UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

Current Report

Pursuant To Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): April 11, 2012

 

 

BRANDYWINE REALTY TRUST

BRANDYWINE OPERATING PARTNERSHIP, L.P.

(Exact Name Of Registrant As Specified In Charter)

 

 

 

Maryland

(Brandywine Realty Trust)

  001-9106   23-2413352
Delaware
(Brandywine Operating Partnership, L.P.) 		  000-24407   23-2862640

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification Number)

555 East Lancaster Avenue, Suite 100, Radnor, Pennsylvania 19087

(Address of principal executive offices)

(610) 325-5600

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 3.02 Unregistered Sales of Equity Securities

The information about the amendment to the Amended and Restated Agreement of Limited Partnership of Brandywine Operating Partnership, L.P. (the “Operating Partnership”) and the issuance by the Operating Partnership of its Series E–Linked Preferred Mirror Units under Item 3.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02.

 

Item 3.03 Material Modifications to Rights of Security Holders.

On April 6, 2012, Brandywine Realty Trust (the “Company”) filed with the State Department of Assessments and Taxation of Maryland, Articles Supplementary (the “Articles Supplementary”) to the Company’s Declaration of Trust, as amended and supplemented (the “Declaration of Trust”), classifying and designating up to 4,600,000 of the Company’s authorized preferred shares of beneficial interest, par value $0.01 per share, as 6.90% Series E Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $0.01 per share and liquidation preference $25 per share (the “Series E Preferred Shares”). A copy of the Articles Supplementary was filed as Exhibit 3.1.10 to the Company’s registration statement on Form 8-A, filed on April 6, 2012, and is incorporated herein by reference.

As set forth in the Articles Supplementary, the Series E Preferred Shares rank (a) senior to the Company’s common shares and to all preferred shares or other equity securities ranking junior to the Series E Preferred Shares, (b) on a parity with the Company’s outstanding 7.50% Series C Cumulative Redeemable Preferred Shares, 7.375% Series D Cumulative Redeemable Preferred Shares and other classes or series of the Company’s shares ranking on a parity with the Series E Preferred Shares and (c) junior to all preferred shares or other equity securities ranking senior to the Series E Preferred Shares, in the case of each of clauses (a), (b) and (c), as to distribution rights and rights upon liquidation, dissolution or winding up of the Company. Unless and until converted, any convertible debt securities that the Company may issue are not considered to be equity securities for these purposes. The Series E Preferred Shares rank junior to all of the Company’s existing and future indebtedness.

Holders of the Series E Preferred Shares, when, as and if authorized by the Board of Trustees of the Company, are entitled to receive cumulative cash distributions on the Series E Preferred Shares at the rate of 6.90% per annum of the $25.00 per share liquidation preference (equivalent to $1.725 per annum per Series E Preferred Share). Distributions on the Series E Preferred Shares will be payable quarterly in arrears on or about January 15, April 15, July 15 and October 15 of each year. The first distribution on the Series E Preferred Shares will be paid on or about July 15, 2012 and will be in the amount of $0.4504 per share. In addition to other preferential rights, the holders of Series E Preferred Shares are entitled to receive the liquidation preference of $25.00 per share, plus any accumulated and unpaid distributions to, but not including the payment date (whether or not declared), before any payments are made to the holders of common shares or any other class or series of shares ranking junior to the Series E Preferred Shares as to liquidation rights, in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Company.

Generally, the Company may not redeem the Series E Preferred Shares until April 11, 2017. On and after April 11, 2017, the Company may, at its option, redeem the Series E Preferred Shares, in whole or in part, at any time at a redemption price of $25.00 per share, plus any accumulated and unpaid distributions thereon to, but not including the redemption date.

