REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of September 21, 2004, is
entered into by and among BRANDYWINE REALTY TRUST, a Maryland real estate
investment trust (the "Trust"), BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership (the "Partnership"), and TRC ASSOCIATES LIMITED, a
Delaware limited partnership (an "Investor"). The term "Investor" shall include
any permitted transferees of the OP Units.
RECITALS
WHEREAS, the Investor has caused to be contributed certain partnership
interests in The Xxxxxxxxxx Company, L.P., to the Partnership in exchange for
units of limited partnership interests ("Units") in the Partnership in
accordance with the terms of that certain Contribution Agreement, dated as of
August 18, 2004, by and among the Partnership, the Trust, the Investor, TRC
Realty, INC.-GP and TRC-LB LLC (the "Contribution Agreement");
WHEREAS, pursuant to the Partnership Agreement (as defined below), the
Units will be redeemable for cash or common shares of beneficial interest, par
value $.01 per share, of the Trust (the "Common Shares") upon the terms and
subject to the conditions contained therein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. In addition to the definitions set forth above, the
following terms, as used herein, have the following meanings:
"Agreement" means this Registration Rights Agreement, as it may be
amended, supplemented or restated from time to time.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized by law to close.
"Commission" means the United States Securities and Exchange
Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of November 18, 1997, as
previously amended and as the same may hereafter be amended, modified or
restated from time to time.
"Person" means an individual or a corporation, partnership, limited
liability company, association, trust, or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Registrable Securities" means any Common Shares issued or issuable
upon any redemption of Units issued pursuant to the Contribution Agreement;
provided that such Common Shares shall cease to constitute Registrable
Securities once: (i) a registration statement covering such Common Shares has
been declared effective by the Commission and such Common Shares have been sold
or transferred pursuant to such effective registration statement, (ii) such
Common Shares may be sold pursuant to Rule 144(k) under the Securities Act or
(iii) such Common Shares have been otherwise transferred in a transaction that
would constitute a sale thereof under the Securities Act, the Trust has
delivered a new certificate or other evidence of ownership for such Common
Shares not bearing the Securities Act restricted stock legend and such Common
Shares may be resold without subsequent registration under the Securities Act.
"Registration Expenses" means all expenses incident to the Trust's
performance of or compliance with Article 2, including, without limitation, all
registration and filing fees, all listing fees, all fees and expenses of
complying with securities or blue sky laws, and printing expenses, the fees and
disbursements of counsel for the Trust and of the Trust's independent public
accountants, but excluding fees and disbursements of counsel, accountants or
other advisors for the Investor and excluding any brokerage discounts,
underwriting commissions or similar fees payable in connection with an offer or
sale of Registrable Securities.
"Rule 144" means Rule 144 under the Securities Act, as amended from
time to time (or any successor statute).
"Securities Act" means the Securities Act of 1933, as amended.
2. Registration Rights.
2.1 Registration on Demand.
2.1.1 Registration of Registrable Securities.
Subject to Sections 2.1.3 and 2.1.6, within 180 days after the date
hereof the Trust shall prepare and file with the Commission a "shelf"
registration statement under the Securities Act covering the offer and sale of
the Registrable Securities by the Investor in an offering to be made on a
continuous basis pursuant to Rule 415 under the Securities Act.
2.1.2 Registration of Other Securities.
Whenever the Trust shall effect a registration pursuant to this Section
2.1, other holders of securities of the Trust who have registration rights may
include all or a portion of such securities in such registration, offering or
sale; provided that including such securities shall not adversely impact the
ability of the Investor to sell its shares pursuant to such registration.
2.1.3 Registration Statement Form S-3.
Registrations under this Section 2.1 shall only be required to be made
on Form S-3, or any successor form. In the event the Trust is not eligible to
use Form S-3 to register the Registrable Securities, it may delay the filing of
the applicable registration statement until that date on which the Trust is
again eligible to file a Form S-3. The Trust hereby represents and warrants to
the Investor that, as of the date hereof, the Trust is eligible to register the
Registrable Securities on Form S-3 and that it shall take all actions necessary
to continue to be eligible for use of Form S-3.
