | |||
By its General Partner: | |||
By: AAP Sub Three, Inc., its General Partner | |||
By: /s/ Joseph G. Nahas, Jr. | |||
Name : Joseph G. Nahas, Jr. | |||
Title : Vice President Investments | |||
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 01/07/1999 991006011 2744833 |
STATE OF DELAWARE
AMENDMENT
TO THE
CERTIFICATE OF LIMITED PARTNERSHIP
OF
AAPOP 2, L.P.
The undersigned, desiring to amend the Amended and Restated Certificate of Limited Partnership of AAPOP 2, L.P. pursuant to the provisions of Section 17-202 of the Revised Uniform Limited Partnership Act of the State of Delaware, does hereby certify as follows: | ||
FIRST: The name of the Limited Partnership is AAPOP 2, L.P. | ||
SECOND: Article 2 and Article 3 of the Amended and Restated Certificate of Limited Partnership shall be amended as follows: | ||
2. | The registered office of the partnership is 1201 Market Street, Suite 1600, Wilmington, DE 19801. | |
3. | The registered agent of the partnership is PHS Corporate Services, Inc. | |
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited Partnership on the 9th day of December, 1998. |
AAPOP 2, L.P. | |
By: AAP Sub Three, Inc. | |
By: /s/ Gerard H. Sweeney | |
Gerard H. Sweeney, President & CEO | |
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 01:15 PM 06/28/2000 001329816 2744833 |
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED PARTNERSHIP
OF
AAPOP 2, L.P.
The undersigned, desiring to amend the Certificate of Limited Partnership of AAPOP 2, L.P. (the Limited Partnership), pursuant to the provisions of Section 17-202 of the Revised Uniform Limited Partnership Act of the State of Delaware, to reflect the withdrawal of AAPOP Sub Three, Inc. as general partner and AAPOP Umbrella, L.P. as general and limited partner and the admission of new general partners, does hereby certify as follows: | ||
FIRST: The name of the Limited Partnership is AAPOP 2, L.P. | ||
SECOND: Article 4 Partners of the Certificate of Limited Partnership shall be amended to read in its entirety as follows: | ||
4. | Brandywine Witmer, L.L.C. a Pennsylvania limited liability company and Witmer Operating Partnership I, L.P., a Delaware limited partnership (together, the Partners) shall be the general partners of the Limited Partnership. The names and the business addresses of the Partners are as follows: | |
Brandywine Witmer, L.L.C. 14 Campus Boulevard, Ste. 100 Newtown Square, PA 19073 |
||
Witmer Operating Partnership I,
L.P. 14 Campus Boulevard, Ste. 100 Newtown Square, PA 19073 |
||
SIGNATURES ON NEXT PAGE |
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Amendment of Limited Partnership on the 29th day of June, 2000.
Brandywine Witmer, L.L.C. | ||
By: | /s/ Gerard H. Sweeney | |
Gerard H. Sweeney, Sr., President & CEO | ||
Witmer Operating Partnership I, L.P. | ||
By: | Brandywine Witmer, L.L.C., general partner | |
By: | /s/ Gerard H. Sweeney | |
Gerard H. Sweeney, Sr., President & CEO | ||
Exhibit 3.24
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
AAPOP 2, L.P.
This Amended and Restated Agreement of Limited Partnership (this “Agreement”) of AAPOP 2, L.P. (the “Partnership”) is dated as of June 29, 2000 and is entered into by and between Brandywine Witmer, L.L.C. (“Witmer”), as general partner, and Witmer Operating Partnership I, L.P. (“WOP”), as both general partner and limited partner. This Agreement amends and restates in its entirety the Agreement of Limited Partnership dated as of the 30th day of April, 1997 by and between AAP Sub Three, Inc., a Delaware corporation, as general partner (“Sub Three”), and AAPOP Umbrella, L.P., a Delaware limited partnership, as both general partner and limited partner (“AAPOP”), to reflect the transfer by Sub Three and AAPOP on the date hereof of all of their right, title and interest in and to the Partnership to Witmer and WOP, respectively.
WITNESSETH:
The Partnership was duly formed by filing a certificate of limited partnership (the “Certificate”) on April 25, 1997 with the Office of the Secretary of State of Delaware pursuant to and in accordance with the Delaware Revised Uniform Limited Partnership Act, 6 Del. C. § 17-101 et seq. (the “Act”). On the date hereof Sub Three and AAPOP are withdrawing as Partners in the Partnership and Witmer and WOP are executing this Agreement and hereby agree as follows:
1. Name. The name of the Partnership shall be AAPOP 2, L.P.
2. Registered Office, Registered Agent. The address of the Partnership’s registered office, and the name and address of the Partnership’s registered agent for service of process on the Partnership, in each case in the State of Delaware, is:
1201 Market Street Suite 1600 Wilmington, Delaware 19801 Attn: Pepper, Hamilton & Scheetz Corporate Securities, Inc. |
4. Partners. The names and the mailing addresses of Witmer and WOP are as follows:
WITMER
Brandywine Witmer, L.L.C.
14 Campus Boulevard
Suite 100
Newtown Square, PA 19073
The Corporation Trust Company
1209 Orange Street
Wilmington, DE 19801
WOP
5. Term. The Partnership shall dissolve, and its affairs shall be wound up, upon the first to occur of the following:
a. unanimous written consent of all partners of the Partnership;
b. an event of withdrawal of a general partner under the Act, though nothing in this Agreement shall preclude the business of the Partnership from being carried on by the remaining general partner, if there be one;
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c. cancellation of the Certificate pursuant to and in accordance with Section 17-203 of the Act; and
d. entry of a decree of judicial dissolution under Section 17-802 of the Act; provided, however, that notwithstanding the foregoing, to the extent permitted by applicable law, the Partnership shall not dissolve or otherwise terminate except as a result of the bankruptcy of all the general partners, and the Partnership shall continue (and not dissolve) for so long as a single solvent general partner exists.
6. Management of Partnership. Unless otherwise agreed to by all of the general partners, all management decisions will be made by unanimous consent of all of the general partners.
7. Percentage Interests in the Partnership. The percentage interests of Witmer and WOP in the Partnership are as follows: |
Partner | Interest | ||
Witmer | 0.5% as general partner | ||
WOP | 98.5% as general partner | ||
1.0% as limited partner |
8. Allocations of Profit and Losses. The Partnership’s profits and losses shall be allocated in proportion to the capital contributions of the partners of the Partnership.
9. Capital Accounts. A capital account shall be maintained for each partner of the Partnership in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv).
10. Distributions. Cash available for distribution shall be distributed to the partners of the Partnership in the same proportion as their then capital account balances.
11. Withdrawal. Except as provided in the following Section 12, no right is given to any partner of the Partnership to withdraw from the Partnership.
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12. Additional Partners.
a. With the consent of all general partners of the Partnership, the Partnership may admit additional partners to the Partnership. Upon the admission of additional limited partners to the Partnership, any of the remaining limited partners may withdraw from the Partnership, and each withdrawing limited partner shall be entitled to receive forthwith the return of its capital contribution, without interest or deduction.
b. The admission of additional partners to the Partnership pursuant to this Section 12 shall be accomplished by the amendment of this Agreement of Limited Partnership and, if required by the Act, the filing of an appropriate amendment of the Certificate in the office of the Secretary of State of the State of Delaware.
c. After the admission of any additional partners pursuant to this Section 12, the Partnership shall continue as a limited partnership under the Act.
13. Transfer or Pledge. Without the consent of all of the general partners, (i) a general partner’s interest in the Partnership shall not be assigned, pledged, sold or otherwise transferred, in whole or in part, to any entity or person (other than another general partner), and (ii) no assignee of a general partner’s interest in the Partnership shall be admitted into the Partnership as a substitute partner.
14. Binding Effect. Except as otherwise provided in this Agreement, every covenant, term and provision of this Agreement shall be binding upon and inure to the benefit of the entities executing this Agreement as partners of the Partnership and their respective heirs, legatees, legal representatives, successors, transferees and assigns.
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15. Headings. Section or other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof.
16. Severability. Every provision of this Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the legality or validity of the remainder of this Agreement.
17. Further Action. Each entity executing this Agreement as a partner of the Partnership agrees to perform all further acts and execute, acknowledge and deliver any documents which may be reasonably necessary, appropriate or desirable to carry out the provisions of this Agreement.
18. Governing Law. This Agreement, and all rights and remedies in connection therewith, shall be governed by, and construed under, the laws of the State of Delaware, without regard to otherwise governing principles of conflicts of law.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Agreement of Limited Partnership as of the day and year first above written. |
PARTNERS: | ||
BRANDYWINE WITMER, L.L.C. | ||
By: | Brandywine Operating Partnership, L.P., its sole member, by Brandywine Realty Trust, its sole General Partner | |
By: | /s/ Gerard H. Sweeney | |
Name: | Gerard H. Sweeney | |
Title: | President and Chief Executive Officer | |
WITMER OPERATING PARTNERSHIP I, L.P. | ||
By: | Brandywine Witmer, L.L.C., its sole General Partner, by Brandywine Operating Partnership, L.P., its sole member, by Brandywine Realty Trust, its sole General Partner | |
By: | /s/ Gerard H. Sweeney | |
Name: | Gerard H. Sweeney | |
Title: | President and Chief Executive Officer | |
WITHDRAWING PARTNERS: | ||
AAP SUB THREE, INC. | ||
By: | /s/ Gerard H. Sweeney | |
Name: | Gerard H. Sweeney | |
Title: | President and Chief Executive Officer | |
AAPOP UMBRELLA, L.P. | ||
By: | AAPOP Sub Two, Inc., its general partner | |
By: | /s/ Gerard H. Sweeney | |
Name: | Gerard H. Sweeney | |
Title: | President and Chief Executive Officer | |
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Exhibit 3.25
Microfilm
Number
|
Filed with the Department of State on JUL 27 1999 | |||
Entity
Number 2889796
|
Kim Pizzingrilli |
|||
Secretary of the Commonwealth |
CERTIFICATE OF LIMITED PARTNERSHIP
DSCB:15-8511 (Rev 91)
In compliance with the requirements of 15 Pa.C.S. § 8511 (relating to certificate of limited partnership), the undersigned, desiring to form a limited partnership, hereby certifies that:
1. | The name of the limited partnership is: BRANDYWINE AMBASSADOR, L.P | ||||||
2. | The (a) address of this limited partnerships initial registered office in this Commonwealth or (b) name of its commercial registered office provider and the county of venue is: | ||||||
(a) | 14 Campus Blvd., Suite 100, Newtown Square, Corporate Campus PA 19073 Delaware | ||||||
Number and Street City State Zip County | |||||||
(b) | c/o: | ||||||
Name of Commercial Registered Office Provider | County | ||||||
For a limited partnership represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the limited partnership is located for venue and official publication purposes. | ||||
3. | The name and business address of each general partner of the partnership is: | |||
Name | Address | |||
BRANDYWINE AMBASSADOR, LLC. | 14 Campus Blvd., Suite 100, Newtown Square, Corporate Campus, PA 19073 | |||
4. | (Check, and if appropriate complete, one of the following): | |||
The formation of the limited partnership shall be effective upon filing this Certificate of Limited Partnership in the Department of State. | ||||
The formation of the limited partnership shall be effective on at | ||||
Date Hour | ||||
5. | The specified effective date, if any, is: | |||
month day year hour, if any | ||||
IN TESTIMONY WHEREOF, the undersigned general partner(s) of the limited partnership has (have) executed this Certificate of Limited Partnership this 27th day of July, 1999.