In connection with a “Change of Control” (as defined below), the Company may, at its option, redeem the Series E Preferred Shares, in whole or in part, no later than 120 days after the first date on which such Change of Control occurs, at a redemption price of $25.00 per share, plus any accumulated and unpaid distributions to, but not including the redemption date. Upon the occurrence of a Change of Control, each holder of Series E Preferred Shares will have the right, unless prior to the Change of Control Conversion Date (as defined below), the Company has provided or provides notice of exercise of its redemption rights with respect to the Series E Preferred Shares (whether pursuant to its optional redemption right or special optional redemption right), to convert some or all of the Series E Preferred Shares held by such holder on

 

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the Change of Control Conversion Date (the “Change of Control Conversion Right”) into a number of the Company’s common shares per Series E Preferred Share to be converted equal to the lesser of:

 

  •  

the quotient obtained by dividing (i) the sum of the $25.00 liquidation preference plus the amount of any accumulated and unpaid distributions to, but not including the Change of Control Conversion Date (unless the Change of Control Conversion Date is after a record date for a Series E Preferred Share distribution payment and prior to the corresponding Series E Preferred Share distribution payment date, in which case no additional amount for such accumulated and unpaid distribution will be included in this sum) by (ii) the Common Share Price (as defined below); and

 

  •  

4.3215 (the “Share Cap”), subject to certain adjustments;

subject, in each case, to an aggregate cap on the total number of common shares issuable upon exercise of the Change of Control Conversion Right and to provisions for the receipt of alternative consideration as described in the Articles Supplementary.

If the Company has provided or provides a redemption notice (whether pursuant to the Company’s special optional redemption right or the Company’s optional redemption right) prior to the Change of Control Conversion Date in connection with a Change of Control holders of Series E Preferred Shares will not have any right to convert the Series E Preferred Shares in connection with the Change of Control Conversion Right, and any Series E Preferred Shares subsequently selected for redemption that have been tendered for conversion will be redeemed on the related redemption date instead of converted on the Change of Control Conversion Date.

A “Change of Control” means that the following events have occurred and are continuing:

 

  •  

the acquisition by any “person” or “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of shares of the Company entitling that person to exercise more than 50% of the total voting power of all shares of the Company entitled to vote generally in elections of trustees (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the passage of time or occurrence of a subsequent condition), and

 

  •  

following the closing of any transaction referred to in the bullet point above, neither the Company nor the acquiring or surviving entity has a class of common securities (or American Depositary Receipts (“ADRs”) representing such securities) listed on the New York Stock Exchange (the “NYSE”), the NYSE Amex Equities or the NASDAQ Stock Market or listed or quoted on an exchange or quotation system that is a successor to the NYSE, the NYSE Amex Equities or the NASDAQ Stock Market.

The “Change of Control Conversion Date” will be the date the Series E Preferred Shares are to be converted, which will be a business day that is no fewer than 20 days nor more than 35 days after the date on which the Company provides the notice of occurrence of a Change of Control to the holders of Series E Preferred Shares.

The “Common Share Price” will be: (i) the amount of cash consideration per common share, if the consideration to be received in the Change of Control by the holders of the Company’s common shares is solely cash; and (ii) the average of the closing prices for the Company’s common shares on the NYSE for the ten consecutive trading days immediately preceding, but not including, the effective date of the Change of Control, if the consideration to be received in the Change of Control by the holders of the Company’s common shares is other than solely cash.

 

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The entire terms, conditions and preferences of the Series E Preferred Shares are set forth in the Articles Supplementary incorporated by reference in this Current Report on Form 8-K.

On April 11, 2012, the Company, as general partner of the Operating Partnership, executed an amendment (the “Partnership Agreement Amendment”) to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership. The Partnership Agreement Amendment establishes a series of preferred units (the “Series E-Linked Preferred Mirror Units”) of the Operating Partnership having designations, preferences and other rights such that the economic interests attributable to the Series E-Linked Preferred Mirror Units are substantially the same as the economic rights of the Series E Preferred Shares described above. At the closing of the sale by the Company of 4,000,000 of its Series E Preferred Shares on April 11, 2012, the Company contributed the net proceeds from such sale to the Operating Partnership in exchange for 4,000,000 Series E-Linked Preferred Mirror Units.

