FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of _________ __, 2004, is
entered into by and among BRANDYWINE REALTY TRUST, a Maryland real estate
investment trust (the "Trust"), BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership (the "Partnership"), and TRC ASSOCIATES LIMITED, a
Delaware limited partnership (an "Investor"). The term "Investor" shall include
any permitted transferees of the OP Units.
RECITALS
WHEREAS, the Investor has caused to be contributed certain partnership
interests in The Xxxxxxxxxx Company, L.P., to the Partnership in exchange for
units of limited partnership interests ("Units") in the Partnership in
accordance with the terms of that certain Contribution Agreement, dated as of
August 18, 2004, by and among the Partnership, the Trust, the Investor, TRC
Realty, INC.-GP and TRC-LB LLC (the "Contribution Agreement");
WHEREAS, pursuant to the Partnership Agreement (as defined below), the
Units will be redeemable for cash or common shares of beneficial interest, par
value $.01 per share, of the Trust (the "Common Shares") upon the terms and
subject to the conditions contained therein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. In addition to the definitions set forth above, the
following terms, as used herein, have the following meanings:
"Agreement" means this Registration Rights Agreement, as it may be
amended, supplemented or restated from time to time.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized by law to close.
"Commission" means the United States Securities and Exchange
Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of November 18, 1997, as
previously amended and as the same may hereafter be amended, modified or
restated from time to time.
"Person" means an individual or a corporation, partnership, limited
liability company, association, trust, or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Registrable Securities" means any Common Shares issued or issuable
upon any redemption of Units issued pursuant to the Contribution Agreement;
provided that such Common Shares shall cease to constitute Registrable
Securities once: (i) a registration statement covering such Common Shares has
been declared effective by the Commission and such Common Shares have been sold
or transferred pursuant to such effective registration statement, (ii) such
Common Shares may be sold pursuant to Rule 144(k) under the Securities Act or
(iii) such Common Shares have been otherwise transferred in a transaction that
would constitute a sale thereof under the Securities Act, the Trust has
delivered a new certificate or other evidence of ownership for such Common
Shares not bearing the Securities Act restricted stock legend and such Common
Shares may be resold without subsequent registration under the Securities Act.
"Registration Expenses" means all expenses incident to the Trust's
performance of or compliance with Article 2, including, without limitation, all
registration and filing fees, all listing fees, all fees and expenses of
complying with securities or blue sky laws, and printing expenses, the fees and
disbursements of counsel for the Trust and of the Trust's independent public
accountants, but excluding fees and disbursements of counsel, accountants or
other advisors for the Investor and excluding any brokerage discounts,
underwriting commissions or similar fees payable in connection with an offer or
sale of Registrable Securities.
"Rule 144" means Rule 144 under the Securities Act, as amended from
time to time (or any successor statute).
"Securities Act" means the Securities Act of 1933, as amended.
2. Registration Rights.
2.1 Registration on Demand.
2.1.1 Registration of Registrable Securities. Subject to
Sections 2.1.3 and 2.1.6, within 180 days after the date hereof the Trust shall
prepare and file with the Commission a "shelf" registration statement under the
Securities Act covering the offer and sale of the Registrable Securities by the
Investor in an offering to be made on a continuous basis pursuant to Rule 415
under the Securities Act.
2.1.2 Registration of Other Securities. Whenever the Trust shall
effect a registration pursuant to this Section 2.1, other holders of securities
of the Trust who have registration rights may include all or a portion of such
securities in such registration, offering or sale; provided that including such
securities shall not adversely impact the ability of the Investor to sell its
shares pursuant to such registration.
2.1.3 Registration Statement Form S-3. Registrations under this
Section 2.1 shall only be required to be made on Form S-3, or any successor
form. In the event the Trust is not eligible to use Form S-3 to register the
Registrable Securities, it may delay the filing of the applicable registration
statement until that date on which the Trust is again eligible to file a Form
S-3. The Trust hereby represents and warrants to the Investor that, as of the
date hereof, the Trust is eligible to register the Registrable Securities on
Form S-3 and that it shall take all actions necessary to continue to be eligible
for use of Form S-3.