By:
Brandywine Ambassador, L.L.C.
|
||
(Signature) | (Signature) | |
Gerard H. Sweeney, President and CEO | ||
/s/ Gerard H. Sweeney | ||
(Signature) | (Signature) |
CONSENT TO USE OF
SIMILAR NAME DSCB:17.3 (Rev 91) |
|
Pursuant
to 19 Pa. Code § 17.3 (relating to use of a confusingly similar
name) the undersigned association, desiring to consent to the use by
another association of a name which is confusingly similar to its name,
hereby certifies that: |
|
1. | The name of the association executing this Consent to Use of Similar Name is: Brandywine Ambassador, L.L.C. |
2. | The (a) address of this associations current registered office in this Commonwealth or (b) name of its commercial registered office provider and the country of venue is (the Department is hereby authorized to correct the following information to conform to the records of the Department): | |
(a) | 14 Campus Blvd., Suite 100, Newtown Square PA 19073 Delaware | |
Number and Brand City State Zip County | ||
(b) | c/o: | |
Name of Commercial Registered Office Provider County | ||
For an association represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the association is located for venue and official publication purposes. | |
3. | The date of its incorporation or other organization is: July 27, 1999 |
4. | The statute under which it was incorporated or otherwise organized is: 15 Pa. C.S. Section 8913 |
5. | The association(s) entitled to the benefit of this Consent to Use of Similar Name is (are): |
Brandywine Ambassador, L.P. | |
6. | A check in this box indicates that the association executing this Consent to Use of Similar Name is the parent or prime affiliate of a group of associations using the same name with geographic or other designations, and that such association is authorized to and does hereby act on behalf of all such affiliated associations, including the following (sec 19 Pa. Code § 17.3 (c) (6)): |
IN
TESTIMONY WHEREOF, the undersigned association has caused this consent
to be signed by a duly authorized officer thereof this 27th day
of July, 1999. |
Brandywine Ambassador, L.L.C. | ||||
|
||||
(Name of Association) | ||||
BY: |
/s/ Gerard H. Sweeney |
|||
(Signature) | ||||
TITLE: | Gerard H. Sweeney, President |
PENNSYLVANIA DEPARTMENT OF STATE
CORPORATION BUREAU
Certificate of Amendment-Domestic | ||
(15 Pa C.S.) | ||
Entity
Number
|
||
UNREADABLE TEXT |
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Limited Partnership (§ 8512) | |
Limited Liability Company (§ 8951) |
Document will be returned to the name and address you enter to the left. |
|||||
Name | |||||
PEPPER HAMILTON LLP |
|||||
Address | 200 ONE KEYSTONE PLAZA |
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NORTH FRONT AND MARKET STREETS |
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P.O. BOX 1181 |
|||||
HARRISBURG, PA 17108-1181 |
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City State Zip
Code |
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Fee:
$52
|
Filed in the Department of State on Jun 06 2002 | |||
XXXXXX |
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ACTING Secretary of the Commonwealth | ||||
In
compliance with the requirements of the applicable provisions (relating
to certificate of amendment), the undersigned, desiring to amend its
Certificate of Limited Partnership/Organization, hereby certifies that: |
|||
1. | The name of the limited partnership limited liability company is: | ||
Brandywine Ambassador, L.P. | |||
2. | The date of filing of the original Certificate of Limited Partnership/Organization: | ||
July 27, 1999 | |||
3. | Check, and if appropriate complete, one of the following: | ||
The amendment adopted by the limited partnership limited liability company, set forth in full, is as follows: | |||
The amendment adopted by the limited partnership limited liability company is set forth in full in Exhibit A attached hereto and made a part hereof. | |||
4. | Check, and if appropriate complete, one of the following: | ||
The amendment shall be effective upon filing this Certificate of Amendment in the Department of State. | |||
The amendment shall be effective on _______ at _______ | |||
Date Hour |
5. | Check if the amendment restates the Certificate of Limited Partnership/Organization. | ||
The restated Certificate of Limited Partnership/Organization supersedes the original Certificate of Limited Partnership/Organization and all previous amendments thereto. | |||
IN TESTIMONY WHEREOF, the undersigned limited partnership/limited liability company has caused this Certificate of Amendment to be executed this | |||
4th day of June, 2002 | |||
Brandywine Ambassador, L.P. | |||
Name of Limited Partnership/Limited Liability Company | |||
/s/ Brad Molotsky |
|||
Signature | |||
Secretary of Brandywine Ambassador, LLC, | |||
Title General Partner | |||
EXHIBIT A
TO CERTIFICATE OF AMENDMENT
BRANDYWINE AMBASSADOR, L.P.
Article 4 of the Certificate of Limited Partnership shall be amended, so that, as amended, Article 4 shall read as follows:
Article 6 of the Certificate of Limited Partnership shall be amended, so that, as amended, Article 6 shall read as follows:
Article 7 of the Certificate of Limited Partnership shall be amended, so that, as amended, Article 7 shall read as follows:
Exhibit 3.26
________________________________________
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE AMBASSADOR, L.P.
A Pennsylvania Limited Partnership
________________________________________
THIS AGREEMENT OF LIMITED PARTNERSHIP of Brandywine Ambassador, L.P. is made and entered into as of this 19th day of July, 1999, by and between Brandywine Operating Partnership, L.P., a Delaware limited partnership as the limited partner (“Limited Partner”) and Brandywine Ambassador, L.L.C., a Pennsylvania limited liability company as general partner (“General Partner” and together with the Limited Partner, the “Partners”) for the purpose of forming a Pennsylvania limited partnership (the “Partnership”) in accordance with the provisions hereinafter set forth. Capitalized terms are defined below.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein made and intending to be legally bound, the Partners hereby agree as follows:
ARTICLE 1 |
1.1. Formation. The Partners hereby agree to form the Partnership as a limited partnership pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement. The General Partner shall file or cause to be filed the Certificate with the Pennsylvania Department of State in accordance with the provisions of the Act and shall do or cause to be done all such other filings, recordings or other acts, including amendments to the Certificate, as may be necessary or appropriate to comply with the laws of formation and operation of a limited partnership in the Commonwealth of Pennsylvania and any other jurisdiction in which the Partnership may conduct business. |
1.2. Name. The name of the Partnership is BRANDYWINE AMBASSADOR, L.P. or such other name as the Partners from time to time may unanimously select. |
1.3. Place of Business. The principal place of business of the Partnership shall be at 14 Campus Blvd., Suite 100, Newtown Square, PA 19073, or such other place as the General Partner may from time to time designate. The Partnership may maintain such other offices at such other places as the General Partner deems advisable. |
1.4. Purpose. The Partnership is organized to pursue any lawful purpose. |
1.5. Term. The Partnership shall commence upon the filing of the Certificate and shall continue until the Partnership is terminated in accordance with the terms of this Agreement. |
ARTICLE 2 |
2.1. Initial Capital Contributions. Simultaneously with the execution of this Agreement, the General Partner shall contribute to the capital of the Partnership cash in the aggregate amount of $10.00, and the Limited Partner shall contribute to the capital of the Partnership cash in the aggregate amount of $990.00. |
2.2. Additional Capital Contributions or Loans. Except as specifically required under Section 2.1, no Partner shall be obligated or required to make any additional capital |
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contributions or advance any funds to the Partnership unless all of the Partners unanimously agree to do so and unanimously agree as to the amount to be so contributed. |
2.3. Allocations and Distributions. All allocations of profits and losses and all distributions of cash shall be made in accordance with the Partners’ Percentage Interests. The Percentage Interest of the General Partner shall be one percent (1%), and the Percentage Interest of the Limited Partner shall be ninety-nine percent (99%). Distributions out of funds legally available therefor shall be made at such times as the General Partner determines. |
ARTICLE 3 |
3.1. Management and Control. The General Partner shall manage and control the business and affairs of the Partnership and shall have all of the rights and powers which may be possessed by a general partner under the Act. Except as otherwise provided in the Act, the General Partner shall make all decisions with respect to the business and affairs of the Partnership, and the Limited Partner shall have no right to participate in the management of the Partnership. |
ARTICLE 4 |
4.1. Restriction. A Partner shall not, without the consent of the other Partner, make any Transfer of all or any portion of its Interest. |
4.2. Transfer in Violation of Agreement. Any purported Transfer of an Interest which is not made in compliance with this Agreement shall be null and void ab initio and of no force or effect whatsoever. |
ARTICLE 5 |
5.1. Records. The Partnership shall maintain at its principal place of business: (i) true and full information regarding the status of the business and financial affairs of the Partnership; (ii) a current list of the name and last known address of each of its Partners; (iii) a copy of this Agreement and the Certificate and all amendments thereto; (iv) the accounting books and records and minutes of proceedings of the Partners; and (v) any other information regarding the affairs of the Partnership as the General Partner determines is just and reasonable. |
5.2. Fiscal Year. Unless otherwise designated by the Partners, the fiscal year of the Partnership shall end on December 31. |
5.3. Partnership Funds. Pending application or distribution, the funds of the Partnership shall be deposited in such bank accounts, or invested in such interest-bearing or non-interest-bearing investments, including without limitation, federally insured checking and savings accounts, certificates of deposit and time or demand-deposits in U.S. government agencies or government backed securities or such other investments as the General Partner |
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deems appropriate and consistent with the maintenance of Brandywine Realty Trust’s qualification as a real estate investment trust under the Code. |
5.4. Tax Returns. The General Partner shall cause all tax returns for the Partnership to be prepared and timely filed with the appropriate authorities and shall deliver or cause to be delivered to each Partner such information as is necessary for such Partner to prepare such Partner’s federal, state and local tax returns. |
5.5. Tax Matters Partner. The General Partner shall be the initial Tax Matters Partner and shall represent the Partnership and the Partners before taxing authorities or courts of competent jurisdiction in tax matters affecting the Partnership and the Partners in their capacity as Partners. |
ARTICLE 6 |
6.1. Dissolution. The Partnership shall be dissolved upon the earliest to occur of the following: |
(a) December 31, 2050; |
(b) the withdrawal, bankruptcy or liquidation of the General Partner or the occurrence of any other event of withdrawal that causes the General Partner to cease to be a general partner under the Act (other than by reason of a permitted transfer of a Partner’s entire interest under this Agreement); |
(c) the sale of all or substantially all of the Partnership’s assets and properties; |
(d) the unanimous agreement of the Partners to effect such dissolution; or |
(e) the entry of an order of judicial dissolution under Section 8572 of the Act. |
6.2. Liquidation. Upon dissolution of the Partnership, the Partnership shall continue solely for the purpose of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors. The General Partner or in the event there is no General Partner, such Person or Persons as is designated by the Partners (the General Partner or such Person or Persons being hereinafter referred to as the “Liquidator”) shall be responsible for overseeing the winding up and dissolution of the Partnership and shall cause distributions to be made in accordance with Section 6.3 hereof. |
6.3. Distributions Upon Liquidation. Upon dissolution of the Partnership, the Liquidator shall proceed to wind up the business and affairs of the Partnership and shall distribute the assets of the Partnership in the following order and priority: |
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(a) First, to payment of the debts and liabilities of the Partnership (other than those to Partners) in the order of priority provided by law, provided that the Partnership shall first pay, to the extent permitted by law, liabilities with respect to which any Partner is or may be personally liable. |
(b) Second, to payment of the expenses of liquidation of the Partnership in the order of priority provided by law, provided that the Partnership shall first pay, to the extent permitted by law, liabilities or debts owed to Partners. |
