SIXTEENTH AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF BRANDYWINE OPERATING PARTNERSHIP, L.P.
Exhibit 3.1
SIXTEENTH AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
THIS SIXTEENTH AMENDMENT, dated August 5, 2010 (this “Amendment”), amends and
supplements the Amended and Restated Agreement of Limited Partnership (as heretofore amended and
supplemented, the “Partnership Agreement”) of BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership (the “Partnership”). Capitalized terms used in this Amendment
but not defined herein shall have the meanings given to such terms in the Partnership Agreement.
BACKGROUND
A. Under the Partnership Agreement, Brandywine Realty Trust (the “General Partner”),
as the sole general partner of the Partnership, has the power and authority to cause the
Partnership to issue additional Partnership Interests in one or more newly created classes, with
such rights, privileges, preferences and designations, and subject to such limitations, as the
General Partner may specify.
B. The General Partner, pursuant to the exercise of such power and authority, is executing
this Amendment: (i) to cause the creation of a new class of Partnership Interest designated as the
“Class F (2010) Units”, with the rights, privileges and preferences, and subject to the
limitations, specified herein and (ii) to cause the issuance of such Class F (2010) Units to BAT
Partners, L.P. (the “Admitted Partner”) and its admission as a Limited Partner of the
Partnership. The issuance of the Class F (2010) Units is being made in exchange for interests in
real estate and real estate related assets sold to the Partnership on the date hereof pursuant to
the Purchase and Sale Agreement dated as of August 5, 2010 among the Partnership and the other
signatories 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 agree as follows:
1. The Partnership Agreement is hereby amended to create and establish the Class F (2010)
Units having the designation, rights, privileges and preferences, and subject to the limitations,
set forth below and to provide for the issuance of such Class F (2010) Units to the Admitted
Partner.
(a) Designation and Number. A class of Partnership Interests designated as Class F
(2010) Units is hereby established. The number of Class F (2010) Units to be issued to the
Admitted Partner is 7,111,112.
(b) Rank. The Class F (2010) Units shall, with respect to distributions payable from
and after the Class F (2010) Dividend Start Date as specified below, rank on a parity with the
Class A Units.
(c) Distributions.
(i) Prior to August 5, 2011 the “Class F (2010) Distribution Start Date”), no
distributions shall accrue or be payable on any Class F (2010) Units. From and after the Class F
(2010) Distribution Start Date, distributions shall begin to accrue on each Class F (2010) Unit and
each Class F (2010) Unit shall be entitled to receive a distribution in the same amount, in the
same form, and at the same time as a distribution is payable on one Class A Unit (provided that
with respect to the first such distribution that is made after the Class F (2010) Distribution
Start Date, the amount of such distribution shall be pro rated to reflect the period from and after
the Class F (2010) Distribution Start Date).
(ii) Upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Partnership, each Class F (2010) Unit shall be entitled to receive distributions as set
forth in Section 13.5 of the Partnership Agreement, with clause (iv) of Section 13.5(a)
supplemented to reads as follows: “Last, for payment to the General Partner and to the holders of
the Class A Units and Class F (2010) Units, in accordance with the positive balances in their
respective Capital Accounts after giving effect to all contributions, distributions and allocations
for all periods, including the period in which such distribution occurs (other than those
adjustments made pursuant to this Section 13.5(a)(iv)).”
(d) Redemption.
(i) From and after the Class F (2010) Dividend Start Date, each holder of Class F (2010) Units
shall have the Redemption Right provided to holders of Class A Units in Article XV of the
Partnership Agreement on and subject to the same terms and conditions as if each Class F (2010)
Unit were one Class A Unit.
(ii) The General Partner shall have the right, exercisable in its discretion upon five (5)
days prior written notice, to require each holder of Class F (2010) Units to exercise the
Redemption Right on or at any time after the Class F (2010) Dividend Start Date, provided that the
General Partner may exercise the foregoing right to require redemption of Class F (2010) Units
under this subparagraph (ii) only if the issuance or resale of Common Shares issuable in settlement
of the redemption have been registered under the Securities Act of 1933; provided that the General
Partner may not exercise the right under this clause (d)(ii) unless the General Partner has
irrevocably agreed to pay the GP Shares Amount (and not the Cash Amount) to all Redeeming Partners
other than any Redeeming Partner that agrees to accept the Cash Amount with respect to such
Redeeming Partner.
