EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated
as of the ___ day of ___________, 1998, 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 the persons and entities listed on
Schedule I attached hereto (each an "Investor" and, collectively, the
"Investors"; it being understood that such term shall also include such
Investor's heirs, personal representatives, successors and assigns).
RECITALS
WHEREAS, the Trust, the Partnership and certain other
persons and entities are parties to that certain Purchase and Contribution
Agreement, dated as of ________, 1998 (the "Acquisition Agreement"), pursuant
to which the Partnership has agreed to issue 7.25% Series A Cumulative
Convertible Preferred Shares of beneficial interest, par value $.01 per share,
of the Trust (the "Preferred Shares"), which are convertible into or
redeemable for common shares of beneficial interest, par value $.01 per share,
of the Trust ("Common Shares"); and
WHEREAS, as a condition to their agreement to accept
Preferred Shares as consideration pursuant to the Acquisition Agreement, the
Investors have required, and the Trust has agreed to grant, the registration
rights provided for herein with respect to the Registrable Securities (as
defined below).
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 (and in addition to other capitalized terms not otherwise defined herein
having the meanings set forth in the Acquisition Agreement), the following
terms, as used herein, have the following meanings:
"Majority Investors" means Investors who, as of the
applicable time, beneficially own a majority in number of the outstanding
Registrable Securities (calculated on the assumption that all Preferred Shares
held by the Investors have been converted into or redeemed for Common Shares)
and who provide the notice to effect a registration pursuant to Section 2.2
hereof.
"Maximum Offering" means that number of Registrable
Securities that the managing underwriter advises the Majority Investors can be
sold without materially and adversely affecting an underwritten public
offering to be effected pursuant to Section 2.2 hereof.
"Registrable Securities" means (i) any Preferred
Shares issued pursuant to the Acquisition Agreement ("Preferred Registrable
Securities") and (ii) any Common Shares issued or issuable upon redemption or
conversion of the Preferred Shares ("Common Registrable Securities");
provided, that any of such securities shall cease to constitute Registrable
Securities once: (i) a registration statement covering such securities has
been declared effective by the SEC and such securities have been sold or
transferred by an Investor pursuant to such effective registration statement;
(ii) such securities may be sold by an Investor pursuant to Rule 144(k) under
the Securities Act; or (iii) such securities are sold by an Investor pursuant
to Rule 144 under the Securities Act.
"Registration Expenses" means any expenses incident
to the Trust's performance of or compliance with Article 2, including, without
limitation, all registration and filing fees, all application and listing
fees, all fees and expenses of complying with securities or blue sky laws, and
printing expenses (including reasonable messenger and delivery service
expenses), all fees and disbursements of counsel for the Trust and of the
Trust's independent public accountants, but excluding (i) fees and
disbursements of counsel, accountants or other advisors for the Investors,
(ii) any brokerage discounts or underwriting commissions, or similar fees,
payable in connection with a sale of Registrable Securities, and (iii) the
out-of-pocket or internal costs and expenses incurred by or on behalf of any
Investor, including, without limitation, any expenses incurred by or on behalf
of any representatives of any Investors in connection with their participation
any "roadshow" presentations (the expenses referred to in clauses (i) through
(iii) are the "Selling Expenses").
"Remaining Investors" means those Investors, on a
particular date, who are not the Majority Investors.
"Rule 144" means Rule 144 under the Securities Act,
as amended from time to time (or any successor statute).
"SEC" means the United States Securities and
Exchange Commission.
"Securities Act" means the Securities Act of 1933,
as amended.
2. Registration Rights.
2.1 Registration Requirement.
2.1.1 Required Registration of Registrable
Securities. The Trust shall prepare and file with the SEC no later than 90
days after the Closing, and shall thereafter use its commercially reasonable
efforts (a) to cause to become effective as soon as practicable, subject to
the reasonable cooperation of the Investors, a "shelf" registration statement
under the Securities Act covering the reoffer and resale of the Registrable
Securities by the Investors in an offering to be made on a continuous basis
pursuant to Rule 415 under the Securities Act and (b) to keep such
registration statement effective until the earlier of (i) the sale of all the
Registrable
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Securities covered thereby pursuant to such registration statement or (ii) the
date on which the Registrable Securities covered thereby cease to be
"Registrable Securities" as defined herein.
