-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DeRJG49/1o57gzq0ZOT4bEsUw57r5o45bbRCsnZi88/8Ge77NOBd57mMxLldcq3p NAtpw1JfIKLsEV+BxgxK/A== 0001006422-96-000008.txt : 19960625 0001006422-96-000008.hdr.sgml : 19960625 ACCESSION NUMBER: 0001006422-96-000008 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960624 SROS: AMEX SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BRANDYWINE REALTY TRUST CENTRAL INDEX KEY: 0000790816 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 232413352 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-00005-41 FILM NUMBER: 96584579 BUSINESS ADDRESS: STREET 1: TWO GREENTREE CENTRE STREET 2: STE 100 CITY: MARLTON STATE: NJ ZIP: 08053 BUSINESS PHONE: 2152519111 MAIL ADDRESS: STREET 1: TWO GREENTREE CENTRE STREET 2: SUITE 100 CITY: MARLTON STATE: NJ ZIP: 08053 FORMER COMPANY: FORMER CONFORMED NAME: LINPRO SPECIFIED PROPERTIES DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: OSBORNE RICHARD M TRUST CENTRAL INDEX KEY: 0001006422 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 7001 CENTER ST CITY: MENTOR STATE: OH ZIP: 44060 BUSINESS PHONE: 2169511111 MAIL ADDRESS: STREET 1: 7001 CENTER ST CITY: MENTOR STATE: OH ZIP: 44060 SC 13D/A 1 RICHARD M. OSBORNE TRUST SC 13D/A 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities and Exchange Act of 1934 (Amendment No. 2)* Brandywine Realty Trust REIT - ------------------------------------------------------------------------------- (Name of Issuer) Shares of Beneficial Interest - ------------------------------------------------------------------------------- (Title of Class of Securities) 105368-10-4 - ------------------------------------------------------------------------------- (CUSIP Number) Marc C. Krantz, Kohrman Jackson & Krantz P.L.L., 1375 East 9th Street, Cleveland, Ohio 44114, 216-736-7204 - ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 21, 1996 - ------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Check the following box if a fee is being paid with the statement [ ]. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.)(See Rule 13d-7.) Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 SCHEDULE 13D CUSIP NO. 105368-10-4 - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Richard M. Osborne Trust - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [ ] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Ohio - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 538,800 ------------------------------------------------------ BENEFICIALLY 8 SHARED VOTING POWER OWNED BY ------------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING 538,800 ------------------------------------------------------ PERSON 10 SHARED DISPOSITIVE POWER WITH - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 538,800 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27.3%** - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* 00 - ------------------------------------------------------------------------------- **Includes 59,949 Shares and a warrant to purchase 59,949 Shares acquired by Turkey Vulture Fund XIII, Ltd.
3 SCHEDULE 13D CUSIP NO. 105368-10-4 - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Turkey Vulture Fund XIII, Ltd. - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [ ] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Ohio - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 119,898** ------------------------------------------------------ BENEFICIALLY 8 SHARED VOTING POWER OWNED BY ------------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING 119,898** ------------------------------------------------------ PERSON 10 SHARED DISPOSITIVE POWER WITH - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 119,898** - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.1%** - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* 00 - ------------------------------------------------------------------------------- **Includes 59,949 Shares and a warrant to purchase 59,949 Shares acquired by Turkey Vulture Fund XIII, Ltd.
4 CUSIP No. 105368-10-4 Pursuant to Rule 13d-1(f)(1), this Amendment No. 2 to Schedule 13D Statement is filed jointly on behalf of the Richard M. Osborne Trust (the "Trust") and the Turkey Vulture Fund XIII, Ltd., an Ohio limited liability company. Capitalized terms not otherwise defined herein have the meanings assigned to them in the Schedule 13D Statement filed by the Trust on January 29, 1996. Item 2. Identity and Background. Item 2 is amended and supplemented as follows: (a) Turkey Vulture Fund XIII, Ltd. (the "Fund") is an Ohio limited liability company. Richard M. Osborne is the sole manager of the Fund. (b) The business address of the Fund is 7001 Center Street, Mentor, Ohio 44060. (c) The principal business of the Fund is to acquire, hold, sell or otherwise invest in all types of securities and other instruments. (d) Negative with respect to the Fund. (e) Negative with respect to the Fund. (f) The Fund is an Ohio limited liability company. Item 3. Source and Amount of Fund or Other Consideration. Item 3 is amended and supplemented as follows: The Shares and warrant to purchase Shares reported herein as having been acquired by the Fund were acquired for the aggregate purchase price of $338,000. The source of the funds was the working capital of the Fund. Item 4. Purpose of Transaction. Item 4 is amended and supplemented as follows: Reference is hereby made to the Loan and Securities Purchase Agreement by and between the Fund and Brandywine Realty Trust, a Maryland real estate investment trust ("Brandywine"), dated June 21, 1996 (the "Purchase Agreement") and the exhibits thereto. The following summary of the Purchase Agreement and related documents is qualified by reference to the full text of the Purchase Agreement and related documents, which are attached as exhibits hereto. On June 21, 1996, the Fund invested $1.3 million in Brandywine, by loaning to Brandywine $992,293 and by acquiring from Brandywine 59,949 units at a per unit price of $5.63. The loan is unsecured and bears interest at the prime 5 CUSIP No. 105368-10-4 rate in effect from time to time. Interest is payable quarterly in arrears, and Brandywine has the right to pay the accrued interest in cash when due or add the accrued interest to the outstanding principal amount of the loan. Each unit issued to the Fund includes one Share and one six-year warrant to purchase an additional Share at $6.50 per Share (subject to customary antidilution adjustments). Under certain circumstances that may arise if Brandywine issues additional Shares to any person other than to the Fund, the Trust, Mr. Osborne or his affiliates, Brandywine is obligated to issue additional units, at $5.63 each, to the Fund as a mandatory prepayment of the Fund's loan. The loan matures on June 21, 1999. The Fund made its investment in Brandywine for the purposes of investment. Under the terms of the Purchase Agreement, the Fund agreed to be bound by all of the provisions of that certain agreement, dated March 20, 1996, by and among Brandywine, Mr. Osborne and the Trust which is described in, and attached to, the Amendment No. 1 to Schedule 13D Statement filed by the Trust on March 27, 1996. Brandywine has agreed to provide the Fund and the Trust with registration rights covering the Shares issued and issuable as part of the Fund's investment. The registration rights agreement (the "Registration Rights Agreement") will be entered into by the Fund, Brandywine, Safeguard Securities, Inc. ("SSI") and The Nichols Company ("TNC") at the time of the closing of the proposed transaction between Brandywine, SSI, TNC and certain others (the "SSI/TNC Transaction"). If the SSI/TNC Transaction is not consummated, Brandywine will provide registration rights to the Fund on substantially similar terms to those that would have been provided in the form of Registration Rights Agreement attached as Exhibit 7.8 hereto. The Registration Rights Agreement will provide that, at the request of certain holders of registrable securities, including the Fund ("Registrable Securities"), Brandywine will, at its expense, register up to two underwritten distributions of Shares and provide for an annual shelf registration of such Shares for sale at the market through brokers' transactions and thereafter with market makers; provided, however, that Brandywine will not be obligated to pay the expenses of an underwritten offering during the first 12 months after the closing date of the SSI/TNC Transaction. The holders of Registrable Securities will also be entitled to "piggyback" on the registrations of Shares. In connection with the registrations, Brandywine and the selling shareholders will mutually indemnify each other against certain liabilities, including liabilities under the federal securities laws. Item 5. Interest in Securities of the Issuer. (a) According to the most recently available filing with the Securities and Exchange Commission by Brandywine, there are 1,856,200 Shares outstanding. The Fund beneficially owns 119,898 Shares, which is the sum of the 59,949 Shares and the warrant to purchase 59,949 Shares issued by Brandywine to the Fund on June 21, 1996. The 119,898 Shares beneficially owned by the Fund 6 CUSIP No. 105368-10-4 represent approximately 6.1% of the sum of the Shares reported to be outstanding by Brandywine and the Shares and warrant issued on June 21, 1996.As sole manager of the Fund and as sole trustee of the Trust, Mr. Osborne may be deemed to beneficially own the Shares beneficially owned by the Fund and the 538,800 Shares previously reported as being owned by the Trust for a total of 658,698 Shares, or approximately 33.3% of the sum of the Shares reported to be outstanding by Brandywine and the Shares and warrant issued on June 21, 1996. (b) Mr. Osborne, as sole manager of the Fund, has sole power to vote, or to direct the voting of, and the sole power to dispose or to direct the disposition of, the Shares owned by the Fund. (c) The transaction described in Item 3 hereof pursuant to which the Fund acquired the 59,949 Shares and the warrant to purchase 59,949 Shares is the only transaction by the Fund in the Shares that was effected during the past 60 days. Item 7. Material to be Filed as Exhibits. Exhibit 7.5 -- Loan and Securities Purchase Agreement, dated June 21, 1996, by and between Turkey Vulture Fund XIII, Ltd. and Brandywine Realty Trust Exhibit 7.6 -- Promissory Note, dated June 21, 1996, issued by Brandywine Realty Trust to Turkey Vulture Fund XIII, Ltd. Exhibit 7.7 -- Warrant Agreement for the Purchase of Shares of Common Stock, dated June 21, 1996, issued by Brandywine Realty Trust to Turkey Vulture Fund XIII, Ltd. Exhibit 7.8 -- Form of Registration Rights Agreement (Exhibit D to Purchase Agreement) Exhibit 7.9 -- Agreement of Joint Filing 7 CUSIP No. 105368-10-4 After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: June 24, 1996 THE RICHARD M. OSBORNE TRUST By: /s/ Richard M. Osborne --------------------------- Richard M. Osborne, Trustee TURKEY VULTURE FUND XIII, LTD. By: /s/ Richard M. Osborne --------------------------- Richard M. Osborne, Manager 8 Exhibit Index Exhibit 7.5 -- Loan and Securities Purchase Agreement, dated June 21, 1996, by and between Turkey Vulture Fund XIII, Ltd. and Brandywine Realty Trust Exhibit 7.6 -- Promissory Note, dated June 21, 1996, issued by Brandywine Realty Trust to Turkey Vulture Fund XIII, Ltd. Exhibit 7.7 -- Warrant Agreement for the Purchase of Shares of Common Stock, dated June 21, 1996, issued by Brandywine Realty Trust to Turkey Vulture Fund XIII, Ltd. Exhibit 7.8 -- Form of Registration Rights Agreement (Exhibit D to Purchase Agreement) Exhibit 7.9 -- Agreement of Joint Filing EX-7.5 2 RICHARD M. OSBORNE TRUST 13D/A EX-7.5 Exhibit 7.5 THE SECURITIES OFFERED AND SOLD PURSUANT TO THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE, AND THERE ARE RESTRICTIONS ON THE TRANSFERABILITY OF THE SECURITIES AS DESCRIBED HEREIN. LOAN AND SECURITIES PURCHASE AGREEMENT THIS LOAN AND SECURITIES PURCHASE AGREEMENT (this "Agreement") is made and entered into this 21st day of June, 1996, by and between TURKEY VULTURE FUND XIII, LTD., having an address at 7001 Center Street, Mentor, Ohio 44060 (the "Fund"), and BRANDYWINE REALTY TRUST, having an address at Two Greentree Centre, Suite 100, Marlton, New Jersey 08053 (the "Company"). RECITALS A. The Richard M. Osborne Trust (the "RMO Trust"), an affiliate of the Fund, owns beneficially, 538,800 common shares of beneficial interest of the Company, par value $0.01 per share ("Common Stock"). B. To raise working capital and to conduct its business, the Company desires to (i) sell to the Fund, and the Fund desires to purchase from the Company, Fifty Nine Thousand Nine Hundred Forty Nine (59,949) units (each, a "Unit") comprised of one share of Common Stock and one warrant to purchase an additional share of Common Stock at an initial exercise price of $6.50 per share, and (ii) borrow from the Fund, and the Fund desires to lend to the Company, the principal amount of Nine Hundred Ninety Two Thousand Two Hundred and Ninety Three Dollars ($992,293). In consideration of the premises and the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: 1. AGREEMENT TO PURCHASE 1.1. Sale of Units. Subject to and in accordance with the terms of this Agreement, the Fund hereby purchases from the Company Fifty Nine Thousand Nine Hundred Forty Nine (59,949) Units, and the Company hereby sells and issues such Units to the Fund, free and clear of any liens, charges, claims, and encumbrances whatsoever. 1.2. Purchase Price for Units. The purchase price for each Unit is Five Dollars and sixty three cents ($5.63), amounting to an aggregate purchase price for the Units of Three Hundred Thirty Seven Thousand Five Hundred Thirteen Dollars ($337,513) (the "Purchase Price"), for an aggregate 59,949 shares of Common Stock (the "Shares") and warrants to purchase an additional 59,949 shares of Common Stock. The Fund has delivered contemporaneously with the 2 execution and delivery of this Agreement a check or wire transfer payable to the Company in the amount of the Purchase Price. 1.3. Delivery of Units. The Company has delivered to the Fund contemporaneously with the execution and delivery of this Agreement (i) a stock certificate representing the Shares and (ii) a Stock Purchase Warrant in substantially the form attached hereto as Exhibit A (the "Warrant") evidencing the warrants being purchased and sold hereunder, both of the foregoing duly executed and registered in the name of the Turkey Vulture Fund XIII, Ltd. 2. THE LOAN 2.1. Loan. Subject to and in accordance with the terms of this Agreement, the Fund hereby lends to the Company Nine Hundred Ninety Two Thousand Two Hundred Ninety Three Dollars ($992,293) (the "Loan"). The Fund has delivered contemporaneously with this Agreement a check or wire transfer payable to the Company for the entire principal amount of the Loan. 2.2. Delivery of Note. The Company has delivered to the Fund contemporaneously with the execution and delivery of this Agreement a duly executed promissory note of the Company (the "Note"), in substantially the form attached hereto as Exhibit B, evidencing the Loan and setting forth the terms and conditions pursuant to which the Loan shall be repaid to the Fund. 3. REPRESENTATIONS, WARRANTIES AND COVENANTS 3.1. Representations, Warranties and Covenants of the Fund. By executing this Agreement, the Fund hereby: 3.1.1. Represents and warrants that it maintains its corporate headquarters and principal place of business at the address set forth above. 3.1.2. Acknowledges that it has received a copy of the Company's SEC Reports (as defined below). 3.1.3. Represents and warrants that the Units being purchased and sold hereunder, the Note, and the Units that may be issued to the Fund thereunder (all of the foregoing, including shares of Common Stock that comprise part of the Units and shares of Common Stock issuable upon exercise of the warrants included therein, collectively, the "Securities") are being acquired for the Fund's own account, without a view to public distribution or resale and that the Fund has no contract, undertaking, agreement or arrangement to sell or otherwise transfer or dispose of any Securities or any portion thereof to any other person. 3.1.4. Understands that the Securities have not been registered under the Securities Act of 1933, as amended (the "Securities Act") or the securities laws of any state, and, as a result thereof, the Securities are subject to substantial restrictions on transfer. 3.1.5. Agrees that it will not sell or otherwise transfer or dispose 3 of any Securities or any portion thereof except in accordance with the Securities Act and any applicable state securities laws, and that the Securities and certificates evidencing the same will bear a legend reflecting such restrictions. 3.1.6. Represents and warrants that in determining to purchase the Securities, it has, during the course of discussions concerning the purchase of the Securities, been offered the opportunity to ask such questions and inspect such documents concerning the Company and its business and affairs as it has requested so as to more fully understand the nature of the investment and to verify the accuracy of the information supplied. 3.1.7. ACKNOWLEDGES THAT THE PURCHASE OF THE SECURITIES INVOLVES A HIGH DEGREE OF RISK, AND REPRESENTS AND WARRANTS THAT IT CAN BEAR THE ECONOMIC RISK OF THE PURCHASE OF THE SECURITIES, INCLUDING THE TOTAL LOSS OF ITS INVESTMENT. 3.1.8. Represents and warrants that (i) it has adequate means of providing for its current needs and financial contingencies, (ii) it has no need for liquidity in this investment, and (iii) the Fund was not formed for the specific purpose of making an investment in the Securities. 3.1.9. Understands that no federal or state agency has approved or disapproved the Securities, passed upon or endorsed the merits of the offering of the Securities hereunder, or made any finding or determination as to the fairness of the Securities for investment. 3.1.10. Understands that the Securities are being offered and sold in reliance on specific exemptions from the registration requirements of federal and state securities laws and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings set forth herein in order to determine the applicability of such exemption and the suitability of the Fund to acquire the Securities. 3.1.11. Represents and warrants that it is an "accredited investor" as such term is defined in Rule 501 of Regulation D under the Securities Act. 3.2. Representations, Warranties and Covenants of the Company. By executing this Agreement, the Company hereby represents, warrants and covenants that: 3.2.1. The Company is a real estate investment trust duly formed, validly existing and in good standing under the laws of the State of Maryland and has all requisite trust power and authority, and all necessary licenses and permits, to own and lease its properties and assets and to conduct its business as now conducted. The Company is duly qualified to do business and is in good standing as a foreign business trust in each jurisdiction where the character of its properties or assets and the nature of its business requires it to be so qualified. 