(c) Third, to the setting up of such reserves as the Partners may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Partnership arising out of or in connection with the Partnership business. |
(d) The balance of the proceeds, in accordance with the Percentage Interests of the Partners. |
6.4. Reasonable Time for Winding Up. A reasonable amount of time shall be allowed for the orderly winding up of the business and affairs of the Partnership in light of prevailing market conditions and so as to avoid undue loss in connection with any sale of Partnership assets. This Agreement shall remain in full force and effect during the period of winding up. |
6.5. Certificate of Cancellation. Following the completion of the winding up of the affairs of the Partnership and the distribution of its assets, the Liquidator shall file all necessary certificates of cancellation required under the Act. |
ARTICLE 7 |
7.1. Definitions. |
7.1.1. The following terms, as used herein, shall have the following respective meanings: |
“Act” means the Pennsylvania Revised Uniform Limited Partnership Act, 15 P.S. §8500 et. seq. as amended from time to time. |
“Agreement” means this Agreement of Limited Partnership, as amended or restated from time to time. |
“Certificate” means the Certificate of Limited Partnership, as amended or restated from time to time, filed with the Pennsylvania Department of State in accordance with the Act. |
“Code” means the Internal Revenue Code of 1986, as amended or any successor statute thereto. |
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“Fiscal Year” means the twelve month period ending December 31 of each year, unless otherwise provided pursuant to Section 5.2 of this Agreement. |
“Interest” means the interest of a Partner in the Partnership representing such Partner’s rights, powers and privileges, as specified in this Agreement, including, without limitation, such Partner’s right to profits, losses, allocations and distributions and such Partner’s right to vote with respect to Partnership matters, and “Percentage Interest” means a Partner’s Interest expressed as a percentage of all Interests. |
“Partners” means the General Partner and Limited Partner. |
“Partnership” means the limited partnership which is the subject of this Agreement, as such limited partnership may from time to time be constituted. |
“Person” means and includes individuals, corporations, partnerships, trusts, associations, joint ventures, limited liability companies, estates and other entities, whether or not legal entities, and governments and agencies and political subdivisions thereof, whether domestic or foreign. |
“Tax Matters Partner” means the tax matters member as defined in Code Section 6231(a)(7). |
“Transfer” means to sell, assign, transfer, give, donate, pledge, deposit, alienate, bequeath, devise or otherwise dispose of or encumber to any Person other than the Partnership. |
7.2. Rules of Construction: Unless the context otherwise requires, references to the plural shall include the singular and the singular shall include the plural, and the words “hereof,” “herein,” “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provisions of this Agreement. Any use of the masculine, feminine or neuter herein shall be deemed to include a reference to each other gender. |
ARTICLE 8 |
8.1. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania without regard to the conflict of laws provisions of said jurisdiction. |
8.2. Entire Agreement. This Agreement represents the entire agreement between the parties in respect of its subject matter and supersedes all prior agreements, arrangements and understandings between the parties relating to the subject matter hereto. |
8.3. Binding Effect. Except as otherwise provided herein, this Agreement shall inure to the benefit of and be binding upon the Partners and their respective successors, heirs, and to the extent permitted, transfers and assigns. |
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8.4. Additional Documents. Each Partner, upon the request of the General Partner, agrees to perform all further acts and execute, acknowledge, and deliver any documents that may be reasonably necessary, appropriate, or desirable to carry out the provisions of this Agreement. |
8.5. Waiver of Action for Partition. Each of the Partners irrevocably waives any right that it may have to maintain any action for partition with respect to any of the Partnership property. |
8.6. Headings. The descriptive headings herein are inserted for convenience only and do not constitute part of this Agreement. |
8.7. Notice. Notices to the Partners shall be deemed sufficiently given if delivered by hand, mailed by certified mail, return receipt requested, postage prepaid, to the addresses provided in writing by any Partner to the other Partner or mailed via any reliable overnight courier service. |
8.8. Non-Recourse. No recourse shall be had for any obligation of Brandywine Realty Trust against any past, present or future trustee, shareholder, officer or employee thereof. |
8.9. Execution of Documents. The Partners agree that they shall execute such instruments as may be necessary or appropriate to carry out the terms of this Agreement and the actions contemplated thereby. |
8.10. Amendment. This Agreement may not be amended except by unanimous written agreement of all of the Partners. |
8.11. Time is of Essence. Time is of the essence in the performance of this Agreement. |
8.12. Counterparts. This Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. |
(signature page follows)
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IN WITNESS WHEREOF, and intending to be legally bound, the parties have executed this Agreement as of the day first above written.
General Partner: | ||
BRANDYWINE AMBASSADOR, L.L.C. | ||
/s/ Gerard H. Sweeney, Sr. | ||
President and Chief Executive Officer | ||
Limited Partner: | ||
BRANDYWINE OPERATING PARTNERSHIP, L.P. | ||
By: | BRANDYWINE REALTY TRUST, | |
Its General Partner | ||
/s/ Gerard H. Sweeney, Sr. | ||
President and Chief Executive Officer |
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Exhibit 3.27
Microfilm
Number_________
|
Filed with the Department of State on APR 03 1995 | |||
Entity
Number 2630482
|
XXXXXX |
|||
Secretary of the Commonwealth |
CERTIFICATE
OF LIMITED PARTNERSHIP
DSCB:15-8511 (Rev 89) |
|||
In compliance with the requirements of 15 Pa.C.S. § 8511 (relating to certificate of limited partnership), the undersigned, desiring to form a limited partnership, hereby certifies that: |
1.
|
The name of the limited partnership is: First Commercial Development Company |
||
2.
|
The address of
this limited partnerships initial (a) registered office in this
Commonwealth or (b) commercial registered office provider and the county
of venue is (the Department is hereby authorized to correct the following
address to conform to the records of the Department):
|
||
(a) | 150 Corporate Center Drive, Camp Hill Corporate Center, Camp Hill, PA 17011, Cumberland Cty | ||
Number and Street City State Zip County | |||
(b) | |||
Name of Commercial Registered Office Provider | County | ||
For a limited partnership represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the limited partnership is located for venue and official publication purposes. | |||
3. | The name and business address of each general partner of the partnership is: | ||
Name | Address | ||
John S. Trogner, Sr., | 150 Corporate Center Drive, Camp Hill, PA 17011 | ||
John S. Trogner, Jr., | 150 Corporate Center Drive, Camp Hill, PA 17011 | ||
Blair S. Trogner, | 150 Corporate Center Drive, Camp Hill, PA 17011 | ||
4. | The specified effective date, if any: | April 2 1995 | |
month day year hour, if any | |||
IN TESTIMONY WHEREOF, the undersigned general partner(s) of the limited partnership has (have) executed this certificate this 30th day of MARCH, 1995. |
/s/ John
S. Trogner Sr. |
/s/
John S. Trogner Jr. |
|
John S. Trogner, Sr. | John S. Trogner, Jr. |
|
/s/ Blair
S. Trogner |
||
Blair S. Trogner |
Microfilm
Number_________
|
Filed with the Department of State on MAY 14 1998 | |||
Entity
Number 2630482
|
XXXXXX |
|||
Secretary of the Commonwealth |
CERTIFICATE OF AMENDMENT-LIMITED
PARTNERSHIP
DSCB: UNREADABLE COPY
In compliance with the requirements of 15 Pa.C.S. § 8512 (relating to certificate of amendment), the undersigned limited partnership, desiring to amend its Certificate of Limited Partnership, hereby certifies that:
1. | The name of the limited partnership is: FIRST COMMERCIAL DEVELOPMENT COMPANY | |
2. | The date of filing of the original Certificate of Limited Partnership is April 3, 1995 | |
3. | (Check, and if appropriate complete, one of the following): | |
The amendment adopted by the limited partnership, set forth in full, is as follows: | ||
The amendment adopted by the limited partnership is set forth in full in Exhibit A attached hereto and made a part hereof. | ||
4. | (Check, and if appropriate complete, one of the following): | |
The amendment shall be effective upon filing this Certificate of Amendment in the Department of State. | ||
The amendment shall be effective on:_______ at ______ | ||
Date Hour | ||
5. | (Check if the amendment restates the Certificate of Limited Partnership): | |
The restated Certificate of Limited Partnership supersedes the original Certificate of Limited Partnership and all amendments thereto. | ||
6. | Withdrawing partners See attached Exhibit A. | |
IN TESTIMONY WHEREOF, the undersigned limited partnership has caused this Certificate of Amendment to be execute this 8th day of May 1998. | ||
First Commercial Development Company, a PA limited partnership | |||||
By: | Brandywine F.C., L.P., its sole general partner | ||||
By: | Brandywine F.C., L.L.C., its sole general partner | ||||
By: | Brandywine Operating Partnership, L.P., its sole member | ||||
By: | Brandywine Realty Trust, its sole general partner | ||||
By: /s/ Gerard H. Sweeney | |||||
Gerard H. Sweeney President and CEO |
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EXHIBIT “A”
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TO
CERTIFICATE OF AMENDMENT-LIMITED PARTNERSHIP
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3. | The amendment adopted by the limited partnership, set forth in full, is as follows: | |
1. | The name of the limited partnership is: Brandywine Central L.P. | |
2. | The address of this limited partnerships registered office in this Commonwealth is: 16 Campus Boulevard, Suite 150, Newtown Square, PA 19073 | |
3. | By Amended and Restated Agreement of Limited Partnership dated as of May 8, 1998, John S. Trogner, Sr., John S. Trogner, Jr., and Blair S. Trogner, Sr. withdrew as general partners of First Commercial Development Company. | |
The name and business address of the new general partner is as follows: | ||
Brandywine F.C., L.P. c/o Brandywine Realty Trust 16 Campus Boulevard, Suite 150 Newtown Square, PA 19073 Attention: Gerard H. Sweeney, President and Chief Executive Officer |
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6. | The Withdrawing General Partners have executed this Certificate of Amendment-Limited Partnership as of the 8th day of May, 1998. | |
/s/ John S. Trogner, Sr. | ||
JOHN S. TROGNER, SR., Withdrawing General Partner |
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/s/ John S. Trogner, Jr. | ||
JOHN S. TROGNER,
JR., Withdrawing General Partner |
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/s/ Blair S. Trogner, Sr. | ||
BLAIR S. TROGNER,
SR., Withdrawing General Partner |
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PENNSYLVANIA DEPARTMENT
OF STATE CORPORATION BUREAU |
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Certificate of
Amendment-Domestic (15 Pa.C.S.) |
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Entity
Number UNREADABLE TEXT |
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Limited Partnership (§ 8512) | ||||||||
Limited Liability Company (§ 8951) | ||||||||
Name | PEPPER HAMILTON LLP | Document will be returned to the name and address you enter to the left. | ||||||
Address | 200
ONE KEYSTONE PLAZA NORTH FRONT AND MARKET STREETS P.O. BOX 1181 HARRISBURG, PA 17108-1181 |
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City | State | Zip Code | ||||||
Fee: $52 | Filed in the Department of State on Jun 06 2002 | ||
XXXXXX | |||
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ACTING Secretary of the Commonwealth | |||
In compliance with the requirements of the applicable provisions (relating to certificate of amendment), the undersigned, desiring to amend its Certificate of Limited Partnership/Organization, hereby certifies that:
1. | The name of the limited
partnership/limited liability company is:
Brandywine Central, L.P. |
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2. | The date of filing of the
original Certificate of limited Partnership/Organization:
April 3, 1995 |
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3. | Check and if appropriate
complete one of the following:
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The amendment adopted by
the limited partnership/limited liability company, set forth in full,
is as follows:
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The amendment adopted by the limited partnership/limited liability company is set forth in full in Exhibit A attached hereto and made a part hereof. | |||
4. | Check and if appropriate
complete one of the following:
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The amendment shall be
effective upon filing this Certificate of Amendment in the Department
of State.