The Company granted the underwriters a 30-day option to purchase up to an additional 600,000 Series E Preferred Shares pursuant to the Underwriting Agreement and the related Pricing Agreement that were filed as Exhibit 1.1 and Exhibit 1.2, respectively, to the Company’s Current Report on Form 8-K filed on April 4, 2012. If and to the extent that the Company issues additional Series E Preferred Shares upon exercise of the option granted to the underwriters, then the Company will contribute the net proceeds from such additional issuances to the Operating Partnership in exchange for a number of Series E-Linked Preferred Mirror Units equal to the number of Series E Preferred Shares so issued. The foregoing description of the Partnership Agreement Amendment is qualified in its entirety by reference to the full text of the Partnership Agreement Amendment attached to this Current Report on Form 8-K as Exhibit 3.2 and incorporated herein by reference.

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The information about the Articles Supplementary under Item 3.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.

The information about the Partnership Agreement Amendment under Item 3.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.

 

Item 7.01 Regulation FD Disclosure.

On April 11, 2012, the Company issued a press release announcing that it has closed its public offering of 4,000,000 Series E Preferred Shares. A copy of the press release announcing the closing of the Company’s offering of the Series E Preferred Shares is furnished as Exhibit 99.1 hereto.

The information included in this Current Report on Form 8-K under this Item 7.01 (including Exhibit 99.1) shall not be deemed “filed” for the purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference into any filing made by the Company under the Exchange Act or Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such a filing.

 

Item 9.01 Financial Statements and Exhibits

 

Exhibit
Number 		  Description
3.1   Articles Supplementary to Declaration of Trust of Brandywine Realty Trust classifying and designating Series E Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $0.01 per share and liquidation preference $25 per share, of Brandywine Realty Trust (previously filed as an exhibit to Brandywine Realty Trust’s Form 8-A dated April 6, 2012 and incorporated herein by reference).
3.2   Seventeenth Amendment to Amended and Restated Agreement of Limited Partnership of Brandywine Operating Partnership, L.P. dated as of April 11, 2012.*
4.1   Form of 6.90% Series E Cumulative Redeemable Preferred Shares Certificate (previously filed as an exhibit to Brandywine Realty Trust’s Form 8-A dated April 6, 2012 and incorporated herein by reference).
4.2   Form of Series E-Linked Preferred Mirror Units.*
99.1   Closing Press Release dated April 11, 2012.*

 

* Filed herewith.

 

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Signatures

Pursuant to the requirements of the Securities and Exchange Act of 1934, each of the registrants has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    BRANDYWINE REALTY TRUST
Date: April 11, 2012     By:  

/s/ Howard M. Sipzner

    Name:   Howard M. Sipzner
    Title:   Executive Vice President, Chief Financial Officer

 

    BRANDYWINE OPERATING PARTNERSHIP, L.P.
Date: April 11, 2012     By:   Brandywine Realty Trust, general partner
    By:  

/s/ Howard M. Sipzner

    Name:   Howard M. Sipzner
    Title:   Executive Vice President, Chief Financial Officer

 

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EXHIBIT INDEX

 

Exhibit
Number 		  Description
3.1   Articles Supplementary to Declaration of Trust of Brandywine Realty Trust classifying and designating Series E Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $0.01 per share and liquidation preference $25 per share, of Brandywine Realty Trust (previously filed as an exhibit to Brandywine Realty Trust’s Form 8-A dated April 6, 2012 and incorporated herein by reference).
3.2   Seventeenth Amendment to Amended and Restated Agreement of Limited Partnership of Brandywine Operating Partnership, L.P. dated as of April 11, 2012.*
4.1   Form of 6.90% Series E Cumulative Redeemable Preferred Shares Certificate (previously filed as an exhibit to Brandywine Realty Trust’s Form 8-A dated April 6, 2012 and incorporated herein by reference).
4.2   Form of Series E-Linked Preferred Mirror Units.*
99.1   Closing Press Release dated April 11, 2012*

 

* Filed herewith.

