EXHIBIT 10.3
SECOND AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
THIS SECOND AMENDMENT, dated as of March 31, 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
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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 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, respectively, to properties commonly known
as 00 Xxxx Xxxxx Xxxxxx and Princeton Pike 2, 3 and 4) 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 (i) 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 185th day
following the date hereof (the "Termination Date") at which time the foregoing
restriction on exercise of the Redemption Right shall automatically terminate
and (ii) in addition to the other restrictions on Transfer contained in the
Partnership Agreement, the Class A Units issued on the date hereof to the
Admitted Parrtners shall not be transferable until the Termination Date.
3. 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.
4. 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.
5. 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.
-2-
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: /s/Xxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxx
Its: President and Chief Executive Officer
ADMITTED PARTNERS:
BROOKSTONE INVESTORS, L.L.C.
By: /s/Xxxxxx Xxxxxx
--------------------------------------------
Xxxxxx Xxxxxx, Member
BROOKSTONE HOLDINGS OF DEL. - 4, L.L.C.
By: /s/Xxxxxx Xxxxxx
--------------------------------------------
Xxxxxx Xxxxxx, Member
BROOKSTONE HOLDINGS OF DEL. - 5, L.L.C.
By: /s/Xxxxxx Xxxxxx
--------------------------------------------
Xxxxxx Xxxxxx, Member
BROOKSTONE HOLDINGS OF DEL. - 6, L.L.C.
By: /s/Xxxxxx Xxxxxx
--------------------------------------------
Xxxxxx Xxxxxx, Member
-3-
SCHEDULE "A"
NUMBER OF
ADMITTED PARTNERSHIP
PARTNERS INTERESTS
-------- ---------
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
SCHEDULE "B"
BRANDYWINE OPERATING PARTNERSHIP, L.P.
OUTSTANDING PARTNERSHIP INTERESTS
AS OF MARCH 31, 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
Xxxx X. Xxxxxx 1,434
Xxxxxx X. Xxxxxxx 6,830
X. Xxxxxx Xxxxxxxxxxx 59,578
M. Xxxx Xxxxxxxxxxx 60,576
Xxxxxx X. Xxxxxxx 1,902
Xxxxxx X. Xxxxxxxxxxx 265,384
Xxxxxxx X. Xxxxxxx 2,536
Brandywine Holdings I, Inc. 5
Brandywine Realty Trust 415,786
NUMBER OF
PARTNERSHIP
INTERESTS
GENERAL PARTNER (ALL GP UNITS)
--------------- --------------
Brandywine Realty Trust 37,010,209
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 31st day of March, 1998.
BROOKSTONE INVESTORS, L.L.C.
By: /s/Xxxxxx Xxxxxx
---------------------
Xxxxxx Xxxxxx, Member
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 31st day of March, 1998.
BROOKSTONE HOLDINGS OF DEL. - 4, L.L.C.
By: /s/Xxxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxx, Member
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 31st day of March, 1998.
BROOKSTONE HOLDINGS OF DEL. - 5, L.L.C.
By: /s/Xxxxxx Xxxxxx
------------------------------
Xxxxxx Xxxxxx, Member
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 31st day of March, 1998.
BROOKSTONE HOLDINGS OF DEL. - 6, L.L.C.
By: /s/Xxxxxx Xxxxxx
------------------------------
Xxxxxx Xxxxxx, Member