2.1.4 Expenses. The Trust shall pay the
Registration Expenses in connection with the registration effected pursuant to
this Section 2.1. If a registration pursuant to this Section 2.1 is withdrawn or
otherwise not effected, other than at the request of the Investor, the Trust
shall pay the Registration Expenses in connection therewith. If the registration
is withdrawn at the request of the Investor and if the Investor elects not to
have such registration count as one of its registrations under this Section 2.1,
the Investor shall pay all the Registration Expenses of such registration.
2.1.5 Effective Registration Statement. A
registration pursuant to this Section 2.1 shall not be deemed to have been
effected (i) unless a registration statement with respect thereto has been
declared effective by the Commission or (ii) if after it has become effective,
such registration is interfered with by any stop order, injunction or other
order or requirement of the Commission or other governmental agency or court for
any reason and has not thereafter become effective.
2.1.6 Limitations on Registration on Demand.
(i) In no event shall the Trust be required
to effect more than three registrations pursuant to this Section 2.1.
(ii) Notwithstanding anything herein, if the
Trust reasonably believes that the filing of a registration statement with the
Commission would adversely affect the contemplated activities of the Trust, then
the Trust may postpone the filing of the applicable registration statement for a
period not in excess of 60 days or, in the event the filing is being postponed
in connection with a proposed underwritten public offering of the Trust's
securities, for such longer period (not to exceed an additional 30 days) as may
be reasonably requested by the managing underwriter for such proposed offering.
(iii) Notwithstanding anything herein, if
the filing of a registration statement pursuant to this Agreement would require
the Trust to include in a filing with the Commission financial statements of
probable or completed acquisitions in order that such registration statement be
in compliance with rules and regulations of the Commission, then the Trust may
delay the filing of such registration statement until it has included the
requisite financial statements (including any necessary pro forma financial
information) in a filing with the Commission.
2.2 Registration Procedures.
2.2.1 In connection with the registration of any
Registrable Securities under the Securities Act as provided in Section 2.1, the
Trust shall as promptly as reasonably practicable:
(i) prepare and file with the Commission the
requisite registration statement to effect such registration and thereafter use
commercially reasonable efforts to cause such registration statement to become
and remain effective;
(ii) use commercially reasonable efforts to
prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to comply with
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement until all of such
Registrable Securities have been sold thereunder;
(iii) furnish to the Investor such number of
conformed copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number of copies
of the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such number of copies of such other
documents as the Investor may reasonably request;
(iv) use commercially reasonable efforts (x)
to register or qualify all Registrable Securities under such other securities or
Blue Sky laws of such States of the United States of America where an exemption
is not available and as the Investor shall reasonably request, (y) to keep such
registration or qualification in effect for so long as such registration
statement remains in effect, and (z) to take any other action which may
reasonably be necessary or advisable to enable the Investor to consummate the
disposition in such jurisdictions of the Registrable Securities to be sold by
the Investor, except that the Trust shall not for any such purpose be required
to qualify generally to do business as a foreign trust in any jurisdiction
wherein it would not, but for the requirements of this paragraph (iv), be
obligated to be so qualified or to consent to general service of process in any
such jurisdiction;
(v) notify the Investor upon discovery that,
or upon the happening of any event as a result of which, the prospectus included
in the registration statement filed pursuant to this agreement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, in the light of the circumstances under which they were
made, and promptly prepare and furnish to the Investor such number of copies of
a supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made;
(vi) use commercially reasonable efforts to
list all Registrable Securities covered by such registration statement on any
national securities exchange or over-the-counter market, if any, on which
Registrable Securities covered by such registration statement are then listed.
The Investor agrees that upon receipt of any notice from the Trust of
the happening of an event of the kind described in Section 2.2.1(v), the
Investor shall forthwith discontinue its disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until the Investor's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 2.2.1(v).
2.3 Holdback Agreements; Information Blackout.
2.3.1 Holdback Agreements. In connection with an
underwritten public offering of securities of the Trust, the Investor agrees
that, if required by the underwriter or underwriters, it will not effect any
public sale or distribution, including any sale pursuant to Rule 144 under the
Securities Act, of any Registrable Securities, during the period commencing 10
days prior to the expected commencement of the offering and ending 45 days after
the closing of such offering.