(iii) Without limiting the right of the General Partner in the foregoing subparagraph (d)(ii),
the General Partner shall have the right, exercisable in its discretion upon five (5) days prior
written notice, to require each holder of Class F (2010) Units to exercise the Redemption Right on
or at any time after a Change in Control Event, provided that the General Partner may exercise the
foregoing right to require redemption of Class F (2010) Units under this subparagraph (iii) only if
(x) the issuance or resale of Common Shares issuable in settlement of the redemption have been
registered under the Securities Act of 1933 or any Common Shares issuable in satisfaction of the
Redemption Right will be converted in the transaction giving rise to the Change of Control Event
into the same per share consideration that
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holders Common Shares will receive in such transaction; (y) if the holders of Common Shares
are entitled to vote on the transaction giving rise to the Change of Control Event then the General
Partner must (if it is exercising its right under this subparagraph (iii)) provide for the issuance
of Common Shares in settlement of the redemption prior to the record date established for the
taking of such a vote; and (z) the General Partner has irrevocably agreed to pay the GP Shares
Amount (and not the Cash Amount) to all Redeeming Partners other than any Redeeming Partner that
agrees to accept the Cash Amount with respect to such Redeeming Partner. As used herein, the term
“Change in Control Event” shall mean the announcement by the General Partner (whether in a Current
Report on Form 8-K or press release) of the General Partner’s entry into an agreement that provides
for a merger, reorganization or consolidation of 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.
(e) Voting Rights. To the fullest extent permitted by law, holders of Class F (2010)
Units shall not have voting rights on any matter, provided that no amendment shall be made to the
Partnership Agreement or this Amendment without the consent of each holder of Class F (2010) Units
affected: (i) to subordinate the ranking of the Class F (2010) Units to Class A Units as to
distributions payable from and after the Class F (2010) Dividend Start Date and upon liquidation,
(ii) to change the right of the holder of a Class F (2010) Unit to receive the same distribution
that is payable on a Class A Units as and to the extent provided in Section 1(c) of this Amendment,
(iii) to adversely affect the Redemption Right of Class F (2010) Units or (iv) which has a
disproportionate adverse effect on Class F (2010) Units compared to the Class A Units.
(f) Allocations. Prior to the Class F (2010) Dividend Start Date, holders of Class F
(2010) Units shall not be allocated items of income, gain, loss and deduction. From and after the
Class F (2010) Dividend Start Date and after giving effect to the special allocations set forth in
Section 7.2 of the Partnership Agreement, holders of Class F (2010) Units shall be allocated Net
Income or Net Loss in the manner provided in Section 7.1 of the Partnership Agreement.
(g) Sales Restriction. In the event that the General Partner issues Common Shares to
the holder of Class F (2010) Units in satisfaction of a Redemption Right prior to the ninetieth
(90th) day after the Class F (2010) Distribution Start Date, the holder may not sell the Common
Shares so issued prior to such ninetieth (90th) day.
(h) Splits; Combinations. In the event that the Class A Units are split or combined
(i.e., a reverse split), then each Class F (2010) Unit shall be split or combined on the same date
and in accordance with the same ratio applicable to the split or combination of a single Class A
Unit.
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(i) Securities Legend. The Admitted Partner agrees that certificates, if any,
representing Class F (2010) Units or Common Shares issued to it may contain a restrictive
legend noting the restrictions on transfer applicable to the Class F (2010) Units and required
by federal and applicable state securities laws and that appropriate “stop-transfer” instructions
may be given to the transfer agent for the General Partner and the Partnership.
2. Restrictions. Each Holder shall, upon execution of this Amendment, be subject to
all of the agreements and restrictions applicable to Limited Partners in the Partnership Agreement.
3. Indemnity. Notwithstanding Section 18.7 of the Partnership Agreement, the General
Partner shall indemnify and hold harmless the Admitted Partner pursuant to Section 18.1(a) of the
Partnership Agreement for any breach by the General Partner of any of its obligations under the
Partnership Agreement, as amended by this Amendment.
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4. Confirmation. 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 Sixteenth Amendment to the Amended and Restated Agreement of Limited
Partnership of Brandywine Operating Partnership, L.P. has been executed and delivered as of the
date first above written.
