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Exhibit 10.19
TWELFTH AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
THIS TWELFTH AMENDMENT, dated February 27, 2004 (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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I. 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.
J. 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 E Preferred Mirror Units having
designations, preferences and other rights
which are substantially the same as
the economic rights of the 7.375% Series D
Senior Cumulative Redeemable
Preferred Shares of Beneficial Interest of
the General Partner (the "Series D
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 D
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 E 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 E Preferred Mirror
Units is hereby established. The number of Series
E Preferred Mirror Units shall be 2,760,000. The
stated value of each Series E Preferred Mirror
Unit shall be $25.00 (the "Stated Value").
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(ii) Rank. The Series
E 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 E Preferred Mirror Units;
(b) on a parity with the Partnership Interests
designated as Series A Preferred Mirror Units,
the Partnership Interests designated as Series B
Preferred Units, the Partnership Interests
designated as Series D Preferred Mirror 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 E 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 E Preferred Mirror Units.
(iii) Distributions.
(A) Pursuant to Section 6.1 of the Partnership
Agreement, holders of Series E 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 D
Preferred Shares. Such distributions shall be
payable quarterly in arrears on or before the
date on which distributions on the Series D
Preferred Shares are payable (each a "Series
E Preferred Mirror Unit Distribution Payment
Date").
(B) No distributions on Series E 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 E 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 E Preferred Mirror Units will
accumulate as of the Series E 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 E Preferred
Mirror Units and any other Partnership
Interests ranking on a parity as to
distributions with the Series E Preferred
Mirror Units, including the Series A
Preferred Mirror Units, the Series B
Preferred Units, and the Series D Preferred
Mirror Units, all distributions authorized
upon the Series E Preferred Mirror Units and
any other Partnership Interests ranking on a
parity as to distributions with the Series E
Preferred Mirror Units shall be authorized
pro rata so that the amount of distributions
authorized per Pa
