EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated
as of the ___ day of ___________, 1998, is entered into by and among
BRANDYWINE REALTY TRUST, a Maryland real estate investment trust (the
"Trust"), BRANDYWINE OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership (the "Partnership"), and the persons and entities listed on
Schedule I attached hereto (each an "Investor" and, collectively, the
"Investors"; it being understood that such term shall also include such
Investor's heirs, personal representatives, successors and assigns).
RECITALS
WHEREAS, the Trust, the Partnership and certain other
persons and entities are parties to that certain Purchase and Contribution
Agreement, dated as of ________, 1998 (the "Acquisition Agreement"), pursuant
to which the Partnership has agreed to issue preferred units of limited
partner interests in the Partnership designated Series B Preferred Units (the
"Preferred Units"), which are convertible into common units of limited partner
interests in the Partnership designated Class A Units (the "Common Units");
WHEREAS, pursuant to the Partnership Agreement (as defined
below), the Common Units are redeemable for cash or common shares of
beneficial interest, par value $.01 per share, of the Trust (the "Common
Shares") upon the terms and subject to the conditions contained therein;
WHEREAS, as a condition to their agreement to accept
Preferred Units as consideration pursuant to the Acquisition Agreement, the
Investors have required, and the Trust has agreed to grant, the registration
rights provided for herein with respect to the Registrable Securities (as
defined below).
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, and for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. In addition to the definitions set forth
above (and in addition to other capitalized terms not otherwise defined herein
having the meanings set forth in the Acquisition Agreement), the following
terms, as used herein, have the following meanings:
"Majority Investors" means Investors who, as of the
applicable time, beneficially own a majority in number of the outstanding
Registrable Securities (calculated on the assumption that all Preferred Units
and Common Units held by the Investors have been converted into or redeemed for
Common Shares) and who provide the notice to effect a registration pursuant to
Section 2.2 hereof.
"Maximum Offering" means that number of Registrable
Securities that the managing underwriter advises the Majority Investors can be
sold without materially and adversely affecting an underwritten public offering
to be effected pursuant to Section 2.2 hereof.
"Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of the Partnership, dated as of November 18,
1997, as previously amended and as the same may hereafter be amended, modified
or restated from time to time.
"Registrable Securities" means any Common Shares issued or
issuable upon redemption of the Common Units that are issued or issuable upon
redemption or conversion of the Preferred Units; provided, that any of such
securities shall cease to constitute Registrable Securities once: (i) a
registration statement covering such securities has been declared effective by
the SEC and such securities have been sold or transferred by an Investor
pursuant to such effective registration statement; (ii) such securities may be
sold by an Investor pursuant to Rule 144(k) under the Securities Act; or (iii)
such securities are sold by an Investor pursuant to Rule 144 under the
Securities Act.
"Registration Expenses" means all expenses incident to the
Trust's performance of or compliance with Article 2, including, without
limitation, all registration and filing fees, all application and listing fees,
all fees and expenses of complying with securities or blue sky laws, and
printing expenses (including reasonable messenger and delivery service
expenses), all fees and disbursements of counsel for the Trust and of the
Trust's independent public accountants, but excluding (i) fees and disbursements
of counsel, accountants or other advisors for the Investors, (ii) any brokerage
discounts or underwriting commissions, or similar fees, payable in connection
with a sale of Registrable Securities, and (iii) the out-of-pocket or internal
costs and expenses incurred by or on behalf of any Investor, including, without
limitation, any expenses incurred by or on behalf of any representatives of any
Investors in connection with their participation any "roadshow" presentations
(the expenses referred to in clauses (i) through (iii) are the "Selling
Expenses").
"Remaining Investors" means those Investors, on a
particular date, who are not the Majority Investors.
"Rule 144" means Rule 144 under the Securities Act, as
amended from time to time (or any successor statute).
"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
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2. Registration Rights.
2.1 Registration Requirement.
2.1.1 Required Registration of Registrable Securities.
The Trust shall prepare and file with the SEC no later than October 1, 2003, and
shall thereafter use its commercially reasonable efforts (a) to cause to become
effective as soon as practicable, subject to the reasonable cooperation of the
Investors, a "shelf" registration statement under the Securities Act covering
the reoffer and resale of the Registrable Securities by the Investors in an
offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act and (b) to keep such registration statement effective until the
earlier of (i) the sale of all the Registrable Securities covered thereby
pursuant to such registration statement or (ii) the date on which the
Registrable Securities covered thereby cease to be "Registrable Securities" as
defined herein.