2.1.2 Registration Statement Form S-3.
Registrations under this Section 2.1 shall only be required to be made on Form
S-3. 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.
2.1.3 Expenses. The Trust shall pay the
Registration Expenses and the Investors shall pay the Selling Expenses
incurred in connection with the registration effected pursuant to this Section
2.1.
2.2 Demand Registration.
2.2.1 Demand Registration of Registrable
Securities. At anytime after 90 days after Closing, the Majority Investors may
send written notice to the Trust requesting that the Trust cause to be filed
with the SEC a registration statement under the Securities Act covering the
reoffer and resale of the (i) Preferred Registrable Securities, (ii) Common
Registrable Securities or (iii) all of the Registrable Securities by the
Investors in an underwritten public offering. Within 15 Business Days after
the effective date of such notice, the Trust shall notify in writing the
Remaining Investors of the filing and shall include in any such registration
any Preferred Registrable Securities and/or Common Registrable Securities, as
applicable, sought to be included by any Remaining Investors who so notify the
Trust in writing, within 15 Business Days after the effective date of the
notice from the Trust, of their election to include Registrable Securities in
such registration statement. Within 60 days after the effective date of the
notice from the Majority Investors, the Trust shall file a registration
statement on such form as selected by the Trust seeking to register the
Registrable Securities so requested to be registered by all Investors as
provided above, and the Trust shall use commercially reasonable efforts to
cause to become effective such registration statement, subject to the
reasonable cooperation of the Investors participating as selling shareholders
in such registration. Notwithstanding anything in this Section 2.2 to the
contrary, if the managing underwriter of any public offering to be effected
pursuant to this Section 2.2 shall inform the Majority Investors of its belief
that the number of Registrable Securities requested by all Investors to be
included in such registration would materially and adversely affect the
underwritten public offering, then each Investor who has elected to
participate as a selling shareholder in such registration as provided above
shall include in such registration, that number of Registrable Securities
obtained by multiplying the Maximum Offering by a fraction obtained by
dividing (i) the number of the Registrable Securities that such Investor
sought to include in such registration by (ii) the total number of securities
proposed to be included in such registration by all Investors.
2.2.2 Expenses. The Trust shall pay the
Registration Expenses in connection with any registration effected pursuant to
Section 2.2 and the Investors participating in a registration effected
pursuant to Section 2.2 shall pay the Selling Expenses in connection with any
such registration effected pursuant to Section 2.2.
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2.2.3 Effective Registration Statement.
Notwithstanding anything to the contrary herein, a registration requested
pursuant to this Section 2.2 shall not be deemed to have been effected unless
a registration statement with respect thereto has become effective and either
(i) it remains continuously effective, without interruption by any stop order
for a period of 180 days following the effective date of such registration or
(ii) the sale of at least a majority of the Registrable Securities (calculated
on the assumption that all Preferred Registrable Securities, if any,
registered on such registration statement have been converted into or redeemed
for Common Shares) which such registration statement initially sought to
register is completed pursuant thereto. Any registration statement filed
pursuant to this Section 2.2 may be withdrawn, at anytime prior to it being
declared effective by the SEC, by the Majority Investors giving written notice
of such withdrawal to the Trust, and will count as one of the effective
registration statements for purposes of Section 2.3.1 below; provided, if the
Investors reimburse the Trust for all of the Registration Expenses incurred in
connection with any such withdrawn registration statement, it shall not count
as one of the effective registration statements for purposes of Section 2.3.1
below; and, provided, further, notwithstanding any such notice of withdrawal
given by the Majority Investors, Investors who otherwise were participating as
selling shareholders in such registration, by giving written notice to the
Trust and the managing underwriter of any such offering, within three Business
Days after the effective date of the withdrawal notice from the Majority
Investors, may suspend such withdrawal by agreeing to offer and sell, pursuant
to such registration statement, that number of Registrable Securities equal to
at least a majority of the Registrable Securities (calculated on the
assumption that all Preferred Registrable Securities, if any, registered on
such registration statement have been converted into or redeemed for Common
Shares) as to which the registration statement, as originally filed, sought to
register.
2.2.4 Selection of Underwriters. In
connection with each underwritten public offering effected pursuant to this
Section 2.2, the Majority Investors shall select the managing underwriter
subject to the approval of the Trust, which approval shall not be unreasonably
withheld by the Trust.
