THIRTEENTH AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
THIS THIRTEENTH AMENDMENT, dated as of September 21, 2004 (the
"Amendment"), further amends the Amended and Restated Agreement of Limited
Partnership Agreement (as amended to date, the "Partnership Agreement") of
BRANDYWINE OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the
"Partnership"). Capitalized terms used herein but not defined herein shall have
the meanings given such terms in the Partnership Agreement.
BACKGROUND
A. Pursuant to the Partnership Agreement, Brandywine Realty Trust (the
"General Partner"), as the general partner of the Partnership, has the power and
authority to issue additional Partnership Interests to persons on such terms and
conditions as the General Partner may deem appropriate.
B. The General Partner, pursuant to the exercise of such power and
authority and in accordance with the Partnership Agreement, has determined to
execute this Amendment to the Partnership Agreement to evidence the issuance of
additional Partnership Interests and the admission of the other signatories
hereto as Limited Partners of the Partnership in exchange for certain
contributions of interests in real estate and real estate related assets that
are being made to the Partnership on the date hereof pursuant to the
Contribution Agreement dated as of August 18, 2004 by and among the Partnership
and the other parties thereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby amend the Partnership Agreement as
follows:
1. The Partnership Agreement is hereby amended to reflect the admission
as a Limited Partner on the date hereof of the Persons set forth on Schedule A
attached hereto (the "Admitted Partners") and the ownership by such Persons of
the number of Class A Units listed opposite each Person's name on Schedule A.
Attached as Schedule B is a list of the Partners of the Partnership prior to the
admission of the Admitted Partners, together with the number and class of
Partnership Interests owned by such partners.
2. The Partnership Interests issued hereby shall constitute Class A
Units under the Partnership Agreement; provided that any distribution to be
received by the Admitted Partners on the Class A Units issued to them on the
date hereof on account of the fiscal quarter in which they are admitted to the
Partnership shall be pro-rated to reflect the portion of the fiscal quarter of
the Partnership for which the Admitted Partners held such Class A Units and
shall not be pro-rata in accordance with their then Percentage Interests;
provided further that the Redemption Right granted to holders of Class A Units
in Article XV of the Partnership Agreement shall not be exercisable by the
holders of the Class A Units issued on the date hereof to the Admitted Partners
until the first anniversary of the date hereof, except that (i) if the holder of
any such Class A Units dies, such holder's estate shall thereupon be permitted
to exercise the Redemption Right with respect to all of such Class A Units held
by it notwithstanding the foregoing restriction and (ii) if a Change of Control
(as defined below) of the General Partner occurs, the foregoing restriction on
exercise of the Redemption Right shall automatically terminate with respect to
all of such Class A Units.
3. As used herein, the term "Change of Control" shall mean:
(i) the acquisition in one or more transactions by any "Person"
(as the term person is used for purposes of Sections 13(d)
or 14(d) of the Exchange Act) of "Beneficial ownership"
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty-five percent (25%) or more of the
combined voting power of the General Partner's then
outstanding voting securities (the "Voting Securities"),
provided that for purposes of this clause (i) Voting
Securities acquired directly from the General Partner by any
Person shall be excluded from the determination of such
Person's Beneficial ownership of Voting Securities (but such
Voting Securities shall be included in the calculation of
the total number of Voting Securities then outstanding); or
(ii) approval by shareholders of the General Partner of:
(A) a merger, reorganization or consolidation involving the
General Partner if the shareholders of the General
Partner immediately before such merger, reorganization
or consolidation do not or will not own directly or
indirectly immediately following such merger,
reorganization or consolidation, more than fifty
percent (50%) of the combined voting power of the
outstanding voting securities of the General Partner
resulting from or surviving such merger, reorganization
or consolidation in substantially the same proportion
as their ownership of the Voting Securities outstanding
immediately before such merger, reorganization or
consolidation; or
(B) a complete liquidation or dissolution of the General
Partner; or
(C) an agreement for the sale or other disposition of all
or substantially all of the assets of the General
Partner; or
(iii) acceptance by shareholders of the General Partner of shares
in a share exchange if the shareholders of the General
Partner immediately before such share exchange do not or
will not own directly or indirectly immediately following
such share exchange more than fifty percent (50%) of the
combined voting power of the outstanding voting securities
of the entity resulting from or surviving such share
exchange in substantially the same proportion as their
ownership of the Voting Securities outstanding immediately
before such share exchange.
4. By execution of this Amendment to the Partnership Agreement by the
General Partner, the Admitted Partners agree to be bound by each and every term
of the Partnership Agreement as amended from time to time in accordance with the
terms of the Partnership Agreement.
5. On the date of this Amendment, each of the Admitted Partners shall
execute and deliver to Brandywine Realty Trust an Irrevocable Proxy coupled with
an Interest in the form set forth on Exhibit 1 hereto attached.
6. Except as expressly set forth in this Amendment to the Partnership
Agreement, the Partnership Agreement is hereby ratified and confirmed in each
and every respect.
IN WITNESS WHEREOF, this Amendment to the Partnership Agreement has
been executed and delivered as of the date first above written.