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The amendment shall be
effective on _______ at ______
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Date Hour | ||
5. | Check if the amendment
restates the Certificate of Limited Partnership/Organization:
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The restated Certificate
of Limited Partnership/Organization supersedes the original Certificate
of Limited Partnership/Organization and all previous amendments thereto.
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IN
TESTIMONY WHEREOF, the undersigned limited partnership/limited liability
company has caused this Certificate of Amendment to be executed this 4th day of June, 2002. Brandywine Central,, L.P. |
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Name
of Limited Partnership/Limited Liability Company |
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Signature | ||||
(See Exhibit B attached) |
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Title | ||||
EXHIBIT A
TO CERTIFICATE OF AMENDMENT
BRANDYWINE CENTRAL, L.P.
Article 4 of the Certificate of Limited Partnership shall be amended, so that, as amended, Article 4 shall read as follows: | |
Article 4. The address of this limited partnerships registered office in this Commonwealth is: 401 Plymouth Road, Suite 500, Plymouth Meeting, PA 19462, Montgomery County. | |
Article 6 of the Certificate of Limited Partnership shall be amended, so that, as amended, Article 6 shall read as follows: | |
Article 6. The name and business address of each general partner is: Brandywine F.C., L.P., 401 Plymouth Road, Suite 500, Plymouth Meeting, PA 19462, Montgomery County. | |
Article 7 of the Certificate of Limited Partnership shall be amended, so that, as amended, Article 7 shall read as follows: | |
Article 7. The address of the office at which is kept a list of the names and addresses of the limited partners and their capital contributions is: 401 Plymouth Road, Suite 500, Plymouth Meeting, PA 19462, Montgomery County. | |
EXHIBIT B
to
CERTIFICATE OF AMENDMENT
of
BRANDYWINE CENTRAL, L..P.
By: | Brandywine F.C., L.L.C., a Pennsylvania limited partnership General Partner | |
By: | Brandywine F.C., L.L.C., a Pennsylvania limited liability company | |
By: | /s/ Brad A. Molotsky | |
Brad A. Molotsky, Secretary | ||
Exhibit 3.28
________________________________________
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE CENTRAL, L.P.
A Pennsylvania Limited Partnership
June ___, 2001
________________________________________
THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (this “Agreement”) of Brandywine Central, L.P., a Pennsylvania limited partnership (the “Partnership”), is dated as of this ____ day of June, 2001, by and between Brandywine F.C., L.P., a Pennsylvania limited partnership, as the general partner (“BRT F.C.” or the “General Partner”), and BTRS, Inc., a Delaware corporation (“BTRS, Inc.”), as the limited partner (the “Limited Partner”). The General Partner and the Limited Partner are hereinafter sometimes referred to collectively as the “Partners” and individually as a “Partner”.
On January 1, 1975, John S. Trogner, Sr., John S. Trogner, Jr. and Blair S. Trogner, Sr. (collectively, the “Trogners”) formed a Pennsylvania general partnership (the “Original Partnership”) under the name “First Commercial Development Company.” Pursuant to an agreement entered into as of January 1, 1995 and identified as “First Commercial Development Company Amended and Restated Limited Partnership Agreement,” the Trogners converted the Original Partnership into the Partnership and, in furtherance of such conversion, filed a Certificate of Limited Partnership with the Secretary of State of the Commonwealth of Pennsylvania on April 3, 1995 (the “Original Certificate”). As of May 8, 1998, BRT F.C. was admitted into the Partnership as the sole general partner, and the then partners in the partnership (other than the three Trogners) withdrew from the Partnership, and the remaining interests of the three Trogners in the Partnership were converted into limited partner interests, as reflected in the Amended and Restated Agreement of Limited Partnership of the Partnership dated as of May 8, 1998 (the “Prior Agreement”) among BRT F.C. and the three Trogners. In connection with the May 8, 1998 transaction, the Original Certificate was amended by a Certificate of Amendment executed on May 8, 1998 and filed with the Secretary of State of the Commonwealth of Pennsylvania on May 20, 1998 (the Original Certificate, as so amended, the “Certificate”). On the date hereof, the Trogners have assigned and transferred all of their right, title and interest in and to the Partnership to BRT F.C. and BTRS, Inc. and are withdrawing from the Partnership; and this Agreement is being executed and delivered in order to amend and restate in its entirety the Prior Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree that BTRS, Inc. is hereby admitted to the Partnership as the sole limited partner and BRT F.C. continues as the sole general partner in the Partnership, and the Prior Agreement is hereby amended and restated in its entirety as follows:
ARTICLE 1 GENERAL PROVISIONS |
1.1. Continuation, Partners and Name. |
(a) The Partners hereby elect to continue the business of the Partnership as a limited partnership pursuant to the provisions of the Revised Uniform Limited Partnership Act as in effect in the Commonwealth of Pennsylvania on the date hereof, as the same may be amended from time to time (the “Act”). The partners shall consist of BRT F.C. as the sole general partner and BTRS, Inc. as the sole limited partner. |
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(b) By executing this Agreement, each Partner hereby agrees that the Partnership shall be governed by the Act. Upon or promptly after the execution of this Agreement, the General Partner may, if it deems it necessary, execute and cause to be filed an amended and restated Certificate of Limited Partnership and such other applications, elections, certificates and documents as may be required for the continuation of a limited partnership under the Act, or as may be necessary to permit the Partnership to engage in the activities contemplated by Section 1.4 hereof. |
1.2. Name. The name of the Partnership is Brandywine Central, L.P. or such other name as the General Partner from time to time may hereafter select. |
1.3. Place of Business. The principal place of business of the Partnership shall be at 14 Campus Blvd., Suite 100, Newtown Square, PA 19073, or such other place as the General Partner may from time to time designate. The Partnership may maintain such other offices at such other places as the General Partner deems advisable. |
1.4. Purpose. The Partnership is organized to pursue any lawful purpose. |
1.5. Term. The term of the Partnership has commenced and shall continue until December 31, 2094, unless earlier dissolved pursuant to the terms of Section 6.1 hereof or by operation of law. |
ARTICLE 2 CAPITAL MATTERS |
2.1. Additional Capital Contributions or Loans. No Partner shall be obligated or required to make any additional capital contributions or advance any funds to the Partnership unless all of the Partners unanimously agree to do so and unanimously agree as to the amount to be so contributed. |
2.2. Allocations and Distributions. All allocations of profits and losses and all distributions of cash shall be made in accordance with the Partners’ Percentage Interests. The Percentage Interest of BRT F.C. shall be ninety-eight percent (98.0%), and the Percentage Interest of BTRS, Inc. shall be two percent (2%). Distributions out of funds legally available therefor shall be made at such times as the General Partner determines. |
ARTICLE 3 MANAGEMENT |
3.1. Management and Control. The General Partner shall manage and control the business and affairs of the Partnership and shall have all of the rights and powers which may be possessed by a general partner under the Act. Except as otherwise provided in the Act, the General Partner shall make all decisions with respect to the business and affairs of the Partnership, and the Limited Partner shall have no right to participate in the management of the Partnership. |
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ARTICLE 4 TRANSFERS OF PARTNER INTERESTS |
4.1. Restriction. A Partner shall not, without the consent of the other Partner, make any Transfer of all or any portion of its Interest. |
4.2. Transfer in Violation of Agreement. Any purported Transfer of an Interest which is not made in compliance with this Agreement shall be null and void ab initio and of no force or effect whatsoever. |
ARTICLE 5 FINANCIAL MATTERS |
5.1. Records. The Partnership shall maintain at its principal place of business: (i) true and full information regarding the status of the business and financial affairs of the Partnership; (ii) a current list of the name and last known address of each of its Partners; (iii) a copy of this Agreement and the Certificate and all amendments thereto; (iv) the accounting books and records and minutes of proceedings of the Partners; and (v) any other information regarding the affairs of the Partnership as the General Partner determines is just and reasonable. |
5.2. Fiscal Year. Unless otherwise designated by the General Partner, the fiscal year of the Partnership shall end on December 31. |
5.3. Partnership Funds. Pending application or distribution, the funds of the Partnership shall be deposited in such bank accounts, or invested in such interest-bearing or non-interest-bearing investments, including without limitation, federally insured checking and savings accounts, certificates of deposit and time or demand-deposits in U.S. government agencies or government backed securities or such other investments as the General Partner deems appropriate and consistent with the maintenance of Brandywine Realty Trust’s qualification as a real estate investment trust under the Code. |
5.4. Tax Returns. The General Partner shall cause all tax returns for the Partnership to be prepared and timely filed with the appropriate authorities and shall deliver or cause to be delivered to each Partner such information as is necessary for such Partner to prepare such Partner’s federal, state and local tax returns. |
5.5. Tax Matters Partner. The General Partner shall be the Tax Matters Partner and shall represent the Partnership and the Partners before taxing authorities or courts of competent jurisdiction in tax matters affecting the Partnership and the Partners in their capacity as Partners. |
ARTICLE 6 DISSOLUTION |
6.1. Dissolution. The Partnership shall be dissolved upon the earliest to occur of the following: |
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(a) December 31, 2094; |
(b) the withdrawal, bankruptcy or liquidation of the General Partner or the occurrence of any other event of withdrawal that causes the General Partner to cease to be a general partner under the Act (other than by reason of a permitted transfer of a Partner’s entire interest under this Agreement); |
(c) the sale of all or substantially all of the Partnership’s assets and properties; |
(d) the unanimous agreement of the Partners to effect such dissolution; or |
(e) the entry of an order of judicial dissolution under Section 8572 of the Act. |
6.2. Liquidation. Upon dissolution of the Partnership, the Partnership shall continue solely for the purpose of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors. The General Partner or in the event there is no General Partner, such Person or Persons as is designated by the Partners (the General Partner or such Person or Persons being hereinafter referred to as the “Liquidator”) shall be responsible for overseeing the winding up and dissolution of the Partnership and shall cause distributions to be made in accordance with Section 6.3 hereof. |