2.1.2 Registration Statement Form S-3. Registrations
under this Section 2.1 shall only be required to be made on Form S-3. In the
event the Trust is not eligible to use Form S-3 to register the Registrable
Securities, it may delay the filing of the applicable registration statement
until that date on which the Trust is again eligible to file a Form S-3.
2.1.3 Expenses. The Trust shall pay the Registration
Expenses and the Investors shall pay the Selling Expenses incurred in connection
with the registration effected pursuant to this Section 2.1.
2.2 Demand Registration.
2.2.1 Demand Registration of Registrable Securities. At
anytime after October 1, 2003, the Majority Investors may send written notice to
the Trust requesting that the Trust cause to be filed with the SEC a
registration statement under the Securities Act covering the reoffer and resale
of the Registrable Securities by the Investors in an underwritten public
offering. Within 15 Business Days after the effective date of such notice, the
Trust shall notify in writing the Remaining Investors of the filing and shall
include in any such registration any Registrable Securities sought to be
included by any Remaining Investors who so notify the Trust in writing, within
15 Business Days after the effective date of the notice from the Trust, of their
election to include Registrable Securities in such registration statement.
Within 60 days after the effective date of the notice from the Majority
Investors, the Trust shall file a registration statement on such form as
selected by the Trust seeking to register the Registrable Securities so
requested to be registered by all Investors as provided above, and the Trust
shall use commercially reasonable efforts to cause to become effective such
registration statement, subject to the reasonable cooperation of the Investors
participating as selling shareholders in such registration. Notwithstanding
anything in this Section 2.2 to the contrary, if the managing underwriter of any
public offering to be effected pursuant to this Section 2.2 shall inform the
Majority Investors of its belief that the number of Registrable Securities
requested by all Investors to be included in such registration would materially
and adversely affect the underwritten public offering, then each Investor who
has elected to participate as a selling
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shareholder in such registration as provided above shall include in such
registration, that number of Registrable Securities obtained by multiplying
the Maximum Offering by a fraction obtained by dividing (i) the number of the
Registrable Securities that such Investor sought to include in such
registration by (ii) the total number of securities proposed to be included in
such registration by all Investors.
2.2.2 Expenses. The Trust shall pay the Registration
Expenses in connection with any registration effected pursuant to Section 2.2
and the Investors participating in a registration effected pursuant to Section
2.2 shall pay the Selling Expenses in connection with any such registration
effected pursuant to Section 2.2.
2.2.3 Effective Registration Statement. Notwithstanding
anything to the contrary herein, a registration requested pursuant to this
Section 2.2 shall not be deemed to have been effected unless a registration
statement with respect thereto has become effective and either (i) it remains
continuously effective, without interruption by any stop order for a period of
180 days following the effective date of such registration or (ii) the sale of
at least a majority of the Registrable Securities which such registration
statement initially sought to register is completed pursuant thereto. Any
registration statement filed pursuant to this Section 2.2 may be withdrawn, at
anytime prior to it being declared effective by the SEC, by the Majority
Investors giving written notice of such withdrawal to the Trust, and will count
as one of the effective registration statements for purposes of Section 2.3.1
below; provided, if the Investors reimburse the Trust for all of the
Registration Expenses incurred in connection with any such withdrawn
registration statement, it shall not count as one of the effective registration
statements for purposes of Section 2.3.1 below; and, provided, further,
notwithstanding any such notice of withdrawal given by the Majority Investors,
Investors who otherwise were participating as selling shareholders in such
registration, by giving written notice to the Trust and the managing underwriter
of any such offering, within three Business Days after the effective date of the
withdrawal notice from the Majority Investors, may suspend such withdrawal by
agreeing to offer and sell, pursuant to such registration statement, that number
of Registrable Securities equal to at least a majority of the Registrable
Securities as to which the registration statement, as originally filed, sought
to register.
2.2.4 Selection of Underwriters. In connection with
each underwritten public offering effected pursuant to this Section 2.2, the
Majority Investors shall select the managing underwriter subject to the approval
of the Trust, which approval shall not be unreasonably withheld by the Trust.
2.3 Limitations on Registration.
2.3.1 In no event shall the Trust be required to effect
more than one (1) registration pursuant to Section 2.1 and more than three (3)
registrations pursuant to Section 2.2.
