Exhibit 10.16
NINTH AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
THIS NINTH AMENDMENT, dated as of May 7, 1999 (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
----------
C. 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.
D. 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 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:
(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.
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:
---------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
ADMITTED PARTNERS:
-----------------
------------------------------------------
Xxxxxx X. Xxxxx, individually
SCHEDULE "A"
NUMBER OF
ADMITTED PARTNERSHIP
PARTNERS INTERESTS
-------- -----------
Xxxxxx X. Xxxxx
SCHEDULE "B"
BRANDYWINE OPERATING PARTNERSHIP, L.P.
OUTSTANDING PARTNERSHIP INTERESTS
AS OF MAY 7, 1999
NUMBER OF PARTNERSHIP INTERESTS
(ALL CLASS A UNITS,
LIMITED PARTNERS UNLESS OTHERWISE INDICATED)
---------------- ---------------------------
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
Xxxxxx Xxxxxxxxxxx 59,578
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
Brookstone Investors, L.L.C. 57,126
Brookstone Holdings of Del.-4, L.L.C. 7,579
Brookstone Holdings of Del.-5, L.L.C. 80,445
Brookstone Holdings of Del.-6, L.L.C. 7,886
Xxxx X. Xxxxxxx, Xx. 89,801.232
Xxxx X. Xxxxxxx, Xx. 73,048.310
Xxxxx X. Xxxxxxx, Xx. 138,126.471
Xxxx X. Xxxxxxx 27,087.416
Xxxxxxx Xxxxxxx 21,669.933
Xxxxxx X. Xxxxxxx 40,631.123
Xxxxxx and 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
Xxxxxx Xxxxx 50,233
Xxxxxxx Xxxxxxxx 40,927
Xxxxxxx Xxxxx 2,156
Xxxxxx X. Xxxxx 928,651
Xxxxxxx X. Xxxxxxx, Xx. 41,734
Xxxxxx Xxxxxx 41,734
Brandywine Realty Trust 750,000 Series A Preferred Mirror
Units
NUMBER OF PARTNERSHIP INTERESTS
(ALL CLASS A UNITS,
LIMITED PARTNERS UNLESS OTHERWISE INDICATED)
---------------- ---------------------------
Commonwealth Atlantic Operating Properties Inc. 1,140,527 Series B Preferred
Units
Commonwealth Atlantic Land II Inc. 283,731 Series B Preferred Units
Commonwealth Atlantic Development Inc. 43,725 Series B Preferred Units
Commonwealth Atlantic Land Company 82,017 Series B Preferred Units
Brandywine Realty Trust 1,041,667 Series C Preferred
Mirror Units
GENERAL PARTNER NUMBER OF PARTNERSHIP INTERESTS
--------------- -------------------------------
Brandywine Realty Trust 37,544,430 GP Units
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 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 7th day of May, 1999.
---------------------------------
Xxxxxx X. Xxxxx, individually