| GENERAL PARTNER: BRANDYWINE REALTY TRUST |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Its | President and Chief Executive Officer | |||
| ADMITTED PARTNER: BAT PARTNERS, L.P., a Delaware limited partnership By: BRE/ARCH STREET L.L.C., its general partner |
||||
| By: | ||||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Managing Director and Vice President | |||
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SCHEDULE “A”
| ADMITTED | NUMBER OF | |||
| PARTNER | PARTNERSHIP INTERESTS | |||
BAT PARTNERS, L.P. |
7,111,112.00 | |||
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SCHEDULE “B”
| NUMBER OF PARTNERSHIP | ||||
| INTERESTS (ALL CLASS A UNITS, | ||||
| LIMITED PARTNERS | UNLESS OTHERWISE INDICATED | |||
Xxxx X. Xxxx |
1,245.00 | |||
Xxxxxx X. Xxxxxxxxxxx |
92,992.00 | |||
M. Xxxx Xxxxxxxxxxx |
60,576.00 | |||
X. Xxxxxx Scarborough |
59,578.00 | |||
Xxxxxx X. Xxxxxxx |
1,902.00 | |||
Brookstone Holdings of Delaware 6, LLC |
7,886.00 | |||
Brookstone Holdings of Delaware 5, LLC |
80,445.00 | |||
Brookstone Holdings of Delaware 4, LLC |
7,579.00 | |||
Brookstone Investors, LLC |
57,126.00 | |||
Xxxx X. Xxxxxxx, Xx. |
10,048.31 | |||
Xxxxxxx X. Xxxxxxx |
7,419.93 | |||
Xxxxxx X. Xxxxx (Estate) |
811,984.00 | |||
Xxxxxx Xxxxx (Estate) |
40,927.00 | |||
Xxxxxx Xxxxxx |
31,505.00 | |||
Xxxxxx Xxxxxx |
21,647.00 | |||
Xxxxxxx Xxxxx |
2,156.00 | |||
Xxxxxxxxx Family Trust |
1,488.00 | |||
Xxxxx Xxxxxxx |
1,488.00 | |||
Xxx Xxxxxxx |
876.00 | |||
Trust UTW of Xxxxxxxx Xxxxxxx |
485.00 | |||
Xxxxxxx X. Xxxxxxx, Xx. |
41,734.00 | |||
TRC Associates Limited Partnership |
343,006.00 | |||
Xxxxxx Xxxxxxxx |
100.00 | |||
The X.X. Xxxxxxxx Trust |
23,092.63 | |||
Newport National Corporation |
55,303.63 | |||
Xxxxx X. Xxxxxxxx |
20,766.12 | |||
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| NUMBER OF PARTNERSHIP | ||||
| INTERESTS (ALL CLASS A UNITS, | ||||
| LIMITED PARTNERS | UNLESS OTHERWISE INDICATED | |||
Xxxxxxx X. Xxxxxxxx |
19,266.16 | |||
D. Xxxx Xxxxxx |
872.10 | |||
Xxxxxxx Xxxxxxxx |
116,565.67 | |||
Xxxxxxx Xxxxxxx |
116,565.67 | |||
Xxxxx Xxxxxx |
16,010.98 | |||
Xxxxxxxxxxx Xxxxxx |
16,010.98 | |||
The Xxx Xxxxxxxx and Xxx Xxxxxxxx Family Trust |
307,516.23 | |||
The Xxxxx Xxxxx Family Trust |
142,944.82 | |||
The Revocable Trust Declaration of Xxxxxx
Xxxxxxx and Xxxxx Xxxxxxx |
7,785.40 | |||
The Xxxxxxx Family Trust (Xxxxxx X.
Xxxxxxx/Xxxxxx X. Xxxxxxx) |
15,570.79 | |||
The Xxxxxx X. Xxxxx 1992 Trust |
157,650.82 | |||
The Xxxxx X. Xxxxxxxx and Xxxxxxxxx X.
Xxxxxxxx Family Trust |
70,067.18 | |||
C. Xxxxxx Xxxxx |
7,785.40 | |||
Xxxxx Xxxxx Xxxxx |
5,189.80 | |||
Xxxx Xxxxx Xxxxx |
5,189.80 | |||
Xxxxxxx Xxx Xxxxx |
5,189.80 | |||
The Xxxxxxxx Family Partners |
15,570.79 | |||
Brandywine Realty Trust |
4,209,505.00 | |||
Brandywine Holdings I Inc. |
5.00 | |||
| GENERAL PARTNER | NUMBER OF PARTNERSHIPINTERESTS | |||
Brandywine Realty Trust |
127,790,791 | |||
| GENERAL PARTNER | NUMBER OF SERIES D PREFERRED MIRROR UNITS | |||
Brandywine Realty Trust |
2,000,000 | |||
| GENERAL PARTNER | NUMBER OF SERIES E PREFERRED MIRROR UNITS | |||
Brandywine Realty Trust |
2,000,000 | |||
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EXHIBIT 1
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 its terms; (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.
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IN WITNESS WHEREOF, the undersigned has executed and delivered this Proxy on this 5th day of
August, 2010.
| GENERAL PARTNER: BRANDYWINE REALTY TRUST |
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| By: | ||||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
| ADMITTED PARTNER: BAT PARTNERS, L.P., a Delaware limited partnership By: BRE/ARCH STREET L.L.C., its general partner |
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| By: | ||||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Managing Director and Vice President | |||
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