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EXHIBIT 10.55
SECURITIES PURCHASE AGREEMENT
BETWEEN
BRANDYWINE REALTY TRUST
XXXXXX XXXXXXX INSTITUTIONAL FUND, INC. -
U.S. REAL ESTATE PORTFOLIO
AND
XXXXXX XXXXXXX SICAV SUBSIDIARY S.A.
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TABLE OF CONTENTS
SECTION 1. SALE AND PURCHASE OF SHARES; CLOSING........................................................... 1
1.1 Authorization of Securities.................................................................... 1
1.2 Sale and Purchase.............................................................................. 1
1.3 Closing........................................................................................ 1
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.................................................. 2
2.1 Organization and Good Standing................................................................. 2
2.2 Authorization.................................................................................. 2
2.3 No Conflict with Law or Documents.............................................................. 3
2.4 Beneficial Interest of Company................................................................. 3
2.5 Consents and Approvals......................................................................... 3
2.6 Private Offering............................................................................... 4
2.7 Declaration of Trust and Bylaws................................................................ 4
2.8 Subsidiaries................................................................................... 4
2.9 SEC Reports.................................................................................... 5
2.10 Litigation..................................................................................... 5
2.11 Compliance with Laws........................................................................... 5
2.12 Financial Statements........................................................................... 6
2.13 Real Property.................................................................................. 7
2.14 Tenant Leases.................................................................................. 8
2.15 Dividends and Other Distributions.............................................................. 9
2.16 Tax Matters.................................................................................... 9
2.17 Agreements Affecting the Company's Securities.................................................. 10
2.18 Insurance...................................................................................... 10
2.19 Employee Benefit Plans......................................................................... 10
2.20 Contracts and Agreements....................................................................... 12
2.21 Absence of Certain Developments................................................................ 12
2.22 Contracts with Insiders........................................................................ 12
2.23 Environmental Matters.......................................................................... 13
2.24 Certain Agreements............................................................................. 13
2.25 Books and Records.............................................................................. 13
2.26 Certain Payments............................................................................... 14
2.27 Labor Agreements and Actions................................................................... 14
2.28 Entire Business; Etc........................................................................... 14
2.29 Registration Statement......................................................................... 14
2.30 Information.................................................................................... 15
2.31 Investment Company............................................................................. 15
2.32 Commodity Exchange Act......................................................................... 15
SECTION 3. PURCHASER'S REPRESENTATIONS AND WARRANTIES..................................................... 15
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3.1 Pre-Existing Entity............................................................................ 16
3.2 Beneficial Ownership........................................................................... 16
3.3 Principal Place of Business.................................................................... 16
3.4 Purchase Without View to Distribution.......................................................... 16
3.5 Restrictions on Transfer....................................................................... 16
3.6 No General Solicitation........................................................................ 16
3.7 Access to Information.......................................................................... 17
3.8 Additional Representations of the Purchasers................................................... 17
3.9 Legends........................................................................................ 17
3.10 Registration Statement......................................................................... 17
3.11 Due Authorization; Etc......................................................................... 17
3.12 Status......................................................................................... 18
SECTION 4. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS............................................ 18
4.1 Representations and Warranties................................................................. 18
4.2 Performance.................................................................................... 18
4.3 Opinion of Counsel to the Company.............................................................. 18
4.4 Proceedings; Certified Copies.................................................................. 18
4.5 No Proceeding or Litigation.................................................................... 18
4.6 No Material Adverse Change..................................................................... 18
4.7 ASE Listing.................................................................................... 18
4.8 Blue Sky Compliance............................................................................ 19
4.9 Registration Rights............................................................................ 19
4.10 Maryland Anti-Takeover Statutes, Etc........................................................... 19
4.11 Secondary Offering............................................................................. 19
4.12 Beneficial Ownership........................................................................... 19
4.13 Environmental Representation Letter............................................................ 19
4.14 Additional Documents........................................................................... 19