2.3 Limitations on Registration.
2.3.1 In no event shall the Trust be
required to effect more than one (1) registration pursuant to Section 2.1 and
more than one (1) registration of the Preferred Registrable Securities and one
(1) registration of the Common Registrable Securities (which, if so requested
by the Majority Investors may be satisfied in one joint registration) pursuant
to Section 2.2.
2.3.2 Notwithstanding anything herein, if
the Trust reasonably believes that the filing of a registration statement with
the SEC would adversely affect the contemplated activities of the Trust, then
the Trust may postpone the filing of the applicable registration statement,
require that the Investors not effect offers and sales pursuant to an
effective registration statement or otherwise suspend its obligation to amend,
modify or update a filed registration statement, for a period not in excess of
90 days in any 365-day period (or, in the
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event the filing any such postponement is 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).
2.3.3 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 SEC financial statements of
probable or completed acquisitions in order that such registration statement
be in compliance with rules and regulations of the SEC, 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 SEC. The Trust shall use its commercially
reasonable efforts to file such financial statements as soon as practicable.
2.3.4 The Trust shall not be required to
file a registration statement pursuant to Section 2.2 which would become
effective within 180 days following the effective date of a registration
statement (other than a registration statement filed on Form S-4 or S-8) filed
by the Trust with the SEC pertaining to any public offering for the account of
any Investor.
2.3.5 Notwithstanding anything to the
contrary contained in this Agreement, the obligations of the Trust under this
Section 2 shall terminate at such time as none of the Investors beneficially
own (which, for purposes of this Agreement shall be determined with reference
to Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended) Registrable Securities.
2.4 Registration Procedures.
2.4.1 In connection with the registration
of any Registrable Securities under the Securities Act as provided in this
Section 2, the Trust shall:
(i) prepare and file with the SEC
the requisite registration statement to effect such registration and
thereafter use commercially reasonable efforts to cause such registration
statement to become and remain effective as provided in Section 2.1 or 2.2, as
applicable;
(ii) subject to Section 2.3, use
commercially reasonable efforts to prepare and file with the SEC 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 Investors
such number of conformed copies of such registration statement and of each
such amendment and supplement thereto (in
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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
Investors 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 Investors shall reasonably
request, (y) to keep such registration or qualification in effect for so long
as such registration statement remains effective, and (z) to take any other
action which may reasonably be necessary or advisable to enable the Investors
to consummate the disposition in such jurisdictions of the Registrable
Securities to be sold by the Investors, 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 Investors 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 at the request of the Investors,
use its best efforts to promptly prepare and furnish to the Investors 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 Common Registrable Securities covered by such registration
statement on any national securities exchange or over-the-counter market, if
any, on which the Common Shares are then listed.
(vii) use commercially reasonable
efforts to (i) comply with all applicable rules and regulations of the SEC and
(ii) in accordance with Section 11(a) of the Securities Act and Rule 158
thereunder, make available to its securityholders, as soon as reasonable
practicable, an earnings statement covering the period of at least 12 months,
but not more than 18 months, beginning with the first quarter after the
effective date of the registration statement covering the Registrable
Securities.
The Investors agree that upon
receipt of any notice from the Trust of the happening of an event of the kind
described in Section 2.4.1(v), the Investors shall forthwith discontinue their
disposition of Registrable Securities pursuant to the registration
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statement relating to such Registrable Securities until the Investors' receipt
of the copies of the supplemented or amended prospectus contemplated by
Section 2.4.1(v).
2.4.2 In connection with the registration
of any Registrable Securities under the Securities Act pursuant to Section
2.1, the Trust may include in any such registration Common Shares held by
persons or entities that have registration rights granted under that certain
Registration Rights Agreement, dated as of the date hereof, by and among the
Trust, the Partnership and the other signatories thereto (the "CAP
Registration Rights Agreement.")
2.5 Rule 144. The Trust will use commercially
reasonable efforts during the term of this Agreement to (i) file with the SEC
such information as is specified under Rule 144 for so long as there are
beneficial owners of Registrable Securities and (ii) take all other action as
may be required as a condition to the availability of Rule 144.
2.6 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
Investors 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 Investors
shall suspend sales of Registrable Securities pursuant to such registration
statement until the earlier of (a) 60 days after the Trust makes such good
faith determination and (b) such time as the Trust notifies the Investors 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.