2.1.4 Expenses. The Trust shall pay the Registration Expenses in
connection with the registration effected pursuant to this Section 2.1. If a
registration pursuant to this Section 2.1 is withdrawn or otherwise not
effected, other than at the request of the Investor, the Trust shall pay the
Registration Expenses in connection therewith. If the registration is withdrawn
at the request of the Investor and if the Investor elects not to have such
registration count as one of its registrations under this Section 2.1, the
Investor shall pay all the Registration Expenses of such registration.
2
2.1.5 Effective Registration Statement. A registration pursuant
to this Section 2.1 shall not be deemed to have been effected (i) unless a
registration statement with respect thereto has been declared effective by the
Commission or (ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason and has not
thereafter become effective.
2.1.6 Limitations on Registration on Demand.
(i) In no event shall the Trust be required to effect more
than three registrations pursuant to this Section 2.1.
(ii) Notwithstanding anything herein, if the Trust
reasonably believes that the filing of a registration statement with the
Commission would adversely affect the contemplated activities of the Trust, then
the Trust may postpone the filing of the applicable registration statement for a
period not in excess of 60 days or, in the event the filing is being postponed
in connection with a proposed underwritten public offering of the Trust's
securities, for such longer period (not to exceed an additional 30 days) as may
be reasonably requested by the managing underwriter for such proposed offering.
(iii) Notwithstanding anything herein, if the filing of a
registration statement pursuant to this Agreement would require the Trust to
include in a filing with the Commission financial statements of probable or
completed acquisitions in order that such registration statement be in
compliance with rules and regulations of the Commission, then the Trust may
delay the filing of such registration statement until it has included the
requisite financial statements (including any necessary pro forma financial
information) in a filing with the Commission.
2.2 Registration Procedures.
2.2.1 In connection with the registration of any Registrable
Securities under the Securities Act as provided in Section 2.1, the Trust shall
as promptly as reasonably practicable:
(i) prepare and file with the Commission the requisite
registration statement to effect such registration and thereafter use
commercially reasonable efforts to cause such registration statement to become
and remain effective;
(ii) use commercially reasonable efforts to prepare and
file with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement until all of such Registrable Securities
have been sold thereunder;
(iii) furnish to the Investor such number of conformed
copies of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under Rule
424 under the Securities Act, in conformity with the requirements of the
Securities Act, and such number of copies of such other documents as the
Investor may reasonably request;
3
(iv) use commercially reasonable efforts (x) to register
or qualify all Registrable Securities under such other securities or Blue Sky
laws of such States of the United States of America where an exemption is not
available and as the Investor shall reasonably request, (y) to keep such
registration or qualification in effect for so long as such registration
statement remains in effect, and (z) to take any other action which may
reasonably be necessary or advisable to enable the Investor to consummate the
disposition in such jurisdictions of the Registrable Securities to be sold by
the Investor, except that the Trust shall not for any such purpose be required
to qualify generally to do business as a foreign trust in any jurisdiction
wherein it would not, but for the requirements of this paragraph (iv), be
obligated to be so qualified or to consent to general service of process in any
such jurisdiction;
(v) notify the Investor upon discovery that, or upon the
happening of any event as a result of which, the prospectus included in the
registration statement filed pursuant to this agreement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, in the light of the circumstances under which they were made,
and promptly prepare and furnish to the Investor such number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such 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
not misleading in the light of the circumstances under which they were made;
(vi) use commercially reasonable efforts to list all
Registrable Securities covered by such registration statement on any national
securities exchange or over-the-counter market, if any, on which Registrable
Securities covered by such registration statement are then listed.
The Investor agrees that upon receipt of any notice from the Trust of
the happening of an event of the kind described in Section 2.2.1(v), the
Investor shall forthwith discontinue its disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until the Investor's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 2.2.1(v).