2.3.2 Information Blackout. At any time when a
registration statement effected pursuant to this Section 2 relating to
Registrable Securities is effective, upon written notice from the Trust to the
Investor that the Trust has determined in good faith that sale of Registrable
Securities pursuant to the registration statement would require disclosure by
the Trust of non-public material information not otherwise required, in the
judgment of the Trust, to be disclosed under applicable law, the Investor shall
suspend sales of Registrable Securities pursuant to such registration statement
until the earlier of (a) 45 days after the Trust makes such good faith
determination and (b) such time as the Trust notifies the Investor that such
material information has been disclosed to the public or has ceased to be
material or that sales pursuant to such registration statement may otherwise be
resumed.
2.4 Preparation; Investor Cooperation. In connection with the
preparation and filing of any registration statement under the Securities Act in
which the Investor is a selling shareholder, the Trust shall give the Investor
not less than 15 days prior written notice of the preparation of such
registration statement and give the Investor and their counsel and accountants
the opportunity to review and comment on, at the Investor's expense, the
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto (provided that the
Investor shall furnish the Trust with comments on any such amendment or
supplement as promptly as the Trust shall reasonably require). The Investor will
furnish to the Trust such information as the Trust may reasonably request in
connection with the registration and related proceedings under this Section 2.
2.5 Indemnification.
2.5.1 Indemnification by the Trust. In the
event of any registration of any securities of the Trust under the Securities
Act in which the Investor is a selling shareholder, the Trust shall, and hereby
does, indemnify and hold harmless the Investor from and against any losses,
claims, damages or liabilities, insofar as losses, claims, damages, or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon (a) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary prospectus, final prospectus, or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (b) any violation by
the Trust, its trustees, officers, employees or agents of this Agreement or any
law applicable to and in connection with such registration, and the Trust shall
reimburse the Investor for any legal or any other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
liability, action or proceeding described in clauses (a) or (b); provided,
however, that the Trust shall not be liable in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with information furnished to the Trust by the Investor. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Investor and shall survive the transfer of such securities by the
Investor.
2.5.2 Indemnification by the Investor. If any
Registrable Securities are included in any registration statement, the Investor
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in Section 2.5.1 above) the Trust and each trustee, officer and
employee of the Trust and each Person who controls the Trust within the meaning
of the Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
information furnished to the Trust by the Investor.
2.5.3 Notice of Claims, Etc. Promptly after
receipt by an indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in the preceding paragraphs of this
Section 2.5, such indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party, immediately give written notice to the
latter of the commencement of such action; provided, however, that the failure
of any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of this
Section 2.5, except to the extent that the indemnifying party is materially
prejudiced by such failure. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that the indemnifying
parties may agree, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable out of pocket costs related to the indemnified party's cooperation
with the indemnifying party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties arises in respect of such claim after the assumption of the defense
thereof. No indemnifying party shall be liable for any settlement of any action
or proceeding effected without its written consent, which consent shall not be
unreasonably withheld, delayed or conditioned. Consent of the indemnified party
shall be required for the entry of any judgment or to enter into a settlement
only when such judgment or settlement does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect such claim or litigation.
2.5.4 Contribution. If the indemnification
provided for in this Section 2.5 shall for any reason be held by a court to be
unavailable to an indemnified party under Section 2.5.1 or 2.5.2 hereof in
respect of any loss, claim, damage or liability, or any action in respect
thereof, then, in lieu of the amount paid or payable under Sections 2.5.1 or
2.5.2 hereof, the indemnified party and the indemnifying party under Sections
2.5.1 or 2.5.2 hereof shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating the same), (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Trust and the
Investor or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect the relative
fault of the Trust and the Investor that resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. No Person guilty of fraudulent misrepresentation (within the
meaning of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. In addition, no Person
shall be obligated to contribute hereunder any amounts in payment for any
settlement of any action or claim, effected without such Person's written
consent, which consent shall not be unreasonably withheld.