Exhibit 3.2

EXECUTION COPY

SEVENTEENTH AMENDMENT TO AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF BRANDYWINE OPERATING PARTNERSHIP, L.P.

THIS SEVENTEENTH AMENDMENT, dated as of April 11, 2012 (the “ Amendment ”), amends and supplements the Amended and Restated Agreement of Limited Partnership Agreement (as heretofore amended and supplemented, 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 such terms in the Partnership Agreement.

BACKGROUND

A. Pursuant to the Partnership Agreement, Brandywine Realty Trust (the “ General Partner ”), as the sole general partner of the Partnership, has the power and authority to issue additional Partnership Interests 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 6.90% Series E-Linked Preferred Mirror Units having designations, preferences and other rights such that the economic interests attributable to such Series E-Linked Preferred Mirror Units are substantially the same as the economic rights of the 6.90% Series E Cumulative Redeemable Preferred Shares of Beneficial Interest of the General Partner (the “ Series E 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 issuance of the Series E 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 its terms the Partnership Agreement is hereby amended to establish and to issue to the General Partner the Series E-Linked Preferred Mirror Units having the designations, preferences and other rights set forth below:

(a) Designation and Number . A class of Partnership Interests designated as 6.90% Series E-Linked Preferred Mirror Units (the “ Series E-Linked Preferred Mirror Units ”) is hereby established. The number of Series E-Linked Preferred Mirror Units shall be up to 4,600,000 of which 4,000,000 shall be issued on the date of this Amendment to the General Partner and the balance shall be issued only if and to the extent that the General Partner issues additional Series E Preferred Shares after the date hereof and contributes the net proceeds from any such issuance of additional shares to the Partnership. The stated value of each Series E-Linked Preferred Mirror Unit shall be $25.00 (the “ Stated Value ”).

SEVENTEENTH AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF LIMITED

PARTNERSHIP OF BRANDYWINE OPERATING PARTNERSHIP, L.P.

(b) Ranking . The Series E-Linked Preferred Mirror Units shall, with respect to distribution rights and rights upon liquidation, dissolution or winding up of the Partnership, rank (a) senior to the Class A Units, GP Units and all Partnership Interests ranking junior to the Series E-Linked Preferred Mirror Units (collectively, the “Junior Partnership Interests”); (b) on a parity with the Series D Preferred Mirror Units, Series E Preferred Mirror Units and all Partnership Interests ranking on a parity with the Series E-Linked Preferred Mirror Units (the “Parity Partnership Interests”); and (c) junior to all Partnership Interests ranking senior to the Series E-Linked Preferred Mirror Units. The Series E-Linked Preferred Mirror Units shall rank junior to all existing and future indebtedness of the Partnership.

(c) Distributions .

(i) Pursuant to Section 6.1 of the Partnership Agreement, holders of Series E-Linked 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 by the General Partner on the Series E Preferred Shares in accordance with their terms. Such distributions shall be payable quarterly in arrears on or before the date on which distributions on the Series E Preferred Shares are payable (each a “ Series E-Linked Preferred Mirror Unit Distribution Payment Date ”).

(ii) No distributions on the Series E-Linked 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, payment or setting apart for payment shall be restricted or prohibited by law.

(iii) Notwithstanding the foregoing, distributions on the Series E-Linked Preferred Mirror Units shall accumulate 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 the payment of such distributions, and whether or not such distributions are authorized. Accumulated but unpaid distributions on the Series E-Linked Preferred Mirror Units shall accumulate as of the Series E-Linked Preferred Mirror Unit Distribution Payment Date on which they first become payable.