2.7 Preparation.
2.7.1 Investor Review and Due Diligence.
In connection with the preparation and filing of any registration statement
under the Securities Act in which the Investors are selling shareholders, the
Trust shall give the Investors not less than 10 days prior written notice of
the preparation of such registration statement and give the Investors and
their counsel the opportunity to review and comment on the applicable
portions, relating to the Investors (including the Selling Shareholder and
Plan of Distribution sections), of the registration statement, each prospectus
included therein or filed with the SEC, and each amendment thereof or
supplement thereto (provided that the Investors shall furnish the Trust with
comments on any such amendment or supplement as promptly as the Trust shall
reasonably require).
2.7.2 Investor Information. Each Investor
which beneficially owns Registrable Securities to be registered under Section
2.1 or 2.2 shall furnish to the Trust such information as the Trust may
reasonably request and as shall be required in connection with the
registration and related proceedings referred to in this Section 2. If any
Investor fails to provide the Trust with such information within 10 days of
the effective date of the Trust's
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request therefor, the Trust's obligations under Section 2 with respect to such
Investor or the Registrable Securities beneficially owned by such Investor
shall be suspended until such Investor provides such information.
2.8 Underwritten Offerings. In connection with any
underwritten public offering to be effected pursuant to Section 2.2, if
requested by the underwriters for any underwritten public offering by the
Investors, the Trust shall enter into an underwriting agreement with such
underwriters for such underwritten public offering, such agreement to be
reasonably satisfactory in substance and form to the Trust, the Investors and
the underwriters, and to contain such representations and warranties by the
Trust and the Investors and such other terms as are generally prevailing in
agreements of that type, including, without limitation, customary indemnities
and contribution provisions generally prevailing in agreements of that type.
The Investors shall be a party to such underwriting agreement.
2.9 Indemnification.
2.9.1 Indemnification by the Trust. In the
event of any registration of any securities of the Trust under the Securities
Act in which the Investors are or may be selling shareholders, the Trust
shall, and hereby does, indemnify and hold harmless, to the fullest extent
permitted by law, such Investors who are selling shareholders, and their
respective directors, officers, partners, employees, agents and affiliates,
and each other person who controls any Investor within the meaning of the
Securities Act (each a "Trust Indemnified Party"), against losses, claims,
damages, liabilities or judgments (or actions or proceedings, whether
commenced or threatened, in respect thereof) that arise out of or are based
upon (a) any untrue statement or alleged untrue statement of any 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
fact required to be stated therein or necessary to make the statements therein
in light of the circumstances in which they were made 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 Trust Indemnified Parties for
any legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or judgment
(or action or proceeding in respect thereof) described in clauses (a) or (b);
provided, that the Trust shall not be liable in any such case to the extent
that any such loss, claim, damage, liability, judgment (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 any Investor; and
provided, further, that this indemnity obligation of the Trust shall not apply
to any misstatement or omission in any registration statement, including any
amendment thereto, or in any preliminary prospectus, if such misstatement or
omission giving rise to the claim for indemnification was corrected in the
final prospectus and the Trust made available on a timely basis to the
Investors participating as selling shareholders, or the managing
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underwriter of the particular public offering, copies of the final prospectus
for delivery to the purchasers of the Registrable Securities in such offering.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Investors and shall survive the
transfer of such securities by the Investors.
2.9.2 Indemnification by the Investors If
any Registrable Securities are included in any registration statement, the
Investors who beneficially own such Registrable Securities (the "Indemnifying
Investors") shall indemnify and hold harmless, to the fullest extent permitted
by law, 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
(the "Investor Indemnified Parties"), against losses, claims, damages,
liabilities or judgments (or actions or proceedings, whether commenced or
threatened, in respect thereof) that arise out of or are based upon (a) 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 Investors, or (b) any violation by the Investors, or their
respective directors, officers, partners, employees, agents and affiliate, of
this Agreement or any law applicable to and in connection with such
registration, and such Investors shall reimburse the Investor Indemnified
Parties for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or judgment (or action or proceeding in respect thereof) described
in clauses (a) or (b). In no event shall any Indemnifying Investor, its
directors, officers or any person who controls such Indemnifying Investor be
liable or responsible for any amount in excess of the amount by which the
total amount received by such Indemnifying Investor with respect to any
registration of any securities of the Trust under the Securities Act exceeds
(i) the pro rata amount paid by such Indemnifying Investor for such securities
of the Trust and (ii) the amount of any damages that such Indemnifying
Investor, its directors, officers or any person who controls such Indemnifying
Investor has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
2.9.3 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 2.9, 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, 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 2.9, 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
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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.