6.3. Distributions Upon Liquidation. Upon dissolution of the Partnership, the Liquidator shall proceed to wind up the business and affairs of the Partnership and shall distribute the assets of the Partnership in the following order and priority: |
(a) First, to payment of the debts and liabilities of the Partnership (other than those to Partners) in the order of priority provided by law, provided that the Partnership shall first pay, to the extent permitted by law, liabilities with respect to which any Partner is or may be personally liable. |
(b) Second, to payment of the expenses of liquidation of the Partnership in the order of priority provided by law, provided that the Partnership shall first pay, to the extent permitted by law, liabilities or debts owed to Partners. |
(c) Third, to the setting up of such reserves as the General Partner may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Partnership arising out of or in connection with the Partnership business. |
(d) The balance of the proceeds, in accordance with the Percentage Interests of the Partners. |
6.4. Reasonable Time for Winding Up. A reasonable amount of time shall be allowed for the orderly winding up of the business and affairs of the Partnership in light of prevailing market conditions and so as to avoid undue loss in connection with any sale of |
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Partnership assets. This Agreement shall remain in full force and effect during the period of winding up. |
6.5. Certificate of Cancellation. Following the completion of the winding up of the affairs of the Partnership and the distribution of its assets, the Liquidator shall file all necessary certificates of cancellation required under the Act. |
ARTICLE 7 DEFINITIONS AND RULES OF CONSTRUCTION |
7.1. Definitions. |
7.1.1. The following terms, as used herein, shall have the following respective meanings: |
“Act” means the Pennsylvania Revised Uniform Limited Partnership Act, 15 P.S. §8500 et. seq. as amended from time to time. |
“Agreement” means this Second Amended and Restated Agreement of Limited Partnership, as amended or restated from time to time. |
“Code” means the Internal Revenue Code of 1986, as amended or any successor statute thereto. |
“Fiscal Year” means the twelve month period ending December 31 of each year, unless otherwise provided pursuant to Section 5.2 of this Agreement. |
“Interest” means the interest of a Partner in the Partnership representing such Partner’s rights, powers and privileges, as specified in this Agreement, including, without limitation, such Partner’s right to profits, losses, allocations and distributions and such Partner’s right to vote with respect to Partnership matters, and “Percentage Interest” means a Partner’s Interest expressed as a percentage of all Interests. |
“Partners” means the General Partner and Limited Partner. |
“Partnership” means the limited partnership which is the subject of this Agreement, as such limited partnership may from time to time be constituted. |
“Person” means and includes individuals, corporations, partnerships, trusts, associations, joint ventures, limited liability companies, estates and other entities, whether or not legal entities, and governments and agencies and political subdivisions thereof, whether domestic or foreign. |
“Tax Matters Partner” means the tax matters member as defined in Code Section 6231(a)(7). |
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“Transfer” means to sell, assign, transfer, give, donate, pledge, deposit, alienate, bequeath, devise or otherwise dispose of or encumber to any Person other than the Partnership. |
7.2. Rules of Construction: Unless the context otherwise requires, references to the plural shall include the singular and the singular shall include the plural, and the words “hereof,” “herein,” “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provisions of this Agreement. Any use of the masculine, feminine or neuter herein shall be deemed to include a reference to each other gender. |
ARTICLE 8 MISCELLANEOUS |
8.1. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania without regard to the conflict of laws provisions of said jurisdiction. |
8.2. Entire Agreement. This Agreement represents the entire agreement between the parties in respect of its subject matter and supersedes all prior agreements (including the Prior Agreement), arrangements and understandings between the parties relating to the subject matter hereto. |
8.3. Binding Effect. Except as otherwise provided herein, this Agreement shall inure to the benefit of and be binding upon the Partners and their respective successors, heirs, and to the extent permitted, transfers and assigns. |
8.4. Headings. The descriptive headings herein are inserted for convenience only and do not constitute part of this Agreement. |
8.5. Notice. Notices to the Partners shall be deemed sufficiently given if delivered by hand, mailed by certified mail, return receipt requested, postage prepaid, to the addresses provided in writing by any Partner to the other Partner or mailed via any reliable overnight courier service. |
8.6. Non-Recourse. No recourse shall be had for any obligation of Brandywine Realty Trust against any past, present or future trustee, shareholder, officer or employee thereof. |
8.7. Amendment. This Agreement may not be amended except by unanimous written agreement of all of the Partners. |
8.8. Counterparts. This Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. |
IN WITNESS WHEREOF, and intending to be legally bound, the parties have executed this Agreement as of the day first above written. |
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General Partner: | ||||||
BRANDYWINE F.C., L.P., a Pennsylvania limited partnership | ||||||
By: | Brandywine F.C., L.L.C., a Pennsylvania limited liability company, its sole general partner | |||||
By: | Brandywine Operating Partnership, L.P., its sole member | |||||
By: | Brandywine Realty Trust, its general partner | |||||
By: | /s/ Gerard H. Sweeney | |||||
Gerard H. Sweeney, President | ||||||
and Chief Executive Officer |
Limited Partner: | ||
BTRS, INC. | ||
/s/ Gerard H. Sweeney | ||
By: | Gerard H. Sweeney | |
Title: | President and Chief Executive Officer | |
The undersigned are executing this Agreement solely for the purpose of evidencing their complete withdrawal on the date hereof from the Partnership. | ||
/s/ John S. Trogner, Sr. | ||
John S. Trogner, Sr. | ||
/s/ John S. Trogner, Jr. | ||
John S. Trogner, Jr. | ||
/s/ Blair S. Trogner, Sr. | ||
Blair S. Trogner, Sr. |
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PENNSYLVANIA
DEPARTMENT OF STATE
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CORPORATION
BUREAU
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Certificate
of Limited Partnership
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(15 Pa. C.S § 8511.)
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Entity Number | ||||
Name Kimberley
K. Perez
Pepper Hamilton LLP |
Document will be returned to the name and address you enter to the left. | |||
Address | ||||
200 One Keystone Plaza, North Front and Market Streets | ||||
City | State | Zip Code | ||
Harrisburg | PA | 17108-1181 | ||
Fee: $100 | Filed in the Department of State on | |
Secretary of the Commonwealth |
In compliance with the requirements of 15 Pa. C.S § 8511 (relating to certificate of limited partnerhip), the undersigned, desiring to form a limited partnership, hereby certifies that: | |
1. | The name of the limited partnership (may
contain the word company, or limited or limited
partnership or any
abbreviation): Brandywine Cira, L.P. |
2. | The (a) address of the limited partnerships initial registered office in this Commonwealth or (b) name of its commercial registered office provider and the county of venue is: |
(a) Number and Street |
City |
State |
Zip |
County |
401 Plymouth Road, Suite 500 |
Plymouth Meeting |
PA |
19462 |
Montgomery |
(b) Name of Commercial Registered Office Provider County | |
c/o: | |
3. | The name and business address of each general partner of the partnership is: |
Name Address | |
Brandywine Cira, LLC 401 Plymouth Road, Suite 500, Plymouth Meeting, PA 19462 | |
4. | Check and if appropriate complete one of the following: |
The formation of the limited partnership shall be effective upon filing this Certificate of Limited Partnership in the Department of State. | |
The formation of the limited partnership shall be effective
on__________________at__________________ Date Hour |
5. | The specified effective date, if any is: |
month |
date |
year |
hour, if any |
IN TESTIMONY WHEREOF, the
undersigned general partner(s) of the limited partnership has (have)
executed this Certificate of Amendment to be executed this day of June, 2003 |
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Brandywine
Cira, LLC, its general partner |
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By: /s/ Gerard H. Sweeney |
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Signature
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Signature
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Signature
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Department
of State
Corporation Bureau
P.O. Box 8722
Harrisburg, PA 17105-8722
(717) 787-1057
web site: www.dos.state.pa.us/corp.htm
Instructions for Completion of Form:
A. | Typewritten is preferred. If not, the form shall be completed in black or blue-black ink in order to permit reproduction. The filing fee for this form is $100 made payable to the Department of State. |
B. | Under 15 Pa.C.S. § 135(c) (relating to addresses) an actual street or rural route box number must be used as an address, and the Department of State is required to refuse to receive or file any document that sets forth only a post office box address. |
C. | The following, in addition to the filing fee, shall accompany this form: |
(1) | Any necessary copies of form DSCB:17.2.3 (Consent to Appropriation or Use of Similar Name). | |
(2) | Any necessary governmental approvals. |
D. | For general instructions relating to the formation of limited partnerships see 19 Pa. Code Ch. 73 (relating to limited partnerships). |
E. | This form shall be executed by all general partners named herein. Any natural person of full age, general partnership, limited partnership, corporation or business or other trust may form a limited partnership if the organizing entity is designated as a general partner in and executes this form. Under 15 Pa.C.S. § 8513 (relating to certificate of cancellation) the Certificate of Limited Partnership shall be canceled whenever there are no limited partners, but it is not necessary to name the limited partners in the Certificate of Limited Partnership. |
F. | Optional provisions required or authorized by law may be added as Paragraphs 4, 5, and 6...etc. If a partner's interest in the limited partnership is to be evidenced by a certificate of partnership interest, a statement to that effect must be included in this form. See 15 Pa.C.S. § 8511(a)(4). |
G. | This form and all accompanying documents shall be mailed to the address stated above. |
H. | To receive confirmation of the file date prior to receiving the microfilmed original, send either a self-addressed, stamped postcard with the filing information noted or a self-addressed, stamped envelope with a copy of the filing document. |
Exhibit 3.30
________________________________________
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE CIRA, L.P.