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2.3.2 Notwithstanding anything herein, if the Trust
reasonably believes that the filing of a registration statement with the SEC
would adversely affect the contemplated activities of the Trust, then the Trust
may postpone the filing of the applicable registration statement, require that
the Investors not effect offers and sales pursuant to an effective registration
statement or otherwise suspend its obligation to amend, modify or update a filed
registration statement, for a period not in excess of 90 days in any 365-day
period (or, in the event the filing any such postponement is in connection with
a proposed underwritten public offering of the Trust's securities, for such
longer period (not to exceed an additional 30 days) as may be reasonably
requested by the managing underwriter for such proposed offering).
2.3.3 Notwithstanding anything herein, if the filing of
a registration statement pursuant to this Agreement would require the Trust to
include in a filing with the SEC financial statements of probable or completed
acquisitions in order that such registration statement be in compliance with
rules and regulations of the SEC, then the Trust may delay the filing of such
registration statement until it has included the requisite financial statements
(including any necessary pro forma financial information) in a filing with the
SEC. The Trust shall use its commercially reasonable efforts to file such
financial statements as soon as practicable.
2.3.4 The Trust shall not be required to file a
registration statement pursuant to Section 2.2 which would become effective
within 180 days following the effective date of a registration statement (other
than a registration statement filed on Form S-4 or S-8) filed by the Trust with
the SEC pertaining to any public offering for the account of any Investor.
2.3.5 Notwithstanding anything to the contrary
contained in this Agreement, the obligations of the Trust under this Section 2
shall terminate at such time as none of the Investors beneficially own (which,
for purposes of this Agreement shall be determined with reference to Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended) Registrable
Securities.
2.4 Registration Procedures.
2.4.1 In connection with the registration of any
Registrable Securities under the Securities Act as provided in this Section 2,
the Trust shall:
(i) prepare and file with the SEC the requisite
registration statement to effect such registration and thereafter use
commercially reasonable efforts to cause such registration statement to become
and remain effective as provided in Section 2.1 or 2.2, as applicable;
(ii) subject to Section 2.3, use commercially
reasonable efforts to prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such
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registration statement effective and to comply with provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement until all of such Registrable
Securities have been sold thereunder;
(iii) furnish to the Investors such number of
conformed copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number of copies
of the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such number of copies of such other
documents as the Investors may reasonably request;
(iv) use commercially reasonable efforts (x) to
register or qualify all Registrable Securities under such other securities or
Blue Sky laws of such States of the United States of America where an exemption
is not available and as the Investors shall reasonably request, (y) to keep such
registration or qualification in effect for so long as such registration
statement remains effective, and (z) to take any other action which may
reasonably be necessary or advisable to enable the Investors to consummate the
disposition in such jurisdictions of the Registrable Securities to be sold by
the Investors, except that the Trust shall not for any such purpose be required
to qualify generally to do business as a foreign trust in any jurisdiction
wherein it would not, but for the requirements of this paragraph (iv), be
obligated to be so qualified or to consent to general service of process in any
such jurisdiction;
(v) notify the Investors upon discovery that, or
upon the happening of any event as a result of which, the prospectus included in
the registration statement filed pursuant to this Agreement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, in the light of the circumstances under which they were made,
and at the request of the Investors, use its best efforts to promptly prepare
and furnish to the Investors such number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made;
(vi) use commercially reasonable efforts to list
all Registrable Securities covered by such registration statement on any
national securities exchange or over-the-counter market, if any, on which the
Common Shares are then listed.
(vii) use commercially reasonable efforts to (i)
comply with all applicable rules and regulations of the SEC and (ii) in
accordance with Section 11(a) of the Securities Act and Rule 158 thereunder,
make available to its securityholders, as soon as reasonable practicable, an
earnings statement covering the period of at least 12 months, but not
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more than 18 months, beginning with the first quarter after the effective date
of the registration statement covering the Registrable Securities.
The Investors agree that upon receipt of any
notice from the Trust of the happening of an event of the kind described in
Section 2.4.1(v), the Investors shall forthwith discontinue their disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until the Investors' receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2.4.1(v).
2.4.2 In connection with the registration of any
Registrable Securities under the Securities Act pursuant to Section 2.1, the
Trust may include in any such registration securities of the Trust held by
persons or entities that have registration rights granted under that certain
Registration Rights Agreement, dated as of the date hereof, by and among the
Trust, the Partnership and the other signatories thereto (the "AAPT Registration
Rights Agreement").
