PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement"), dated April 20, 2000,
is by and between Security Capital Preferred Growth Incorporated, a Maryland
corporation (the "Purchaser"), Prometheus AAPT Holdings, L.L.C., a Delaware
limited liability company (the "Seller"), and LF Strategic Realty Investors
L.P., a Delaware limited partnership ("Investors").
WHEREAS, the Seller desires to sell to the Purchaser 750,000 shares
of 7.25% Series A Cumulative Convertible Preferred Shares (the "Series A
Preferred Shares") in Brandywine Realty Trust, a Maryland real estate
investment trust (the "Company), and the Purchaser desires to purchase such
Series A Preferred Shares on the terms and subject to the conditions
described herein.
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (the "Registration
Statement") on Form S-3 (No. 333-69653) and a related prospectus for the
registration of the Series A Preferred Shares, and the common shares of
beneficial interest to be issued upon conversion of the Series A Preferred
Shares, under the Securities Act of 1933, as amended (the "Securities Act").
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and warranties herein contained, the parties hereto
agree as follows:
1. Purchase and Sale of Series A Preferred Shares. Subject to the
terms and conditions set forth in this Agreement, at the Closing (as
hereinafter defined), the Seller shall sell, assign, transfer, convey and
deliver to the Purchaser, free and clear from any liens, encumbrances or
defects of title (collectively, "Liens"), but subject to the ownership and
transferability restrictions set forth in Article 6 of the Company's
Declaration of Trust, and Purchaser shall accept, acquire and take assignment
and delivery of all of the Series A Preferred Shares. Subject to the terms
and conditions set forth in this Agreement, at Closing, Investors shall cause
Seller to comply with its obligations under this Section 1.
2. Closing; Payment of Purchase Price.
a. Time; Purchase Price. Subject to the terms and conditions set
forth herein, the closing (the "Closing") of the transactions
described herein shall occur on the third business day following
the date hereof, or such later time not later than ten business
days after such date as shall be agreed upon by the Seller and the
Purchaser. At the Closing, the Purchaser shall pay the Seller cash
in the amount of (i) $25,000,000 (Twenty-Five Million Dollars) plus
(ii) the amount of the accrued but unpaid dividends through the
date of the Closing (the "Purchase Price"). The Purchase Price
shall be paid to the Seller by means of a wire transfer of
immediately available funds to a bank account designated by Seller
in writing. The Closing and the deliveries required thereby shall
be made at the offices of the Purchaser, 00 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx, 00000 or at such other place or in
such other manner as shall be agreed upon by the Seller and the
Purchaser.
b. Purchaser's Conditions to Closing. The obligation of the Purchaser
to proceed with the Closing shall be conditional upon all
representations and warranties made by the Seller herein being true
and correct in all material respects as of the Closing.
c. Seller's Conditions to Closing. The obligation of the Seller to
proceed with the Closing shall be conditional upon all
representations and warranties made by the Purchaser herein being
true and correct in all material respects as of the Closing.
d. Deliveries. Closing shall be completed when each of the following
has been delivered, all of which shall be deemed to have taken
place simultaneously:
(i) Purchaser shall have delivered to Seller the Purchase Price.
(ii) Seller shall have delivered to Purchaser a stock certificate
or certificates evidencing all of the Series A Preferred Shares,
which certificate(s) shall be duly endorsed in blank or accompanied
by duly executed stock powers.
3. Representations and Warranties regarding the Seller. Each of
Investors and the Seller hereby represents and warrants to the Purchaser:
a. Due Organization. The Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of
Delaware, with all requisite power to own its properties and to
conduct its business as now conducted. The sole member of the
Seller is Investors, a limited partnership duly organized, validly
existing and in good standing under the laws of Delaware, with all
requisite power to own its properties and to conduct its business
as now conducted.
b. Authorization. The Seller has the requisite power and authority to
enter into this Agreement and to carry out its obligations
hereunder. This Agreement has been duly and validly executed and
delivered by the Seller and constitutes the legal, valid and
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binding agreement of the Seller, enforceable against the Seller in
accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of
creditors' rights generally or by general equitable principles.
c. Series A Preferred Shares.
(i) The Series A Preferred Shares have been fully paid and
are nonassessable. The Seller is the beneficial and legal
owner of record of all of the Series A Preferred Shares and
holds the Series A Preferred Shares free and clear of any and
all Liens, except for the Lien granted to Xxxxxxx Xxxxx
International which shall be released effective as of the
Closing, and except that such shares are subject to the
ownership and transferability restrictions set forth in
Article 6 of the Company's Declaration of Trust. The Seller
has no other agreements, arrangements or understandings,
whether by means of a right of first refusal or first purchase
or otherwise, with respect to a sale or other disposition of
the Series A Preferred Shares, and there are no shareholder
agreements, voting trusts or other agreements or
understandings to which the Seller is a party or by which it
is bound relating to the Series A Preferred Shares.