SECTION 5. CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATIONS.............................................. 19
5.1 Representations and Warranties................................................................. 20
5.2 Performance.................................................................................... 20
5.3 No Proceeding or Litigation.................................................................... 20
5.4 ASE Listing.................................................................................... 20
5.5 Additional Documents........................................................................... 20
5.6 Proceedings; Certified Copies.................................................................. 20
5.7 No SEC Integration Challenge................................................................... 20
5.8 Beneficial Ownership........................................................................... 20
SECTION 6. COVENANTS OF THE COMPANY AND EACH PURCHASER PRIOR TO
CLOSING........................................................................................ 21
6.1 Payment of Expenses............................................................................ 21
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6.2 Operation of Business in Ordinary Course....................................................... 21
6.3 Access to Information.......................................................................... 21
6.4 Notification of Certain Matters................................................................ 22
6.5 Conditions Precedent........................................................................... 22
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY AND THE PURCHASERS......................................... 22
7.1 Rule 144....................................................................................... 22
7.2 Delivery of Financial Statements............................................................... 23
7.3 Compliance with Laws........................................................................... 23
7.4 Waivers, Consents, Etc......................................................................... 23
7.5 Press Releases................................................................................. 23
7.6 No Rescission.................................................................................. 24
7.7 REIT Status.................................................................................... 24
SECTION 8. COMPLIANCE WITH 1933 ACT; RESTRICTIONS ON TRANSFERABILITY
OF COMMON SHARES............................................................................... 24
8.1 Compliance with 1933 Act....................................................................... 24
8.2 Restrictive Legend............................................................................. 24
8.3 Restrictions on Transferability................................................................ 24
8.4 Termination of Restrictions on Transferability................................................. 25
SECTION 9. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS......................................... 25
SECTION 10. MISCELLANEOUS.................................................................................. 25
10.1 Owner of Common Shares......................................................................... 25
10.2 Successors..................................................................................... 25
10.3 Broker or Finder............................................................................... 26
10.4 Governing Law.................................................................................. 26
10.5 Notice......................................................................................... 26
10.6 Full Agreement................................................................................. 27
10.7 Headings....................................................................................... 27
10.8 Amendment...................................................................................... 27
10.9 Survival of Representations and Warranties..................................................... 27
10.10 Settlement of Disputes......................................................................... 27
10.11 Counterparts................................................................................... 28
10.12 Termination.................................................................................... 28
10.13 Effect of Termination.......................................................................... 29
10.14 Non-Recourse................................................................................... 29
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SCHEDULE OF EXHIBITS
Exhibit A -- Disclosure Letter
Exhibit B -- Form of Amendment to Partnership Agreement
Exhibit C -- Form of Amendment No. 1 to Registration Statement
Exhibit D -- Form of Opinion of Counsel to the Company
Exhibit E -- Form of Opinion of Special Maryland Counsel to the Company
Exhibit F -- Form of Registration Rights Agreement
Schedule A
Schedule 3.2
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SECURITIES PURCHASE AGREEMENT (this "Agreement") made as of
the 6th day of November, 1996 between BRANDYWINE REALTY TRUST, a Maryland real
estate investment trust (the "Company"), and XXXXXX XXXXXXX INSTITUTIONAL FUND,
INC.-U.S. REAL ESTATE PORTFOLIO and XXXXXX XXXXXXX SICAV SUBSIDIARY S.A. (each a
Purchaser and together, the "Purchasers").
BACKGROUND
The Company desires to issue and sell to the Purchasers, and each
Purchaser desires to purchase Common Shares (as defined in Section 1.1) on the
terms and conditions set forth herein.
Intending to be legally bound hereby, the parties hereto agree as
follows:
SECTION 1. SALE AND PURCHASE OF SHARES; CLOSING
1.1 AUTHORIZATION OF SECURITIES. The Board of Trustees has
authorized the issuance of 709,091 of its authorized but unissued common shares
of beneficial interest (the "Common Shares") as provided in Section 1.2.
1.2 SALE AND PURCHASE. Subject to the terms and conditions
herein set forth, on the Closing Date (as defined in Section 1.3), the Company
shall sell, issue and deliver Common Shares to the Purchasers at a price of
$16.50 per share (assuming the Company has combined its Common Shares by means
of a one-for-three reverse share split as described in the Registration
Statement (as defined in Section 2.29)), and each Purchaser agrees, severally
and not jointly, to purchase the number of Common Shares set forth opposite its
name on Schedule A attached hereto. All share amounts and prices shall be
appropriately adjusted for any share splits, reverse share splits, dividends or
similar transactions (with the exception of the one for three reverse share
split described in the Registration Statement). The Purchasers shall not be
deemed to be affiliated shareholders or affiliated purchasers.
