Exhibit 3.38
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AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE METROPLEX, L.P.
A Pennsylvania Limited Partnership
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THIS AGREEMENT OF LIMITED PARTNERSHIP of Brandywine Metroplex, L.P. is made and entered into as of this 20th day of December, 2000, by and between Brandywine Operating Partnership, L.P., a Delaware limited partnership as the limited partner (“Limited Partner”) and Brandywine Metroplex, LLC, a Pennsylvania limited liability company as general partner (“General Partner” and together with the Limited Partner, the “Partners”) for the purpose of forming a Pennsylvania limited partnership (the “Partnership”) in accordance with the provisions hereinafter set forth. Capitalized terms are defined below.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein made and intending to be legally bound, the Partners hereby agree as follows:
ARTICLE 1
GENERAL PROVISIONS |
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| 1.1. Formation.
The Partners hereby agree to form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions
set forth in this Agreement. The General Partner shall file or cause to
be filed the Certificate with the Pennsylvania Department of State in accordance
with the provisions of the Act and shall do or cause to be done all such
other filings, recordings or other acts, including amendments to the Certificate,
as may be necessary or appropriate to comply with the laws of formation
and operation of a limited partnership in the Commonwealth of Pennsylvania
and any other jurisdiction in which the Partnership may conduct business. |
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| 1.2. Name.
The name of the Partnership is BRANDYWINE METROPLEX, L.P. or such other
name as the Partners from time to time may unanimously select. |
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| 1.3. Place
of Business. The principal place of business of the Partnership shall
be at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other
place as the General Partner may from time to time designate. The Partnership
may maintain such other offices at such other places as the General Partner
deems advisable. |
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| 1.4. Purpose.
The Partnership is organized to pursue any lawful purpose. |
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| 1.5. Term.
The Partnership shall commence upon the filing of the Certificate and shall
continue until the Partnership is terminated in accordance with the terms
of this Agreement. |
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ARTICLE 2
CAPITAL MATTERS |
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| 2.1. Initial
Capital Contributions. Simultaneously with the execution of this Agreement,
the General Partner shall contribute to the capital of the Partnership cash
in the aggregate amount of $10.00, and the Limited Partner shall contribute
to the capital of the Partnership cash in the aggregate amount of $990.00. |
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| 2.2. Additional
Capital Contributions or Loans. Except as specifically required under
Section 2.1, no Partner shall be obligated or required to make any additional
capital |
| contributions or advance any funds to the
Partnership unless all of the Partners unanimously agree to do so and unanimously
agree as to the amount to be so contributed. |
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| 2.3. Allocations
and Distributions. All allocations of profits and losses and all distributions
of cash shall be made in accordance with the Partners’ Percentage
Interests. The Percentage Interest of the General Partner shall be one percent
(1%), and the Percentage Interest of the Limited Partner shall be ninety-nine
percent (99%). Distributions out of funds legally available therefor shall
be made at such times as the General Partner determines. |
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| 3.1. Management
and Control. The General Partner shall manage and control the business
and affairs of the Partnership and shall have all of the rights and powers
which may be possessed by a general partner under the Act. Except as otherwise
provided in the Act, the General Partner shall make all decisions with respect
to the business and affairs of the Partnership, and the Limited Partner
shall have no right to participate in the management of the Partnership. |
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ARTICLE 4
TRANSFERS OF PARTNER INTERESTS |
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| 4.1. Restriction.
A Partner shall not, without the consent of the other Partner, make any
Transfer of all or any portion of its Interest. |
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| 4.2. Transfer
in Violation of Agreement. Any purported Transfer of an Interest which
is not made in compliance with this Agreement shall be null and void ab
initio and of no force or effect whatsoever. |
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ARTICLE 5
FINANCIAL MATTERS |
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| 5.1. Records.