2.9.4 Contribution. If the indemnification
provided for in this Section 2.9 shall for any reason be held by a court to be
unavailable to an indemnified party under Section 2.9.1 or 2.9.2 hereof in
respect of any loss, claim, damage, liability, judgment, or any action in
respect thereof, then, in lieu of the amount paid or payable under Sections
2.9.1 or 2.9.2 hereof, the indemnified party and the indemnifying party under
Sections 2.9.1 or 2.9.2 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
is appropriate to reflect the relative fault of the Trust on one hand and the
Investors that participated as selling shareholders on the other that resulted
in such loss, claim, damage or liability, or action in respect thereof, or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as shall be appropriate to reflect the
relative benefits received by the Trust on one hand and the Investors that
participated as selling shareholders on the other, as well as any other
relevant equitable considerations. 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.
2.9.5 Fraudulent Representations. No
Person guilty of fraudulent misrepresentation (within the meaning of the
Securities Act) shall be entitled to indemnity or contribution from any Person
who was not guilty of such fraudulent misrepresentation.
3. Amendments; Waivers. This Agreement may be amended only
with the written consent of the Trust and at least Investors that constitute
the Majority Investors. 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.
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4. Entire Agreement. This Agreement represents the entire
understanding and agreement among 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 or rules of
the SEC, shall not be affected thereby. The obligations of the Trust hereunder
shall be subject to equitable modification if and to the extent required in
order to enable the Trust to conform to any rules of the SEC or policy
positions of the SEC, as reasonably integrated by the Trust and its counsel.
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 U.S. overnight Express Mail, return
receipt requested, (iii) by recognized overnight delivery service providing
positive tracking of items (e.g., Federal Express), or (iv) by confirmed
telecopier, in each case addressed as follows:
If to the Trust or the Partnership, addressed to:
c/o Brandywine Realty Trust
Newtown Square Corporate Campus
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, President and
Chief Executive Officer
Fax: (000) 000-0000
with a required copy in each instance to:
Xxxx X. Xxxxxxxx, General Counsel
Brandywine Operating Partnership, L.P.
Newtown Square Corporate Campus
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
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If to the Investors:
Addressed to such Investor as set forth on the
Investor Signature Page hereto
with a required copy in each instance to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: R. Xxxxxx Xxxxxxxxx and Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
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. Successors and Assigns. This Agreement shall inure to the
benefit of and shall be binding upon the Trust and its successors and
permitted assigns. The rights to register securities granted by the Trust
under this Agreement may be assigned by any Investor, provided, that (a) such
transfer may otherwise be and is effected in accordance with applicable
securities laws; and (b) such assignee or transferee agrees in writing to be
bound by all of the provisions of this Agreement and executes an Investor
Signature Page in the form attached hereto. In the event of any transfer of
rights in accordance with this Section 7, the transferee shall have all of the
rights and obligations of an Investor under the terms of this Agreement.
8. Counterparts; Facsimile Signature. This Agreement may be
executed in counterparts (including by facsimile which, for all purposes,
shall be deemed to be an original), each of which for all purposes shall be
deemed to be an original and all of which together shall constitute the same
agreement.
9. 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.
10. Construction. This Agreement shall be governed,
construed and enforced in accordance with the laws of the State of New York
without regard to its principles of conflict of laws.
11. 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
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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 shares of 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.
[Execution Page Follows]
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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 OPERATING
PARTNERSHIP, L.P.
By: BRANDYWINE REALTY
TRUST, its sole general partner
By:______________________________
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
BRANDYWINE REALTY TRUST
By:_______________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
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INVESTOR SIGNATURE PAGE
The undersigned hereby acknowledges receipt of a copy of the
Registration Rights Agreement, dated as of _________, 1998, and hereby agrees
to be bound by the terms and conditions thereof as an Investor.
------------------------------------
Name of Investor
------------------------------------
Signature of Authorized Signer
------------------------------------
Name & Title of Authorized Signer
Address for Notices:
------------------------------------
------------------------------------
------------------------------------
Attention:__________________________
Facsimile:__________________________
Telephone:__________________________
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SCHEDULE I
List of Investors
[To Come]
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