EXHIBIT 10.2
__________ AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
THIS ________ AMENDMENT, dated as of _________, 1998 (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
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 A Preferred Mirror Units having
designations, preferences and other rights which are substantially the same as
the economic rights of the 7.25% Series A Cumulative Convertible Preferred
Shares of the General Partner (the "Series A 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 A Preferred Shares pursuant to
that certain Purchase and Contribution Agreement, dated as of ___________,
1998, by and among the General Partner, the Partnership and the other
signatories thereto] [the Series A Preferred Shares].
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby amend the Partnership
Agreement as follows:
1. In accordance with the Partnership Agreement, the Partnership
Agreement is hereby amended to establish, and to issue to the General Partner,
the Series A Preferred Mirror Units having the designations, preferences and
other rights set forth below:
(a) Designation and Number. A class of Partnership Interests
designated as Series A Preferred Mirror Units is hereby established. The
number of Series A Preferred Mirror Units shall be _________ . The stated
value of each Series A Preferred Mirror Unit shall be $50.00 (the "Stated
Value").
(b) Rank. The Series A 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 A 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 A Preferred Mirror Units including the Partnership Interests
designated as Class 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 A Preferred Mirror
Units.
(c) Distributions.
(i) Pursuant to Section 6.1 of the Partnership Agreement,
holders of Series A 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 A Preferred Shares. Such distributions shall be payable quarterly
in arrears on or before the date on which distributions on the Series A
Preferred Shares are payable (each a "Series A Preferred Mirror Unit
Distribution Payment Date").
(ii) No distributions on Series A 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.
(iii) Notwithstanding the foregoing, distributions with
respect to the Series A 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 A Preferred Mirror
Units will accumulate as of the Series A Preferred Mirror Unit Distribution
Payment Date on which they first become payable.
(iv) When distributions are not paid in full (or a sum
sufficient for such full payment is not so set apart) upon the Series A
Preferred Mirror Units and any other Partnership Interests ranking on a parity
as to distributions with the Series A Preferred Mirror Units, all
distributions authorized upon the Series A Preferred Mirror Units and any
other Partnership Interests ranking on a parity as to distributions with the
Series A Preferred Mirror Units shall be authorized pro rata so that the
amount of distributions authorized per Partnership Unit of Series A 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 A Preferred Mirror Units and such other Partnership Interests
(which shall not include any accrual
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in respect of unpaid distributions for prior distribution periods if such
other Partnership Interests do not have a cumulative distribution) bear to
each other. No interest, or sum of money in lieu of interest, shall be payable
in respect of any distribution payment or payments on Series A Preferred
Mirror Units which may be in arrears.
(v) Except as provided in Section 1(c)(iv), unless full
cumulative distributions on the Series A 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 A Preferred Mirror Units
as to distributions and upon liquidation) shall be authorized or paid or set
aside for payment nor shall any other distribution be authorized or made upon
the Class A Units or any other Partnership Interests ranking junior to or on a
parity with the Series A Preferred Mirror Units as to distributions or upon
liquidation, nor shall any Class A Units or any other Partnership Interests
ranking junior to or on a parity with the Series A 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 A Preferred Mirror Units as
to distributions and upon liquidation).
(vi) Holders of the Series A 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 A
Preferred Mirror Units as described above. Any distribution payment made on
the Series A Preferred Mirror Units shall first be credited against the
earliest accrued but unpaid distribution due with respect to such Series A
Preferred Mirror Units which remains payable.
(d) Liquidation Preference.
(i) Upon any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Partnership, the holders of Series A
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 A 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 as to liquidation rights.
(ii) 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 A Preferred Mirror Units
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and the corresponding amounts payable on all other Partnership Interests
ranking on a parity with the Series A Preferred Mirror Units in the
distribution of assets, then such assets shall be allocated among the Series A
Preferred Mirror Units, as a class, and each class or series of such other
such Partnership Interests, as a class, in proportion to the full liquidating
distributions to which they would otherwise be respectively entitled.
(iii) After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series A Preferred
Mirror Units will have no right or claim to any of the remaining assets of the
Partnership.
(iv) 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).
(e) Redemption. In connection with a redemption by the General
Partner, pursuant to the exercise of a Cash Redemption Right (as defined in
the General Partner's Declaration of Trust, as amended (the "Declaration of
Trust")), of any or all of the Series A Preferred Shares, the Partnership
shall provide cash to the General Partner for such purpose which shall be
equal to redemption price of the Series A Preferred Shares to be redeemed and
one Series A Preferred Mirror Unit shall be canceled with respect to each
Series A Preferred Share so redeemed. In connection with a redemption by the
General Partner, pursuant to the exercise of a Share Redemption Right (as
defined in the Declaration of Trust), of any or all of the Series A Preferred
Shares, the Partnership shall issue to the General Partner a number of Class A
Units equal to the number of Common Shares issued in payment of the redemption
price of the Class A Preferred Shares so redeemed, and one Series A Preferred
Mirror Unit for each Series A Preferred Share so redeemed shall be canceled.
From and after the date on which the Series A Preferred Shares are redeemed,
the Series A Preferred Mirror Units so canceled shall no longer be outstanding
and all rights hereunder, to distributions or otherwise, with respect to such
Series A Preferred Mirror Units shall cease.
(f) Conversion. In connection with, and at the time of, the
conversion of all or any Series A Preferred Shares into Common Shares, a
number of Series A Preferred Mirror Units equal to the number of Series A
Preferred Shares so converted shall be converted into a number of Class A
Units equal to the number of Common Shares issuable upon such conversion.
(g) Allocations. Allocations of the Partnership's items of income,
gain, loss and deduction shall be allocated among holders of Series A
Preferred Mirror Units in accordance with Article VII of the Partnership
Agreement.
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2. Section 13.5(a) of the Partnership Agreement is amending
redesignating subparagraph (iv) as subparagraph (v) and inserting the
following new subparagraph (iv):
(iv) Next, to the holders of Partnership Interests that are entitled
to any preference in distribution upon liquidation in accordance with the
rights of any such class or series of Partnership Interests (and, within each
such class or series, to each holder thereof pro rata based on the proportion
of the total number of outstanding units of such class or series represented
by such holder's units of such series or class); and
3. Section 7.2 of the Partnership Agreement is amending by inserting the
following new subparagraph (g):
(g) Priority Allocation. All or a portion of the Net Income of the
Partnership for the Fiscal Year, if any, shall be specially allocated to the
Partners holding Series A Preferred Mirror Units and Series B Preferred 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 _____Amendment
to this Agreement or, with respect to Partners holding Series B Preferred
Units, Section 1.C and 1.D of the _____ 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 ______Amendment to this Agreement or, with respect to Partners
holding Series B Preferred Units, Section 1C and 1D of the _____Amendment,
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 7.1(g) for all prior Fiscal Years.
4. 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.
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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:______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President and Chief Executive Officer
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