1.3 CLOSING.
(a) The closing of the issuance and sale of the
Shares to the Purchasers hereunder shall take place as promptly as practicable
after the closing of the Secondary Offering, subject to the satisfaction or, if
permissible, waiver of the conditions set forth in Sections 4 and 5, at 10:00
A.M. at the offices of Pepper, Xxxxxxxx & Xxxxxxx, Two Xxxxx Square, 00xx xxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx, XX 00000, unless another date, time or place is
agreed to in writing by the parties hereto. As used herein "Closing" shall mean
the closing of the issuance and sale of the Common Shares to the Purchasers
hereunder and the "Closing Date" shall mean the date on which such Closing takes
place. The term "Secondary Offering" as used herein means an underwritten
primary public offering of unissued common shares of beneficial interest of the
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same class as the Common Shares pursuant to a Registration Statement on Form
S-11 declared effective by the SEC (as defined in Section 2.9) which results in
gross proceeds to the Company (prior to reduction for the underwriters'
discount) of at least $45,000,000.
(b) Subject to the terms and conditions herein set
forth, at the Closing, the Company shall deliver to each Purchaser certificates
for the Common Shares purchased thereby duly executed by the Company and
registered in such Purchaser's name or the name of their respective nominee and,
in exchange for the delivery of the Common Shares, Purchaser shall deliver to
the Company the purchase price for the number of Common Shares set forth
opposite its name on Schedule A attached hereto by wire transfer of immediately
available funds to an account designated by the Company on the Closing Date.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Other than as set forth on the disclosure letter previously
provided to the Purchasers (the "Disclosure Letter") or as described in the
Registration Statement or in the SEC Reports or exhibits thereto (as defined in
Section 2.09), the Company represents and warrants to each Purchaser as follows:
2.1 ORGANIZATION AND GOOD STANDING. The Company is a real
estate investment trust duly formed and existing under and by virtue of the laws
of the State of Maryland and is in good standing under the laws of the State of
Maryland Department of Assessments and Taxation and has all requisite power and
trust authority, and all necessary licenses and permits, to own and lease its
properties and assets and to conduct its business as now conducted. Each
Subsidiary (as defined in Section 2.9) is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has all requisite power and authority, and all necessary
licenses and permits, to own and lease its properties and assets and to conduct
its business as now conducted. The Company and its Subsidiaries are each
qualified to do business and are in good standing in all states where the
conduct of their respective businesses or their ownership or leasing of property
requires such qualification.
2.2 AUTHORIZATION. The Company has all requisite power and
trust authority to execute and deliver this Agreement and the Registration
Rights Agreement (as defined herein) and to carry out the transactions
contemplated hereby and thereby. The execution, delivery and performance by the
Company of this Agreement and the Registration Rights Agreement have been duly
authorized by all requisite corporate action. This Agreement has been duly
executed and delivered by the Company and constitutes (and, when executed and
delivered as contemplated herein the Registration Rights Agreement will
constitute) the valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, moratorium, reorganization and other similar
laws relating to or affecting the enforcement of creditors' rights
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generally, and except that the availability of specific performance, injunctive
relief or other equitable remedies is subject to the discretion of the court
before which any such proceeding may be brought.
2.3 NO CONFLICT WITH LAW OR DOCUMENTS. The execution, delivery
and performance by the Company of this Agreement and the Registration Rights
Agreement will not violate any provision of law, any rule or regulation of any
governmental authority, or any judgment, decree or order of any court binding on
the Company, and will not conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default under, or result in
the creation of any lien, security interest, charge or encumbrance upon any of
the properties, assets or outstanding shares of the Company under the
Declaration of Trust of the Company as amended to the date of this Agreement
(the "Declaration of Trust") or the Bylaws of the Company as amended to the date
of this Agreement (the "Bylaws"), or any indenture, mortgage, lease, agreement
or other instrument to which the Company is a party or by which it or any of its
properties is bound.