2.3 Holdback Agreements; Information Blackout.
2.3.1 Holdback Agreements. In connection with an underwritten
public offering of securities of the Trust, the Investor agrees that, if
required by the underwriter or underwriters, it will not effect any public sale
or distribution, including any sale pursuant to Rule 144 under the Securities
Act, of any Registrable Securities, during the period commencing 10 days prior
to the expected commencement of the offering and ending 45 days after the
closing of such offering.
2.3.2 Information Blackout. At any time when a registration
statement effected pursuant to this Section 2 relating to Registrable Securities
is effective, upon written notice from the Trust to the Investor that the Trust
has determined in good faith that sale of Registrable Securities pursuant to the
registration statement would require disclosure by the Trust of non-public
material information not otherwise required, in the judgment of the Trust, to be
disclosed under applicable law, the Investor shall suspend sales of Registrable
Securities pursuant to such registration statement until the earlier of (a) 45
days after the Trust makes such good faith determination and (b) such time as
the Trust notifies the Investor 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.
2.4 Preparation; Investor Cooperation. In connection with the
preparation and filing of any registration statement under the Securities Act in
which the Investor is a selling shareholder, the Trust shall give the Investor
not less than 15 days prior written notice of the preparation of such
registration statement and give the Investor and their counsel and accountants
the opportunity to review and comment on, at the Investor's expense, the
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto (provided that the
Investor shall furnish the Trust with comments on any such amendment or
supplement as promptly as the Trust shall reasonably require). The Investor will
furnish to the Trust such information as the Trust may reasonably request in
connection with the registration and related proceedings under this Section 2.
4
2.5 Indemnification.
2.5.1 Indemnification by the Trust. In the event of any
registration of any securities of the Trust under the Securities Act in which
the Investor is a selling shareholder, the Trust shall, and hereby does,
indemnify and hold harmless the Investor from and against any losses, claims,
damages or liabilities, insofar as losses, claims, damages, or liabilities (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon (a) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such securities were registered under the Securities Act, any preliminary
prospectus, final prospectus, or summary prospectus contained therein, or any
amendment 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, or (b) any violation by the Trust, its
trustees, officers, employees or agents of this Agreement or any law applicable
to and in connection with such registration, and the Trust shall reimburse the
Investor for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding described in clauses (a) or (b); provided, however, that
the Trust shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with information furnished to the
Trust by the Investor. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Investor and shall
survive the transfer of such securities by the Investor.
2.5.2 Indemnification by the Investor. If any Registrable
Securities are included in any registration statement, the Investor shall
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 2.5.1 above) the Trust and each trustee, officer and employee
of the Trust and each Person who controls the Trust within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
information furnished to the Trust by the Investor.
2.5.3 Notice of Claims, Etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Section 2.5,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party, immediately give written notice to the latter of
the commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of this
Section 2.5, except to the extent that the indemnifying party is materially
prejudiced by such failure. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that the indemnifying
parties may agree, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable out of pocket costs related to the indemnified party's cooperation
with the indemnifying party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties arises in respect of such claim after the assumption of the defense
thereof. No indemnifying party shall be liable for any settlement of any action
or proceeding effected without its written consent, which consent shall not be
unreasonably withheld, delayed or conditioned. Consent of the indemnified party
shall be required for the entry of any judgment or to enter into a settlement
only when such judgment or settlement does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect such claim or litigation.
5
2.5.4 Contribution. If the indemnification provided for in this
Section 2.5 shall for any reason be held by a court to be unavailable to an
indemnified party under Section 2.5.1 or 2.5.2 hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or payable under Sections 2.5.1 or 2.5.2 hereof, the indemnified
party and the indemnifying party under Sections 2.5.1 or 2.5.2 hereof shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating the
same), (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Trust and the Investor or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect the relative fault of the Trust and the
Investor that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. No
Person guilty of fraudulent misrepresentation (within the meaning of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. In addition, no Person shall be
obligated to contribute hereunder any amounts in payment for any settlement of
any action or claim, effected without such Person's written consent, which
consent shall not be unreasonably withheld.
3. Decisions; Modification; Waivers. All decisions by, and notices
from, the Investor hereunder shall be made by the holders of not less than a
majority of the Registrable Securities outstanding held by the Investor and all
other holders of Registrable Securities shall be bound by any such decision.