3. Decisions; Modification; Waivers. All decisions by, and notices
from, the Investor hereunder shall be made by the holders of not less than a
majority of the Registrable Securities outstanding held by the Investor and all
other holders of Registrable Securities shall be bound by any such decision.
This Agreement may be modified or amended only with the written consent the
Trust, the Partnership and the Investor holding not less than a majority of the
Registrable Securities. No party shall be released from its obligations
hereunder without the written consent of the other party. The observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) by the party entitled to
enforce such term, but any such waiver shall be effective only if in a writing
signed by the party against which such waiver is to be asserted. Except as
otherwise specifically provided herein, no delay on the part of any party hereto
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party hereto of any right,
power or privilege hereunder operate as a waiver of any other right, power or
privilege hereunder nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any right, power or privilege hereunder.
4. Entire Agreement. This Agreement represents the entire understanding
and agreement between the parties hereto with respect to the subject matter
hereof and supersedes all other prior and contemporaneous agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
5. Severability. If any provision of this Agreement, or the application
of such provision to any party or circumstance, shall be held invalid, the
remainder of this Agreement or the application of such provision to other
parties or circumstances, to the extent permitted by law, shall not be affected
thereby; provided, that the parties shall negotiate in good faith with respect
to an equitable modification of the provision or application thereof held to be
invalid.
6. Notices. All notices, requests and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
delivered (i) in person, (ii) by certified mail, return receipt requested, (iii)
by recognized overnight delivery service providing positive tracking of items
(for example, Federal Express), or (iv) by confirmed telecopier, in each case
addressed as follows:
If to the Trust or the Partnership, addressed to:
Brandywine Operating Partnership, L.P.
c/o Brandywine Realty Trust
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, President and Chief Executive Officer
Facsimile: (000) 000-0000
with a copy in each instance to:
Brandywine Operating Partnership, L.P.
c/o Brandywine Realty Trust
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Senior Vice President
Facsimile: (000) 000-0000
If to the Investor, addressed to:
c/o TRC Realty, Inc.-GP
0000 Xxx Xxxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx X Xxxxxxxxxx and Xxxx X. Xxxx
with a copy in each instance to:
c/o TRC Realty, Inc.-GP
0000 Xxx Xxxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxx and R. Xxxxx Xxxxxxxxx, Xx.
or to such other address or addresses and to the attention of such other person
or persons as any of the parties may notify the other in accordance with the
provisions of this Agreement. All such notices, requests and other
communications shall be deemed to have been sufficiently given for all purposes
hereof only if given pursuant to the foregoing requirements as to both manner
and address, and only upon receipt (or refusal to accept delivery) by the party
to whom such notice is sent. Notices by the parties may be given on their behalf
by their respective attorneys.
7. Counterparts. This Agreement may be executed in counterparts, each
of which for all purposes shall be deemed to be an original and all of which
together shall constitute the same agreement.
8. Headings. The Section headings in this Agreement are for convenience
of reference only, and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
9. Construction. This Agreement shall be governed, construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania without
regard to its principles of conflict of laws.
10. Recapitalizations, etc. In the event that any shares of beneficial
interest or other securities are issued in respect of, in exchange for, or in
substitution of, any Registrable Securities by reason of any reorganization,
recapitalization, reclassification, merger, consolidation, spin-off, partial or
complete liquidation, share dividend, split-up, sale of assets, distribution to
shareholders or combination of the Registrable Securities or any other similar
change in the Trust's capital structure, appropriate adjustments shall be made
in this Agreement so as to fairly and equitably preserve, as far as practicable,
the original rights and obligations of the parties hereto under this Agreement.
11. Term. This Agreement shall continue in full force and effect until
the date on which the Common Shares issued or issuable upon redemption of Units
issued pursuant to the Contribution Agreement have ceased to constitute
Registrable Securities.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date first above written and delivered by their respective duly
authorized officers.
BRANDYWINE REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
BRANDYWINE OPERATING
PARTNERSHIP, L.P.
By: BRANDYWINE REALTY
TRUST, its sole general partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
INVESTOR:
TRC ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President and Chief Executive Officer