2.4 BENEFICIAL INTEREST OF COMPANY. The authorized beneficial
interest of the Company consists of: (a) 75,000,000 Common Shares, 2,733,554
shares of which are presently issued and outstanding, and (b) 5,000,000
undesignated preferred shares, par value $.01 per share, none of which is
presently issued and outstanding. All issued and outstanding Common Shares have
been duly and validly issued and are fully paid and nonassessable. There are no
outstanding subscriptions, warrants, options or other rights or commitments of
any character to subscribe for or purchase from the Company, or obligating the
Company to issue, any shares of beneficial interest of the Company or any
securities convertible into or exchangeable for such shares, and there are no
Common Shares reserved for issuance. The number of Common Shares issuable upon
the exercise, conversion or exchange of any outstanding securities of the
Company is not subject to adjustment by reason of the issuance and sale of the
Common Shares to be sold to the Purchasers. There are no (i) preemptive, first
refusal or similar rights to purchase or otherwise acquire securities of the
Company or any Subsidiary pursuant to any provision of law, the Declaration of
Trust, the Bylaws, the Partnership Agreement (as defined in Section 2.21), other
agreement or otherwise; or (ii) rights to adjust the number, type or pricing of
securities issuable upon conversion, exercise or exchange of other securities or
rights issued by the Company.
2.5 CONSENTS AND APPROVALS. Except as set forth in the
Disclosure Letter, no permit, consent, approval or authorization of, or
declaration to or filing with, any federal, state, local or foreign governmental
or regulatory authority or other person or entity, not made or obtained, is
required in connection with the execution or delivery of this Agreement or the
Registration Rights Agreement by the Company, the offer, issuance, sale or
delivery of the Common Shares, or the carrying out by the Company of the other
transactions contemplated hereby, other than (a) the filing with, and approval
of, the American Stock Exchange, Inc. ("ASE") with respect to the listing of the
Common Shares, (b) any filings required under federal
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and applicable state securities laws, and (c) the filing of Articles
Supplementary with the State Department of Assessments and Taxation of Maryland.
Prior to the closing, the Board of Trustees of the Company shall have taken all
action necessary so that the transactions contemplated by this Agreement
including, without limitation, the issuance of the Common Shares, shall be
irrevocably exempt from the operation of Section 3-601 et seq. (the "business
combination" statute), and Section 3-701 et seq. (the "control share
acquisition" statute) of the Maryland General Corporation Law (collectively, the
"Maryland Anti-Takeover Statutes") and from any provisions of the Declaration of
Trust and Bylaws that may have the effect of limiting the acquisition of
securities of the Company, including without limitation Sections 6.6 and 11.5 of
the Declaration of Trust.
2.6 PRIVATE OFFERING. Assuming the accuracy of the Purchasers'
representations and warranties contained in Section 3, the offer, issuance and
delivery to the Purchasers pursuant to the terms of this Agreement of the Shares
are exempt from registration under the Securities Act of 1933, as amended (the
"1933 Act"). Based on the representations of the Purchasers contained in Section
3, it is not necessary, under the circumstances contemplated by this Agreement
to register issuance of the Common Shares under the 1933 Act or the securities
laws of any state or other jurisdiction.
2.7 DECLARATION OF TRUST AND BYLAWS. The Company has filed as
exhibits to the SEC Reports the Declaration of Trust and Bylaws, true and
correct copies of which have been delivered to the Purchasers.
2.8 SUBSIDIARIES. The SEC Reports or the Disclosure Letter
accurately disclose the name of each entity in which the Company owns any
interest, other than such entities that neither own any assets nor have ever
conducted any business (collectively, the "Subsidiaries," which term includes
without limitation Brandywine Operating Partnership, L.P., a Delaware limited
partnership). The SEC Reports or the Disclosure Letter accurately describe (a)
each Subsidiary's jurisdiction of organization and the percentage of its equity
interests owned by the Company and (b) the name of each of the Company's
corporate or joint venture affiliates (other than Subsidiaries) and the nature
of the affiliation. Except as described in the SEC Reports or the Disclosure
Letter, the Company has good and marketable title to all of the equity interests
it purports to own of each Subsidiary, free and clear in each case of any
mortgage, lien, security interest, charge or other encumbrance, and all such
interests have been duly issued and are fully paid and nonassessable. There are
no outstanding warrants, options or other rights or commitments of any character
to subscribe for or purchase from the Company or a Subsidiary, or obligating
such Subsidiary to issue, any additional equity interests or any securities
convertible into or exchangeable for such equity interests.