This Agreement may be modified or amended only with the written consent the
Trust, the Partnership and the Investor holding not less than a majority of the
Registrable Securities. No party shall be released from its obligations
hereunder without the written consent of the other party. The observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) by the party entitled to
enforce such term, but any such waiver shall be effective only if in a writing
signed by the party against which such waiver is to be asserted. Except as
otherwise specifically provided herein, no delay on the part of any party hereto
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party hereto of any right,
power or privilege hereunder operate as a waiver of any other right, power or
privilege hereunder nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any right, power or privilege hereunder.
4. Entire Agreement. This Agreement represents the entire understanding
and agreement between the parties hereto with respect to the subject matter
hereof and supersedes all other prior and contemporaneous agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
5. Severability. If any provision of this Agreement, or the application
of such provision to any party or circumstance, shall be held invalid, the
remainder of this Agreement or the application of such provision to other
parties or circumstances, to the extent permitted by law, shall not be affected
thereby; provided, that the parties shall negotiate in good faith with respect
to an equitable modification of the provision or application thereof held to be
invalid.
6
6. Notices. All notices, requests and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
delivered (i) in person, (ii) by certified mail, return receipt requested, (iii)
by recognized overnight delivery service providing positive tracking of items
(for example, Federal Express), or (iv) by confirmed telecopier, in each case
addressed as follows:
If to the Trust or the Partnership, addressed to:
Brandywine Operating Partnership, L.P.
c/o Brandywine Realty Trust
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, President and Chief Executive Officer
Facsimile: (000) 000-0000
with a copy in each instance to:
Brandywine Operating Partnership, L.P.
c/o Brandywine Realty Trust
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Senior Vice President
Facsimile: (000) 000-0000
If to the Investor, addressed to:
c/o TRC Realty, Inc.-GP
0000 Xxx Xxxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx X Xxxxxxxxxx and Xxxx X. Xxxx
with a copy in each instance to:
c/o TRC Realty, Inc.-GP
0000 Xxx Xxxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxx and R. Xxxxx Xxxxxxxxx, Xx.
or to such other address or addresses and to the attention of such other person
or persons as any of the parties may notify the other in accordance with the
provisions of this Agreement. All such notices, requests and other
communications shall be deemed to have been sufficiently given for all purposes
hereof only if given pursuant to the foregoing requirements as to both manner
and address, and only upon receipt (or refusal to accept delivery) by the party
to whom such notice is sent. Notices by the parties may be given on their behalf
by their respective attorneys.
7
7. Counterparts. This Agreement may be executed in counterparts, each
of which for all purposes shall be deemed to be an original and all of which
together shall constitute the same agreement.
8. Headings. The Section headings in this Agreement are for convenience
of reference only, and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
9. Construction. This Agreement shall be governed, construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania without
regard to its principles of conflict of laws.
10. Recapitalizations, etc. In the event that any shares of beneficial
interest or other securities are issued in respect of, in exchange for, or in
substitution of, any Registrable Securities by reason of any reorganization,
recapitalization, reclassification, merger, consolidation, spin-off, partial or
complete liquidation, share dividend, split-up, sale of assets, distribution to
shareholders or combination of the Registrable Securities or any other similar
change in the Trust's capital structure, appropriate adjustments shall be made
in this Agreement so as to fairly and equitably preserve, as far as practicable,
the original rights and obligations of the parties hereto under this Agreement.
11. Term. This Agreement shall continue in full force and effect until
the date on which the Common Shares issued or issuable upon redemption of Units
issued pursuant to the Contribution Agreement have ceased to constitute
Registrable Securities.
8
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date first above written and delivered by their respective duly
authorized officers.
BRANDYWINE REALTY TRUST
By:__________________________________
Name:
Title:
BRANDYWINE OPERATING
PARTNERSHIP, L.P.
By: BRANDYWINE REALTY
TRUST, its sole general partner
By:__________________________________
Name:
Title:
INVESTOR:
TRC ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership
By:__________________________________
Name:
Title:
9