4 3.2.2. The Company has all requisite trust power and authority to execute and deliver this Agreement and each other document, including without limitation, the Warrant, the Note and the Securities which may be issued pursuant to the terms of the Note (all of the foregoing, collectively, the "Transaction Documents") required to be executed and delivered by it in accordance with the terms hereof, and to carry out the transactions contemplated hereby and thereby. The execution, delivery and performance by the Company of this Agreement and each Transaction Document to which it is a party have been duly authorized by all requisite action. This Agreement has been duly executed and delivered by the Company and, constitutes (and, when executed and delivered as contemplated herein each such Transaction Document will constitute) the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization and other similar laws relating to or affecting the enforcement of creditors' rights generally, and except that the availability of specific performance, injunctive relief or other equitable remedies is subject to the discretion of the court before which any such proceeding may be brought. 3.2.3. The execution, delivery and performance by the Company of this Agreement and each Transaction Document to which it is a party will not, with or without the giving of notice or lapse of time or both, violate any provision of law, any rule or regulation of any governmental authority, or any judgment, decree or order of any court binding on the Company and, will not conflict with or result in any breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation of any lien, security interest, charge or encumbrance upon any of the properties, assets or outstanding stock of the Company under its Declaration of Trust or By-Laws, or any indenture, mortgage, lease, agreement or other instrument to which the Company is a party or by which it or any of its assets or properties is bound. 3.2.4. The authorized capital stock of the Company presently consists of: (a) 15,000,000 shares of Common Stock, 1,856,200 shares of which are presently issued and outstanding, and (b) 5,000,000 preferred shares of beneficial interest, par value $0.01 per share, none of which is presently issued and outstanding. All issued and outstanding shares of Common Stock have been duly and validly issued and are fully paid and nonassessable. Except as otherwise set forth in the SEC Reports (as defined below), and except to the extent contemplated by the Letter of Intent dated March 20, 1996 among the Company, Safeguard Scientifics, Inc., and The Nichols Company, a copy of which the Fund acknowledges receiving, there are no outstanding subscriptions, warrants, options or other rights to subscribe for or purchase from the Company, or obligating the Company to issue, any shares of capital stock of the Company or any securities convertible into or exchangeable for such shares, and there are no shares of Common Stock reserved for issuance. There are no preemptive or similar rights to purchase or otherwise acquire shares of capital stock of the Company pursuant to any provision of law or the Declaration of Trust or By-Laws of the Company or by agreement or otherwise. 3.2.5. The requisite number of duly authorized and unissued shares 5 of Common Stock of the Company have been duly authorized and reserved for issuance upon exercise of the Warrant (the "Warrant Shares"), and except as provided in Section 5.1 hereof, no further action is required for the valid issuance of shares of Common Stock upon exercise of the Warrant. Upon the issuance of any Units pursuant to the terms of the Note (the "Additional Units"), (a) the requisite number of shares of Common Stock will be duly authorized and issued (the "Additional Shares"), (b) a stock certificate representing such shares will be delivered to the Fund contemporaneously with the issuance of the Additional Units, (c) the requisite number of duly authorized and unissued shares of Common Stock will be duly authorized and reserved for issuance upon exercise of the warrants issued thereby (the "Additional Warrant Shares" and together with the Warrant Shares, collectively, the "Conversion Shares"), (d) a warrant for the Additional Warrant Shares in substantially the form of the Warrant (the "Additional Warrant") will be delivered to the Fund contemporaneously with the issuance of Additional Units, and, except as provided in Section 5.1 hereof, no further action will thereafter be required for the valid issuance of shares of Common Stock upon exercise of such warrants. The Shares have been duly and validly issued, are fully paid and nonassessable and are free and clear of any liens, charges, claims and encumbrances whatsoever and are not subject to any preemptive rights. The Additional Shares will when issued in accordance with the terms of the Loan be duly and validly issued, fully paid and nonassessable and will be issued free and clear of any liens, charges, claims and encumbrances whatsoever and not subject to any preemptive rights. The Warrant Shares will, when issued against payment therefor in accordance with the terms of the Warrant, be duly and validly issued, fully paid and nonassessable and will be issued free and clear of any liens, charges, claims and encumbrances whatsoever and not subject to any preemptive rights. The Additional Warrant Shares will, on the date(s) of the issuance of Additional Units pursuant to the terms of the Note and thereafter, when issued against payment therefor in accordance with the terms of such warrants, be duly and validly issued, fully paid and nonassessable and will be issued free and clear of any liens, charges, claims and encumbrances whatsoever and not subject to any preemptive rights. 3.2.6. No permit, consent, approval or authorization of, or declaration to or filing with, any federal, state, local or foreign governmental or regulatory authority or other person or entity is required in connection with the execution or delivery of this Agreement or any Transaction Document by the Company, the offer, issuance, sale or delivery of the Securities, including without limitation, the Note, the Shares, the Warrant, the Additional Units, the Additional Shares, the Additional Warrant, or the Conversion Shares, or the carrying out by the Company of the other transactions contemplated hereby, other than (a) the filing with, and approval of, the American Stock Exchange, Inc. ("ASE") with respect to the listing of the Common Stock and (b) filings under federal and applicable state securities laws. 3.2.7. Assuming the accuracy of the Fund's representations and warranties contained in Section 3.1 hereof, the offer, issuance and delivery to the Fund pursuant to the terms of this Agreement of the Note, the Shares and the Warrant and, assuming compliance by the Fund with the terms of this Agreement and applicable law, the Additional Units, the Additional Shares, the 6 Additional Warrant and the Conversion Shares, are exempt from registration under the Securities Act. 3.2.8. Since January 1, 1995, the Company has timely filed all forms, reports, schedules, statements and other documents required to be filed with the Securities and Exchange Commission (the "SEC") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") (collectively, the "SEC Reports"). The SEC Reports were prepared in all material respects in accordance with and complied in all material respects with the requirements of applicable law, including the Exchange Act and the Securities Act and the applicable rules and regulations of the SEC thereunder, and the SEC Reports did not at the time they were filed, and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. 3.2.9. The Company shall execute a registration rights agreement substantially in the form attached hereto as Exhibit D concurrently upon the closing of the Company's proposed transaction with Safeguard Scientifics, Inc. ("SSI"), The Nichols Company ("TNC") and certain of its affiliates as such transaction is more particularly described in the Company's Preliminary Proxy Statement first filed with the SEC on or about May 9, 1996 (the "SSI/TNC Transaction"); provided that in the event the SSI/TNC Transaction is not consummated on or prior to October 31, 1996, the Company shall execute a registration rights agreement in favor of the Fund substantially in the form attached hereto as Exhibit D with the applicable references to SSI and TNC deleted. 3.2.10. The Company has complied with all laws (including, without limitation, the Americans with Disabilities Act of 1990) and requirements of insurance bodies applicable to the ownership, leasing, use and operation of its properties and has obtained and fully paid for all licenses, permits, certificates, entitlements, grants of right and any other items and documents required by applicable law to be obtained by the Company for the completion, ownership, leasing, use and occupancy of its properties, except where the failure to so comply or obtain would not have a material adverse effect on the Company. Such licenses, permits, certificates, entitlement, grants of right and other items and documents are in full force and effect. The Company has not taken any action that would (or failed to take any action, the omission of which would) result in the revocation or suspension of such licenses, permits, certificates, entitlements, grants of right and other items and documents, and the Company has not received any notice of any violation from any federal, state or municipal entity or notice of an intention by any such governmental entity to revoke any certificate of occupancy or other certificate, license, permit, entitlement or grant of right issued by it in connection with the ownership, use and occupancy of any of its properties that in each case has not been cured or otherwise resolved to the satisfaction of such governmental entity. 3.2.11. There are no claims, actions, suits, proceedings or investigations pending or, to the best of the Company's knowledge, threatened 7 before any court, governmental unit or any mediator or arbitrator with respect to the Company or its properties, except for litigation arising in the ordinary course of business, which litigation, individually or in the aggregate, would not have a material adverse effect upon the Company or its properties. 3.2.12. Each of the financial statements (including, in each case, any related notes thereto) contained in the SEC Reports (i) have been prepared in all material respects in accordance with the published rules and regulations of the SEC and generally accepted accounting principles applied on a consistent basis throughout the periods involved (except in the case of the unaudited financial statements, as permitted by Form 10-Q of the SEC), (ii) comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the financial position of the Company as of the respective dates thereof and the results of operations and cash flows for the periods indicated (subject, in the case of unaudited financial statements for interim periods, to year-end adjustments, consisting only of normal recurring accruals), except that any pro forma financial statements contained in such financial statements are not necessarily indicative of the financial position of the Company as of the respective dates thereof and the results of operations and cash flows for the periods indicated. Since January 1, 1994, the Company has not made any material change in the accounting practices or policies applied in the preparation of its financial statements. 4. CONDITIONS TO CLOSING BY FUND The obligation of the Fund to purchase the Units and make the Loan is subject to the fulfillment, to the Fund's reasonable satisfaction, of each of the following conditions: 4.1. Performance. All covenants, agreements and conditions contained in this Agreement and each of the Transaction Documents to be performed or complied with by the Company on or prior to the date hereof shall have been performed or complied with by the Company in all respects. 4.2. Legal Opinion. The Company shall have delivered to the Fund an opinion of Pepper, Hamilton & Scheetz, counsel to the Company, dated the date hereof, addressed to the Fund and in the form attached hereto as Exhibit C. 4.3. Qualifications. On the date hereof, all authorizations, approvals or permits of, or filings with, any governmental authority, including state securities or blue sky offices that are required prior to the date hereof in connection with the issuance of the Securities to be issued to the Fund on the date hereof shall have been duly obtained and shall be effective on and as of the date hereof. 4.4. Secretary's Certificate. The Company shall have delivered to the Fund copies of each of the following, certified as accurate, true and complete copies thereof as of the date hereof by the Company's Secretary: (a) resolutions of the Board of Trustees of the Company, 8 authorizing and approving this Agreement, the Transaction Documents and all transactions contemplated hereby and thereby; and (b) the signature(s) and incumbency of the officer(s) of the Company authorized to execute and deliver the Transaction Documents. 4.5. Good Standing Certificate. The Company shall have delivered to the Fund a good standing certificate, dated not more than ten (10) days prior to the date hereof, relating to the Company from the Secretary of State of the State of Maryland and for each State in which the Company is qualified to do business as a foreign business trust. 4.6. Additional Documents. The Fund shall have received such other documents, instruments, approvals or opinions as the Fund shall have reasonably requested. 4.7. Legal Fees. The Company shall have paid the reasonable fees and expenses of the Fund's counsel only to the extent incurred in connection with the negotiation, execution and delivery of this Agreement, the other Transaction Documents and the consummation of the transactions contemplated herein and therein. 5. MISCELLANEOUS PROVISIONS 5.1. In no event shall the Company be obligated to issue any shares of Common Stock upon exercise of any warrants or to deliver any Units hereunder or under the Note in the event such issuance or delivery would contravene the provisions of Section 3.3(a) of the Company's Declaration of Trust. 5.2. No recourse shall be had for any obligation of the Company hereunder, or for any claim based thereon or otherwise in respect thereof, against any past, present or future trustee, shareholder, officer or employee of the Company, whether by virtue of any statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such other liability being expressly waived and released by the Fund. 5.3. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. 5.4. This Agreement and the other Transaction Documents, together with the exhibits hereto, and thereto, sets forth the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, inducements, covenants, conditions, representations and warranties, oral or written, expressed or implied, except as contained herein. This Agreement may be modified only by a written document signed by each of the parties hereto.Except as set forth in Section 5.14 hereof, nothing herein shall modify, amend or limit in any way that certain Agreement dated as of March 20, 1996, by and among the Company, the RMO Trust and Richard M. Osborne (the "March Agreement"), or the terms and conditions thereof. 9 5.5. In the event that for any reason any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. In furtherance and not in limitation of the foregoing, in no event shall any actions be taken pursuant to this Agreement, the Securities or the Loan (including without limitation, the exercise of the Warrant and/or the warrants or the issuance of any shares of Common Stock upon such exercise) to the extent that such action would result, or could (in the view of the Company and the Fund) reasonably be construed to result, (i) in a violation of the provisions of Section 3-601 et. seq. of the Maryland General Corporation Law or (ii) in the Fund owning an interest in the Company that would fall within, or be greater than, the "control share" range of "one-third or more, but less than a majority of all voting power" as provided in and contemplated by the provisions of Section 3-701 et. seq. of the Maryland General Corporation Law. 5.6. This Agreement shall be governed, construed and enforced in accordance with the internal laws of the State of Maryland. 5.7. The provisions of this Agreement may be amended only in writing by mutual agreement of the Company and the Fund. 5.8. All representations and warranties contained herein or made in writing by any party in connection herewith shall survive the execution and delivery of this Agreement and the other Transaction Documents, the consummation of the transactions contemplated hereby and thereby and any investigation made at any time by or on behalf of the Fund. 5.9. The descriptive headings of this Agreement are inserted for convenience of reference only and do not constitute a part of this Agreement. 5.10. All notices required to be given to either of the parties hereunder shall be in writing and shall be deemed to have been sufficiently given for all purposes when presented personally to such party, sent by overnight courier, or sent by certified or registered mail, return receipt requested, to such party at its address set forth in the heading of this Agreement. Such notice shall be deemed to be given when received if delivered personally, the next day after the date sent if sent by overnight courier, or three days after the date mailed if sent by certified or registered mail. Any notice of any change in such address shall also be given in the manner set forth above. Whenever the giving of notice is required the giving of such notice may be waived in writing by the party entitled to receive such notice. 5.11. All exhibits hereto and the other Transaction Documents to be delivered to the Fund pursuant hereto are an integral part of this Agreement. 5.12. No course of dealing between the Company and the Fund or any delay in exercising or omission to exercise any right, power or remedy accruing to the Fund, upon any breach or default of the Company under any of the Transaction Documents, shall impair any such right, power or remedy of the Fund or shall be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter 10 occurring; and any waiver of any single breach or default shall not be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of the Fund of any provisions or conditions of the Transaction Documents must be made in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, under the Transaction Documents or otherwise afforded to the Fund, shall be cumulative and not alternative. 5.13. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one instrument. Each party shall receive a duplicate original of the counterpart copy or copies executed by it and the other party. 5.14. The Fund agrees to be bound by all of the provisions of the March Agreement to the same extent as if it were a named party thereto and included in the term "Holder." 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, intending to be legally bound, this 21st day of June, 1996. BRANDYWINE REALTY TRUST By: /s/ Gerard H. Sweeney ---------------------------- Gerard H. Sweeney, President TURKEY VULTURE FUND XIII, LTD. By: /s/ Richard M. Osborne ---------------------------- Richard M. Osborne, Trustee ACKNOWLEDGED THIS 21 DAY OF JUNE, 1996: SAFEGUARD SCIENTIFICS, INC. By: /s/ Gerald M. Wilk --------------------------- Title: SVP THE NICHOLS COMPANY By: /s/ Anthony A. Nichols, Sr. ---------------------------- Title: President EX-7.6 3 RICHARD M. OSBORNE TRUST 13D/A EX-7.6 Exhibit 7.6 THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR UNDER THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, ASSIGNED OR TRANSFERRED UNLESS EITHER IT IS FIRST REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR SUCH SALE, ASSIGNMENT OR TRANSFER IS MADE PURSUANT TO AN EXEMPTION GRANTED UNDER THE ACT AND ANY SUCH STATE SECURITIES LAWS. PROMISSORY NOTE $992,293 Marlton, New Jersey June 21, 1996 FOR VALUE RECEIVED, BRANDYWINE REALTY TRUST, a Maryland real estate investment trust with an office at Two Greentree Centre, Suite 100, Marlton, New Jersey 08053 ("Maker"), promises to pay to the order of TURKEY VULTURE FUND XIII, LTD., having an address at 7001 Center Street, Mentor, Ohio 44060 ("Payee"), at such office or residence of Payee, or at such other office or other place as Payee may designate from time to time in writing, the principal sum of Nine Hundred Ninety Two Thousand Two Hundred Ninety Three Dollars ($992,293), as adjusted as provided in Section 2 below, in lawful money of the United States of America, together with interest thereon from the date hereof at the rate hereafter provided, and both payable as hereafter provided. This Promissory Note is made in connection with the transactions contemplated by that certain Loan and Securities Purchase Agreement, dated the date hereof, by and between Maker and the Payee (the "Loan and Securities Purchase Agreement").Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Loan and Securities Purchase Agreement. 1. Interest Rate. The principal sum outstanding from time to time hereunder shall bear interest at an annual rate equal to the prime rate of interest as published in The Wall Street Journal from time to time (the "Prime Rate"). Interest shall be calculated on the basis of the actual number of days the principal sum is outstanding over a 365 day year. 2. Payments of Principal and Interest. Unless first prepaid in accordance with the terms of Section 3 hereof, payments of principal plus interest shall be payable in accordance with the terms set forth in this Section 2. Principal shall be payable in full on the third (3rd) anniversary of the date hereof (the "Maturity Date"). Interest shall be payable on the unpaid principal hereof outstanding from time to time and shall accrue quarterly in arrears, on the last business day of March, June, September and December of each year (each, an "Interest Payment Date"), commencing on September 30, 1996. On an Interest Payment Date, the Maker shall have the right either to pay the interest accrued during the preceding quarter in cash, or to have such interest added to the principal amount evidenced hereby, and to the extent that interest is not paid in cash by the Maker on any particular Interest Payment Date, such interest shall be added to the principal amount due 2 hereunder. If not earlier paid in full, interest shall be payable in full on the Maturity Date. All amounts payable hereunder shall be paid by the Maker in lawful money of the United States of America, by check or wire transfer (at Maker's option), or any other method approved in advance in writing by Payee at the place set forth in the heading of this Note, or such place as may be designated by Payee in writing to Maker. 3. Prepayments. (a) Except as otherwise provided in Sections 3(b) and 3(c) hereof, the Maker may not prepay this Note. (b) In the event that (i) any provision of this Note shall violate a provision of applicable law, or (ii) the amendment to the Maker's Declaration of Trust intended to eliminate Section 3.3(a) thereof is not approved at the Maker's next Annual Meeting of Shareholders, and the book value per share of Common Stock as of the end of any fiscal quarter of the Maker beginning with the first fiscal quarter of 1996 shall exceed $5.50, then the Payee, upon five (5) days written notice thereof, may accelerate the payment of the entire unpaid principal balance hereof, whereupon the Maker shall be required to prepay, in cash, this Note in its entirety (which shall include principal and interest accrued thereon). In the event that the Maker, as determined in accordance with a written opinion of its counsel, is prohibited from making a prepayment required by the terms of Section 3(c) hereof due to either (i) or (ii) above, the Maker, upon five (5) days written notice thereof, may prepay, in cash, this Note in its entirety (which shall include principal and interest accrued thereon). (c) (i) In the event the number of outstanding shares of Maker's capital stock shall increase at any time, or from time to time following the date of this Note, the Maker shall, as of the next business day following such increase (each, a "Prepayment Date") (A) calculate (x) in accordance with the provisions of Section 3-601 et seq. (the "business combination statute") of the Maryland General Corporation Law, the total market value of the outstanding stock of the Maker as of such Prepayment Date (the "Market Value") and (y) an amount equal to 4.9% of the Market Value (the "4.9% Threshold"), and (B) prepay that portion of the outstanding principal balance of the Loan (the "Prepayable Portion") by the delivery to the Payee of that number of Units (the "Prepayable Units"), at $5.63 per Unit, as shall be calculated by the Maker as follows: PP = FPNT - (VEI + VOS) where: (1) "PP" means the Prepayable Portion. In the event that PP is zero or a negative number, PP shall be deemed to be equal to zero, and none of the Loan will be prepaid. (2) "FPNT" means the 4.9% Threshold. 3 (3) "VEI" means the "Value of the Equity Issued." Value of the Equity Issued shall be calculated by the Maker determining the sum of (i) the total aggregate number of shares of Common Stock previously issued by the Maker directly to the Payee, or any Affiliate thereof (as such term is defined in the business combination statute) including upon the exercise of warrants issued by the Maker to the Payee, multiplied by an amount equal to the value of a share of Common Stock (based on the thirty day period prior to the Prepayment Date and computed in accordance with the provisions of the business combination statute), and (ii) the total aggregate number of warrants previously issued by the Maker directly to the Payee, or any Affiliate thereof, multiplied by an amount determined by the Board of Trustees of the Company, in good faith, to be the per warrant value of such warrants as of the Prepayment Date (excluding the value of any such warrants previously exercised). To the extent that the Board of Trustees determines that the warrants included in different Units have a different value, that factor shall be taken into consideration in determining the Value of the Equity Issued. (4) "VOS" means the "Value of Other Issued Securities". Value of Other Issued Securities shall be calculated by the Maker determining the total aggregate number of other equity securities (not referred to above, if any) issued by the Maker to the Payee, or any Affiliate thereof, on or following the date hereof, multiplied by an amount determined in accordance with the provisions of the business combination statute to be the value of such securities as of the Prepayment Date. Notwithstanding the foregoing formula, in the event that the formula would result on any Prepayment Date in the Maker issuing to Payee Prepayable Units such that the sum of (i) VEI, (ii) VOS, and (iii) value of the Prepayable Units determined in accordance with the definition of VEI above, exceeds the 4.9% Threshold, the number of Prepayable Units shall be automatically reduced to the nearest whole number so that the sum of the foregoing (i), (ii) and (iii) is less than or equal to the 4.9% Threshold. The Prepayable Portion shall then be calculated by multiplying such reduced number of Prepayable Units by $5.63. No fractional Units shall be issued to Payee, and to the extent the foregoing calculation would require the issuance of a fractional Unit, such portion of the Loan will not be included in the Prepayable Portion and shall remain part of the principal outstanding hereunder. All of the foregoing calculations made by the Maker shall be conclusive absent manifest error. (ii) In the case of any prepayment pursuant to this Section 3(c), the outstanding principal amount under this Note shall be automatically reduced by the Prepayable Portion. All Units issued by the Maker upon such prepayment(s) hereunder shall consist of fully paid and nonassessable shares of Common Stock, and warrants to purchase Common Stock, all free of liens and charges and not subject to any preemptive rights. (d) Except as otherwise provided in Section 3(b) and 4, in no event shall the Payee have any right to require the Maker to prepay all or any 4 portion of the Loan with cash, and except as otherwise provided in Sections 3(c) and 4, in no event shall the Payee have any right to require the Maker to prepay all or any portion of the Loan with Units. Any Units, Common Stock or warrants to be issued by the Maker to Payee under this Section 3 shall be delivered by the Maker to Payee as soon as practicable, but in no event more than ten (10) business days after each Prepayment Date. 4. Events of Default; Remedies. (a) If any of the following events (each is herein referred to as an "Event of Default") shall occur: (i) default shall occur in the performance of or compliance with any covenant contained in Section 3 of the Loan and Securities Purchase Agreement or Section 3 hereunder, subject in each case to any grace or cure period set forth herein; (ii) if any representation or warranty to Payee made by the Maker in the Loan and Securities Purchase Agreement or in any other Transaction Document, or in connection with the transactions contemplated hereby or thereby, shall prove to have been false or inaccurate in any material respect on the date as of which made; (iii) all or any part of the principal or interest due hereunder is not paid when and as the same shall become due and payable, whether at the maturity thereof, by acceleration, by notice of prepayment or otherwise and such failure shall continue uncured for 5 days, provided that, an election by the Maker not to pay interest in cash on an Interest Payment Date but rather to add such accrued interest to the principal amount due hereunder shall not be a failure to pay interest due hereunder, and therefore shall not be an Event of Default hereunder; (iv) any default in excess of $250,000 shall occur in the making of the payment of the principal of or interest on any other indebtedness of the Maker for borrowed money, as and when the same shall become due and payable by the lapse of time, by acceleration, by call for redemption or otherwise; (v) any default or the happening of any event shall occur under any indenture, agreement or other instrument under which any indebtedness of the Maker for borrowed money is or may be issued, and such default or event shall continue for a period of time sufficient to permit the acceleration of the maturity of any indebtedness of the Maker outstanding thereunder; (vi) a receiver, conservator, custodian, liquidator or trustee of the Maker or of all or any of its assets or property is appointed by court order and such order remains in effect for more than sixty (60) days; or an order for relief is entered under the federal bankruptcy laws with respect to the Maker; or any of its material property is sequestered by court order and 5 such order remains in effect for more than sixty (60) days; or a petition is filed against the Maker under the bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, and is not dismissed within sixty (60) days after such filing; (vii) the Maker files a petition in voluntary bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents to the filing of any petition against it under any such law; (viii) the Maker makes an assignment for the benefit of its creditors, or admits in writing its inability to pay, or in fact does not pay, its debts generally as they become due, or consents to the appointment of a receiver, conservator, custodian, liquidator or trustee of the Maker, or of all or any part of its property; (ix) final judgment for the payment of money in excess of $250,000 shall be rendered by a court of record against the Maker, and the Maker shall not (1) discharge the same (by insurance or otherwise) or provide for its discharge in accordance with its terms, or (2) procure a stay of execution thereof within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal; (x) a breach of any material term or material provision of any of the Warrants or Additional Warrants; or (xi) the Maker is delisted or otherwise removed from the American Stock Exchange and is not on the same or next business day listed on any national securities exchange or the Nasdaq Market; then, when any Event of Default described in clause (ii), (iv), (v) or (ix) of this Section 4(a) has occurred and shall be continuing, this Note shall, upon written notice from Payee, forthwith be due and payable, if not already due and payable; and when any Event of Dealt described in clause (i), (iii), (vi), (vii), (viii), (x) or (xi) of this Section 4(a) has occurred, then, at the option of Payee, the principal of this Loan shall be immediately due and payable by acceleration, without presentment, demand or notice of any kind, upon the occurrence thereof.If any principal or installment of interest is not paid in full on the due date thereof (whether by maturity or acceleration or otherwise), then the outstanding principal balance of this Loan and any overdue installment of interest thereon (to the extent permitted by applicable law) shall bear additional interest from the due date of such payment, or from and after an Event of Default, at a rate equal to the lesser of (1) the highest rate allowed by applicable law, or (2) the Prime Rate plus two percent (2%) per annum (the "Default Rate") until the amount due is paid. If payment of this Loan is accelerated, then the outstanding principal balance thereof shall bear interest at the Default Rate from and after the Event of Default and, at the option of Payee, payment of interest shall be made in cash. 6 (b) If an Event of Default shall have occurred pursuant to Section 4(a), Payee shall be entitled, in addition to the rights specified in Section 4(a), to proceed to protect and enforce any or all other rights, powers and remedies of the Payee by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any covenant contained herein or in the Loan and Securities Purchase Agreement, the Warrant or any Additional Warrant or for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise of any right, power or remedy granted hereby or thereby or available at law, in equity, by statute or otherwise. In furtherance of the foregoing and not by way of limitation, the Payee shall be entitled to specific performance as a remedy for any breach by Maker of its obligations to prepay this Loan in Units to the extent required by Section 3 hereof. (c) If any holder of any shares of capital stock or any indebtedness of the Maker for borrowed money shall serve any notice or demand or take any other action in respect of a claimed default, the Maker shall forthwith give written notice thereof to Payee, describing the notice, demand or action and the nature of the claimed default. (d) No right or remedy conferred upon or reserved to Payee, or now or hereafter existing at law or in equity or by statute or other legislative enactment, is intended to be exclusive of any other right or remedy, and each and every such right or remedy shall be cumulative and concurrent, and shall be in addition to every other such right or remedy, and may be pursued singly, concurrently, successively or otherwise, at the sole discretion of Payee. 5. Costs and Expenses. Following the occurrence of any Event of Default, Maker shall pay upon demand all reasonable costs and expenses (including all reasonable amounts paid to attorneys), incurred by Payee in the exercise of any of its rights and remedies hereunder with respect to such Event of Default and any amount thereof not paid promptly following demand therefor shall be added to the principal sum hereunder and shall bear interest at the rate per annum set forth above from the date of such demand until paid in full. 6. Waivers. Maker hereby waives presentment, demand notice of nonpayment, protest, notice of protest or other notice of dishonor, and (except as otherwise provided herein) any and all other notices in connection with any default in the payment of, or any enforcement of the payment of all amounts due under this Note. To the extent permitted by law, Maker waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect. 7. Severability. In the event that for any reason one or more of the provisions of this Note or their application to any person or circumstance shall be held to be invalid, illegal or unenforceable in any respect or to any extent, such provisions shall nevertheless remain valid, legal and enforceable in all such other respects and to such extent as may be permissible. In addition, any such invalidity, illegality or unenforceability shall not affect any other provisions of this Note, but this Note shall be construed as if such 7 invalid, illegal or unenforceable provision had never been contained herein.In furtherance and not in limitation of the foregoing, in no event shall this Note (or the Loan evidenced hereunder) be prepayable in Units, nor shall any warrants issued upon such prepayment into Units be exchangeable, in whole or in part for shares of Common Stock, nor shall shares of Common Stock be issued by the Maker in connection herewith, to the extent that such prepayment, exchange or issuance (as the case may be) would result, or could reasonably be construed to result, in a violation of the business combination statute. 