2.5 Rule 144. The Trust will use commercially reasonable
efforts during the term of this Agreement to (i) file with the SEC such
information as is specified under Rule 144 for so long as there are beneficial
owners of Registrable Securities and (ii) take all other action as may be
required as a condition to the availability of Rule 144.
2.6 Information Blackout. At any time when a registration
statement effected pursuant to this Section 2 relating to Registrable Securities
is effective, upon written notice from the Trust to the Investors that the Trust
has determined in good faith that sale of Registrable Securities pursuant to the
registration statement would require disclosure by the Trust of non-public
material information not otherwise required, in the judgment of the Trust, to be
disclosed under applicable law, the Investors shall suspend sales of Registrable
Securities pursuant to such registration statement until the earlier of (a) 60
days after the Trust makes such good faith determination and (b) such time as
the Trust notifies the Investors that such material information has been
disclosed to the public or has ceased to be material or that sales pursuant to
such registration statement may otherwise be resumed.
2.7 Preparation.
2.7.1 Investor Review and Due Diligence. In connection
with the preparation and filing of any registration statement under the
Securities Act in which the Investors are selling shareholders, the Trust shall
give the Investors not less than 10 days prior written notice of the preparation
of such registration statement and give the Investors and their counsel the
opportunity to review and comment on the applicable portions, relating to the
Investors (including the Selling Shareholder and Plan of Distribution sections),
of the registration statement, each prospectus included therein or filed with
the SEC, and each amendment thereof or supplement thereto (provided that the
Investors shall furnish the Trust with comments on any such amendment or
supplement as promptly as the Trust shall reasonably require).
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2.7.2 Investor Information. Each Investor which
beneficially owns Registrable Securities to be registered under Section 2.1 or
2.2 shall furnish to the Trust such information as the Trust may reasonably
request and as shall be required in connection with the registration and related
proceedings referred to in this Section 2. If any Investor fails to provide the
Trust with such information within 10 days of the effective date of the Trust's
request therefor, the Trust's obligations under Section 2 with respect to such
Investor or the Registrable Securities beneficially owned by such Investor shall
be suspended until such Investor provides such information.
2.8 Underwritten Offerings. In connection with any
underwritten public offering to be effected pursuant to Section 2.2, if
requested by the underwriters for any underwritten public offering by the
Investors, the Trust shall enter into an underwriting agreement with such
underwriters for such underwritten public offering, such agreement to be
reasonably satisfactory in substance and form to the Trust, the Investors and
the underwriters, and to contain such representations and warranties by the
Trust and the Investors and such other terms as are generally prevailing in
agreements of that type, including, without limitation, customary indemnities
and contribution provisions generally prevailing in agreements of that type. The
Investors shall be a party to such underwriting agreement.
2.9 Indemnification.
2.9.1 Indemnification by the Trust. In the event of any
registration of any securities of the Trust under the Securities Act in which
the Investors are or may be selling shareholders, the Trust shall, and hereby
does, indemnify and hold harmless, to the fullest extent permitted by law, such
Investors who are selling shareholders, and their respective directors,
officers, partners, employees, agents and affiliates, and each other person who
controls any Investor within the meaning of the Securities Act (each a "Trust
Indemnified Party"), against losses, claims, damages, liabilities or judgments
(or actions or proceedings, whether commenced or threatened in respect thereof)
that arise out of or are based upon (a) any untrue statement or alleged untrue
statement of any fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus, or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances in which they were made not misleading, or (b) any
violation by the Trust, its trustees, officers, employees or agents of this
Agreement or any law applicable to and in connection with such registration, and
the Trust shall reimburse the Trust Indemnified Parties for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or judgment (or action or
proceeding in respect thereof) described in clauses (a) or (b); provided, that
the Trust shall not be liable in any such case to the extent that any such loss,
claim, damage, liability, judgment (or action or proceeding in respect thereof)
or expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with information
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furnished to the Trust by any Investor; and provided, further, that this
indemnity obligation of the Trust shall not apply to any misstatement or
omission in any registration statement, including any amendment thereto, or in
any preliminary prospectus, if such misstatement or omission giving rise to
the claim for indemnification was corrected in the final prospectus and the
Trust made available on a timely basis to the Investors participating as
selling shareholders, or the managing underwriter of the particular public
offering, copies of the final prospectus for delivery to the purchasers of the
Registrable Securities in such offering. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Investors and shall survive the transfer of such securities by the Investors.
