Exhibit 10.18
ELEVENTH AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
THIS ELEVENTH AMENDMENT, dated December 30, 2003 (this
"Amendment"), amends and supplements the Amended and Restated Agreement of
Limited Partnership Agreement (as heretofore amended and supplemented 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 to such terms in the
Partnership Agreement.
BACKGROUND
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G. 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 and Units in one or more
newly created classes of Partnership Interests to persons on such terms and
conditions as the General Partner may deem appropriate.
H. 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 create a new class of
Partnership Interests designated as the Series D Preferred Mirror Units having
designations, preferences and other rights which are substantially the same as
the economic rights of the 7.50% Series C Senior Cumulative Redeemable Preferred
Shares of Beneficial Interest of the General Partner (the "Series C Preferred
Shares") and to evidence the issuance of such additional Partnership Interests
to the General Partner in exchange for the General Partner's contribution to the
Partnership of the net proceeds of the sale of the Series C Preferred Shares.
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. In accordance with the Partnership Agreement, the
Partnership Agreement is hereby amended to establish, and to issue to the
General Partner, the Series D Preferred Mirror Units having the designations,
preferences and other rights set forth below:
(i) Designation and Number. A class of Partnership
Interests designated as Series D Preferred Mirror
Units is hereby established. The number of Series
D Preferred Mirror Units shall be 4,600,000. The
stated value of each Series D Preferred Mirror
Unit shall be $25.00 (the "Stated Value").
(ii) Rank. The Series D Preferred Mirror Units will,
with respect to distribution rights and rights
upon liquidation, dissolution or winding up of
the Partnership, rank (a) senior to the Class A
Units and all Partnership Interests ranking
junior to the Series D Preferred Mirror Units;
(b) on a parity with the Partnership Interests
designated as Series A Preferred Mirror Units and
the Partnership Interests designated as Series B
Preferred Units and all Partnership Interests
issued by the Partnership after the date of this
Amendment the terms of which specifically provide
that such Partnership Interests rank on a parity
with the Series D Preferred Mirror Units; and (c)
junior to all Partnership Interests issued by the
Partnership the terms of which specifically
provide that such Partnership Interests rank
senior to the Series D Preferred Mirror Units.
(iii) Distributions.
(A) Pursuant to Section 6.1 of the Partnership
Agreement, holders of Series D Preferred
Mirror Units shall be entitled to receive,
out of funds legally available therefor,
cumulative quarterly cash distributions
equal to the amount of the cumulative
quarterly cash distributions payable on
the Series C Preferred Shares. Such
distributions shall be payable quarterly
in arrears on or before the date on which
distributions on the Series C Preferred
Shares are payable (each a "Series D
Preferred Mirror Unit Distribution Payment
Date").
(B) No distributions on Series D Preferred
Mirror Units shall be authorized or paid
or set apart for payment by the
Partnership at such time as the terms and
provisions of any agreement of the
Partnership, including any agreement
relating to its indebtedness, prohibits
such authorization, payment or setting
apart for payment or provides that such
authorization, payment or setting apart
for payment would constitute a breach
thereof, or a default thereunder, or if
such authorization or payment shall be
restricted or prohibited by law.
(C) Notwithstanding the foregoing,
distributions with respect to the Series D
Preferred Mirror Units will accrue whether
or not the terms and provisions set forth
in Section 1(c)(ii) at any time prohibit
the current payment of distributions,
whether or not there are funds legally
available for such distributions and
whether or not such distributions are
authorized. Accrued but unpaid
distributions on the Series D Preferred
Mirror Units will accumulate as of the
Series D Preferred Mirror Unit
Distribution Payment Date on which they
first become payable.
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(D) When distributions are not paid in full
(or a sum sufficient for such full payment
is not so set apart) upon the Series D
Preferred Mirror Units and any other
Partnership Interests ranking on a parity
as to distributions with the Series D
Preferred Mirror Units, including the
Series A Preferred Mirror Units and the
Series B Preferred Units, all
distributions authorized upon the Series D
Preferred Mirror Units and any other
Partnership Interests ranking on a parity
as to distributions with the Series D
Preferred Mirror Units shall be authorized
pro rata so that the amount of
distributions authorized per Partnership
Unit of Series D Preferred Mirror Units
and such other Partnership Interests shall
in all cases bear to each other the same
ratio that accrued distributions per
Partnership Unit on the Series D Preferred
Mirror Units and such other Partnership
Interests (which shall not, with respect
to such other Partnership Interests,
include any accrual in respect of unpaid
distributions for prior distribution
periods if such other Partnership
Interests do not have a cumulative
distribution) bear to each other. Any
distribution payment or payments on Series
D Preferred Mirror Units which may be in
arrears shall accrue distributions at the
rate of 7.50% per annum.
(E) Except as provided in Section 1(c)(iv),
unless full cumulative distributions on
the Series D Preferred Mirror Units have
been or contemporaneously are authorized
and paid or authorized and a sum
sufficient for the payment thereof is set
apart for payment for all past
distribution periods and the then current
distribution period, no distributions
(other than in Partnership Interests
ranking junior to the Series D Preferred
Mirror Units as to distributions and upon
liquidation, dissolution or winding up)
shall be authorized or paid or set aside
for payment nor shall any other
distribution be authorized or made upon
the Class A Units, the Series A Preferred
Mirror Units, the Series B Preferred Units
or any other Partnership Interests ranking
junior to or on a parity with the Series D
Preferred Mirror Units as to distributions
or upon liquidation, dissolution or
winding up, nor shall any Class A Units,
Series A Preferred Mirror Units, Series B
Preferred Units or any other Partnership
Interests ranking junior to or on a parity
with the Series C Preferred Shares as to
distributions or upon liquidation be
redeemed, purchased or otherwise acquired
for any consideration (or any moneys be
paid to or made available for a sinking
fund for the redemption of any such units
or other Partnership Interests) by the
Partnership or any other entity controlled
directly or indirectly by the Partnership
(except by conversion into or exchange for
Partnership Interests ranking junior to
the Series D Preferred Mirror Units as to
distributions and upon liquidation,
dissolution or winding up).