(iv) Except as set forth in Section 1(v) below, unless full cumulative distributions in cash on all Series E-Linked Preferred Mirror Units for all past distribution periods and the then current distribution period shall have been authorized and paid or are contemporaneously authorized and paid or full cumulative distributions on all Series E-Linked Preferred Mirror Units for all past distribution periods and the then current distribution period shall have been authorized and a sum sufficient for the payment of the authorized distributions shall have been set apart for payment, the Partnership shall not redeem, purchase or otherwise acquire for consideration, pay or make available any monies for a sinking fund for the redemption of, authorize and pay or authorize and set apart for payment distributions on (other than a distribution paid in Junior Partnership Interests), any Parity Partnership Interests or Junior Partnership Interests (except (i) by conversion into or exchange for Junior Partnership Interests,

 

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(ii) for the purpose of preserving the status of the General Partner as a REIT and (iii) under incentive, benefit or share purchase plans of the Partnership or the General Partner for officers, trustees or others performing or providing similar services).

(v) When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) upon all Series E-Linked Preferred Mirror Units and Parity Partnership Interests, all distributions authorized upon the Series E-Linked Preferred Mirror Units and such Parity Partnership Interests shall be authorized proportionately so that the amount of distributions authorized per Series E-Linked Preferred Mirror Units and any such Parity Partnership Interests shall in all cases bear to each other the same ratio that accumulated distributions per Series E-Linked Preferred Mirror Units and any such Parity Partnership Interests (which shall not include any accumulation in respect of unpaid distributions on such other Parity Partnership Interests for prior distribution periods if those other Parity Partnership Interests do not have a cumulative distribution) bear to each other. No interest, or sum or money in lieu of interest, shall be payable in respect of any distribution payment or payments on the Series E-Linked Preferred Mirror Units that may be in arrears.

(vi) Holders of the Series E-Linked 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 E-Linked Preferred Mirror Units as described above. Any distribution payment made on the Series E-Linked Preferred Mirror Units shall first be credited against the earliest accumulated but unpaid distribution due with respect to such Series E-Linked Preferred Mirror Units which remains payable.

(d) Liquidation Preference .

(i) Upon any liquidation, dissolution or winding up of the affairs of the Partnership, the holders of Series E-Linked Preferred Mirror Units then outstanding shall be entitled to be paid, out of the assets of the Partnership legally 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 E-Linked Preferred Mirror Unit, plus an amount equal to any accumulated and unpaid distributions up to the date of payment (whether or not authorized), before any distribution or payment shall be made to holders of Junior Partnership Interests.

(ii) In the event that, upon any such 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 E-Linked Preferred Mirror Units and the corresponding amounts payable on all other Parity Partnership Interests, then the holders of Series E-Linked Preferred Mirror Units and all such other Parity Partnership Interests shall share ratably in any such distributions of assets 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 E-Linked Preferred Mirror Units shall have no right or claim to any of the remaining assets of the Partnership.

 

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(iv) The consolidation or merger of the Partnership with or into any other trust, partnership, limited liability company, corporation or other entity or of any other trust, partnership, limited liability company, corporation or other entity with or into the Partnership, or the sale of all or substantially all of the assets of the Partnership, shall not be deemed to constitute a liquidation, dissolution or winding up of the Partnership.

(e) Redemption . In connection with a redemption by the General Partner of any or all of the Series E Preferred Shares, the Partnership shall provide cash to the General Partner for such purpose which shall be equal to the redemption price (including accumulated and unpaid distributions) of the Series E Preferred Shares to be redeemed and in exchange one Series E-Linked Preferred Mirror Unit shall be canceled with respect to each Series E Preferred Share so redeemed. From and after the date on which the Series E Preferred Shares are redeemed, the Series E-Linked Preferred Mirror Units so canceled shall no longer be outstanding and all rights hereunder, to distributions or otherwise, with respect to such Series E-Linked Preferred Mirror Units shall cease.

(f) Conversion . In connection with, and at the time of, the conversion of any or all of the Series E Preferred Shares into Common Shares of the General Partner, a number of Series E-Linked Preferred Mirror Units equal to the number of Series E Preferred Shares so converted shall be converted into a number of Class E Units of the Partnership equal to the number of Common Shares issued upon such conversion.