A Pennsylvania Limited Partnership
________________________________________
THIS FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of Brandywine Cira, L.P. is made and entered into as of this ___ day of June, 2004 and amends and restates in its entirety the Agreement of Limited Partnership dated as of the 19th day of June, 2003 (the “Original Agreement”), by and between Brandywine Operating Partnership, L.P., a Delaware limited partnership as the limited partner (“Limited Partner”) and Brandywine Cira, LLC, a Pennsylvania limited liability company as general partner (“General Partner” and together with the Limited Partner, the “Partners”) for the purpose of forming a Pennsylvania limited partnership (the “Partnership”) in accordance with the provisions hereinafter set forth. Capitalized terms are defined below.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein made and intending to be legally bound, the Partners hereby agree as follows:
ARTICLE 1 GENERAL PROVISIONS |
1.1. Formation. The Partners hereby agree to form the Partnership as a limited partnership pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement. The General Partner shall file or cause to be filed the Certificate with the Pennsylvania Department of State in accordance with the provisions of the Act and shall do or cause to be done all such other filings, recordings or other acts, including amendments to the Certificate, as may be necessary or appropriate to comply with the laws of formation and operation of a limited partnership in the Commonwealth of Pennsylvania and any other jurisdiction in which the Partnership may conduct business. |
1.2. Name. The name of the Partnership is BRANDYWINE CIRA, L.P. or such other name as the Partners from time to time may unanimously select. |
1.3. Place of Business. The principal place of business of the Partnership shall be at 401 Plymouth Road, Suite 500, Plymouth Meeting, PA 19462, or such other place as the General Partner may from time to time designate. The Partnership may maintain such other offices at such other places as the General Partner deems advisable. |
1.4. Purpose. The Partnership is organized to pursue any lawful purpose. |
1.5. Term. The Partnership shall commence upon the filing of the Certificate and shall continue until the Partnership is terminated in accordance with the terms of this Agreement. |
ARTICLE 2 CAPITAL MATTERS |
2.1. Initial Capital Contributions. Simultaneously with the execution of the Original Agreement, the General Partner contributed to the capital of the Partnership cash in the aggregate amount of $10.00, and the Limited Partner contributed to the capital of the Partnership cash in the aggregate amount of $990.00. |
2.2. Additional Capital Contributions or Loans. Except as specifically required under Section 2.1, no Partner shall be obligated or required to make any additional capital contributions or advance any funds to the Partnership unless all of the Partners unanimously agree to do so and unanimously agree as to the amount to be so contributed. |
2.3. Allocations and Distributions. All allocations of profits and losses and all distributions of cash shall be made in accordance with the Partners’ Percentage Interests. The Percentage Interest of the General Partner shall be one percent (1%), and the Percentage Interest of the Limited Partner shall be ninety-nine percent (99%). Distributions out of funds legally available therefor shall be made at such times as the General Partner determines. |
ARTICLE 3 MANAGEMENT |
3.1. Management and Control. The General Partner shall manage and control the business and affairs of the Partnership and shall have all of the rights and powers which may be possessed by a general partner under the Act. Except as otherwise provided in the Act, the General Partner shall make all decisions with respect to the business and affairs of the Partnership, and the Limited Partner shall have no right to participate in the management of the Partnership. |
ARTICLE 4 TRANSFERS OF PARTNER INTERESTS |
4.1. Restriction. A Partner shall not, without the consent of the other Partner, make any Transfer of all or any portion of its Interest. |
4.2. Transfer in Violation of Agreement. Any purported Transfer of an Interest which is not made in compliance with this Agreement shall be null and void ab initio and of no force or effect whatsoever. |
ARTICLE 5 FINANCIAL MATTERS |
5.1. Records. The Partnership shall maintain at its principal place of business: (i) true and full information regarding the status of the business and financial affairs of the Partnership; (ii) a current list of the name and last known address of each of its Partners; (iii) a copy of this Agreement and the Certificate and all amendments thereto; (iv) the accounting books and records and minutes of proceedings of the Partners; and (v) any other information regarding the affairs of the Partnership as the General Partner determines is just and reasonable. |
5.2. Fiscal Year. Unless otherwise designated by the Partners, the fiscal year of the Partnership shall end on December 31. |
5.3. Partnership Funds. Pending application or distribution, the funds of the Partnership shall be deposited in such bank accounts, or invested in such interest-bearing or non-interest-bearing investments, including without limitation, federally insured checking and |
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savings accounts, certificates of deposit and time or demand-deposits in U.S. government agencies or government backed securities or such other investments as the General Partner deems appropriate and consistent with the maintenance of Brandywine Realty Trust’s qualification as a real estate investment trust under the Code.
5.4. Tax Returns. The General Partner shall cause all tax returns for the Partnership to be prepared and timely filed with the appropriate authorities and shall deliver or cause to be delivered to each Partner such information as is necessary for such Partner to prepare such Partner’s federal, state and local tax returns. |
5.5. Tax Matters Partner. The General Partner shall be the initial Tax Matters Partner and shall represent the Partnership and the Partners before taxing authorities or courts of competent jurisdiction in tax matters affecting the Partnership and the Partners in their capacity as Partners. |
ARTICLE 6 DISSOLUTION |
6.1. Dissolution. The Partnership shall be dissolved upon the earliest to occur of the following: |
(a) December 31, 2125; |
(b) the withdrawal, bankruptcy or liquidation of the General Partner or the occurrence of any other event of withdrawal that causes the General Partner to cease to be a general partner under the Act (other than by reason of a permitted transfer of a Partner’s entire interest under this Agreement); |
(c) the sale of all or substantially all of the Partnership’s assets and properties; |
(d) the unanimous agreement of the Partners to effect such dissolution; or |
(e) the entry of an order of judicial dissolution under Section 8572 of the Act. |
6.2. Liquidation. Upon dissolution of the Partnership, the Partnership shall continue solely for the purpose of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors. The General Partner or in the event there is no General Partner, such Person or Persons as is designated by the Partners (the General Partner or such Person or Persons being hereinafter referred to as the “Liquidator”) shall be responsible for overseeing the winding up and dissolution of the Partnership and shall cause distributions to be made in accordance with Section 6.3 hereof. |
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6.3. Distributions Upon Liquidation. Upon dissolution of the Partnership, the Liquidator shall proceed to wind up the business and affairs of the Partnership and shall distribute the assets of the Partnership in the following order and priority: |
(a) First, to payment of the debts and liabilities of the Partnership (other than those to Partners) in the order of priority provided by law, provided that the Partnership shall first pay, to the extent permitted by law, liabilities with respect to which any Partner is or may be personally liable. |
(b) Second, to payment of the expenses of liquidation of the Partnership in the order of priority provided by law, provided that the Partnership shall first pay, to the extent permitted by law, liabilities or debts owed to Partners. |
(c) Third, to the setting up of such reserves as the Partners may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Partnership arising out of or in connection with the Partnership business. |
(d) The balance of the proceeds, in accordance with the Percentage Interests of the Partners. |
6.4. Reasonable Time for Winding Up. A reasonable amount of time shall be allowed for the orderly winding up of the business and affairs of the Partnership in light of prevailing market conditions and so as to avoid undue loss in connection with any sale of Partnership assets. This Agreement shall remain in full force and effect during the period of winding up. |
6.5. Certificate of Cancellation. Following the completion of the winding up of the affairs of the Partnership and the distribution of its assets, the Liquidator shall file all necessary certificates of cancellation required under the Act. |
ARTICLE 7 DEFINITIONS AND RULES OF CONSTRUCTION |
7.1. Definitions. |
7.1.1. The following terms, as used herein, shall have the following respective meanings: |
“Act” means the Pennsylvania Revised Uniform Limited Partnership Act, 15 P.S. §8500 et seq. as amended from time to time.
“Agreement” means this Agreement of Limited Partnership, as amended or restated from time to time.
“Certificate” means the Certificate of Limited Partnership, as amended or restated from time to time, filed with the Pennsylvania Department of State in accordance with the Act.
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“Code” means the Internal Revenue Code of 1986, as amended or any successor statute thereto.
“Fiscal Year” means the twelve month period ending December 31 of each year, unless otherwise provided pursuant to Section 5.2 of this Agreement.
“Interest” means the interest of a Partner in the Partnership representing such Partner’s rights, powers and privileges, as specified in this Agreement, including, without limitation, such Partner’s right to profits, losses, allocations and distributions and such Partner’s right to vote with respect to Partnership matters, and “Percentage Interest” means a Partner’s Interest expressed as a percentage of all Interests.
“Partners” means the General Partner and Limited Partner.
“Partnership” means the limited partnership which is the subject of this Agreement, as such limited partnership may from time to time be constituted.
“Person” means and includes individuals, corporations, partnerships, trusts, associations, joint ventures, limited liability companies, estates and other entities, whether or not legal entities, and governments and agencies and political subdivisions thereof, whether domestic or foreign.
“Tax Matters Partner” means the tax matters member as defined in Code Section 6231(a)(7).
“Transfer” means to sell, assign, transfer, give, donate, pledge, deposit, alienate, bequeath, devise or otherwise dispose of or encumber to any Person other than the Partnership.