8. Transfer; Successors and Assigns. Neither this Note, nor any portion hereof, may be transferred or disposed of except to an Affiliate of the Payee. Neither this Note, nor any portion hereof, may be transferred or disposed of unless registered under the Act and any applicable state securities laws or there exists a valid exemption therefrom. Subject to the foregoing, this Note inures to the benefit of Payee and binds Maker, and their respective successors and assigns, and the words "Payee" and "Maker" whenever occurring herein shall be deemed and construed to include such respective successors and assigns. 9. Notices. All notices required to be given to either of the parties hereunder shall be in writing and shall be deemed to have been sufficiently given for all purposes when presented personally to such party, sent by overnight courier, or sent by certified or registered mail, return receipt requested, to such party at its address set forth in the heading of this Note. Such notice shall be deemed to be given when received if delivered personally, the next day after the date sent if sent by overnight courier, or three days after the date mailed if sent by certified or registered mail. Any notice of any change in such address shall also be given in the manner set forth above. Whenever the giving of notice is required the giving of such notice may be waived in writing by the party entitled to receive such notice. 10. Captions. The captions of the paragraphs in this Note are for convenience only and shall not affect the meaning of any of the terms or provisions of this Note. 11. No Recourse. No recourse shall be had for any obligation of the Maker hereunder, or for any claim based thereon or otherwise in respect thereof, against any past, present or future trustee, shareholder, officer or employee of the Maker, whether by virtue of any statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such other liability being expressly waived and released by the Payee. 12. Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of Maryland. 8 IN WITNESS WHEREOF, Maker has executed this Promissory Note the day and year first above written. BRANDYWINE REALTY TRUST By: /s/ Gerard H. Sweeney ---------------------- Title: President EX-7.7 4 RICHARD M. OSBORNE TRUST 13D/A EX-7.7 Exhibit 7.7 THE SECURITIES REPRESENTED HEREBY AND ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE. ALL SUCH SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF SUCH SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. Void after 5:00 p.m. New York Time, on June 21, 2002. BRANDYWINE REALTY TRUST Warrant Agreement for the Purchase of Shares of Common Stock No. 1 59,949 Shares FOR VALUE RECEIVED, BRANDYWINE REALTY TRUST, a Maryland real estate investment trust (the "Company"), with its principal office at Two Greentree Centre, Suite 100, Marlton, New Jersey 08053, hereby certifies that Turkey Vulture Fund XIII, Ltd. or its assigns (the "Holder") is entitled, subject to the provisions of this Warrant, to purchase from the Company, at any time before 5:00 p.m. (Eastern Time) on June 21, 2002 (the "Expiration Date"), the number of fully paid and nonassessable common shares of beneficial interest of the Company (the "Common Stock") set forth above, subject to adjustment as hereinafter provided. The Holder may purchase such number of shares of Common Stock at a purchase price per share (as appropriately adjusted pursuant to Section 6 or Section 8 hereof) of Six Dollars and 50/100 Cents ($6.50) (the "Exercise Price"). As provided in Section 6(i), the term "Common Stock" shall mean the aforementioned Common Stock of the Company, together with any other equity securities that may be issued by the Company in addition thereto or in substitution therefor as provided herein. The number of shares of Common Stock to be received upon the exercise of this Warrant and the price to be paid for a share of Common Stock are subject to adjustment from time to time as hereinafter set forth. The shares of Common Stock deliverable upon such exercise, as adjusted from time to time, are hereinafter sometimes referred to as "Warrant Shares." Section 1. Exercise of Warrant. (a) This Warrant may be exercised in whole or in part on any business day (the "Exercise Date") and on or before the Expiration Date by presentation and surrender hereof to the Company at its principal office at the address set forth in the initial paragraph hereof or at the office of its stock transfer or warrant agent, if any, (or at such other address as the Company may hereafter notify the Holder in writing) with the Purchase Form annexed hereto duly executed and accompanied by proper payment of 2 the Exercise Price in lawful money of the United States of America in the form of a check, subject to collection, for the number of Warrant Shares specified in the Purchase Form. If this Warrant should be exercised in part only, the Company shall, upon surrender of this Warrant, execute and deliver a new Warrant evidencing the rights of the Holder thereof to purchase the balance of the Warrant Shares purchasable hereunder. Upon receipt by the Company of this Warrant and such Purchase Form, together with proper payment of the Exercise Price, at such office, the Holder shall be deemed to be the holder of record of the Warrant Shares, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such Warrant Shares shall not then be actually delivered to the Holder. The Company shall pay any and all documentary stamp or similar issue or transfer taxes payable in respect of the issue or delivery of the Warrant Shares. (b) In addition to and without limiting the rights of the Holder under any other terms set forth herein, the Holder shall have, upon written request by the Holder delivered or transmitted to the Company together with this Warrant, the right (the "Conversion Right") to require the Company to convert this Warrant into shares of Common Stock as follows: upon exercise of the Conversion Right, the Company shall deliver to the Holder (without payment by the Holder of any Exercise Price) that number of shares of Common Stock that is equal to the quotient obtained by dividing (x) the value of this Warrant at the time the Conversion Right is exercised (determined by subtracting the aggregate Exercise Price in effect immediately prior to the exercise of the Conversion Right from the aggregate current market value (determined as provided in Section 3 below) of the shares of Common Stock issuable upon exercise of this Warrant immediately prior to the exercise of the Conversion Right) by (y) the current market value of one share of Common Stock (determined as provided in Section 3 below) immediately prior to the exercise of the Conversion Right. The Conversion Right referred to above may be exercised by the Holder by surrender of this Warrant at the principal office of the Company or at the offices of its stock transfer or warrant agent, if any, together with a written statement specifying that the Holder thereby intends to exercise the Conversion Right. Certificates for shares of Common Stock issuable upon exercise of the Conversion Right shall be delivered to the Holder within fifteen (15) days following the Company's receipt of this Warrant together with the aforesaid written statement. (c) Notwithstanding anything herein to the contrary, in no event shall the Company be required to issue shares of Common Stock upon the exercise hereof if, at the time of such exercise, the issuance of such shares would be restricted by Section 3.3(a) of the Company's Declaration of Trust, as in effect on the date hereof; provided that if the amendment to the Declaration of Trust intended to eliminate Section 3.3(a) is approved by shareholders of the Company, the foregoing provision of this Section 1(c) shall have no force and effect. Notwithstanding anything herein to the contrary, in no event shall the Company be required to issue shares of Common Stock upon the exercise hereof if and to the extent that, at the time of such exercise, the sum of the market value of such shares (as determined in accordance with the provisions of 3 Section 3-601 et seq. of the Maryland General Corporation Law), plus the VEI and VOS, would exceed 4.9% of the total market value of the outstanding stock of the Company as of such date (as determined in accordance with said statute).As used herein, the terms "VEI" and "VOS" shall have the respective meanings assigned to them in the Promissory Note dated the date hereof issued by the Company to the Holder. Section 2. Reservation of Shares. The Company shall reserve at all times for issuance and delivery upon exercise of this Warrant all shares of its Common Stock or other shares of capital stock of the Company from time to time issuable upon exercise of this Warrant. All such shares shall be duly authorized and, when issued upon the exercise of the Warrant in accordance with the terms hereof, shall be validly issued, fully paid and nonassessable, free and clear of all taxes, liens, security interests, charges and other encumbrances or restrictions (other than restrictions pursuant to applicable federal and state securities laws) and free and clear of all preemptive rights.If the Common Stock is listed on any national securities exchange or The NASDAQ National Market, the Company shall also list the shares issued upon exercise of the Warrant on such exchange, subject to notice of issuance, or maintain the listing of its Common Stock on the NASDAQ system, as the case may be. Section 3. Fractional Interest. The Company will not issue a fractional share of Common Stock or scrip upon any exercise or conversion of this Warrant. Instead, the Company will deliver its check for the "current market value" of the fractional share. The "current market value" of a fraction of a share is determined as follows: multiply the "current market price" of a full share by the fraction of a share and round the result to the nearest cent. The "current market price" of a share of Common Stock shall be determined as follows: (a) If the Common Stock is listed on a national securities exchange or admitted to unlisted trading privileges on such exchange or listed for trading on The NASDAQ National Market, the current market price shall be the mean of the last reported sale prices of the Common Stock on such exchange or system over the last ten (10) business days prior to the date of exercise of this Warrant, or if no such sale is made on such day, the average closing bid and asked prices of the Common Stock for such day on such exchange or system; or (b) If the Common Stock is not so listed or admitted to unlisted trading privileges, the current market price shall be the mean of the last reported bid and asked prices reported by the National Quotation Bureau, Inc., over the last ten (10) business days prior to the date of exercise of this Warrant; or (c) If the Common Stock is not so listed or admitted to unlisted trading privileges and bid and asked prices are not so reported, the current market price per share shall be an amount, not less than 90% of the book value per share of the Common Stock as at the end of the most recent fiscal year of 4 the Company ending prior to the date of the exercise of this Warrant, determined in such reasonable manner as may be prescribed in good faith by the Board of Trustees of the Company. Section 4. Exchange, Transfer, Assignment or Loss of Warrant. (a) The Holder of this Warrant may not transfer or assign its interest in this Warrant, or any of the Warrant Shares, in whole or in part, unless, prior to any such transfer, the transferee agrees in writing, in form and substance reasonably satisfactory to the Company, to be bound by the terms of this Agreement and provides the Company with an opinion of counsel in such form reasonably acceptable to the Company, that such transfer would not be in violation of the Act or any applicable state securities or blue sky laws. (b) Subject to the provisions of subsection (a) above and Section 10, upon surrender of this Warrant to the Company or its stock transfer agent or warrant agent, accompanied by the Assignment Form annexed hereto duly executed and funds sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a new Warrant or Warrants in the name of the assignee or assignees named in such instrument of assignment and, if the Holder's entire interest is not being assigned, in the name of the Holder, and this Warrant shall promptly be canceled. (c) This Warrant may be divided by or combined with other Warrants which carry the same rights upon presentation hereof at the principal office of the Company or at the office of its stock transfer or warrant agent, if any, together with a written notice specifying the names and denominations in which new Warrants are to be issued and signed by the Holder hereof. The term "Warrant" as used herein includes any warrants into which this Warrant may be divided or exchanged. (d) Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss, theft or destruction) of indemnification reasonably satisfactory to the Company, and upon surrender and cancellation of this Warrant, if mutilated, the Company shall execute and deliver a new Warrant of like tenor and date registered in the Holder's name representing the number of shares purchasable under the original Warrant. Any such new Warrant executed and delivered shall constitute an additional contractual obligation of the Company, whether or not the original Warrant shall be at any time enforceable by anyone. Section 5. Rights of the Holder. The Holder shall not, by virtue hereof, be entitled to any rights of a shareholder in the Company, either at law or equity, and the rights of the Holder are limited to those set forth in this Warrant. Section 6. Adjustment of Exercise Price and Number of Shares. The number and kind of securities purchasable upon the exercise of each Warrant and the Exercise Price shall be subject to adjustment from time to time upon the occurrence of certain events, as follows: 5 (a) Adjustment for Change in Capital Stock. If at any time after the date hereof, the Company: (i) pays a dividend or makes a distribution on its Common Stock in shares of its Common Stock; (ii) subdivides its outstanding shares of Common Stock into a greater number of shares; (iii) combines its outstanding shares of Common Stock into a smaller number of shares; (iv) makes a distribution on its Common Stock in shares of its capital stock other than Common Stock; or (v) issues by reclassification of its Common Stock any shares of its capital stock; then the Exercise Price in effect (and the number of Warrant Shares and other securities, if any, issuable upon exercise of this Warrant) immediately prior to such action shall be adjusted so that the Holder may receive upon exercise of the Warrant, and payment of the same aggregate consideration, the number of shares of capital stock of the Company which the Holder would have owned immediately following such action if the Holder had exercised the Warrants immediately prior to such action. The adjustment shall become effective immediately after the record date in the case of a dividend or distribution, and immediately after the effective date in the case of a subdivision, combination or reclassification. (b) Adjustment for Other Distributions. If at any time after the date hereof, the Company distributes to all holders of its Common Stock any of its assets or debt securities, the Exercise Price following the record date for such distribution shall be adjusted in accordance with the following formula: M-F --- E' = E x M where: E' = the adjusted Exercise Price. E = the Exercise Price immediately prior to the adjustment. M = the current market price (as defined in Section 3 above) per share of Common Stock on the record date of the distribution. F = the aggregate fair market value (determined in such reasonable manner as may be prescribed in good faith by the Board of Trustees of the Company) on the record date of the distribution of the assets or debt securities divided by the number of outstanding shares of Common Stock. 6 The adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive the distribution or the effective date of such issuance, as applicable. In the event that such distribution or issuance is not actually made, the Exercise Price shall again be adjusted to the Exercise Price as determined without giving effect to the calculation provided hereby. This subsection does not apply to cash dividends or cash distributions paid out of consolidated current or retained earnings as shown on the books of the Company and paid in the ordinary course of business. (c) Adjustment for Common Stock Issue. (i) If at any time after the date hereof, the Company issues shares of Common Stock for a consideration per share that is less than the current market price per share (determined as provided in Section 3 above) on the date the Company fixes the offering price of such additional shares, the Exercise Price shall be adjusted in accordance with the following formula: E' = Y x [O + (P / E)] ------------- A where: E' = the adjusted Exercise Price. Y = the then current Exercise Price immediately prior to the adjustment. O = the number of shares outstanding immediately prior to the issuance of such additional shares. P = the aggregate consideration received for the issuance of such additional shares. E = the current market price (determined as provided in Section 3 above) immediately prior to the adjustment. A = the number of shares outstanding immediately after the issuance of such additional shares. The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. (ii) This subsection 6(c) does not apply to (A) any of the transactions described in subsections (b) and (d) of this Section 6, (B) Common Stock issued pursuant to options and warrants outstanding on the date hereof, (C) Common Stock issued to officers, trustees, directors or employees of, or consultants to, the Company and its affiliates upon the exercise of warrants, 7 rights or options which (x) are issued pursuant to employee benefit plans, employment agreements or consulting agreements, in each case approved by the Company's Board of Trustees or an appropriate committee of the Company's Board of Trustees, and (y) have an exercise price not less than 85% of the current market price of the Company's Common Stock at the time of issuance of such warrant, right or option, (D) Common Stock issued in exchange for Class A units of limited partnership interest in Brandywine Operating Partnership, L.P. issuable to Safeguard Scientifics, Inc. ("SSI"), The Nichols Company ("TNC"), and certain other persons in connection with the transactions (the "SSI/TNC Transaction") contemplated by the Letter of Intent dated March 20, 1996, by and among the Company, SSI and TNC, (E) up to 730,000 shares of Common Stock reserved for issuance upon exercise of warrants to be issued to certain employees of the Company and TNC in connection with the SSI/TNC Transaction, (F) up to 775,000 shares of Common Stock reserved for issuance to SSI upon the exercise of a warrant to be issued to it in connection with the SSI/TNC Transaction, (G) Common Stock issued to the Holder in connection with the repayment of its loan to the Company or in