2.9 SEC REPORTS. Since January 1, 1995, the Company and its
Subsidiaries have timely filed all forms, reports, schedules, statements and
other documents required to be filed with the Securities and Exchange Commission
(the "SEC") pursuant to the Securities
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Exchange Act of 1934, as amended (the "Exchange Act") or the 1933 Act, including
without limitation, (a) all Annual Reports on Form 10-K, (b) all Quarterly
Reports on Form 10-Q, (c) all reports on Form 8-K, (d) all proxy statements
relating to meetings of stockholders (whether annual or special) and (e) all
information incorporated by reference into any of the foregoing. As used herein
the term "SEC Reports" means any of the foregoing, as amended to the date of
this Agreement, filed on or after January 1, 1995. The SEC Reports were prepared
in all material respects in accordance with and complied in all material
respects with the requirements of applicable law, including the Exchange Act and
the 1933 Act and the applicable rules and regulations of the SEC thereunder, and
the SEC Reports did not at the time they were filed and do not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. Except
for the Registration Statement and the Registration Statement on Form S-8 filed
on October 12, 1996, the Company has not filed any registration statements with
the SEC at any time within the last three years. The Company has delivered to
the Purchasers prior to the date hereof true and correct copies of all SEC
Reports and any other reports and documents filed with the SEC since January 1,
1995.
2.10 LITIGATION. The SEC Reports, the Registration Statement
and/or the Disclosure Letter list all material pending or, to the Company's
knowledge, threatened litigation involving the Company and its Subsidiaries.
Except as so disclosed, there is no pending or, to the knowledge of the Company,
threatened suit, action or litigation, or administrative, arbitration or other
proceeding or governmental inquiry or investigation questioning the validity of
this Agreement or the transactions contemplated hereby, or affecting in any
material adverse respect the Company or any Subsidiary or the business,
properties, assets, operations, or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole, nor is there, to the knowledge of
the Company, any basis for any such suit, action, litigation, proceeding,
inquiry or investigation.
2.11 COMPLIANCE WITH LAWS. The Company and each Subsidiary is
in compliance in all material respects with all laws, ordinances, rules and
regulations of governmental authorities (including, without limitation, the
Americans with Disabilities Act of 1990) and requirements of insurance bodies
applicable to ownership, leasing, use and operation of its or their properties
and has obtained and fully paid for all material licenses, permits,
certificates, entitlements, grants of right and any other items and documents
required by applicable law to be obtained by the Company or its Subsidiaries for
the completion, ownership, leasing, use and occupancy of its or their
properties, except where the failure to so comply or obtain would not have a
material adverse effect on the Company and its Subsidiaries taken as a whole.
Such licenses, permits, certificates, entitlements, grants of right and other
items and documents are in full force and effect. Neither the Company nor any of
its Subsidiaries have taken any action that would (or failed to take any action,
the omission of which would) result in the revocation or suspension of such
licenses, permits, certificates, entitlements, grants of right and other items
and documents, and neither the Company nor any of its Subsidiaries have
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received any notice of any material violation from any federal, state or
municipal entity or notice of an intent by any such governmental entity to
revoke any material certificate of occupancy or other certificate, license,
permit, entitlement or grant of right issued by it in connection with the
ownership, use and occupancy of any of its or their properties, that in each
case has not been cured or otherwise resolved to the satisfaction of such
governmental entity.
2.12 FINANCIAL STATEMENTS.
(a) Each of the consolidated financial statements
(including, in each case, any related notes thereto) contained in the SEC
Reports and the Registration Statement (i) have been prepared in all material
respects in accordance with the published rules and regulations of the SEC and
generally accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved (except in the case of the unaudited financial
statements, as permitted by Form 10-Q of the SEC), (ii) comply as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto and (iii) fairly present
in all material respects the consolidated financial position of the Company and
its Subsidiaries as of the respective dates thereof and the consolidated results
of operations and cash flows for the periods indicated (subject, in the case of
unaudited consolidated financial statements for interim periods, to year-end
adjustments consisting only of normal recurring accruals), except that any pro
forma financial statements contained in such consolidated financial statements
are not necessarily indicative of the consolidated financial position of the
Company and its Subsidiaries as of the respective dates thereof and the
consolidated results of operations and cash flows for the periods indicated.
