REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF
COHEN & STEERS CAPITAL MANAGEMENT, INC
The undersigned hereby certifies to Brandywine Realty Trust, a Maryland real
estate investment trust (the "Company"), that he is the duly appointed President
of Cohen & Steers Capital Management, Inc., a New York corporation ("C&S"), and
on behalf of C&S, pursuant to due authorization, does further hereby certify,
represent, warrant, and agree that:
1. C&S acknowledges its understanding that the representations, warranties
and agreements contained herein are made in order to obtain an
exception for C&S to the ownership limitations (the "Ownership Limit")
set forth in the Declaration of Trust, as amended to date (the
"Articles"), of the Company. Such exception, which is sought with
respect to the common shares of beneficial interest of the Company (the
"Common Shares"), will allow C&S to be a "beneficial owner," as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (a
"Rule 13d-3 Owner"), of up to, but not in excess of, 12.5% of the
outstanding Common Shares (the "C&S Shares").
2. C&S's ownership, as a Rule 13d-3 Owner, of the C&S Shares will not
result in any Individual being the Tax Owner of Common Shares in excess
of 9.8% of the value of all outstanding Common Shares. As used herein,
the term "Tax Owner" of Common Shares shall mean the person who is
considered to own such Common Shares applying the rules of Section
856(h) of the Internal Revenue Code of 1986 (the "Code"), including the
relevant provisions of Section 542(a)(2) and Section 544 as modified by
Section 856(h) of the Code. The term "Individual" shall mean a natural
person or an organization treated as an individual under the provisions
of Section 542(a)(2) of the Code, applying the relevant rules of
Section 856(h) of the Code.
3. Neither C&S nor any Investor owns directly or indirectly any stock or
other equity interest in excess of 9.8% in any Tenant. The term
"Investor" means any owner of C&S or any open-end or closed-end fund
for which C&S or an affiliate acts as an investment advisor. The term
"Tenant" means any entity that leases space from the Company or from
any direct or indirect subsidiary partnership, corporation or limited
liability company in which Company owns an interest. C&S shall notify
the Company in the event that C&S or any Investor acquires any stock or
other equity interest in excess of 9.8% in any Tenant.
4. C&S will not dispose of any of the C&S Shares in violation of the
Ownership Limit or in a manner that would cause any Individual to be
the Tax Owner of more than 9.8% of the outstanding Common Shares.
5. C&S agrees that if, for any reason, (i) any of the above
representations or warranties is violated, (ii) the ownership, as a
Rule 13d-3 Owner, of the C&S Shares causes any Individual to be the Tax
Owner of more than 9.8% of the outstanding Common Shares, (iii) C&S or
any Investor acquires any stock or other equity interest in excess of
9.8% in any Tenant, or (iv) in the sole reasonable judgment of the
Company, the ownership, as a Rule 13d-3 Owner, of the C&S Shares could
otherwise jeopardize the Company's tax status as a real estate
investment trust for federal income tax purposes, then the waiver of
the ownership limits granted by the Company to C&S shall be deemed void
ab initio and shall result in a conversion of all or a portion (as
reasonably determined by the Company to be necessary) of the C&S Shares
into Excess Shares under the Articles.
6. C&S acknowledges its understanding that the foregoing exception to the
Ownership Limit is only being granted to C&S, and not to any other
person (including any of the Investors).
7. C&S agrees that it shall not take any of the following actions with
respect to any Common Shares for which C&S is the beneficial owner as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended, in excess of 9.8% of the outstanding Common Shares (such
excess shares being referred to below as "Additional Shares"), it being
understood that the limitations of this Section 7 shall not apply to
Common Shares that are not Additional Shares:
a. Solicit proxies from shareholders of the Company, become a
"participant" in any "election contest" (as such terms are
used in Rule 14a-11 of the Securities Exchange Act of 1934, as
amended), with respect to the Company, or make any
communication (other than as required by law) referred to in
Rule 14a-1(l)(2)(iv) of the Securities Exchange Act of 1934,
as amended, in connection with any election contest or other
vote by shareholders of the Company or otherwise that is
contrary to or conflicts with actions taken by the Board;
b. Vote for the removal of any member of the Board, except
removal "for cause" as such term is used under Maryland law;
c. Vote for any individual nominated for election to the Board
other than those individuals nominated by the Board or a
Committee thereof;
d. Call or seek to have called any meeting of the shareholders of
the Company;
8. Otherwise act, alone or in concert with others to (i) solicit, propose,
seek to effect or negotiate with any other person with respect to (A)
any business combination with the Company or (B) any restructuring,
recapitalization or similar transaction of the Company, (ii) solicit,
propose, seek to effect or negotiate with any other person with respect
to, or announce an intent to make, any tender offer or exchange offer
for any voting securities of the Company, or (iii) assist, participate
in, facilitate or solicit any effort or attempt by any persons to do or
seek to do any of the foregoing.
9. The undersigned has the authority to execute this document on behalf of
C&S.
IN WITNESS WHEREOF, I have executed this certificate as of this 11th day of
December, 2002.
Cohen & Steers Capital Management, Inc.
By: /s/ Martin Cohen
--------------------------
Martin Cohen
President
WAIVER OF OWNERSHIP LIMITS
[Brandywine Realty Trust Letterhead]
December 12, 2002
Cohen & Steers Capital Management, Inc.
757 Third Avenue
New York, New York 10017
Re: Share Ownership Limits
Reference is made to the Representations, Warranties and
Agreements executed as of December 12, 2002 of Cohen & Steers Capital
Management, Inc. ("C&S") to Brandywine Realty Trust (the "Company"), containing
certain representations, warranties and agreements, a copy of which is attached
to this letter as Attachment I (the "Representation Letter"). Based upon the
Representation Letter, the Company hereby advises you that an exception to the
Ownership Limit referred to in the Representation Letter has been established
for C&S under the Declaration of Trust of the Company effective as the date
received on and subject to the terms, conditions and limitations set forth in
the Representation Letter.
Very truly yours,
BRANDYWINE REALTY TRUST
By: /s/ Gerard H. Sweeney
--------------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief Executive Officer