connection with the exercise of any warrants issued to the Holder in connection with any such repayment (the "Repayment Warrants"), and (H) any securities sold to the public in connection with an underwritten public offering of the Company's securities. (d) Adjustment for Convertible Securities Issue. If at any time after the date hereof, the Company issues for consideration any securities convertible into or exchangeable or exercisable for Common Stock for consideration per share of Common Stock initially deliverable upon conversion, exchange or exercise of such securities, together with the consideration paid upon issuance of such securities, less than the current market price per share (determined as provided in Section 3 above) on the date of issuance of such securities, the Exercise Price shall be adjusted in accordance with this formula: E' = Y x [O + (P / E)] ------------- O + D where: E' = the adjusted Exercise Price. Y = the then current Exercise Price immediately prior to the adjustment. O = the number of shares outstanding immediately prior to the issuance of such securities. P = the aggregate consideration received and receivable for the issuance of such securities. E = the current market price (determined as provided in Section 3 above). D = the maximum number of shares deliverable upon conversion, exchange or exercise of such securities at the initial conversion, exchange or exercise rate. 8 The adjustment shall be made successively whenever any such issuance is made, and shall become effective immediately after such issuance. If all of the Common Stock deliverable upon conversion, exchange or exercise of such securities has not been issued when such securities are no longer outstanding, then the Exercise Price shall promptly be readjusted to the Exercise Price which would then be in effect had the adjustment upon the issuance of such securities been made on the basis of the actual number of shares of Common Stock issued upon conversion, exchange or exercise of such securities. This subsection does not apply to any of the transactions described in subsections (c)(ii)(B), (C), (D), (E), (F) and (G) above. (e) Adjustment to Number of Warrant Shares. Upon each adjustment to the Exercise Price pursuant to Section 6(c) or (d), the number of Warrant Shares purchasable hereunder at that Exercise Price shall be adjusted, to the nearest one hundredth of a whole share, to the product obtained by multiplying such number of shares purchasable immediately prior to such adjustment in the Exercise Price by a fraction, the numerator of which shall be the Exercise Price immediately prior to such adjustment and the denominator of which shall be the Exercise Price immediately thereafter. (f) Deferral of Issuance or Payment. In any case in which an event covered by this Section 6 shall require that an adjustment in the Exercise Price be made effective as of a record date, the Company may elect to defer until the occurrence of such event (i) issuing to the Holder, if this Warrant is exercised after such record date, the shares of Common Stock and other capital stock of the Company, if any, issuable upon such exercise over and above the shares of Common Stock or other capital stock of the Company, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment, and (ii) paying to the Holder by check any amount in lieu of the issuance of fractional shares pursuant to Section 3. (g) When No Adjustment Required. No adjustment need be made for a change in the par value or no par value of the Common Stock. (h) Notice of Certain Actions. In the event that: (i) the Company shall authorize the issuance to all holders of its Common Stock of rights, warrants, options or convertible securities to subscribe for or purchase shares of its Common Stock, or of any other subscription rights, warrants, options or convertible securities; or (ii) the Company shall authorize the distribution to all holders of its Common Stock of evidences of its indebtedness or assets (other than dividends paid in or distributions of the Company's capital stock for which the Exercise Price shall have been adjusted pursuant to subsection (a) of this Section 6) or cash dividends or cash distributions payable out of consolidated current or retained earnings as shown on the books of the Company and paid in the ordinary course of business); or 9 (iii) the Company shall authorize any capital reorganization or reclassification of the Common Stock (other than a subdivision or combination of the outstanding Common Stock and other than a change in par value of the Common Stock) or of any consolidation or merger to which the Company is a party and for which approval of any shareholders of the Company is required (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or change of the Common Stock outstanding), or of the conveyance or transfer of the properties and assets of the Company as an entirety or substantially as an entirety; or (iv) the Company is the subject of a voluntary or involuntary dissolution, liquidation or winding-up procedure; or (v) the Company proposes to take any action (other than actions of the character described in subsection (a) of this Section 6) that would require an adjustment of the Exercise Price pursuant to this Section 6; then the Company shall cause to be mailed by first-class mail to the Holder, at least ten (10) days prior to the applicable record or effective date, a notice stating (x) the date as of which the holders of Common Stock of record to be entitled to receive any such rights, warrants or distributions are to be determined, or (y) the date on which any such consolidation, merger, conveyance, transfer, dissolution, liquidation or winding-up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property, if any, deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, transfer, dissolution, liquidation or winding-up. (i) No Adjustment Upon Exercise of Warrants. No adjustments shall be made under any Section herein in connection with the issuance of Warrant Shares upon exercise of the Warrants. (j) Common Stock Defined. The term "Common Stock" shall include any equity securities of any class of the Company hereinafter authorized which shall not be limited to a fixed sum or percentage in respect of the right of the holders thereof to participate in dividends or distributions of assets upon the voluntary or involuntary liquidation, dissolution or winding up of the Company. However, subject to the provisions of Section 8 hereof, shares issuable upon exercise hereof shall include only shares of the class designated as Common Stock of the Company as of the date hereof or shares of any class or classes resulting from any reclassification or reclassifications thereof or as a result of any corporate reorganization as provided for in Section 8 hereof. (k) Warrants Issued After Adjustments. Irrespective of any adjustments in the Exercise Price or the number or kind of Warrant Shares purchasable upon exercise of this Warrant, Warrants theretofore or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar warrants initially issuable pursuant to this Agreement. 10 Section 7. Officers' Certificate. Whenever the Exercise Price shall be adjusted as required by the provisions of Section 6, the Company shall forthwith file in the custody of its Secretary or an Assistant Secretary at its principal office an officers' certificate showing the adjusted Exercise Price determined as herein provided, setting forth in reasonable detail the facts requiring such adjustment and the manner of computing such adjustment. Each such officers' certificate shall be signed by the Chairman, President or Chief Financial Officer of the Company and by the Secretary or any Assistant Secretary of the Company. A copy of each such officers' certificate shall be promptly mailed, by certified mail, to each holder of a Warrant and the original shall be made available at all reasonable times for inspection by any other holder of a Warrant executed and delivered pursuant to Section 4 hereof. Section 8. Reclassification, Reorganization, Consolidation or Merger. In the event of any reclassification, capital reorganization or other change of outstanding shares of Common Stock of the Company (other than a subdivision or combination of the outstanding Common Stock and other than a change in the par value of the Common Stock) or in the event of any consolidation or merger of the Company with or into another person or entity (other than a merger in which the Company is the continuing person or entity and that does not result in any reclassification, capital reorganization or other change of outstanding shares of Common Stock of the class issuable upon exercise of this Warrant) or in the event of any sale, lease, transfer or conveyance to another person or entity of the property and assets of the Company as an entirety or substantially as an entirety, the Company shall, as a condition precedent to such transaction, cause effective provisions to be made so that the Holder shall have the right thereafter, by exercising this Warrant, to purchase the kind and amount of shares of stock and other securities and property (including cash) receivable upon such reclassification, capital reorganization and other change, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock that might have been received upon exercise of this Warrant immediately prior to such reclassification, capital reorganization, change, consolidation, merger, sale or conveyance. Any such provision shall include provisions for adjustments in respect of such shares of stock and other securities and property that shall be as nearly equivalent as may be practicable to the adjustments provided for in this Warrant. The foregoing provisions of this Section 8 shall similarly apply to successive reclassifications, capital reorganizations and changes of shares of Common Stock and to successive consolidations, mergers, sales or conveyances.In the event that in connection with any such capital reorganization, or classification, consolidation, merger, sale or conveyance, additional shares of Common Stock shall be issued in exchange, conversion, substitution or payment, in whole or in part, for, or of, a security of the Company other than Common Stock, any such issue shall be treated as an issue of Common Stock covered by the provisions of Section 6 hereof. Section 9. Duty to Make Fair Adjustments in Certain Cases. If any event occurs as to which, in the reasonable opinion of either the Board of Trustees of the Company or a majority of the holders of the warrants then outstanding under this Warrant, the Repayment Warrants and the Warrant to be issued to SSI as part of the SSI/TNC Transaction (the "SSI Warrant"), the 11 provisions of Section 6 and Section 8 hereof are not strictly applicable or, if strictly applicable, would not fairly protect the purchase rights of such warrants in accordance with the essential intent and principles of such provisions, then the Board of Trustees of the Company and a majority of the holders of the warrants then outstanding under this Warrant, the Repayment Warrants and the SSI Warrant shall mutually agree upon an adjustment in the application of such provisions, in accordance with such essential intent and principles, so as to protect such purchase rights as aforesaid. Section 10. Transfer to Comply with the Securities Act of 1933; Registration Rights. (a) No sale, transfer, assignment, hypothecation or other disposition of this Warrant or of the Warrant Shares shall be made if such sale, transfer, assignment, hypothecation or other disposition would result in a violation of the Act, or any state securities laws. Upon exercise of this Warrant, the Holder shall, if requested by the Company, confirm in writing, in a form reasonably satisfactory to the Company, that the shares of Common Stock so purchased are being acquired solely for the Holder's own account, and not as a nominee thereof, for investment, and not with a view toward distribution or resale, except as permitted by the Act, and shall provide such other information to the Company as the Company may reasonably request. Any Warrant and any Warrants issued upon substitution for, or upon assignment or transfer of this Warrant, as the case may be, and all shares of Common Stock issued upon exercise hereof or conversion thereof shall bear a legend (in addition to any legend required by state securities laws) in substantially the form set forth on the first page of this Warrant, unless and until such securities have been transferred pursuant to an effective registration statement under the Act or may be freely sold to the public pursuant to Rule 144 (or any successor rule thereto) or otherwise. (b) The Holder and any transferee of the Warrant or the Warrant Shares issuable hereunder shall have the right to require the Company to register the Warrant Shares with the Securities and Exchange Commission for resale as contemplated by Section 3.2.9 of the Loan and Securities Purchase Agreement dated the date hereof between the Company and the Holder. Section 11. Modification and Waiver. Neither this Warrant nor any term hereof may be changed, waived, discharged or terminated other than by an instrument in writing signed by the Company and by the Holder hereof. Section 12. Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder hereof or the Company shall be delivered or shall be sent by certified mail, postage prepaid, or by overnight courier to each such Holder at its address as shown on the books of the Company or to the Company at the address indicated therefor in the first paragraph of this Warrant. Section 13. Descriptive Headings and Governing Law. The description headings of the several sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this Warrant. This 12 Warrant shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of Maryland. Section 14. No Impairment. The Company will not knowingly avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by it, but will at all times in good faith assist in the carrying out of all of the provisions of this Warrant. Section 15. Non-Recourse. No recourse shall be had for any obligation of the Company hereunder, or for any claim based thereon or otherwise in respect thereof, against any past, present or future trustee, shareholder, officer or employee of the Company, whether by virtue of any statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such other liability being expressly waived and released by each other party hereto. IN WITNESS WHEREOF, the Company has duly caused this Warrant to be signed by its duly authorized officer and to be dated as of June 21, 1996. BRANDYWINE REALTY TRUST By: /s/ Gerard H. Sweeney ---------------------- Title: President ---------------------- 13 PURCHASE FORM Dated: The undersigned hereby irrevocably elects to exercise the within Warrant to purchase _____________ shares of Common Stock and hereby makes payment of ___________________________ in payment of the exercise price thereof. Signature 13 ASSIGNMENT FORM Dated: FOR VALUE RECEIVED, hereby sells, assigns and transfers unto (the "Assignee"), (please type or print in block letters) (insert address) its right to purchase up to shares of Common Stock represented by this Warrant and does hereby irrevocably constitute and appoint _______________________________ Attorney, to transfer the same on the books of the Company, with full power of substitution in the premises. Signature EX-7.8 5 RICHARD M. OSBORNE TRUST 13D/A EX-7.8 Exhibit 7.8 EXHIBIT D REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT (the "Agreement") made and entered into as of this th day of , 1996 by and among BRANDYWINE REALTY TRUST, a Maryland real estate investment trust (the "Company"), SAFEGUARD SCIENTIFICS (DELAWARE), INC., a Delaware corporation ("SSI"), THE NICHOLS COMPANY, a Pennsylvania corporation ("TNC"), and the TURKEY VENTURE FUND XIII, LTD., an Ohio limited liability company of which Richard M. Osborne is the manager ("TVF XIII"). BACKGROUND Pursuant to a Stock and Warrant Purchase Agreement, dated , 1996 (the "SSI Agreement"), by and between the Company and Safeguard Scientifics, Inc., a Pennsylvania corporation, the Company has issued to SSI 775,000 (the "SSI Shares") of the Company's common shares of beneficial interest (the "Common Stock") and a Warrant to purchase an additional 775,000 shares of Common Stock (the "SSI Warrant"). Pursuant to a Loan and Securities Purchase Agreement, dated June 21, 1996, by and between the Company and TVF XIII (a) the Company has issued to TVF XIII 59,949 shares (the "Initial TVF XIII Shares") of the Company's Common Stock and a warrant to purchase an additional 59,949 shares of Common Stock (the "Initial TVF XIII Warrant") and (b) TVF XIII has made a loan to the Company that in accordance with the terms of said agreement may be repaid with additional shares of the Company's Common Stock (the "Additional TVF XIII Shares" and together with the Initial TVF XIII Shares, the "TVF XIII Shares") and additional warrants to purchase additional shares of the Company's Common Stock (the "Additional TVF XIII Warrant" and, together with the Initial TVF XIII Warrant, the "TVF XIII Warrants") (the TVF XIII Warrants, together with the SSI Warrant, the "Warrants"). In connection with the SSI Agreement, the Company has acquired, either directly or indirectly, a general partnership interest in Brandywine Operating Partnership, L.P., a Delaware limited partnership (the "Partnership"), and SSI, TNC and certain other persons listed on Schedule A hereto (the "Other Purchasers") have received units of Class A Limited Partnership Interest in the Partnership in exchange for certain interests in real property and other assets contributed by them to the Partnership. These units are redeemable, on a one-for-one basis, subject to adjustment, for shares of Common Stock upon the satisfaction of certain conditions, as provided in the Agreement of Limited Partnership of even date herewith creating the Partnership (the "Partnership Agreement"). To induce SSI, TNC, the Other Purchasers and TVF XIII to enter into the foregoing transactions, the Company has agreed to provide them with the registration rights set forth in this agreement. 2 1. CERTAIN DEFINITIONS. In addition to the other terms defined in this Agreement, the following terms shall be defined as follows: "Brokers Transactions" has the meaning ascribed to such term pursuant to Rule 144 under the Securities Act. "Business Day" means any day on which the New York Stock Exchange ("NYSE") is open for trading. "Closing Date" means , 1996. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the relevant time. "Fair Market Value" means: (a) If the Registrable Security is listed on a national securities exchange or admitted to unlisted trading privileges on such exchange or listed for trading on The NASDAQ Stock Market, the fair market value shall be the last reported sale price of the Registrable Security on such exchange or system on the last business day prior to the date the determination of fair market value is made, or if no such sale is made on such day, the average closing bid and asked prices of the Registrable Security for such day on such exchange or system; or (b) If the Registrable Security is not so listed or admitted to unlisted trading privileges, the fair market value shall be the mean of the last reported bid and asked prices reported by the National Quotation Bureau, Inc., on the last business day prior to the date the determination of fair market value is made; or (c) If the Registrable Security is not so listed or admitted to unlisted trading privileges and bid and asked prices are not so reported, the fair market value per share shall be an amount, not less than 90% of the book value per share of the Registrable Security as at the end of the most recent fiscal year of the Company ending prior to the date the determination of fair market value is made, determined in such reasonable manner as may be prescribed in good faith by the Board of Trustees of the Company. "Holders" means SSI, TNC, TVF XIII and the Other Purchasers listed on Schedule A hereto, for so long as (and to the extent that) each owns any Registrable Securities, and each of their respective successors, assigns, and direct and indirect transferees who become registered owners of Registrable Securities or securities exercisable, exchangeable or convertible into Registrable Securities. "Outstanding" means with respect to any securities as of any date, all such securities theretofore issued, except any such securities theretofore 3 converted, exercised or canceled or held by the issuer or any successor thereto (whether in its treasury or not) or any affiliate of the issuer or any successor thereto. "Registrable Security(ies)" means (i) the SSI Shares, (ii) the TVF XIII Shares, (iii) all or any portion of any shares of Common Stock of the Company that may be issued upon the exercise of, or in exchange for, the Warrants, (iv) any shares of Common Stock or other equity securities of the Company that may be issued in redemption of any Units under the Partnership Agreement, and (v) any additional shares of Common Stock or other equity securities of the Company issued or issuable after the Closing Date in respect of any such securities (or other equity securities issued in respect thereof) by way of a stock dividend or stock split, in connection with a combination, exchange, reorganization, recapitalization or reclassification of Company securities, or pursuant to a merger, division, consolidation or other similar business transaction or combination involving the Company; provided that in the case of equity securities other than Common Stock such securities are registered under Section 12(b) or Section 12(g) of the Exchange Act; and further provided that: as to any particular Registrable Securities, such securities shall cease to constitute Registrable Securities (i) when a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of thereunder; or (ii) when and to the extent such securities are permitted to be publicly sold without limitation as to amount pursuant to Rule 144(k) (or any successor provision to such Rule) under the Securities Act or are otherwise freely transferrable to the public without further registration under the Securities Act; or (iii) when such securities shall have ceased to be issued and outstanding; or (iv) on the tenth anniversary of the date such securities were issued. In the case of clause (ii) of the foregoing sentence, the Company shall, if requested by the Holder or Holders thereof, have delivered to such Holder or Holders the written opinion of independent counsel to the Company to such effect. Any time this Agreement requires the vote or consent of the Holder of a "majority" or other stated percentage of the Registrable Securities, the term Registrable Securities shall, solely for purposes of calculating such vote, be deemed to include the Registrable Securities that could be issued under the Units and the Warrant and any other securities exercisable or exchangeable for, or convertible into, Registrable Securities. The term Registrable Securities shall not include the Units or the Warrants. "Person" means an individual, a partnership (general or limited), corporation, limited liability company, joint venture, business trust, cooperative, association or other form of business organization, whether or not regarded as a legal entity under applicable law, a trust (inter vivos or testamentary), an estate of a deceased, insane or incompetent person, a quasi-governmental entity, a government or any agency, authority, political subdivision or other instrumentality thereof, or any other entity. "Registration Expenses" means all expenses incident to the Company's performance of or compliance with the registration requirements set forth in this Agreement including, without limitation, the following: (i) the fees, 4 disbursements and expenses of the Company's counsel(s), accountants, and experts in connection with the registration under the Securities Act of Registrable Securities; (ii) all expenses in connection with the preparation, printing and filing of the registration statement, any preliminary prospectus or final prospectus, any other offering document and amendments and supplements thereto, and the mailing and delivering of copies thereof to the underwriters and dealers, if any; (iii) the cost of printing or producing any agreement(s) among underwriters, underwriting agreement(s) and blue sky or legal investment memoranda, any selling agreements, and any other documents in connection with the offering, sale or delivery of Registrable Securities to be disposed of; (iv) any other expenses in connection with the qualification of Registrable Securities for offer and sale under state securities laws, including the fees and disbursements of counsel for the underwriters in connection with such qualification and in connection with any blue sky and legal investment surveys; (v) the filing fees incident to securing any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of Registrable Securities to be disposed of and any blue sky registration or filing fees, and (vi) the fees and expenses incurred in connection with the listing of Registrable Securities on each securities exchange (or The NASDAQ Stock Market) on which Company securities of the same class are then listed; provided, however, that Registration Expenses with respect to any registration pursuant to this Agreement shall not include (x) expenses incurred by any Holder in connection with any offering, including the fees and expenses of counsel, accountants, and experts retained by such Holder (other than the fees and expenses of one counsel for the Holders as and to the extent provided in Section 11), (y) any underwriting discounts or commissions attributable to Registrable Securities, or (z) any SEC registration or filing fees attributable to Registrable Securities or transfer taxes applicable to Registrable Securities. "SEC" means the United States Securities and Exchange Commission, or such other federal agency at the time having the principal responsibility for administering the Securities Act. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the relevant time. "Shelf Registration Statement" means a Shelf Registration Statement of the Company pursuant to the provisions of Section 2(b) of this Agreement which covers Common Stock on an appropriate form then permitted by the SEC to be used for such registration and the sales contemplated to be made thereby, under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such Registration Statement, including pre and post-effective amendments thereto, in each case including the prospectus contained therein, all exhibits thereto and all material incorporated by reference therein. "Shelf Registration" means a registration of Common Stock effected pursuant to Section 2(b) hereof. 5 "Trading Day" means a day on which the principal securities exchange or stock market on which the applicable security is traded is open for the transaction of business. "Unit" means any unit of Class A Limited Partnership Interest in the Partnership and any securities which may be issued in respect thereof or exchange therefor in connection with any combination, consolidation, merger, recapitalization, or other similar transaction. 2. DEMAND REGISTRATION; SHELF REGISTRATION. (a) (i) A Holder or Holders may request at any time (by written notice delivered to the Company) that the Company register under the Securities Act all or any portion of the Registrable Securities held by (or then issuable to) such Holder or Holders (the "Requesting Holders"), representing in the aggregate not less than twenty percent of the Registrable Securities, for sale in the manner specified in such notice (including, but not limited to, an underwritten public offering); provided, however, that no such request may be made without the written consent of SSI and TVF XIII at any time when SSI or TVF XIII would be prohibited from selling Registrable Securities pursuant to an effective registration statement under the Securities Act by the terms of the Agreement, dated June 21, 1996, between the Company and SSI, or the Agreement, dated March 20, 1996, among the Company, the Richard M. Osborne Trust and Richard M. Osborne, as the case may be. In each such case, such notice shall specify the number of Registrable Securities for which registration is requested, the proposed manner of disposition of such securities, and the minimum price per share at which the Requesting Holders would be willing to sell such securities in an underwritten offering. The Company shall, within five (5) Business Days after its receipt of any Requesting Holders' notice under this Section 2(a)(i), give written notice of such request to all other Holders of Registrable Securities and afford them the opportunity of including in the requested registration statement such of their Registrable Securities as they shall specify in a written notice given to the Company within twenty (20) days after their receipt of the Company's notice. Within ten (10) Business Days after the expiration of such twenty (20) day period, the Company shall notify all Holders requesting registration of (A) the aggregate number of Registrable Securities proposed to be registered by all Holders, (B) the proposed filing date of the registration statement, and (C) such other information concerning the offering as any Holder may have reasonably requested. If the Holders of a majority in aggregate amount of the Registrable Securities to be included in such offering shall have requested that such offering be underwritten, the managing underwriter for such offering shall be chosen by the Holders of a majority in aggregate amount of the Registrable Securities being registered, with the consent of the Company, which consent shall not be unreasonably withheld, not less than thirty (30) days prior to the proposed filing date stated in the Company's notice, and the Company shall thereupon promptly notify such Holders as to the identity of the managing underwriter, if any, for the offering. On or before the 30th day prior to such anticipated filing date, any Holder may give written notice to the Company and the managing underwriter specifying either that (A) Registrable Securities of such Holder are to be included in the underwriting, on the same terms and 6 conditions as the securities otherwise being sold through the underwriters under such registration or (B) such Registrable Securities are to be registered pursuant to such registration statement and sold in the open market without any underwriting, on terms and conditions comparable to those normally applicable to offerings in reasonably similar circumstances, regardless of the method of disposition originally specified in Holder's request for registration. (ii) The Company shall use its commercially reasonable best efforts to file with the SEC within eighty (80) days (thirty (30) days if the Company may use a Registration Statement on Form S-3 to register such Registrable Securities) after the Company's receipt of the initial Requesting Holders' written notice pursuant to Section 2(a)(i), a registration statement for the public offering and sale, in accordance with the method of disposition specified by such Holders, of the number of Registrable Securities specified in such notice, and thereafter use its commercially reasonably best efforts to cause such registration statement to become effective within sixty (60) days after its filing. Such registration statement may be on Form S-1 or another appropriate form (including Form S-3) that the Company is eligible to use and that is reasonably acceptable to the managing underwriter; provided, however, that if any Form other than Form S-1 is used in an underwritten offering, upon the request of the managing underwriter, or the selling shareholders, the prospectus included in the registration statement shall be amplified to include such additional information as such persons may reasonably request regarding the Company, its business and management (including, without limitation, the information called for by Items 101, 102, 103, 201, 202, 301 and 303 of Regulation S-K under the Securities Act). (iii) The Company shall not have any obligation hereunder (A) to permit or participate in more than two offerings pursuant to this Section 2(a), except as and to the extent provided by Section 7(b), or (B) to register any Registrable Securities under this Section 2(a) unless it shall have received requests from Holders to register at least 20% of the aggregate Registrable Securities issued at the date hereof. (iv) If the Company is required to use commercially reasonable best efforts to register Registrable Securities in a registration initiated upon the demand of any Holder pursuant to Section 2(a) of this Agreement and the managing underwriters for such offering advise that the inclusion of all securities sought to be registered by the Holders may interfere with an orderly sale and distribution of or may materially adversely affect the price of such offering, the aggregate number of Registrable Securities included by the Holders in such offering shall be reduced to a number which the managing underwriters advise will not likely have such effect and the maximum number of Registrable Securities able to be included in such offering by each Holder shall be reduced pro rata (in accordance with such Holder's proportionate share of the Fair Market Value of all Registrable Securities duly requested to be included in such registration). (b) At any time during the 60-day period following the end of any fiscal year of the Company, other than the fiscal year in which a registration statement is to be filed pursuant to Section 2(a), any Holder or Holders may 7 request in writing that the Company register under the Securities Act all or any portion of the Registrable Securities held by (or then issuable to) such Requesting Holders for sale pursuant to a Shelf Registration Statement; provided that any distribution or sale pursuant to any such Shelf Registration shall be limited to Brokers' Transactions. The Company shall, within five (5) Business Days after its receipt of any Requesting Holders' notice under this Section 2(b), give written notice of such request to all other Holders of Registrable Securities and afford them the opportunity of including in the requested Shelf Registration Statement such of their Registrable Securities as they shall specify in a written notice given to the Company within twenty (20) days after their receipt of the Company's notice. The Company shall thereupon use its commercially reasonable best efforts to file the Shelf Registration Statement with the SEC within sixty (60) days after its receipt of the initial Requesting Holders' notice and to cause such registration statement to be declared effective within sixty (60) days after its filing; provided, however, that the Company shall not be required (A) to effect more than one registration pursuant to this Section 2(b) in any fiscal year for Holders, or (B) to effect any registration pursuant to this Section 2(b) during the fiscal year during which Registrable Securities are registered pursuant to Section 2(a) of this Agreement, or (C) to register any Registrable Securities under this Section 2(b) unless it shall receive requests from Holders to register at least 10% of the aggregate Registrable Securities issued at the date hereof. The Company shall use its commercially reasonable best efforts to keep such Shelf Registration Statement (or, if required hereunder, a successor Shelf Registration Statement filed pursuant to Section 2(d) below) continuously effective in order to permit the prospectus forming a part thereof to be usable by Holders of Registrable Securities until all securities included in such Shelf Registration Statement have ceased to be Registrable Securities (the "Lapse Date"). (c) Notwithstanding any other provision of this Agreement, the Company shall have the right to defer the filing or effectiveness of a registration statement relating to any registration requested under Section 2(a) for a reasonable period of time not to exceed 180 days if (x) the Company is, at such time, working on an underwritten, primary public offering of its securities and is advised by its managing underwriter(s) that such offering would in its or their opinion be materially adversely affected by such filing; or (y) a prior registration statement of the Company for an underwritten, primary public offering by the Company of its securities was declared effective by the SEC less than 120 days prior to the anticipated effective date of the requested registration. (d) If the Company is precluded by Rule 415 or any other applicable rule under the Securities Act from including all Registrable Securities in any Shelf Registration or from keeping any Shelf Registration Statement continuously effective from the filing date thereof through the Lapse Date, the Company shall file such additional or further Shelf Registration Statements, as may be required, so that, subject to the other provisions of this Agreement, all Registrable Securities requested to be included are included on a 8 continuously effective Shelf Registration Statement for substantially all of the period from the filing date of the first Shelf Registration Statement through the Lapse Date. (e) Neither the Company nor any Person other than a Holder shall be entitled to include any securities held by it or him in any underwritten offering pursuant to Section 2(a) of this Agreement. (f) No registration of Registrable Securities under this Article 2 shall relieve the Company of its obligation (if any) to effect registrations of Registrable Securities pursuant to Article 3. 