GENERAL PARTNER:
----------------
BRANDYWINE REALTY TRUST
BY: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
XXXXXX X. XXXXXXX
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ADMITTED PARTNERS:
------------------
TRC ASSOCIATES LIMITED PARTNERSHIP
BY: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------
NAME: XXXXX X. XXXXXXXXXX
TITLE: PRESIDENT AND CHIEF EXECUTIVE OFFICER
SCHEDULE "A"
TO THIRTEENTH AMENDMENT
NUMBER OF
ADMITTED PARTNERSHIP
PARTNERS INTERESTS
-------- ---------
TRC Associates Limited Partnership 343,006
SCHEDULE "B"
TO THIRTEENTH AMENDMENT
BRANDYWINE OPERATING PARTNERSHIP, L.P.
OUTSTANDING PARTNERSHIP INTERESTS
AS OF SEPTEMBER 21, 2004
PARTNERS CLASS A UNITS
-------- -------------
Xxxxx X. Xxxxxxx 7,245
Xxxx X. Xxxx 1,245
Brandywine Holdings I, Inc. 5
BRT 1,696,755
X. Xxxxxx Xxxxxxxxxxx 59,578
M. Xxxx Xxxxxxxxxxx 60,576
Xxxxxx X. Xxxxxxx 1,902
Xxxxxx X. Xxxxxxxxxxx 107,692
Xxxxx X. Xxxxxxxxxxx 107,692
Xxxxxxx Xxxxxxx 2,536
Brookstone Investors, LLC 57,126
Brookstone Holdings of Delaware 4, LLC 7,579
Brookstone Holdings of Delaware 5, LLC 80,445
Brookstone Holdings of Delaware 6, LLC 7,886
Xxxx X. Xxxxxxx, Xx. 89,801.232
Xxxx X. Xxxxxxx, Xx. 58,548.310
Xxxxx X. Xxxxxxx, Xx. 69,063
Xxxxxxx X. Xxxxxxx 17,419.933
Xxxxxx X. Xxxxxxx 20,136
Xxxxxx & Xxxxxx Xxxxxxxxx 7,513
Xxxxxx Xxxxx 40,927
Estate Xxxxxx Xxxxxxxx 1,488
Trust UTW of Xxxxxxxx Xxxxxxx 485
Xxxxxx Xxxxxx 21,647
Xxxxx Xxxxxxx 1,488
Xxxxxx Xxxxxx 31,505
Xxx Xxxxxxx 876
Xxxxxxx Xxxxx 2,156
Xxxxxx X. Xxxxx 811,984
Xxxxxxx X. Xxxxxxx, Xx. 41,734
PARTNER GP UNITS
------- --------
Brandywine Realty Trust 52,171,871
PARTNER SERIES A PREFERRED MIRROR UNITS
------- -------------------------------
Brandywine Realty Trust 750,000
PARTNER SERIES B PREFERRED MIRROR UNITS
------- -------------------------------
Brandywine Realty Trust 2,000,000
PARTNER SERIES E PREFERRED MIRROR UNITS
------- -------------------------------
Brandywine Realty Trust 2,300,000
EXHIBIT "1"
TO THIRTEENTH AMENDMENT
IRREVOCABLE PROXY COUPLED WITH AN INTEREST
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned hereby
irrevocably constitutes and appoints the General Partner, any Liquidating
Trustee, and authorized officers and attorneys-in-fact of each, and each of
those acting singly, in each case with full power of substitution, as its true
and lawful agent and attorney-in-fact, with full power and authority in its
name, place and stead to: execute, swear to, acknowledge, deliver, file and
record in the appropriate public offices (i) all certificates, documents and
other instruments (including, without limitation, this Agreement and the
Certificate and all amendments or restatements thereof) that the General Partner
or the Liquidating Trustee deems appropriate or necessary to form, qualify or
continue the existence or qualification of the Partnership as a limited
partnership (or a partnership in which the limited partners have limited
liability) in the State of Delaware and in all other jurisdictions in which the
Partnership may conduct business or own property; (ii) all instruments that the
General Partner deems appropriate or necessary to reflect any amendment, change,
modification or restatement of this Agreement in accordance with the terms of
this Agreement; (iii) all conveyances and other instruments or documents that
the General Partner deems appropriate or necessary to reflect the dissolution
and liquidation of the Partnership pursuant to the terms of this Agreement,
including, without limitation, a certificate of cancellation; and (iv) all
instruments relating to the admission, withdrawal, removal or substitution of
any Partner pursuant to the provisions of this Agreement, or the Capital
Contribution of any Partner. The foregoing power of attorney is irrevocable and
a power coupled with an interest, in recognition of the fact that each of the
Partners will be relying upon the power of the General Partner to act as
contemplated by this Agreement in any filing or other action by it on behalf of
the Partnership, and it shall survive the death, incapacity or incompetency of a
Limited Partner to the effect and extent permitted by law and the Transfer of
all or any portion of such Limited Partner's Partnership Units and shall extend
to such Limited Partner's heirs, distributees, successors, assigns and personal
representatives.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Proxy on this ___ day of ____________, 2004
_________________________________