2.9.2 Indemnification by the Investors If any
Registrable Securities are included in any registration statement, the Investors
who beneficially own such Registrable Securities (the "Indemnifying Investors")
shall indemnify and hold harmless, to the fullest extent permitted by law, the
Trust and each trustee, officer and employee of the Trust, and each Person who
controls the Trust within the meaning of the Securities Act (the "Investor
Indemnified Parties"), against losses, claims, damages, liabilities or judgments
(or actions or proceedings, whether commenced or threatened, in respect thereof)
that arise out of or are based upon (a) any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
information furnished to the Trust by the Investors, or (b) any violation by the
Investors, or their respective directors, officers, partners, employees, agents
and affiliate, of this Agreement or any law applicable to and in connection with
such registration, and such Investors shall reimburse the Investor Indemnified
Parties for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or judgment (or action or proceeding in respect thereof) described in
clauses (a) or (b). In no event shall any Indemnifying Investor, its directors,
officers or any person who controls such Indemnifying Investor be liable or
responsible for any amount in excess of the amount by which the total amount
received by such Indemnifying Investor with respect to any registration of any
securities of the Trust under the Securities Act exceeds (i) the pro rata amount
paid by such Indemnifying Investor for such securities of the Trust and (ii) the
amount of any damages that such Indemnifying Investor, its directors, officers
or any person who controls such Indemnifying Investor has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
2.9.3 Notice of Claims, Etc. Promptly after receipt by
an indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Section 2.9,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party, immediately give written notice to the latter of
the commencement of such action; provided, that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying party
of its obligations under the preceding paragraphs of this Section 2.9, except to
the extent that the indemnifying party is materially prejudiced by such failure.
In case any such action is brought
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against an indemnified party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that the
indemnifying parties may agree, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable out of pocket costs related to the
indemnified party's cooperation with the indemnifying party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties arises in respect of such claim after the
assumption of the defense thereof. No indemnifying party shall be liable for
any settlement of any action or proceeding effected without its written
consent, which consent shall not be unreasonably withheld, delayed or
conditioned. Consent of the indemnified party shall be required for the entry
of any judgment or to enter into a settlement only when such judgment or
settlement does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all
liability in respect such claim or litigation.
2.9.4 Contribution. If the indemnification provided for
in this Section 2.9 shall for any reason be held by a court to be unavailable to
an indemnified party under Section 2.9.1 or 2.9.2 hereof in respect of any loss,
claim, damage, liability, judgment, or any action in respect thereof, then, in
lieu of the amount paid or payable under Sections 2.9.1 or 2.9.2 hereof, the
indemnified party and the indemnifying party under Sections 2.9.1 or 2.9.2
hereof shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating the same), (i) in such proportion as is appropriate to reflect the
relative fault of the Trust on one hand and the Investors that participated as
selling shareholders on the other that resulted in such loss, claim, damage or
liability, or action in respect thereof, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as shall
be appropriate to reflect the relative benefits received by the Trust on one
hand and the Investors that participated as selling shareholders on the other,
as well as any other relevant equitable considerations. No Person shall be
obligated to contribute hereunder any amounts in payment for any settlement of
any action or claim, effected without such Person's written consent, which
consent shall not be unreasonably withheld.
2.9.5 Fraudulent Representations. No Person guilty of
fraudulent misrepresentation (within the meaning of the Securities Act) shall be
entitled to indemnity or contribution from any Person who was not guilty of such
fraudulent misrepresentation.
3. Amendments; Waivers. This Agreement may be amended only
with the written consent of the Trust and at least Investors that constitute
the Majority Investors. Except as otherwise specifically provided herein, no
delay on the part of any party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
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the part of any party hereto of any right, power or privilege hereunder
operate as a waiver of any other right, power or privilege hereunder nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any right,
power or privilege hereunder.
4. Entire Agreement. This Agreement represents the entire
understanding and agreement among the parties hereto with respect to the
subject matter hereof and supersedes all other prior and contemporaneous
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
5. Severability. If any provision of this Agreement, or the
application of such provision to any party or circumstance, shall be held
invalid, the remainder of this Agreement or the application of such provision
to other parties or circumstances, to the extent permitted by law or rules of
the SEC, shall not be affected thereby. The obligations of the Trust hereunder
shall be subject to equitable modification if and to the extent required in
order to enable the Trust to conform to any rules of the SEC or policy
positions of the SEC, as reasonably integrated by the Trust and its counsel.