The Partnership shall maintain at its principal place of business: (i) true
and full information regarding the status of the business and financial
affairs of the Partnership; (ii) a current list of the name and last
known address of each of its Partners; (iii) a copy of this Agreement
and the Certificate and all amendments thereto; (iv) the accounting books
and records and minutes of proceedings of the Partners; and (v) any other
information regarding the affairs of the Partnership as the General Partner
determines is just and reasonable. |
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| 5.2. Fiscal
Year. Unless otherwise designated by the Partners, the fiscal year of
the Partnership shall end on December 31. |
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| 5.3. Partnership
Funds. Pending application or distribution, the funds of the Partnership
shall be deposited in such bank accounts, or invested in such interest-bearing
or non-interest-bearing investments, including without limitation, federally
insured checking and savings accounts, certificates of deposit and time
or demand-deposits in U.S. government agencies or government backed securities
or such other investments as the General Partner |
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| deems appropriate and consistent with the
maintenance of Brandywine Realty Trust’s qualification as a real estate
investment trust under the Code. |
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| 5.4. Tax
Returns. The General Partner shall cause all tax returns for the Partnership
to be prepared and timely filed with the appropriate authorities and shall
deliver or cause to be delivered to each Partner such information as is
necessary for such Partner to prepare such Partner’s federal, state
and local tax returns. |
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| 5.5. Tax
Matters Partner. The General Partner shall be the initial Tax Matters
Partner and shall represent the Partnership and the Partners before taxing
authorities or courts of competent jurisdiction in tax matters affecting
the Partnership and the Partners in their capacity as Partners. |
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| 6.1. Dissolution.
The Partnership shall be dissolved upon the earliest to occur of the following: |
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| (b) the
withdrawal, bankruptcy or liquidation of the General Partner or the occurrence
of any other event of withdrawal that causes the General Partner to cease
to be a general partner under the Act (other than by reason of a permitted
transfer of a Partner’s entire interest under this Agreement); |
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| (c) the
sale of all or substantially all of the Partnership’s assets and properties; |
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| (d) the
unanimous agreement of the Partners to effect such dissolution; or |
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| (e) the
entry of an order of judicial dissolution under Section 8572 of the Act. |
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| 6.2. Liquidation.
Upon dissolution of the Partnership, the Partnership shall continue solely
for the purpose of winding up its affairs in an orderly manner, liquidating
its assets, and satisfying the claims of its creditors. The General Partner
or in the event there is no General Partner, such Person or Persons as is
designated by the Partners (the General Partner or such Person or Persons
being hereinafter referred to as the “Liquidator”) shall
be responsible for overseeing the winding up and dissolution of the Partnership
and shall cause distributions to be made in accordance with Section 6.3
hereof. |
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| 6.3. Distributions
Upon Liquidation. Upon dissolution of the Partnership, the Liquidator
shall proceed to wind up the business and affairs of the Partnership and
shall distribute the assets of the Partnership in the following order and
priority: |
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| (a) First,
to payment of the debts and liabilities of the Partnership (other than those
to Partners) in the order of priority provided by law, provided that the
Partnership shall first pay, to the extent permitted by law, liabilities
with respect to which any Partner is or may be personally liable. |
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| (b) Second,
to payment of the expenses of liquidation of the Partnership in the order
of priority provided by law, provided that the Partnership shall first pay,
to the extent permitted by law, liabilities or debts owed to Partners. |
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| (c) Third,
to the setting up of such reserves as the Partners may deem reasonably necessary
for any contingent or unforeseen liabilities or obligations of the Partnership
arising out of or in connection with the Partnership business. |
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| (d) The
balance of the proceeds, in accordance with the Percentage Interests of
the Partners. |
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| 6.4. Reasonable
Time for Winding Up. A reasonable amount of time shall be allowed for
the orderly winding up of the business and affairs of the Partnership in
light of prevailing market conditions and so as to avoid undue loss in connection
with any sale of Partnership assets. This Agreement shall remain in full
force and effect during the period of winding up. |
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| 6.5. Certificate
of Cancellation. Following the completion of the winding up of the affairs
of the Partnership and the distribution of its assets, the Liquidator shall
file all necessary certificates of cancellation required under the Act. |
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ARTICLE 7
DEFINITIONS AND RULES OF CONSTRUCTION |
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| 7.1.1.
The following terms, as used herein, shall
have the following respective meanings: |
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| “Act”
means the Pennsylvania Revised Uniform Limited Partnership Act, 15 P.S.