7.2. Rules of Construction: Unless the context otherwise requires, references to the plural shall include the singular and the singular shall include the plural, and the words “hereof,” “herein,” “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provisions of this Agreement. Any use of the masculine, feminine or neuter herein shall be deemed to include a reference to each other gender. |
ARTICLE 8 MISCELLANEOUS |
8.1. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania without regard to the conflict of laws provisions of said jurisdiction. |
8.2. Entire Agreement. This Agreement represents the entire agreement between the parties in respect of its subject matter and supersedes all prior agreements, arrangements and understandings between the parties relating to the subject matter hereto. |
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8.3. Binding Effect. Except as otherwise provided herein, this Agreement shall inure to the benefit of and be binding upon the Partners and their respective successors, heirs, and to the extent permitted, transfers and assigns. |
8.4. Additional Documents. Each Partner, upon the request of the General Partner, agrees to perform all further acts and execute, acknowledge, and deliver any documents that may be reasonably necessary, appropriate, or desirable to carry out the provisions of this Agreement. |
8.5. Waiver of Action for Partition. Each of the Partners irrevocably waives any right that it may have to maintain any action for partition with respect to any of the Partnership property. |
8.6. Headings. The descriptive headings herein are inserted for convenience only and do not constitute part of this Agreement. |
8.7. Notice. Notices to the Partners shall be deemed sufficiently given if delivered by hand, mailed by certified mail, return receipt requested, postage prepaid, to the addresses provided in writing by any Partner to the other Partner or mailed via any reliable overnight courier service. |
8.8. Non-Recourse. No recourse shall be had for any obligation of Brandywine Realty Trust against any past, present or future trustee, shareholder, officer or employee thereof. |
8.9. Execution of Documents. The Partners agree that they shall execute such instruments as may be necessary or appropriate to carry out the terms of this Agreement and the actions contemplated thereby. |
8.10. Amendment. This Agreement may not be amended except by unanimous written agreement of all of the Partners. |
8.11. Time is of Essence. Time is of the essence in the performance of this Agreement. |
8.12. Counterparts. This Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. |
(signature page follows)
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IN WITNESS WHEREOF, and intending to be legally bound, the parties have executed this Agreement as of the day first above written.
General Partner: | ||
BRANDYWINE CIRA, LLC | ||
/s/ Gerard H. Sweeney | ||
By: | Gerard H. Sweeney | |
Title: | President and Chief Executive Officer | |
Limited Partner: | ||
BRANDYWINE OPERATING PARTNERSHIP, L.P. | ||
By: | BRANDYWINE REALTY TRUST, | |
Its General Partner | ||
/s/ Gerard H. Sweeney | ||
By: | Gerard H. Sweeney | |
Title: | President and Chief Executive Officer |
7
Exhibit 3.31
CONSENT
TO USE OF SIMILAR NAME
DSCB 17:3 (Rev
91)
Pursuant to 19 Pa. Code § 17.3 (relating to use of a confusingly similar name) the undersigned association, desiring to consent to the use by another association of a name which is confusingly similar to its name, hereby certifies that:
1. | The name of the limited association executing this Consent to Use of Similar Name is: Brandywine F.C. L.L.C. |
2. | The (a) address of this association's current registered office in this Commonwealth or (b) name of its commerical registered office provider and the county of venue is (the Department is hereby authorized to correct the following information to conform to the records of the Department): |
(a) | 16 Campus Blvd., Ste. 150 | Newtown Square | PA | 19073 | Delaware | ||
Number and Street | City | State | Zip | County | |||
(b) | c/o: |
Name of Commercial Registered Office Provider | County |
For an association represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the association is located for venue and official publication purposes. | |||||
3. | The date of its incorporation or other organisation is: March 9, 1998 | ||||
4. | The statute under which it was incorporated or otherwise organised is: 15 Pa C.S. Section 8913 | ||||
5. | The association(s) entitled to the benefit of this Consent to Use of Similar Name is (are): Brandywine F.C. L.L.C. | ||||
6. | A check in this box indicates that the association executing this Consent to Use of Similar Name is the parent or prime affiliate of a group of associations using the same name with geographic or other designations, and that such association is authorized to and does hereby act on behalf of all such affiliated associations, including the following (see 19 Pa. Code § 17.3(c)(8)) | ||||
IN TESTIMONY WHEREOF, the undersigned association has caused this consent to be signed by a duly authorized officer thereof the 9th day of March 1998 | |||||
Brandywine F.C.,
L.L.C. |
||
(Name of Association) | ||
By: | /s/ Gerard
H. Sweeney |
|
(Signature) | ||
Title: | Gerard H. Sweeney, President | |
Microfilm
Number 9817-1388 |
Filed with the Department of State on MAR 9 1998 | |||
Entity
Number 2804511 |
XXXXXX |
|||
Secretary of the Commonwealth |
CERTIFICATE OF LIMITED PARTNERSHIP
DSCB: 15-8511 (Rev 91)
In compliance with the requirements of 15 Pa.C.S. § 8511 (relating to certificate of limited partnership), the undersigned, desiring to form a limited partnership, hereby certifies that:
1. | The name of the limited
partnership is: Brandywine F.C., L.P. |
2. | The (a) address of this
limited partnerships initial registered office in this Commonwealth
or (b) name of its commercial registered office provider and the county
of venue is: |
(a) | 16 Campus Blvd., Suite
150, Newtown Square Corporate Campus, PA 19073 Delaware |
Number and Street City State Zip
County |
(b) | c/o: |
Name of Commercial Registered
Office Provider County |
For a limited partnership
represented by a commercial registered office provider, the county in
(b) shall be deemed the county in which the limited partnership is located
for venue and official publication purposes. |
3. | The name and business
address of each general partner of the partnership is: |
Name Address |
Brandywine F.C., L.L.C.
16 Campus Blvd., Suite 150, Newtown Square Corporate Campus,
PA 19073 |
4. | (Check, and if appropriate
complete, one of the following): |
The formation of the limited partnership shall be effective upon filing this Certificate of Limited Partnership in the Department of State. |
The formation of the limited partnership shall be effective on at |
Date Hour | |
5. | The specified effective date, if any, is: |
month day year hour, if any | |
UNREADABLE TEXT
IN TESTIMONY WHEREOF, the undersigned general partner(s) of the limited partnership has (have) executed this Certificate of Limited Partnership this 9th day of March 1998.
Brandywine F.C., L.L.C. | |||||
By: | /s/ Gerard H. Sweeney | XXXXXX | |||
|
|
||||
(Signature) | (Signature) | ||||
Gerard H. Sweeney, President | |||||
XXXXXX | XXXXXX | ||||
|
|
||||
(Signature) | (Signature) | ||||
PENNSYLVANIA DEPARTMENT OF
STATE CORPORATION BUREAU |
||||||||
Certificate of
Amendment-Domestic (15 Pa. C.S.) |
||||||||
Entity Number | ||||||||
Limited Partnership (§ 8512) | ||||||||
Limited Liability Company (§ 8951) | ||||||||
Name | PEPPER HAMILTON LLP | Document will be returned to the name and address you enter to the left. | ||||||
Address | 200
ONE KEYSTONE PLAZA NORTH FRONT AND MARKET STREETS P.O. BOX 1181 HARRISBURG, PA 17108-1181 |
|||||||
|
||||||||
City | State | Zip Code | ||||||
|
||||||||
Fee: $52 | Filed in the Department of State on Jun 06 2002 | |||
XXXXXX | ||||
|
||||
ACTING Secretary of the Commonwealth | ||||
In compliance with the requirements of the applicable provisions (relating to certificate of amendment), the undersigned, desiring to amend its Certificate of Limited Partnership Organization, hereby certifies that:
1. | The name of the limited
partnership limited liability company is: Brandywine F.C., L.P. |
|
2. | The date of filing of the
original Certificate of Limited Partnership Organization: MARCH 9, 1998 |
|
3. | Check, and if appropriate
complete, one of the following: |
The amendment adopted by
the limited partnership limited liability company, set forth in full,
is as follows: |
||
The amendment adopted by the limited partnership limited liability company is set forth in full in Exhibit A attached hereto and made a part hereof. | ||
4. | Check, and if appropriate
complete, one of the following: |
The amendment shall be effective
upon filing this Certificate of Amendment in the Department of State. |
The amendment shall be effective
on _______ at ______ |
||
Date Hour | ||
5. | Check if the amendment
restates the Certificate of Limited Partnership/Organization: |
The restated Certificate
of Limited Partnership/Organization supersedes the original Certificate
of Limited Partnership/Organization and all previous amendments thereto. |
||
IN
TESTIMONY WHEREOF, the undersigned limited partnership/limited liability
company has caused this Certificate of Amendment to be executed this 4th day of June 2002 Brandywine F.C., L.P. |
||||
Name
of Limited Partnership/Limited Liability Company XXXXXX |
||||
Signature | ||||
Secretary
of Brandywine F.C. LLC. |
||||
Title | ||||
General Partner |
EXHIBIT A
TO CERTIFICATE OF AMENDMENT
BRANDYWINE F.C., L.P.
Article 4 of the Certificate of Limited Partnership shall be amended, so that, as amended, Article 4 shall read as follows:
Article 4. The address of this limited partnerships registered office in this Commonwealth is: 401 Plymouth Road, Suite 500, Plymouth Meeting, PA 19462, Montgomery County.
Article 6 of the Certificate of Limited Partnership shall be amended, so that, as amended, Article 6 shall read as follows:
Article 6. The name and business address of each general partner is: Brandywine F,C., L.L.C., 401 Plymouth Road, Suite 500, Plymouth Meeting, PA 19462, Montgomery County.
Article 7 of the Certificate of Limited Partnership shall be amended, so that, as amended, Article 7 shall read as follows:
Article 7. The address of the office at which is kept a list of the names and addresses of the limited partners and their capital contributions is: 401 Plymouth Road, Suite 500, Plymouth Meeting, PA 19462, Montgomery County.
Exhibit 3.32
________________________________________
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE F.C., L.P.