(g) Allocations . Allocations of the Partnership’s items of income, gain, loss and deduction shall be allocated among holders of Series E-Linked Preferred Mirror Units in accordance with Article VII of the Partnership Agreement.

2. Subparagraph (g) of Section 7.2 of the Partnership Agreement is amended and restated in its entirety as follows:

(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 D Preferred Mirror Units, Series E Preferred Mirror Units and Series E-Linked Preferred Mirror 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 D Preferred Mirror Units, Section 1(c) and 1(d) of the Eleventh Amendment to this Agreement or, with respect to the Partners holding Series E Preferred Mirror Units, Section 1(c) and 1(d) of the Twelfth Amendment to this Agreement or, with respect to the Partners holding Series E-Linked Preferred Mirror Units, Section 1(c) and 1(d) of the Seventeenth 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 hereof and, with respect to Partners holding Series D Preferred Mirror Units, Section 1(c) and 1(d) of the Eleventh

 

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Amendment to this Agreement or, with respect to Partners holding Series E Preferred Mirror Units, Section 1(c) and 1(d) of the Twelfth Amendment to this Agreement or, with respect to the Partners holding Series E-Linked Preferred Mirror Units, Section 1(c) and 1(d) of the Seventeenth Amendment to this Agreement, 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 7.2(g) for all prior Fiscal Years.

3. 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.

[Signature appears on following page]

 

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EXECUTION COPY

IN WITNESS WHEREOF, the General Partner has executed this Amendment as of the date first written above.

 

GENERAL PARTNER:
BRANDYWINE REALTY TRUST, as general partner
By:  

/s/ Gerard H. Sweeney

Name:   Gerard H. Sweeney
Title:   President and Chief Executive
  Officer

Seventeenth Amendment to Amended and Restated Agreement of Limited Partnership of Brandywine Operating Partnership, L.P.

Exhibit 4.2

 

LOGO

 

BRANDYWINE OPERATING PARTNERSHIP, L.P.

(A DELAWARE LIMITED PARTNERSHIP)

ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE

LIMITED PARTNERSHIP UNITS

This Certifies that BRANDYWINE REALTY TRUST is the owner of 4,000,000 Series E-Linked Preferred Mirror Units of

BRANDYWINE OPERATING PARTNERSHIP, L.P.

fully paid and non-assessable, transferable only on the books of the Partnership in person or by Attorney upon surrender of this Certificate properly endorsed.

In Witness Whereof, said Partnership has caused this Certificate to be signed by its General Partner this 11th day of APRIL 2012 .

BRANDYWINE OPERATING PARTNERSHIP, L.P.

BY: Brandywine Realty Trust, its general partner

By: Gerard H. Sweeny, President & CEO

Series E-Linked Preferred Mirror Units

PrE-LM-1

THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ ACT ”) OR UNDER ANY APPLICABLE STATE SECURITIES LAW, AND MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION AND IN COMPLIANCE WITH ALL SUCH LAWS.

THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE TRANSFER RESTRICTIONS AND OTHER CONDITIONS CONTAINED IN AN AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP DATED NOVEMBER 18, 1997, AS AMENDED, BETWEEN THE ISSUER, THE ORIGINAL HOLDER HEREOF AND CERTAIN OTHER PARTIES AND MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH. A COPY OF THE AGREEMENT, AS AMENDED FROM TIME TO TIME, MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF THE PARTNERSHIP

 

 

LOGO

The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:

TEN COM – as tenants in common UNIF GIFT MIN ACT—            Custodian             under

TEN ENT – as tenants by the entireties (Cust)(Minor)

JT TEN – as joint tenants with right of survivorship Uniform Gifts to Minors Act             and not as tenants in common(State)

Additional abbreviations may also be used though not in the above list.

