Exhibit 10.19
TWELFTH AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
THIS TWELFTH AMENDMENT, dated February 27, 2004 (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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I. 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.
J. 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 E Preferred Mirror Units having
designations, preferences and other rights which are substantially the same as
the economic rights of the 7.375% Series D Senior Cumulative Redeemable
Preferred Shares of Beneficial Interest of the General Partner (the "Series D
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 D
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 E 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 E Preferred Mirror
Units is hereby established. The number of Series
E Preferred Mirror Units shall be 2,760,000. The
stated value of each Series E Preferred Mirror
Unit shall be $25.00 (the "Stated Value").
(ii) Rank. The Series E 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 E Preferred Mirror Units;
(b) on a parity with the Partnership Interests
designated as Series A Preferred Mirror Units,
the Partnership Interests designated as Series B
Preferred Units, the Partnership Interests
designated as Series D Preferred Mirror 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 E 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 E Preferred Mirror Units.
(iii) Distributions.
(A) Pursuant to Section 6.1 of the Partnership
Agreement, holders of Series E 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 D
Preferred Shares. Such distributions shall be
payable quarterly in arrears on or before the
date on which distributions on the Series D
Preferred Shares are payable (each a "Series
E Preferred Mirror Unit Distribution Payment
Date").
(B) No distributions on Series E 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 E 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 E Preferred Mirror Units will
accumulate as of the Series E 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 E Preferred
Mirror Units and any other Partnership
Interests ranking on a parity as to
distributions with the Series E Preferred
Mirror Units, including the Series A
Preferred Mirror Units, the Series B
Preferred Units, and the Series D Preferred
Mirror Units, all distributions authorized
upon the Series E Preferred Mirror Units and
any other Partnership Interests ranking on a
parity as to distributions with the Series E
Preferred Mirror Units shall be authorized
pro rata so that the amount of distributions
authorized per Partnership Unit of Series E
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 E 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 E Preferred Mirror Units
which may be in arrears shall accrue
distributions at the rate of 7.375% per
annum.
(E) Except as provided in Section 1(c)(iv),
unless full cumulative distributions on the
Series E 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 E 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, the Series D
Preferred Mirror Units or any other
Partnership Interests ranking junior to or on
a parity with the Series E 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,
Series D Preferred Mirror Units or any other
Partnership Interests ranking junior to or on
a parity with the Series E Preferred Mirror
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Units 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 E
Preferred Mirror Units as to distributions
and upon liquidation, dissolution or winding
up).
(F) Holders of the Series E 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 E
Preferred Mirror Units as described above.
Any distribution payment made on the Series E
Preferred Mirror Units shall first be
credited against the earliest accrued but
unpaid distribution due with respect to such
Series E 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 E 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 E 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 E 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 E Preferred Mirror
Units and the corresponding amounts payable
on all other Partnership Interests ranking on
a parity with the Series E Preferred Mirror
Units in the distribution of assets,
including the Series A Preferred Mirror
Units, the Series B Preferred Units and the
Series D Preferred Mirror Units, then such
assets shall be allocated among the Series E
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 E 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 D
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 D Preferred Shares to be redeemed and
in exchange one Series E Preferred Mirror Unit
shall be canceled with respect to each Series D
Preferred Share so redeemed. From and after the
date on which the Series D Preferred Shares are
redeemed, the Series E Preferred Mirror Units so
canceled shall no longer be outstanding and all
rights hereunder, to distributions or otherwise,
with respect to such Series E 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 E 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, Series D Preferred Mirror Units and Series E 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
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the Partners holding Series D Preferred Mirror Units, Section 1(c) and 1(d) of
the Eleventh Amendment to this Agreement or, with respect to the Partners
holding Series E Preferred Mirror Units, Section 1(c) and 1(d) of the Twelfth
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 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 or,
with respect to Partners holding Series E Preferred Mirror Units, Section 1(c)
and 1(d) of the Twelfth 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 Twelfth 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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