§8500 et seq. as amended from time to time. |
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| “Agreement”
means this Agreement of Limited Partnership, as amended or restated from
time to time. |
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| “Certificate”
means the Certificate of Limited Partnership, as amended or restated from
time to time, filed with the Pennsylvania Department of State in accordance
with the Act. |
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| “Code”
means the Internal Revenue Code of 1986, as amended or any successor statute
thereto. |
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| “Fiscal
Year” means the twelve month period ending December 31 of
each year, unless otherwise provided pursuant to Section 5.2 of this Agreement. |
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| “Interest”
means the interest of a Partner in the Partnership representing such Partner’s
rights, powers and privileges, as specified in this Agreement, including,
without limitation, such Partner’s right to profits, losses, allocations
and distributions and such Partner’s right to vote with respect to
Partnership matters, and “Percentage Interest” means
a Partner’s Interest expressed as a percentage of all Interests. |
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| “Partners”
means the General Partner and Limited Partner. |
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| “Partnership”
means the limited partnership which is the subject of this Agreement, as
such limited partnership may from time to time be constituted. |
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| “Person”
means and includes individuals, corporations, partnerships, trusts, associations,
joint ventures, limited liability companies, estates and other entities,
whether or not legal entities, and governments and agencies and political
subdivisions thereof, whether domestic or foreign. |
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| “Tax
Matters Partner” means the tax matters member as defined in Code
Section 6231(a)(7). |
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| “Transfer”
means to sell, assign, transfer, give, donate, pledge, deposit, alienate,
bequeath, devise or otherwise dispose of or encumber to any Person other
than the Partnership. |
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| 7.2. Rules
of Construction: Unless the context otherwise requires, references to
the plural shall include the singular and the singular shall include the
plural, and the words “hereof,” “herein,” “hereunder”
and similar terms in this Agreement refer to this Agreement as a whole and
not to any particular provisions of this Agreement. Any use of the masculine,
feminine or neuter herein shall be deemed to include a reference to each
other gender. |
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| 8.1. Governing
Law. This Agreement shall be governed by and interpreted in accordance
with the laws of the Commonwealth of Pennsylvania without regard to the
conflict of laws provisions of said jurisdiction. |
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| 8.2. Entire
Agreement. This Agreement represents the entire agreement between the
parties in respect of its subject matter and supersedes all prior agreements,
arrangements and understandings between the parties relating to the subject
matter hereto. |
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| 8.3. Binding
Effect. Except as otherwise provided herein, this Agreement shall inure
to the benefit of and be binding upon the Partners and their respective
successors, heirs, and to the extent permitted, transfers and assigns. |
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| 8.4. Additional
Documents. Each Partner, upon the request of the General Partner, agrees
to perform all further acts and execute, acknowledge, and deliver any documents
that may be reasonably necessary, appropriate, or desirable to carry out
the provisions of this Agreement. |
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| 8.5. Waiver
of Action for Partition. Each of the Partners irrevocably waives any
right that it may have to maintain any action for partition with respect
to any of the Partnership property. |
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| 8.6. Headings.
The descriptive headings herein are inserted for convenience only and do
not constitute part of this Agreement. |
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| 8.7. Notice.
Notices to the Partners shall be deemed sufficiently given if delivered
by hand, mailed by certified mail, return receipt requested, postage prepaid,
to the addresses provided in writing by any Partner to the other Partner
or mailed via any reliable overnight courier service. |
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| 8.8. Non-Recourse.
No recourse shall be had for any obligation of Brandywine Realty Trust against
any past, present or future trustee, shareholder, officer or employee thereof. |
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| 8.9. Execution
of Documents. The Partners agree that they shall execute such instruments
as may be necessary or appropriate to carry out the terms of this Agreement
and the actions contemplated thereby. |
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| 8.10. Amendment.
This Agreement may not be amended except by unanimous written agreement
of all of the Partners. |
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| 8.11. Time
is of Essence. Time is of the essence in the performance of this Agreement. |
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| 8.12. Counterparts.
This Agreement may be executed in any number of counterparts and any party
hereto may execute any such counterpart, each of which when executed and
delivered shall be deemed to be an original and all of which counterparts
taken together shall constitute but one and the same instrument. |
(signature page follows)
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IN WITNESS WHEREOF, and intending to be legally bound, the parties have executed this Agreement as of the day first above written.
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General Partner: |
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BRANDYWINE METROPLEX,
LLC |
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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By: |
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Title: |
President and Chief Executive
Officer |
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Limited Partner: |
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BRANDYWINE OPERATING
PARTNERSHIP, L.P. |
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By: |
BRANDYWINE REALTY TRUST, |
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Its General Partner |
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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By: |
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Title: |
President and Chief Executive
Officer |
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