For Value Received,             hereby sell, assign and transfer unto

PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE

Shares represented by the within Certificate, and do hereby irrevocably constitute and appoint             Attorney to transfer the said Shares on the books of the within named Trust with full power of substitution in the premises. Dated            

In the presence of             

NOTICE: THE SIGNATURE OF THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.

Exhibit 99.1

 

LOGO

        

Media / Investor Contact:

Marge Boccuti

Manager, Investor Relations

610-832-7702

marge.boccuti@bdnreit.com

Brandywine Realty Trust Closes 6.90% Series E Cumulative Redeemable Preferred Share Offering

RADNOR, PA, April 11, 2012 — Brandywine Realty Trust (the “Company”) (NYSE: BDN) announced today that it has closed its public offering of 4,000,000 shares of 6.90% Series E Cumulative Redeemable Preferred Shares. Net proceeds from the offering totaled approximately $96.3 million, after deducting the underwriting discount and our estimated expenses, but before giving effect to any exercise of the underwriters’ over-allotment option.

The Company intends to use the net proceeds from this offering to fund its previously announced redemption of all 2,000,000 shares of its outstanding 7.50% Series C Cumulative Redeemable Preferred Shares at $25.00 per share, plus accumulated and unpaid dividends, if any, and for other general corporate purposes, which may include acquisitions, real estate development activities and repurchases or redemption of debt or other outstanding preferred shares. Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup acted as the joint book-running managers of the offering. J.P. Morgan Securities LLC and RBC Capital Markets acted as senior co-managers, and Janney Montgomery Scott and PNC Capital Markets acted as co-managers of the offering

This offering was made pursuant to an effective shelf registration statement and related prospectus and preliminary prospectus supplement filed by the Company with the Securities and Exchange Commission. This press release shall not constitute an offer to sell or the solicitation of an offer to buy any securities nor will there be any sale of these securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.

Copies of the final prospectus supplement and accompanying prospectus for this offering may be obtained by contacting Merrill Lynch, Pierce, Fenner & Smith Incorporated, 100 West 33 rd Street, 3 rd Floor, New York, NY 10001, Attention: Prospectus Department, by email at dg.prospectus_requests@baml.com; or Citigroup Global Markets Inc., Brooklyn Army Terminal, 140 58th Street, 8th Floor, Brooklyn, NY 11220, Attention: Prospectus Department, telephone: (800) 831-9146 or email: batprospectusdept@citi.com.

About Brandywine Realty Trust

Brandywine Realty Trust is one of the largest, publicly traded, full-service, integrated real estate companies in the United States. Organized as a real estate investment trust and operating in select markets, Brandywine owns, leases and manages an urban, town center and suburban office portfolio comprising 305 properties and 34.6 million square feet, including 231 properties and 25.1 million square feet owned on a consolidated basis and 52 properties and 6.5 million square feet in 18 unconsolidated real estate ventures. For more information, please visit www.brandywinerealty.com.

Forward-Looking Statements

Certain statements in this release constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Such forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause the actual results, performance, achievements or transactions of the Company and its affiliates or industry results to be materially different from any future results, performance, achievements or transactions expressed or implied by such forward-looking statements. Such risks, uncertainties and other factors relate to, among others, the Company’s ability to lease vacant space and to renew or relet space under expiring leases at expected levels, the potential loss of major tenants, interest rate levels, the availability and terms of debt and equity financing, competition

 

 

 

555 East Lancaster Avenue, Suite 100, Radnor, PA 19087 Phone:   

(610) 325-5600 Fax: (610) 325-5622

with other real estate companies for tenants and acquisitions, risks of real estate acquisitions, dispositions and developments, including cost overruns and construction delays, unanticipated operating costs and the effects of general and local economic and real estate conditions. Additional information or factors which could impact the Company and the forward-looking statements contained herein are included in the Company’s filings with the Securities and Exchange Commission, including our Form 10-K for the year ended December 31, 2011. The Company assumes no obligation to update or supplement forward-looking statements that become untrue because of subsequent events.