Exhibit 10.15
EIGHTH AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
THIS EIGHTH AMENDMENT, dated as of April 19, 1999 (the "Amendment"),
amends the Amended and Restated Agreement of Limited Partnership Agreement (as
heretofore 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 to such terms in the Partnership Agreement.
BACKGROUND
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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 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.
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 create a new class of
Partnership Interests designated as the Series C Preferred Mirror Units having
designations, preferences and other rights which are substantially the same as
the economic rights of the 8.75% Series B Senior Cumulative Convertible
Preferred Shares of the General Partner (the "Series B 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 B 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:
8. In accordance with the Partnership Agreement, the Partnership
Agreement is hereby amended to establish, and to issue to the General Partner,
the Series C 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 C Preferred Mirror
Units is hereby established. The number of Series C
Preferred Mirror Units shall be 4,375,000. The stated
value of each Series C Preferred Mirror Unit shall be
$24.00 (the "Stated Value").
(ii) Rank. The Series C 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 C Preferred Mirror Units; (b) on a parity with
all Partnership Interests issued by the Partnership
the terms of which specifically provide that such
Partnership Interests rank on a parity with the
Series C Preferred Mirror Units including the
Partnership Interests designated as Series A
Preferred Mirror Units and Series B Preferred 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 C Preferred Mirror Units.
(iii) Distributions.
(A) Pursuant to Section 6.1 of the Partnership
Agreement, holders of Series C 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 B Preferred Shares
are payable (each a "Series C Preferred Mirror
Unit Distribution Payment Date").
(B) No distributions on Series C 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 C 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 C Preferred Mirror Units will
accumulate as of the Series C Preferred Mirror
Unit Distribution Payment Date on which they
first become payable.
(D) When distributions are not paid in full (or a
sum sufficient for such full payment is not so
set apart) upon the Series C Preferred Mirror
Units and any other Partnership Interests
ranking on a parity as to distributions with the
Series C Preferred Mirror Units, including the
Series A Preferred Mirror Units and the Series B
Preferred Units, all distributions authorized
upon the Series C Preferred Mirror Units and any
other Partnership Interests ranking on a parity
as to distributions with the Series C Preferred
Mirror Units shall be authorized pro rata so
that the amount of distributions authorized per
Partnership Unit of Series C 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 C 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 C Preferred Mirror Units which may be in
arrears shall accrue distributions at the rate
of 8.75% per annum.
(E) Except as provided in Section 1(c)(iv), unless
full cumulative distributions on the Series C
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 C 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 or the Series B Preferred Units or any
other Partnership Interests ranking junior to or
on a parity with the Series C Preferred Mirror
Units as to distributions or upon liquidation,
dissolution or winding up, nor shall any Class A
Units, Series A Preferred Mirror Units or the
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 C Preferred Mirror Units as
to distributions and upon liquidation,
dissolution or winding up).
(F) Holders of the Series C 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 C Preferred Mirror Units as
described above. Any distribution payment made
on the Series C Preferred Mirror Units shall
first be credited against the earliest accrued
but unpaid distribution due with respect to such
Series C 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 C 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 C 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 A 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 C Preferred Mirror Units and the
corresponding amounts payable on all other
Partnership Interests ranking on a parity with
the Series C 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 C 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.
(C) After payment of the full amount of the
liquidating distributions to which they are
entitled, the holders of Series C 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, corporation,
trust or entity or of any other partnership,
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 B
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 B Preferred
Shares to be redeemed and in exchange one Series C
Preferred Mirror Unit shall be canceled with respect
to each Series B Preferred Share so redeemed. From
and after the date on which the Series B Preferred
Shares are redeemed, the Series C Preferred Mirror
Units so canceled shall no longer be outstanding and
all rights hereunder, to distributions or otherwise,
with respect to such Series C Preferred Mirror Units
shall cease.
(vi) Conversion. In connection with, and at the time of,
the conversion of all or any Series B Preferred
Shares into Common Shares, a number of Series B
Preferred Mirror Units equal to the number of Series
B Preferred Shares so converted shall be converted
into a number of Class A Units equal to the number of
Common Shares issued upon such conversion.
(vii) Allocations. Allocations of the Partnership's items
of income, gain, loss and deduction shall be
allocated among holders of Series C Preferred Mirror
Units in accordance with Article VII of the
Partnership Agreement.
9. Subparagraph (g) of Section 7.2 of the Partnership Agreement is
amended and restated in its entirety as follows:
(i) 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 C 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 of the Partner
holding Series C Preferred Mirror Units, Section 1(c)
and 1(d) of the Eighth 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 of
this Agreement 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 C Preferred Mirror Units, Section 1(c) and
1(d) of the Eighth 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.
10. 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:
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Name: Xxxxxx X. Xxxxxxx
Its: President and Chief Executive Officer