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(F) Holders of the Series D Preferred Mirror
Units shall not be entitled to any
distribution, whether payable in cash,
property or Partnership Units in excess of
full cumulative distributions on the
Series D Preferred Mirror Units as
described above. Any distribution payment
made on the Series D Preferred Mirror
Units shall first be credited against the
earliest accrued but unpaid distribution
due with respect to such Series D
Preferred Mirror Units which remains
payable.
(iv) Liquidation Preference.
(A) Upon any voluntary or involuntary
liquidation, dissolution or winding up of
the affairs of the Partnership, the
holders of Series D Preferred Mirror Units
then outstanding are entitled to be paid
out of the assets of the Partnership
available for distribution to the Partners
pursuant to Section 13.5(a) of the
Partnership Agreement a liquidation
preference equal to the Stated Value per
Series D Preferred Mirror Unit, plus an
amount equal to any accrued and unpaid
distributions to the date of payment,
before any distribution of assets is made
to holders of Class A Units and GP Units
or any other Partnership Interests that
rank junior to the Series D Preferred
Mirror Units upon liquidation, dissolution
or winding up.
(B) In the event that, upon any such voluntary
or involuntary liquidation, dissolution or
winding up, the available assets of the
Partnership are insufficient to pay the
amount of the liquidating distributions on
all outstanding Series D Preferred Mirror
Units and the corresponding amounts
payable on all other Partnership Interests
ranking on a parity with the Series D
Preferred Mirror Units in the distribution
of assets, including the Series A
Preferred Mirror Units and the Series B
Preferred Units, then such assets shall be
allocated among the Series D Preferred
Mirror Units, as a class, and each class
or series of such other such Partnership
Interests, as classes, in proportion to
the full liquidating distributions to
which they would otherwise be respectively
entitled.
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(C) After payment of the full amount of the
liquidating distributions to which they
are entitled, the holders of Series D
Preferred Mirror Units will have no right
or claim to any of the remaining assets of
the Partnership.
(D) The consolidation or merger of the
Partnership with or into any other
partnership, limited liability company,
corporation, trust or entity or of any
other partnership, limited liability
company, corporation, trust or other
entity with or into the Partnership, or
the sale, lease or conveyance of all or
substantially all of the property or
business of the Partnership, shall not be
deemed to constitute a liquidation,
dissolution or winding up of the
Partnership for purposes of this Section
1(d).
(v) Redemption. In connection with a redemption by
the General Partner of any or all of the Series C
Preferred Shares, the Partnership shall provide
cash to the General Partner for such purpose
which shall be equal to the redemption price
(including accrued and unpaid distributions) of
the Series C Preferred Shares to be redeemed and
in exchange one Series D Preferred Mirror Unit
shall be canceled with respect to each Series C
Preferred Share so redeemed. From and after the
date on which the Series C Preferred Shares are
redeemed, the Series D Preferred Mirror Units so
canceled shall no longer be outstanding and all
rights hereunder, to distributions or otherwise,
with respect to such Series D Preferred Mirror
Units shall cease.
(vi) Allocations. Allocations of the Partnership's
items of income, gain, loss and deduction shall
be allocated among holders of Series D Preferred
Mirror Units in accordance with Article VII of
the Partnership Agreement.
2. Subparagraph (g) of Section 7.2 of the Partnership
Agreement is amended and restated in its entirety as follows:
(g) Priority Allocation. All or a portion of the Net
Income of the Partnership for the Fiscal Year, if any, shall be specially
allocated to the Partners holding Series A Preferred Mirror Units, Series B
Preferred Units and Series D Preferred Mirror Units in proportion to the
cumulative distributions each has received pursuant to Sections 6.1, 6.2, and
13.5 hereof and, with respect to the Partners holding Series A Preferred Mirror
Units, Section 1(c) and 1(d) of the Fourth Amendment to this Agreement or, with
respect to Partners holding Series B Preferred Units, Section 1.C and 1.D of the
Fifth Amendment to this Agreement, or, with respect to the Partners holding
Series D Preferred Mirror Unit, Section 1(c) and 1(d) of the Eleventh Amendment
to this Agreement, from the commencement of the Partnership to the end of such
Fiscal Year, in an amount equal to the excess, if any, of the sum of (i) the
aggregate Net Loss allocated to such Partners pursuant to Section 7.1(b) hereof
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for all prior Fiscal Years, if any, and (ii) the aggregate distributions
received by such Partners pursuant to Sections 6.1, 6.2, and 13.5 hereof and,
with respect to Partners holding Series A Preferred Mirror Units, Section 1(c)
and 1(d) of the Fourth Amendment to this Agreement or, with respect to Partners
holding Series B Preferred Units, Section 1.C and 1.D of the Fifth Amendment to
this Agreement, or, with respect to Partners holding Series D Preferred Mirror
Units, Section 1(c) and 1(d) of the Eleventh Amendment to this Agreement from
the commencement of the Partnership to the end of such Fiscal Year, over the
aggregate items of Net Income allocated to such Partners pursuant to this
Section 7.2(g) for all prior Fiscal Years.
3. 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 Eleventh 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
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