Since December 31, 1995, the Company has not made any material change in the
accounting practices or policies applied in the preparation of its financial
statements.
(b) Since June 30, 1996 (the "Balance Sheet Date")
there has been no material adverse change in the business, properties, assets,
operations or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole.
(c) The consolidated balance sheet of the Company and
its Subsidiaries at the Balance Sheet Date (the "Balance Sheet") reflects all
liabilities and obligations of the Company and of each Subsidiary, whether
accrued, contingent or otherwise as of the date thereof, that are of a nature
required to be set forth as a liability on a consolidated balance sheet under
GAAP. Neither the Company nor any of its Subsidiaries have any liabilities or
obligations of any nature (whether or not of the nature required to be reflected
on the balance sheet prepared in accordance with GAAP) that are not reflected on
the Balance Sheet, except for current liabilities (within the meaning of GAAP)
which (i) have been incurred in the ordinary course of business consistent in
nature and amount with past practice, and (ii) are neither material to the
Company and its Subsidiaries taken as a whole nor inconsistent with any of the
representations and warranties contained herein. The Balance Sheet reflects
reserves or other appropriate provisions at least equal to reasonably
anticipated liabilities, losses and expenses of
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the Company and its Subsidiaries as of the date thereof which are required to be
disclosed by GAAP.
(d) At the time of the issuance and sale of the
Common Shares to the Purchasers, neither the Company nor any of its Subsidiaries
will have any liabilities or obligations, whether absolute, accrued, contingent,
or otherwise, other than (i) current liabilities reflected on the Balance Sheet
not paid since the Balance Sheet Date, (ii) current liabilities incurred in the
ordinary course of business or in connection with the transactions contemplated
hereby or described in the Disclosure Letter and (iii) the other indebtedness of
the Company or of its Subsidiaries described in the Disclosure Letter, the
Registration Statement or the SEC Reports.
2.13 REAL PROPERTY.
(a) The SEC Reports or the Registration Statement
describe all real properties owned by the Company and each Subsidiary. To the
Company's knowledge, the Company and each Subsidiary has good, valid and
marketable title to all such real and personal properties and assets reflected
therein as being owned by the Company or such Subsidiary, except for properties
and assets sold or otherwise disposed of in the ordinary course of business
since the Balance Sheet Date or that are not material to its business taken as a
whole, subject to no liens, mortgages, security interests, pledges,
encumbrances, or charges of any kind except: (i) liens for taxes or assessments
or other government charges or levies not yet due and payable, (ii) liens
imposed by law, such as mechanic's, materialmen's, warehousemen's and carrier's
liens, and other similar liens, securing obligations incurred in the ordinary
course of business which are not past due for more than 30 days, (iii) liens
under workmen's compensation, unemployment insurance, social security or similar
legislation securing obligations which are not past due, and (iv) the liens
securing other indebtedness not past due of the Company or its Subsidiaries
described in the SEC Reports, the Registration Statement or the Disclosure
Letter (the "Permitted Liens").
(b) No eminent domain, condemnation, incorporation,
annexation or moratorium or similar proceeding has been commenced or, to the
best of the Company's knowledge, threatened by an authority having the power of
eminent domain to condemn any part of the properties owned by the Company and
its Subsidiaries. To the best of the Company's knowledge, there are no pending
or threatened governmental rules, regulations, plans, studies or efforts, or
court orders or decisions, which do or could adversely affect the use or value
of such properties for their present use.
(c) The improvements at all properties owned by the
Company and its Subsidiaries are in good condition and repair, ordinary wear and
tear excepted, and have not suffered any casualty or other material damage which
has not been repaired in all material respects. To the best of the Company's
knowledge, there is no material latent or patent structural,
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mechanical or other significant defect, soil condition or deficiency in the
improvements included in such properties.