3. INCIDENTAL REGISTRATION. (a) Until all securities subject to this Agreement have ceased to be Registrable Securities, if the Company proposes, other than pursuant to Article 2 hereof, to register any of its Common Stock or other securities issued by it having terms substantially similar to Registrable Securities or any successor securities (collectively, "Other Securities") for public sale under the Securities Act (whether proposed to be offered for sale by the Company or by any other Person) on a form and in a manner which would permit registration of Registrable Securities for sale to the public under the Securities Act, it will give prompt written notice (which notice shall specify the intended method or methods of disposition) to the Holders of its intention to do so, and upon the written request of any Holder delivered to the Company within fifteen (15) Business Days after the giving of any such notice (which request shall specify the number of Registrable Securities intended to be disposed of by such Holder) the Company will use its commercially reasonable best efforts to effect, in connection with the registration of the Other Securities, the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by Holders; provided, however, that: (i) if, at any time after giving such written notice of its intention to register Other Securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register such Other Securities, the Company may, at its election, give written notice of such determination to the Holders requesting registration and thereupon the Company shall be relieved of its obligation to register such Registrable Securities in connection with the registration of such Other Securities (but not from its obligation to pay Registration Expenses to the extent incurred in connection therewith as provided in Article 11), without prejudice, however, to the rights (if any) of the Holders to request that such registration be effected as a registration under Article 2; and (ii) the Company will not be required to effect any registration of Registrable Securities pursuant to this Article 3 in connection with a primary offering of securities by it if the Company shall have been advised in writing (with a copy to the Holders requesting registration) by a nationally recognized investment banking firm (which may be the managing underwriter for the offering) selected by the Company that, in such firm's opinion, a registration of Registrable Securities at that time may interfere 9 with an orderly sale and distribution of the securities being sold by the Company in such offering or materially and adversely affect the price of such securities; provided, however, that if an offering of some but not all of the Registrable Securities requested to be registered by the Holders and all other Persons having rights to include securities held by them in such registration would not adversely affect the distribution or price of the securities to be sold by the Company in the offering in the opinion of such firm or are included in such offering notwithstanding any such opinion, the Company shall only include such lesser amount of Registrable Securities and the aggregate number of Registrable Securities to be included in such offering by each Holder shall be allocated pro rata among the Holders requesting such registration on the basis of the percentage of the Registrable Securities held by such Holders which have requested that such Registrable Securities be included; and (iii) The Company shall not be required to give notice of, or effect any registration of Registrable Securities under this Article 3 incidental to, the registration of any of its securities in connection with mergers, consolidations, acquisitions, exchange offers, subscription offers, dividend reinvestment plans or stock options or other employee benefit or compensation plans. (b) No registration of Registrable Securities effected under this Article 3 shall relieve the Company of its obligations (if any) to effect registrations of Registrable Securities pursuant to Article 2. 4. HOLDBACKS AND OTHER RESTRICTIONS. (a) Each Holder hereby covenants and agrees with the Company that: (i) such Holder shall not, if requested by the managing underwriters in an underwritten offering that includes such Holder's Registrable Securities, effect any public sale or distribution of securities of the Company of the same class as the securities included in such registration statement (or convertible into such class), including a sale pursuant to Rule 144(k) under the Securities Act (except as part of such underwritten registration): (A) during the ten (10) day period prior to, and during the ninety 90-day period (or such longer period of not more than one hundred eighty (180) days if such longer period is also required of the Company and all other Persons having securities included in such registration) beginning on the closing date of each underwritten offering made pursuant to such registration statement, to the extent timely notified in writing by the Company or the managing underwriters; and (B) in the event of a primary offering by the Company, to the extent such Holder does not elect to sell such securities in connection with such offering, during the period of distribution of the Company's securities in such offering and during the period in which the underwriting syndicate, if any, participates in the aftermarket. In any such case the Company shall require the underwriters to notify the Company and the Company, in turn, shall notify all Holders of Registrable Securities included in the offering promptly after such participation ceases; (ii) such Holder shall not, during any period in which any of his or its Registrable Securities are included in any effective registration 10 statement: (A) effect any stabilization transactions or engage in any stabilization activity in connection with the Common Stock or other equity securities of the Company in contravention of Rule 10b-7 under the Exchange Act; (B) permit any Affiliated Purchaser (as that term is defined in Rule 10b-6 under the Exchange Act) to bid for or purchase for any account in which such Holder has a beneficial interest, or attempt to induce any other person to purchase, any shares of Common Stock or Registrable Securities in contravention of Rule 10b-6 under the Exchange Act; or (C) offer or agree to pay, directly orindirectly, to anyone any compensation for soliciting another to purchase, or for purchasing (other than for such Holder's own account), any securities of the Company on a national securities exchange in contravention of Rule 10b-2 under the Exchange Act; and (iii) such Holder shall, in the case of a registration including Registrable Securities to be offered by it for sale through Brokers Transactions furnish each broker through whom such Holder offers Registrable Securities such number of copies of the prospectus as the broker may require and otherwise comply with the prospectus delivery requirements under the Securities Act. (b) The Company covenants and agrees with the Holders not to effect any public or private sale or distribution (other than distributions pursuant to employee benefit plans) of its securities, including a sale pursuant to Regulation D under the Securities Act (or Section 4(2) thereof), during the ten (10) day period prior to, and during the ninety (90) day period beginning with, the effectiveness of a Registration Statement filed under Section 2(a) hereof, to the extent timely requested in writing by the managing underwriters, if any, or, if there be none, by the Holders of a majority in aggregate amount of the Registrable Securities included on such registration statement for such registration, except pursuant to registrations on Form S-4, Form S-8 or any successor form. 5. REGISTRATION PROCEDURES. If and whenever the Company is required by the provisions of this Agreement to use commercially reasonable best efforts to effect or cause a registration as provided in this Agreement, the Company will: (a) Use its commercially reasonable best efforts to prepare and file with the SEC, a registration statement within the time periods specified herein, and use its commercially reasonable best efforts to cause such registration statement to become effective as promptly as practicable and to remain effective under the Securities Act until (i) the Lapse Date with respect to registrations pursuant to Section 2(b) and (ii) until the earlier of such time as all securities covered thereby are no longer Registrable Securities or one hundred and eighty (180) days after such registration statement becomes effective with respect to registrations pursuant to Section 2(a), in every case as any such period may be extended pursuant to Section 5(h) or Article 7 hereto. 11 (b) Prepare and file with the SEC such amendments, post-effective amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for such period of time required by Section 5(a) above, as such period may be extended pursuant to Section 5(h) or Article 7 hereto. (c) Comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during the period during which any such registration statement is required to be effective. (d) Furnish to any Holder and any underwriter of Registrable Securities, (i) such number of copies (including manually executed and conformed copies) of such registration statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (ii) such number of copies of the prospectus, used in connection with such registration statement (including each preliminary prospectus, any summary prospectus and the final prospectus), and (iii) such number of copies of other documents, in each case as such Holder or such underwriter may reasonably request. (e) Use its commercially reasonable best efforts to register or qualify all Registrable Securities covered by such registration statement under the securities or "blue sky" laws of states of the United States as any Holder or any underwriter shall reasonably request, and do any and all other acts and things which may be reasonably requested by such Holder or such underwriter to consummate the offering and disposition of Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business as a foreign corporation or as a dealer in securities, subject itself to taxation, or consent to general service of process in any jurisdiction wherein it is not then so qualified or subject. (f) Use, as soon as practicable after the effectiveness of the registration statement, commercially reasonable best efforts to cause the Registrable Securities covered by such registration statement to be registered with, or approved by, such other United States public, governmental or regulatory authorities, if any, as may be required in connection with the disposition of such Registrable Securities. (g) Use its commercially reasonable best efforts to list the Common Stock covered by such registration statement on any securities exchange (or if applicable, The NASDAQ Stock Market) on which any securities of the Company is then listed, if the listing of such Registrable Securities are then permitted under the applicable rules of such exchange (or if applicable, The NASDAQ Stock Market). (h) Notify each Holder as promptly as practicable and, if requested by any Holder, confirm such notification in writing, (i) when a prospectus or any prospectus supplement has been filed with the SEC, and, with respect to a registration statement or any post-effective amendment thereto, when the same has been declared effective by the SEC, (ii) of the issuance by the SEC of any 12 stop order or the coming to the Company's attention of the initiation of any proceedings for such or a similar purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (iv) of the occurrence of any event which requires the making of any changes to a registration statement or related prospectus so that such documents will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (and the Company shall promptly prepare and furnish to each Holder a reasonable number of copies of a supplemented or amended prospectus such that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include 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 are made, not misleading), and (v) of the Company's determination that the filing of a post-effective amendment to the Registration Statement shall be necessary or appropriate. Upon the receipt of any notice from the Company of the occurrence of any event of the kind described in clause (iv) or (v) of this Section 5(h), the Holders shall forthwith discontinue any offer and disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until all Holders shall have received copies of a supplemented or amended prospectus which is no longer defective and, if so directed by the Company, shall deliver to the Company, at the Company's expense, all copies (other than permanent file copies) of the defective prospectus covering such Registrable Securities which are then in the Holders' possession. If the Company shall provide any notice of the type referred to in the preceding sentence, the period during which the registration statements are required to be effective as set forth under Section 5(a) shall be extended by the number of days from and including the date such notice is provided, to and including the date when Holders shall have received copies of the corrected prospectus. (i) Enter into such agreements and take such other appropriate actions as are customary and reasonably necessary to expedite or facilitate the disposition of such Registrable Securities, and in that regard, deliver to the Holders such documents and certificates as may be reasonably requested by any Holder of the Registrable Securities being sold or, as applicable, the managing underwriters, to evidence the Company's compliance with this Agreement including, without limitation, using commercially reasonable best efforts to cause its independent accountants to deliver to the Company's Board of Trustees (and to the Holders of Registrable Securities being sold in any registration) an accountants' comfort letter substantially similar to that in scope delivered in an underwritten public offering and covering audited and interim financial statements included in the registration statement or, if such letter can not be obtained through the exercise of commercially reasonable best efforts, cause its independent accountants to deliver to the Company's Board of Trustees (and to the Holders of Registrable Securities being sold in any registration) a comfort letter based on negotiated procedures providing comfort with respect to the Company's financial statements included or incorporated by reference in the registration statement at the highest level permitted to be given by such 13 accountants under the then applicable standards of the Association of Independent Certified Accountants with respect to such registration statement.In addition, the Company shall furnish to the Holders of Registrable Securities being included in any registration hereunder an opinion of counsel substantially identical in substance and scope to that customarily delivered to underwriters in public offerings. 6. UNDERWRITING. (a) If requested by the underwriters for any underwritten offering of Registrable Securities pursuant to a registration hereunder, the Company will enter into and perform its obligations under an underwriting agreement with the underwriters for such offering, such agreement to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, customary provisions relating to indemnities and contribution and the provision of opinions of counsel and accountants' letters. (b) If any registration pursuant to Article 3 hereof shall involve, in whole or in part, an underwritten offering, the Company may require Registrable Securities requested to be registered pursuant to Article 3 to be included in such underwriting on the same terms and conditions as shall be applicable to the securities being sold through underwriters under such registration. In such case, each Holder requesting registration shall be a party to any such underwriting agreement. Such agreement shall contain such representations and warranties by the Holders requesting registration and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, provisions relating to indemnities and contribution. (c) In any offering of Registrable Securities pursuant to a registration hereunder, each Holder requesting registration shall also enter into such additional or other agreements as may be customary in such transactions, which agreements may contain, among other provisions, such representations and warranties as the Company or the underwriters of such offering may reasonably request (including, without limitation, those concerning such Holder, its Registrable Securities, such Holder's intended plan of distribution and any other information supplied by it to the Company for use in such registration statement), and customary provisions relating to indemnities and contribution. 7. INFORMATION BLACKOUT. (a) At any time when a registration statement effected pursuant to Sections 2(a), 2(b) or 3 relating to Registrable Securities is effective, upon written notice from the Company to the Holders that the Company has determined in good faith that sale of Registrable Securities pursuant to the registration statement would require disclosure of non-public material information not otherwise required to be disclosed under applicable law having a material adverse effect on the Company (an "Information Blackout"), all Holders shall 14 suspend sales of Registrable Securities pursuant to such registration statement until the earlier of: (i) forty-five (45) days after the Company makes such good faith determination, and (ii) such time as the Company notifies the Holders that such material information has been disclosed to the public or has ceased to be material or that sales pursuant to such registration statement may otherwise be resumed (the number of days from such suspension of sales by the Holders until the day when such sale may be resumed hereunder is hereinafter called a "Sales Blackout Period"). (b) Any delivery by the Company of notice of an Information Blackout during the forty-five (45) days immediately following effectiveness of any registration statement effected pursuant to Section 2(a) hereof shall give the Holders of a majority in aggregate amount of Registrable Securities being sold the right, by written notice to the Company within twenty (20) Business Days after the end of such Sales Blackout Period, to cancel such registration, in which event the Holders shall have one additional registration right under the Section pursuant to which such registration was filed in such fiscal year (a "Blackout Termination Right"). (c) If there is an Information Blackout and the cancellation right, if any, pursuant to (b) above, is not available or exercised, the time period set forth in clause (ii) of Section 5(a) shall be extended for a number of days equal to the number of days in the Sales Blackout Period. (d) Notwithstanding the foregoing, there shall be no more than two (2) Information Blackouts during the term of this Agreement and no Sales Blackout Period shall continue for more than forty-five (45) consecutive days. 8. RULE 144. The Company shall use commercially reasonable best efforts to take all actions necessary to comply with the filing requirements described in Rule 144(c)(1) or any successor thereto so as to enable the Holders to sell Registrable Securities without registration under the Securities Act. Upon the written request of any Holder, the Company will deliver to such Holder a written statement as to whether it has complied with the filing requirements under Rule 144(c)(1) or any successor thereto. 