FOURTH AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
THIS FOURTH AMENDMENT, dated as of ________, 1998 (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 a
"contribution" agreement (relating to properties owned by persons and entities
that include Xxxxxx X. Xxxxx and affiliates) 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 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; 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
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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. Notwithstanding anything contained
in the Partnership Agreement or this Amendment, if the holder of Class A Units
exercises its Redemption Right and the General Partner or the holder
reasonably believes that the issuance of Common Shares in satisfaction of the
Redemption Right would require a notification and filing under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), the obligation of the Partnership and the General Partner to satisfy
the Redemption Right may be suspended until applicable filings with the
Federal Trade Commission and the Antitrust Division of the Department of
Justice have been made and the applicable waiting periods have expired. The
General Partner agrees to use commercially reasonable efforts to make any
requisite filings under the HSR Act in order to promptly obtain expiration of
the applicable waiting periods, and the Partnership and the applicable holder
of Class A Units shall split equally any filing fees that may be payable under
the HSR Act.
3. As used herein, the term "Change of Control" shall mean Change
of Control" means:
(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:
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(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. The General Partner confirms that
the provisions in Section 18.1(a) of the Partnership Agreement shall apply to
the Admitted Partners notwithstanding Section 18.7 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.
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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: ________________________
Its: President and Chief Executive Officer
ADMITTED PARTNERS:
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Xxxxxx X. Xxxxx
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SCHEDULE "A"
NUMBER OF
ADMITTED PARTNERSHIP
PARTNERS INTERESTS
-------- -----------
SCHEDULE "B"
BRANDYWINE OPERATING PARTNERSHIP, L.P.
OUTSTANDING PARTNERSHIP INTERESTS
AS OF ________, 1998
NUMBER OF
PARTNERSHIP
INTERESTS
LIMITED PARTNERS (ALL CLASS A UNITS)
---------------- -------------------
The Xxxxxxx Company 2,742
Xxxxx X. Xxxxxxx 7,245
Xxxx X. Xxxx 1,245
Xxxxx X. Xxxxx 1,245
Xxxxxx X. Xxxxxxx 6,830
X. Xxxxxx Xxxxxxxxxxx 59,578
M. Xxxx Xxxxxxxxxxx 60,576
Xxxxxx X. Xxxxxxx 1,902
Xxxxxx X. Xxxxxxxxxxx 215,384
Xxxxxxx X. Xxxxxxx 2,536
Brandywine Holdings I, Inc. 5
Brandywine Realty Trust 467,220
NUMBER OF
PARTNERSHIP
INTERESTS
GENERAL PARTNER (ALL GP UNITS)
--------------- --------------
Brandywine Realty Trust [37,636,457]
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 _________________, 1998.
-------------------------
Xxxxxx X. Xxxxx
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 _________________, 1998.
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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 _________________, 1998.
---------------------------------------
[ ]
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 _________________, 1998.
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