(d) Each of the properties owned by the Company and
its Subsidiaries has been fully assessed and is not subject to abatement. To the
best of the Company's knowledge, there are no proposed reassessments of any of
such properties by any taxing authority and there are no threatened or pending
special assessments or other actions or proceedings (other than county-wide
reassessments and/or the usual increases in millage rates that may be under
consideration by the taxing authorities in the jurisdictions where such
properties are located) that could give rise to an increase in real property
taxes or assessments against any of such properties.
(e) There are no "Significant Agreements" relating to
the properties owned by the Company and its Subsidiaries, or their operations,
other than as set forth in the Disclosure Letter, the Registration Statement or
the SEC Reports. For purposes hereof, "Significant Agreement" means and includes
any of the following by which any of such properties may otherwise be subject or
bound, in each such case as amended and currently in effect, inclusive of any
waivers relating thereto:
(i) all agreements, instruments and
documents (excluding tenant leases referred to in Section 2.14 and easements
included in the Permitted Liens) evidencing, securing or pertaining to
contractual obligations that (A) are not cancelable upon 60 days notice or less
and (B) have payments or receipts, as applicable, in excess of $15,000 per year
or $25,000 over its life; and
(ii) all mortgages and ground leases.
2.14 TENANT LEASES.
(a) The Disclosure Letter lists each of the leases
currently in effect with respect to the properties owned by the Company and its
Subsidiaries as the same have been amended or modified to date (the "Leases").
The Leases are in full force and effect and, except as set forth in the
Disclosure Letter, no material uncured Event of Default (as defined in any such
Lease), has occurred and is continuing under any such Lease, no tenant has
asserted a defense to, offset or claim against its rent or the performance of
its obligations under its Lease and no tenant has asserted a default on the part
of the landlord which would give it the right to terminate its Lease and there
are no rights of first refusal on, or options to purchase, any of such leased
properties in favor of any tenant, and no proposed modifications to any Lease
that would reduce (A) the space leased to any tenant, (B) the amount of any
tenant's rent or (C) the term of any Lease.
(b) Except for (i) security deposits or (ii) the
first full month's rent, whether or not the term of a Lease has commenced, no
prepayments of rent more than thirty (30)
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days in advance have been made under the Leases. No rent or security deposits
under the Leases have been assigned or encumbered, except as security for the
mortgages noted in the Disclosure Letter or the SEC Reports, and there are no
agreements or understandings, written or oral, with any of the tenants other
than as set forth in the Leases. All brokerage commissions and other
compensation and fees payable by reason of the Leases have been paid in full.
2.15 DIVIDENDS AND OTHER DISTRIBUTIONS. Since the Balance
Sheet Date, except for the Company's regular quarterly cash dividend (not in
excess of $.07 per quarter between the Balance Sheet Date and the Closing Date),
neither the Company nor any Subsidiary has declared, set aside, or made any
payment of a dividend or made any other distribution in respect of the Company's
beneficial interest, repurchased or redeemed any of the Company's beneficial
interest, or made any other payments to any holder of 5% or more of the
Company's outstanding Common Stock other than salary paid to such stockholder
for bona fide services to the Company or a Subsidiary as an officer or employee
or reimbursement of reasonable expenses incurred in the ordinary course of
business.
