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Exhibit 10.18
ELEVENTH AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
THIS ELEVENTH AMENDMENT, dated December 30, 2003 (this
"Amendment"), amends and supplements the
Amended and Restated Agreement of
Limited Partnership Agreement (as
heretofore amended and supplemented 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
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G. 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.
H. 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 D Preferred Mirror Units having
designations, preferences and other rights
which are substantially the same as
the economic rights of the 7.50% Series C
Senior Cumulative Redeemable Preferred
Shares of Beneficial Interest of the
General Partner (the "Series C 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 C 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 D Preferred
Mirror Units having the designations,
preferences and other rights set forth
below:
(i)
Designation and Number. A class of Partnership
Interests designated as Series D Preferred Mirror
Units is hereby established. The number of Series
D Preferred Mirror Units shall be 4,600,000. The
stated value of each Series D Preferred Mirror
Unit shall be $25.00 (the "Stated Value").
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(ii) Rank. The
Series D 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 D Preferred Mirror Units;
(b) on a parity with the Partnership Interests
designated as Series A Preferred Mirror Units and
the Partnership Interests designated as Series B
Preferred Units and all Partnership Interests
issued by the Partnership after the date of this
Amendment the terms of which specifically provide
that
such Partnership Interests rank on a parity
with the Series D Preferred Mirror 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 D Preferred Mirror Units.
(iii)
Distributions.
(A)
Pursuant to Section 6.1 of the Partnership
Agreement, holders of Series D 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 C Preferred Shares. Such
distributions shall be payable quarterly
in arrears on or before the date on which
distributions on the Series C Preferred
Shares are payable (each a "Series D
Preferred Mirror Unit Distribution Payment
Date").
(B) No
distributions on Series D 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.
(C)
Notwithstanding the foregoing,
distributions with respect to the Series D
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 D Preferred
Mirror Units will accumulate as of the
Series D Preferred Mirror Unit
Distribution Payment Date on which they
first become payable.
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(D) When
distributions are not paid in full
(or a sum sufficient for such full payment
is not so set apart) upon the Series D
Preferred Mirror Units and any other
Partnership Interests ranking on a parity
as to distributions with the Series D
Preferred Mirror Units, including the
Series A Preferred Mirror Units and the
Series B Preferred Units, all
distributions authorized upon the Series D
Preferred
Mirror Units and any other
Partnership Interests ranking on a parity
as to distributions with the Series D