A Pennsylvania Limited Partnership
________________________________________
THIS AGREEMENT OF LIMITED PARTNERSHIP of Brandywine F.C., L.P. is made and entered into as of this 9th day of March, 1998, by and between Brandywine Operating Partnership, L.P., a Delaware limited partnership as the limited partner (“Limited Partner”) and Brandywine F.C., L.L.C., a Pennsylvania limited liability company as general partner (“General Partner” and together with the Limited Partner, the “Partners”) for the purpose of forming a Pennsylvania limited partnership (the “Partnership”) in accordance with the provisions hereinafter set forth. Capitalized terms are defined below.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein made and intending to be legally bound, the Partners hereby agree as follows:
ARTICLE 1 |
1.1. Formation. The Partners hereby agree to form the Partnership as a limited partnership pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement. The General Partner shall file or cause to be filed the Certificate with the Pennsylvania Department of State in accordance with the provisions of the Act and shall do or cause to be done all such other filings, recordings or other acts, including amendments to the Certificate, as may be necessary or appropriate to comply with the laws of formation and operation of a limited partnership in the Commonwealth of Pennsylvania and any other jurisdiction in which the Partnership may conduct business. |
1.2. Name. The name of the Partnership is BRANDYWINE F.C., L.P. or such other name as the Partners from time to time may unanimously select. |
1.3. Place of Business. The principal place of business of the Partnership shall be at 16 Campus Blvd., Suite 150, Newtown Square, PA 19073, or such other place as the General Partner may from time to time designate. The Partnership may maintain such other offices at such other places as the General Partner deems advisable. |
1.4. Purpose. The Partnership is organized to pursue any lawful purpose. |
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1.5. Term. The Partnership shall commence upon the filing of the Certificate and shall continue until the Partnership is terminated in accordance with the terms of this Agreement. |
ARTICLE 2 |
2.1. Initial Capital Contributions. Upon the closing under the Contribution Agreement between members of First Commercial Development Company and Brandywine Operating Partnership, L.P., the General Partner shall contribute to the capital of the Partnership cash in the aggregate amount of $10.00, and the Limited Partner shall contribute to the capital of the Partnership its right to receive all of the general partner interests and certain limited partner interests in First Commercial Development Company, a Pennsylvania limited partnership ("First Commercial"), comprising in the aggregate a 99% profits interest and an 89% capital interest in First Commercial. |
2.2. Additional Capital Contributions or Loans. Except as specifically required under Section 2.1, no Partner shall be obligated or required to make any additional capital |
contributions or advance any funds to the Partnership unless all of the Partners unanimously agree to do so and unanimously agree as to the amount to be so contributed. |
2.3. Allocations and Distributions. All allocations of profits and losses and all distributions of cash shall be made in accordance with the Partners’ Percentage Interests. The Percentage Interest of the General Partner shall be one percent (1%), and the Percentage Interest of the Limited Partner shall be ninety-nine percent (99%). Distributions out of funds legally available therefor shall be made at such times as the General Partner determines. |
ARTICLE 3 |
3.1. Management and Control. The General Partner shall manage and control the business and affairs of the |
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Partnership and shall have all of the rights and powers which may be possessed by a general partner under the Act. Except as otherwise provided in the Act, the General Partner shall make all decisions with respect to the business and affairs of the Partnership, and the Limited Partner shall have no right to participate in the management of the Partnership. |
ARTICLE 4 |
4.1. Restriction. A Partner shall not, without the consent of the other Partner, make any Transfer of all or any portion of its Interest. |
4.2. Transfer in Violation of Agreement. Any purported Transfer of an Interest which is not made in compliance with this Agreement shall be null and void ab initio and of no force or effect whatsoever. |
ARTICLE 5 |
5.1. Records. The Partnership shall maintain at its principal place of business: (i) true and full information regarding the status of the business and financial affairs of the Partnership; (ii) a current list of the name and last known address of each of its Partners; (iii) a copy of this Agreement and the Certificate and all amendments thereto; (iv) the accounting books and records and minutes of proceedings of the Partners; and (v) any other information regarding the affairs of the Partnership as the General Partner determines is just and reasonable. |
5.2. Fiscal Year. Unless otherwise designated by the Partners, the fiscal year of the Partnership shall end on December 31. |
5.3. Partnership Funds. Pending application or distribution, the funds of the Partnership shall be deposited in such bank accounts, or invested in such interest-bearing or non-interest-bearing investments, including without limitation, federally insured checking and savings accounts, certificates of deposit and time or demand-deposits in U.S. government agencies or government backed securities or such other investments as the General Partner deems appropriate and consistent with the |
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maintenance of Brandywine Realty Trust’s qualification as a real estate investment trust under the Code. |
5.4. Tax Returns. The General Partner shall cause all tax returns for the Partnership to be prepared and timely filed with the appropriate authorities and shall deliver or cause to be delivered to each Partner such information as is necessary for such Partner to prepare such Partner’s federal, state and local tax returns. |
5.5. Tax Matters Partner. The General Partner shall be the initial Tax Matters Partner and shall represent the Partnership and the Partners before taxing authorities or courts of competent jurisdiction in tax matters affecting the Partnership and the Partners in their capacity as Partners. |
ARTICLE 6 |
6.1. Dissolution. The Partnership shall be dissolved upon the earliest to occur of the following: |
(a) December 31, 2050; |
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(b) the withdrawal, bankruptcy or liquidation of the General Partner or the occurrence of any other event of withdrawal that causes the General Partner to cease to be a general partner under the Act (other than by reason of a permitted transfer of a Partner’s entire interest under this Agreement); |
(c) the sale of all or substantially all of the Partnership’s assets and properties; |
(d) the unanimous agreement of the Partners to effect such dissolution; or |
(e) the entry of an order of judicial dissolution under Section 8572 of the Act. |
6.2. Liquidation. Upon dissolution of the Partnership, the Partnership shall continue solely for the purpose of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors. The General Partner or in the event there is no General Partner, such Person or Persons as is designated by the Partners (the General Partner or such Person or Persons being hereinafter referred to as the “Liquidator”) shall be responsible for overseeing the winding up and dissolution of the Partnership and shall cause distributions to be made in accordance with Section 6.3 hereof. |
6.3. Distributions Upon Liquidation. Upon dissolution of the Partnership, the Liquidator shall proceed to wind up the business and affairs of the Partnership and shall distribute the assets of the Partnership in the following order and priority: |
(a) First, to payment of the debts and liabilities of the Partnership (other than those to Partners) in the order of priority provided by law, provided that the Partnership shall first pay, to the extent permitted by law, liabilities with respect to which any Partner is or may be personally liable. |
(b) Second, to payment of the expenses of liquidation of the Partnership in the order of priority provided by law, provided that the Partnership shall first pay, to the extent permitted by law, liabilities or debts owed to Partners. |
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(c) Third, to the setting up of such reserves as the Partners may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Partnership arising out of or in connection with the Partnership business. |
(d) The balance of the proceeds, in accordance with the Percentage Interests of the Partners. |
6.4. Reasonable Time for Winding Up. A reasonable amount of time shall be allowed for the orderly winding up of the business and affairs of the Partnership in light of prevailing market conditions and so as to avoid undue loss in connection with any sale of Partnership assets. This Agreement shall remain in full force and effect during the period of winding up. |
6.5. Certificate of Cancellation. Following the completion of the winding up of the affairs of the Partnership and the distribution of its assets, the Liquidator shall file all necessary certificates of cancellation required under the Act. |
ARTICLE 7 |
7.1. Definitions. |
7.1.1. The following terms, as used herein, shall have the following respective meanings: |
“Act” means the Pennsylvania Revised Uniform Limited Partnership Act, 15 P.S. §8500 et. seq. as amended from time to time. |
“Agreement” means this Agreement of Limited Partnership, as amended or restated from time to time. |
“Certificate” means the Certificate of Limited Partnership, as amended or restated from time to time, filed with the Pennsylvania Department of State in accordance with the Act. |
“Code” means the Internal Revenue Code of 1986, as amended or any successor statute thereto. |
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“Fiscal Year” means the twelve month period ending December 31 of each year, unless otherwise provided pursuant to Section 5.2 of this Agreement. |
“Interest” means the interest of a Partner in the Partnership representing such Partner’s rights, powers and privileges, as specified in this Agreement, including, without limitation, such Partner’s right to profits, losses, allocations and distributions and such Partner’s right to vote with respect to Partnership matters, and “Percentage Interest” means a Partner’s Interest expressed as a percentage of all Interests. |
“Partners” means the General Partner and Limited Partner. |
“Partnership” means the limited partnership which is the subject of this Agreement, as such limited partnership may from time to time be constituted. |
“Person” means and includes individuals, corporations, partnerships, trusts, associations, joint ventures, limited liability companies, estates and other entities, whether or not legal entities, and governments and agencies and political subdivisions thereof, whether domestic or foreign. |
“Tax Matters Partner” means the tax matters member as defined in Code Section 6231(a)(7). |
“Transfer” means to sell, assign, transfer, give, donate, pledge, deposit, alienate, bequeath, devise or otherwise dispose of or encumber to any Person other than the Partnership. |
7.2. Rules of Construction: Unless the context otherwise requires, references to the plural shall include the singular and the singular shall include the plural, and the words “hereof,” “herein,” “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provisions of this Agreement. Any use of the masculine, feminine or neuter herein shall be deemed to include a reference to each other gender. |
ARTICLE 8 |
8.1. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the |
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Commonwealth of Pennsylvania without regard to the conflict of laws provisions of said jurisdiction. |
8.2. Entire Agreement. This Agreement represents the entire agreement between the parties in respect of its subject matter and supersedes all prior agreements, arrangements and understandings between the parties relating to the subject matter hereto. |
8.3. Binding Effect. Except as otherwise provided herein, this Agreement shall inure to the benefit of and be binding upon the Partners and their respective successors, heirs, and to the extent permitted, transfers and assigns. |
8.4. Additional Documents. Each Partner, upon the request of the General Partner, agrees to perform all further acts and execute, acknowledge, and deliver any documents that may be reasonably necessary, appropriate, or desirable to carry out the provisions of this Agreement. |
8.5. Waiver of Action for Partition. Each of the Partners irrevocably waives any right that it may have to maintain any action for partition with respect to any of the Partnership property. |
8.6. Headings. The descriptive headings herein are inserted for convenience only and do not constitute part of this Agreement. |
8.7. Notice. Notices to the Partners shall be deemed sufficiently given if delivered by hand, mailed by certified mail, return receipt requested, postage prepaid, to the addresses provided in writing by any Partner to the other Partner or mailed via any reliable overnight courier service. |
8.8. Non-Recourse. No recourse shall be had for any obligation of Brandywine Realty Trust against any past, present or future trustee, shareholder, officer or employee thereof. |
8.9. Execution of Documents. The Partners agree that they shall execute such instruments as may be necessary or appropriate to carry out the terms of this Agreement and the actions contemplated thereby. |
8.10. Amendment. This Agreement may not be amended except by unanimous written agreement of all of the Partners. |
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8.11. Time is of Essence. Time is of the essence in the performance of this Agreement. |
8.12. Counterparts. This Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. |
(signature page follows)
- - 10 -
IN WITNESS WHEREOF, and intending to be legally bound, the parties have executed this Agreement as of the day first above written.
General Partner: | ||
BRANDYWINE F.C., L.L.C. | ||
/s/ Gerard H. Sweeney | ||
By: | Gerard H. Sweeney | |
Title: | President and Chief Executive Officer | |
Limited Partner: | ||
BRANDYWINE OPERATING PARTNERSHIP, L.P. | ||
By: | BRANDYWINE REALTY TRUST, | |
Its General Partner | ||
/s/ Gerard H. Sweeney | ||
By: | Gerard H. Sweeney | |
Title: | President and Chief Executive Officer | |
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Exhibit 3.33
CERTIFICATE OF LIMITED PARTNERSHIP