6. Notices. All notices, requests and other communications
required or permitted to be given under this Agreement shall be in writing and
shall be delivered (i) in person, (ii) by U.S. overnight Express Mail, return
receipt requested, (iii) by recognized overnight delivery service providing
positive tracking of items (e.g., Federal Express), or (iv) by confirmed
telecopier, in each case addressed as follows:
If to the Trust or the Partnership, addressed to:
c/o Brandywine Realty Trust
Newtown Square Corporate Campus
16 Campus Boulevard
Suite 150
Newtown Square, PA 19073
Attention: Gerard H. Sweeney, President and Chief Executive Officer
Fax: (610) 325-5622
with a required copy in each instance to:
Brad A. Molotsky, General Counsel
Brandywine Operating Partnership, L.P.
Newtown Square Corporate Campus
16 Campus Boulevard
Suite 150
Newtown Square, PA 19073
Fax: (610) 325-5622
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If to the Investors:
Addressed to such Investor as set forth on the Investor Signature
Page hereto
with a required copy in each instance to:
Latham & Watkins
885 Third Avenue
New York, NY 10020
Attention: R. Ronald Hopkinson and James I. Hisiger
Fax: (212) 751-4864
or to such other address or addresses and to the attention of such other
person or persons as any of the parties may notify the other in accordance
with the provisions of this Agreement. All such notices, requests and other
communications shall be deemed to have been sufficiently given for all
purposes hereof only if given pursuant to the foregoing requirements as to
both manner and address, and only upon receipt (or refusal to accept delivery)
by the party to whom such notice is sent. Notices by the parties may be given
on their behalf by their respective attorneys.
7. Successors and Assigns. This Agreement shall inure to the
benefit of and shall be binding upon the Trust and its successors and
permitted assigns. The rights to register securities granted by the Trust
under this Agreement may be assigned by any Investor, provided, that (a) such
transfer may otherwise be and is effected in accordance with applicable
securities laws; and (b) such assignee or transferee agrees in writing to be
bound by all of the provisions of this Agreement and executes an Investor
Signature Page in the form attached hereto. In the event of any transfer of
rights in accordance with this Section 7, the transferee shall have all of the
rights and obligations of an Investor under the terms of this Agreement.
8. Counterparts; Facsimile Signature. This Agreement may be
executed in counterparts (including by facsimile which, for all purposes,
shall be deemed to be an original), each of which for all purposes shall be
deemed to be an original and all of which together shall constitute the same
agreement.
9. Headings. The Section headings in this Agreement are for
convenience of reference only, and shall not be deemed to alter or affect the
meaning or interpretation of any provisions hereof.
10. Construction. This Agreement shall be governed, construed
and enforced in accordance with the laws of the State of New York without regard
to its principles of conflict of laws.
11. Recapitalizations, etc. In the event that any shares of
beneficial interest or other securities are issued in respect of, in exchange
for, or in substitution of, any Registrable
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Securities by reason of any reorganization, recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete
liquidation, share dividend, split-up, sale of assets, distribution to
shareholders or combination of the shares of Registrable Securities or any
other similar change in the Trust's capital structure, appropriate adjustments
shall be made in this Agreement so as to fairly and equitably preserve, as far
as practicable, the original rights and obligations of the parties hereto
under this Agreement.
[Execution Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed on the date first above written and delivered by their
respective duly authorized officers.
BRANDYWINE OPERATING
PARTNERSHIP, L.P.
By: BRANDYWINE REALTY
TRUST, its sole general partner
By: ___________________________
Name: Gerard H. Sweeney
Title: President & CEO
BRANDYWINE REALTY TRUST
By: _______________________________
Name: Gerard H. Sweeney
Title: President & CEO
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INVESTOR SIGNATURE PAGE
The undersigned hereby acknowledges receipt of a copy of the
Registration Rights Agreement, dated as of _________, 1998, and hereby agrees
to be bound by the terms and conditions thereof as an Investor.
_________________________________
Name of Investor
_________________________________
Signature of Authorized Signer
_________________________________
Name & Title of Authorized Signer
Address for Notices:
__________________________________
__________________________________
__________________________________
Attention:________________________
Facsimile:________________________
Telephone:________________________
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SCHEDULE I
List of Investors
[To Come]
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