(ii) Seller is selling the Series A Preferred Shares pursuant
to the prospectus dated March 9, 1999 which is included in the
Registration Statement (the "Prospectus"), which Registration
Statement has been declared effective by the Commission. To
Seller's knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the
knowledge of the Seller, threatened by the Commission.
d. Consents. Except for the Lien granted to Xxxxxxx Xxxxx
International which shall be released effective as of the Closing,
no consent, authorization or approval of, filing or registration
with, waiver of any right of first refusal or first offer from, or
cooperation from, any governmental authority or any other person
not a party to this Agreement is necessary in connection with the
execution, delivery and performance by Seller of this Agreement or
the consummation by Seller of the transactions contemplated hereby.
e. No Conflicts. The execution, delivery and performance by Seller of
this Agreement and the consummation by Seller of the transactions
contemplated hereby do not and will not (i) violate any law
applicable to Seller; (ii) violate or conflict with, result in a
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breach or termination of, constitute a default or give any third
party any additional right (including a termination right) under,
permit cancellation of, result in the creation of any Lien upon any
of the assets of the Seller pursuant to any contract to which the
Seller is a party or by which the Seller or any of its assets are
bound; or (iii) violate or conflict with any provision of any of
the certificate of formation, operating agreement or similar
organizational instruments of the Seller.
f. No Default or Violations. Seller has no knowledge of any payment
or other default by the Company under the Series A Preferred Shares
or of any current or past violation by the Company of the Articles
Supplementary of the Company classifying and designating the Series
A Preferred Shares.
g. Litigation. To the knowledge of Seller, there are no actions,
suits, mediation, arbitrations, regulatory proceedings or other
litigation, proceedings or governmental investigations pending or
threatened against or affecting the Seller or any of its affiliates
concerning the Series A Preferred Shares or which might reasonably
be expected to impede the consummation of the transaction
contemplated hereby, and Seller is not aware of any facts or
circumstances which may give rise to any of the foregoing.
h. Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission from any party in
connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of the Seller.
4. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to the Seller as follows:
a. Due Organization. The Purchaser is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Maryland, with all requisite power to own its properties and to
conduct its business as now conducted.
b. Authorization. The Purchaser has the requisite power to enter into
this Agreement and to carry out its obligations hereunder. This
Agreement has been duly authorized, executed and delivered by the
Purchaser and constitutes a valid and binding agreement,
enforceable against the Purchaser in accordance with its terms
except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of creditors' rights generally or by
general equitable principles.
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c. Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission from any party in
connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of the Purchaser.
d. Prospectus Delivery. The Purchaser has received a copy of the
Prospectus.
5. Termination. This Agreement shall be terminable:
(a) by the parties upon mutual written agreement; and
(b) by either party, if the other party materially breaches any
covenant, representation or warranty contained herein, upon
written notice to the other party.
Upon termination of this Agreement, all obligations of each party hereunder
shall terminate except those obligations pursuant to Section 6 and Section
10. Neither party shall have any liability to the other party upon a
termination of this Agreement, unless such termination arises by reason of
the material breach of a covenant, representation or warranty by a party
hereto.
6. Expenses. Each party hereto shall bear its own expenses with
respect to this transaction.
7. Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs,
personal representatives, successors, assigns and affiliates.
8. Notices. Any notice or other communication provided for herein or
given hereunder to a party hereto shall be in writing and shall be given by
delivery, by telex, facsimile, telecopier or by mail (registered or certified
mail, postage prepaid, return receipt requested) to the respective parties as
follows:
If to Purchaser:
Security Capital Preferred Growth Incorporated
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
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With a copy to:
Xxxxx, Xxxxx & Xxxxx
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
If to Seller:
Prometheus AAPT Holdings, L.L.C.
c/o Lazard Freres Real Estate Investors L.L.C.
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Facsimile: 000-000-0000
After the Closing, Seller shall promptly forward all notices or other
correspondence it receives relating to the Series A Preferred Shares or
otherwise relating to the Company to the Purchaser at the above address.
9. Further Assurances. Upon request of the Purchaser, Seller shall
execute and deliver such other instruments of conveyance, assignment,
transfer and delivery and take such other action as the Purchaser reasonably
may request in order to consummate the transactions contemplated by this
Agreement.
10. Public Disclosure. Except as required by law and communications to
partners of Investors and to the shareholders of Purchaser, respectively,
neither Seller nor Purchaser may publicly disclose the existence of the
transactions contemplated by this Agreement, including a summary of the terms
of such transactions unless such party obtains the consent of the other party
hereto, which consent shall not be unreasonably withheld or delayed.
11. Waiver. No party may waive any of the terms or conditions of this
Agreement except by a duly signed writing referring to the specific provision
to be waived.
12. Entire Agreement. This Agreement constitutes the entire agreement,
and supersedes all other prior agreements and understandings, both written
and oral, among the parties hereto and their affiliates with respect to the
matters set forth herein.
13. Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability
of the other provisions hereof shall not be affected thereby, and there shall
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be deemed substituted for the provision at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
14. Captions. The Section references herein are for convenience of
reference only, do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions hereof.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
16. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the day and year first written above.
SECURITY CAPITAL PREFERRED
GROWTH INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
PROMETHEUS AAPT HOLDINGS, L.L.C.
By: LF Strategic Realty Investors L.P.
Its: Sole Member
By: Lazard Freres Real
Estate Investors L.L.C.
Its: General Partner
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Principal & Chief Financial Officer
For purposes of Sections 1 and 3 only:
LF STRATEGIC REALTY
INVESTORS L.P.
By: Lazard Freres Real Estate Investors L.L.C.
Its: General Partner
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Principal & Chief Financial Officer
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