9. PREPARATION; REASONABLE INVESTIGATION; INFORMATION. In connection with the preparation and filing of each registration statement registering Registrable Securities under the Securities Act, (a) the Company will give the Holders and the underwriters, if any, and their respective counsel and accountants, drafts of such registration statement for their review and comment prior to filing and (during normal business hours and subject to such reasonable limitations as the Company may impose to prevent 15 disruption of its business) such reasonable and customary access to its books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified its financial statements as shall be necessary, in the reasonable opinion of the Holders of a majority in aggregate amount of the Registrable Securities being registered and such underwriters or their respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act and (b) as a condition precedent to including any Registrable Securities of any Holder in any such registration, the Company may require such Holder to furnish the Company such information regarding such Holder and the distribution of such securities as the Company may from time to time reasonably request in writing or as shall be required by law or the SEC in connection with any registration; provided, however, that, upon the reasonable request of the supplier of any such information, the recipient thereof shall enter into a confidentiality agreement respecting such information in customary form for an underwritten public offering. 10. INDEMNIFICATION AND CONTRIBUTION. (a) In the case of each offering of Registrable Securities made pursuant to this Agreement, the Company shall indemnify and hold harmless each Holder, its officers, directors and trustees, each underwriter of Registrable Securities so offered and each Person, if any, who controls any of the foregoing Persons within the meaning of the Securities Act ("Holder Indemnitees"), from and against any and all claims, liabilities, losses, damages, expenses and judgments, joint or several, to which they or any of them may become subject, under the Securities Act or otherwise, including any amount paid in settlement of any litigation commenced or threatened, and shall promptly reimburse them, as and when incurred, for any legal or other expenses incurred by them in connection with investigating any claims and defending any actions, insofar as such losses, claims, damages, liabilities or actions shall arise out of, or shall be based upon, any violation or alleged violation by the Company of the Securities Act, or relating to action taken or action or inaction required of the Company in connection with such offering, or shall arise out of, or shall be based upon, any untrue statement or alleged untrue statement of a material fact contained in the registration statement (or in any preliminary or final prospectus included therein) relating to the offering and sale of such Registrable Securities, or any amendment thereof or supplement thereto, or in any document incorporated by reference therein, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that the Company shall not be liable to any Holder Indemnitee in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement, or any omission, if such statement or omission shall have been made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of such Holder specifically for use in the preparation of the registration statement (or in any preliminary or final prospectus included therein), or any amendment thereof or supplement thereto. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any Holder and shall survive the transfer of such securities. The 16 foregoing indemnity agreement is in addition to any liability which the Company may otherwise have to any Holder Indemnitee. (b) In the case of each offering of Registrable Securities made pursuant to this Agreement, each Holder, severally and not jointly, shall indemnify and hold harmless the Company, its officers and trustees, and each Person, if any, who controls any of the foregoing within the meaning of the Securities Act and (if requested by the underwriters) each underwriter who participates in the offering and each Person, if any, who controls any such underwriter within the meaning of the Securities Act (the "Company Indemnitees"), from and against any and all claims, liabilities, losses, damages, expenses and judgments, joint or several, to which they or any of them may become subject, under the Securities Act or otherwise, including any amount paid in settlement of any litigation commenced or threatened, and shall promptly reimburse them, as and when incurred, for any legal or other expenses incurred by them in connection with investigating any claims and defending any actions, insofar as any such losses, claims, damages, liabilities or actions shall arise out of, or shall be based upon, any violation or alleged violation by such Holder of the Securities Act, any blue sky laws, securities laws or other applicable laws of any state or country in which the Registrable Securities are offered and relating to action taken or action or inaction required of such Holder in connection with such offering, or shall arise out of, or shall be based upon, any untrue statement or alleged untrue statement of a material fact contained in the registration statement (or in any preliminary or final prospectus included therein) relating to the offering and sale of such Registrable Securities or any amendment thereof or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that such untrue statement is contained in, or such fact is omitted from, information furnished in writing to the Company by or on behalf of such Holder specifically for use in the preparation of such registration statement (or in any preliminary or final prospectus included therein). The liability of each Holder under such indemnity provision shall be limited to an amount equal to the total net proceeds received by such Holder from such offering. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company and shall survive the transfer of such securities. The foregoing indemnity is in addition to any liability which Holder may otherwise have to any Company Indemnitee. (c) In case any proceeding (including any governmental investigation) shall be instituted involving any Person in respect of which indemnity may be sought pursuant to this Article 10, such Person (the "indemnified party") shall promptly notify the Person against whom such indemnity may be sought (the "indemnifying party") in writing. No indemnification provided for in Section 10(a) or (b) shall be available to any person who shall fail to give notice as provided in this Section 10(c) if the indemnifying party to whom notice was not given was unaware of the proceeding to which such notice would have related and was prejudiced by the failure to give such notice, but the failure to give such notice shall not relieve the indemnifying party or parties from any liability which it or they may have to 17 the indemnified party for contribution or otherwise than on account of the provisions of Section 10(a) or (b). In case any such proceeding 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 reasonably satisfactory to such indemnified party and shall pay as incurred the fees and disbursements of such counsel related to such proceeding.In any such proceeding, any indemnified party shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the indemnifying party shall pay as incurred the fees and expenses of the counsel retained by the indemnified party in the event (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel, in the written opinion of such counsel, would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties. Such firm shall be designated in writing by the Holders of a majority in aggregate Fair Market Value of the then Outstanding Registrable Securities in the case of parties indemnified pursuant to Section 10(a) and by the Company in the case of parties indemnified pursuant to Section 10(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgement for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. (d) If the indemnification provided for in this Article 10 is unavailable to or insufficient to hold harmless an indemnified party under Section 10(a) or (b) above in respect of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein, or if the indemnified party failed to give the notice required under Section 10(c) above, then each indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) in proportion as is appropriate to reflect not only both the relative benefits received by such party (as compared to the benefits received by all other parties) from the offering in respect of which indemnity is sought, but also the relative fault of all parties in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by a party shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by it bear to the total amounts (including, in the case of any underwriter, underwriting commission and discounts) received by each other party. 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 relates to information 18 supplied by the party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contributions pursuant to this Section 10(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 10(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to above 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 subsection (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (e) The indemnity provided for hereunder shall not inure to the benefit of any indemnified party to the extent that such indemnified party failed to comply with the applicable prospectus delivery requirements of the Securities Act as then applicable to the person asserting the loss, claim, damage or liability for which indemnity is sought. 11. EXPENSES. In connection with any registration under this Agreement, the Company shall pay all Registration Expenses. In addition, in connection with each registration, the Company shall pay the reasonable fees and expenses of one counsel to represent the interests of the Holders selling Registrable Securities in such registration. Notwithstanding the foregoing, in the event that any Holder or Holders require the Company to conduct an underwritten public offering of Registrable Securities pursuant to Section 2(a) prior to 12 months after the date hereof, each such Holder or Holders shall pay its pro rata share of all Registration Expenses. 12. NOTICES. Except as otherwise provided below, whenever it is provided in this Agreement that any notice, demand, request, consent, approval, declaration or other communication shall or may be given to or served upon any of the parties hereto, or whenever any of the parties hereto, desires to provide to or serve upon the other party any other communication with respect to this Agreement, each such notice, demand, request, consent, approval, declaration or other communication shall be in writing and shall be delivered in person, mailed by registered or certified mail (return receipt requested) or sent by overnight courier service or via facsimile transmission (which is confirmed), as follows:(a) if to a Holder, at the most current address given by such Holder to the Company by means of a notice given in accordance with the provisions of this Section 12, which address initially is, with respect to: (i) SSI, the address set forth in the SSI Agreement, (ii) TNC, the address set forth in the Agreement of Limited Partnership for the Partnership, (iii) TVF XIII, 7001 19 Center Street, Mentor, Ohio 44060, facsimile number (216) 255-8645, (iv) all other holders, the address set forth in the register for the applicable security; and (b) if to the Company, initially at the address set forth in the SSI Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 12. The furnishing of any notice required hereunder may be waived in writing by the party entitled to receive such notice. Every notice, demand, request, consent, approval, declaration or other communication hereunder shall be deemed to have been duly furnished or served on the party to which it is addressed, in the case of delivery in person or by facsimile, on the date when sent (with receipt personally acknowledged in the case of telecopied notice), in the case of overnight mail, on the day after it is sent and in all other cases, five business days after it is sent. Failure or delay in delivering copies of any notice, demand, request, consent, approval, declaration or other communication to the persons designated above to receive copies shall in no way adversely affect the effectiveness of such notice, demand, request, consent, approval, declaration or other communication. 13. ENTIRE AGREEMENT. This Agreement represents the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes any and all prior oral and written agreements, arrangements and understandings among the parties hereto with respect to such subject matter; and this Agreement can be amended, supplemented or changed, and any provision hereof can be waived or a departure from any provision hereof can be consented to, only by a written instrument making specific reference to this Agreement signed by the Company and the Holders of at least 80% of the Registrable Securities then outstanding; provided that any amendment that adversely affects the rights of any Holder must be signed by the adversely affected Holder; provided further that any waiver must be signed by the party entitled to the benefit of the term or matter being waived. 14. PARAGRAPH HEADINGS. The paragraph headings contained in this Agreement are for general reference purposes only and shall not affect in any manner the meaning, interpretation or construction of the terms or other provisions of this Agreement. 15. APPLICABLE LAW. This Agreement shall be governed by, construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania applicable to contracts to be made, executed, delivered and performed wholly within such state and, in any case, without regard to the conflicts of law principles of such state. 16. SEVERABILITY. If at any time subsequent to the date hereof, any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, 20 void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon and shall not impair the enforceability of any other provision of this Agreement. 17. EQUITABLE REMEDIES. The parties hereto agree that irreparable harm would occur in the event that any of the agreements and provisions of this Agreement were not performed fully by the parties hereto in accordance with their specific terms or conditions or were otherwise breached, and that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of ascertaining and quantifying the amount of damage that will be suffered by the parties hereto in the event that this Agreement is not performed in accordance with its terms or conditions or is otherwise breached. It is accordingly hereby agreed that the parties hereto shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of this Agreement by the other parties and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, such remedy being in addition to and not in lieu of, any other rights and remedies to which the other parties are entitled to at law or in equity. 18. NO WAIVER. The failure of any party at any time or times to require performance of any provision hereof shall not affect the right at a later time to enforce the same. No waiver by any party of any condition, and no breach of any provision, term, covenant, representation or warranty contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be construed as a further or continuing waiver of any such condition or of the breach of any other provision, term, covenant, representation or warranty of this Agreement. 19. COUNTERPARTS. 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 but one and the same original instrument. 20. THIRD PARTY BENEFICIARIES; SUCCESSORS AND ASSIGNS. The Other Purchasers shall be third party beneficiaries of this Agreement. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties hereto and of each of the Other Purchasers, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the SSI Agreement, the Warrant, the Units, the Agreement of Limited Partnership of the Partnership or applicable law. If any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by operation of law or otherwise, such Registerable Securities shall be held subject to all of the terms of this 21 Agreement, and by taking and holding such Registrable Securities such person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement. 21. NON-RECOURSE. No recourse shall be had for any obligation of the Company hereunder, or for any claim based thereon or otherwise in respect thereof, against any past, present or future trustee, shareholder, officer or employee of the Company, whether by virtue of any statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such other liability being expressly waived and released by each other party hereto. IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date first above written. BRANDYWINE REALTY TRUST By: Title: SAFEGUARD SCIENTIFICS (DELAWARE), INC. By: Title: THE NICHOLS COMPANY By: Title: TURKEY VULTURE FUND XIII, LTD. By: 22 Schedule A OTHER PURCHASERS Brian F. Belcher Jack R. Loew Craig C. Hough RDC Institute, Inc. Gary C. Bender Lotz Designers Engineers and Constructors, Inc. Werner A. Fricker C/N Oaklands III, Inc.** Iron Run V, Inc.** C/N Iron Run III, Inc.** C/N Leedom II, Inc.* ________________________ * Wholly-owned subsidiary of Safeguard Scientifics, Inc. ** Wholly-owned subsidiary of The Nichols Company. EX-7.9 6 RICHARD M. OSBORNE TRUST 13D/A EX-7.9 EXHIBIT 7.9 AGREEMENT OF JOINT FILING Pursuant to Rule 13d-1(f) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned persons hereby agree to file with the Securities and Exchange Commission, the Statement on Schedule 13D (the "Statement") to which this Agreement is attached as an exhibit, and agree that such Statement, as so filed, is filed on behalf of each of them. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original, and all of which together shall be deemed to constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned have executed this Agreement. Dated: June 21, 1996 TURKEY VULTURE FUND XIII, LTD. By: /s/ Richard M. Osborne Richard M. Osborne Manager THE RICHARD M. OSBORNE TRUST By: /s/ Richard M. Osborne Richard M. Osborne Trustee -----END PRIVACY-ENHANCED MESSAGE-----