2.16 TAX MATTERS. Beginning with the first taxable year of the
Company, its taxable year ended December 31, 1986, the Company properly elected
to be taxed as a real estate investment trust within the meaning of Sections
856-860 of the Internal Revenue Code of 1986, as amended (the "Code"), and has
satisfied, and continues to satisfy, all of the requirements set forth in those
provisions and the regulations thereunder to be taxed as a real estate
investment trust within the meaning of those provisions. Without limiting the
generality of the foregoing, the Company, for each taxable year of the Company
beginning with the first taxable year for which it made an election to be
classified as a real estate investment trust: (i) has timely made all of the
distributions required under Section 857(a)(1) of the Code; (ii) has timely
demanded the statements from its shareholders required under Section 1.857-8(d)
of the Treasury Regulations promulgated under the Code and maintained the
records required under Treasury Regulations Section 1.857-8(e); (iii) has not
sought to apply the provisions of Section 856(c)(7) of the Code in any taxable
year of the Company; and (iv) has not revoked its election to be taxed as a real
estate investment trust for federal income tax purposes nor has it received any
notice that its classification as a real estate investment trust has been
challenged by any taxing authority. The Company and each Subsidiary has filed
all U.S. Federal, state, local, foreign and other tax returns which were
required to be filed on or before the date hereof and has paid all taxes which
have become due and payable. All such reports and returns were materially
accurate and complete when filed and reflect all taxes required to be paid by
the Company and its Subsidiaries for the periods reported therein. The provision
for taxes made in the Balance Sheet at the Balance Sheet Date was sufficient for
the payment of all accrued and unpaid taxes of the Company and its Subsidiaries
with respect to the periods then ended. No additional material assessments,
deficiencies or penalties in respect of taxes have been made or claimed against
the Company or any Subsidiary which remain unpaid. No tax returns or reports of
the Company or any Subsidiary are or ever have been under audit.
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15
2.17 AGREEMENTS AFFECTING THE COMPANY'S SECURITIES. There are
no agreements, written or oral, between the Company and any holder of its
securities or, to the knowledge of the Company, among any holders of its
securities, relating to the acquisition, disposition or voting of the securities
of the Company. Except for the provisions of the Registration Rights Agreements
listed on the Disclosure Schedule, there are no agreements, either written or
oral, which obligate the Company to effect the registration of any of its
securities under the 1933 Act.
2.18 INSURANCE. The Disclosure Letter lists all insurance
policies carried by the Company or any Subsidiary relating to its or their real
property and assets. All such policies are in full force and effect and all
premiums thereunder have been paid to the extent due, and no notice of
cancellation has been received with respect thereto and, to the best knowledge
of Company, no cancellation is threatened.
2.19 EMPLOYEE BENEFIT PLANS. Schedule 2.20 to the Disclosure
Letter lists all deferred compensation, pension, profit sharing, stock option,
stock purchase, savings, group insurance and retirement plans, and all vacation
pay, severance pay, incentive compensation, consulting, bonus and other material
employee benefit or fringe benefit plans or arrangements maintained by the
Company and its Subsidiaries with respect to which contributions are made by the
Company (including health, life insurance and other benefit plans or
arrangements maintained for the retirees which are specifically identified as
such on Schedule 2.20). Such plans, including but not limited to all plans or
programs that constitute "employee benefit plans" as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), are
sometimes collectively referred to in this section as "Benefit Plans." Neither
the Company nor any ERISA Affiliate (as hereinafter defined) maintains,
contributes or sponsors, and have not maintained, contributed to or sponsored
any "employee benefit plan" (as defined in section 3(3) of ERISA) that is
subject to Title IV of ERISA or Section 412 of the Internal Revenue Code of
1986, as amended ("Code") or any "Multiemployer Plan" (as defined in Section
4001(a)(3) of ERISA). ERISA Affiliate means all persons which are treated as
being under common control or as a single employer with the Company or any of
its Subsidiaries under Section 414(b), (c), (m) or (o) of the Code. Each Benefit
Plan is and has been maintained in compliance in all material respects with
applicable law, including but not limited to ERISA, the Code and with any
applicable collective bargaining agreements or other contractual obligations.
Each Benefit Plan that provides medical benefits has been operated in compliance
with all applicable requirements of Sections 601 through 608 of ERISA and either
(i) Section 162(i)(2) and (k) of the Code and regulations thereunder (prior to
1989) or (ii) Section 4980B of the Code and regulations thereunder (after 1988),
relating to the continuation of coverage under certain circumstances in which
coverage would otherwise cease. Company is not required to make any payment to
any current or former employee of the Company in the form of wages or other
consideration pursuant to any employment agreement or Benefit Plan that will
constitute in the aggregate an "excess parachute payment" (within the meaning of
Section 280G(b) of the Code as a consequence in whole or in part of the
transactions contemplated by this Agreement.
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There have been no written statements or communications made
or materials provided to any employee or former employee of the Company or its
Subsidiaries by any person which provide for or could be construed as a contract
or promise by the Company or any subsidiary to provide for any pension, welfare,
or other insurance-type benefits to any such employee or former employee,
whether before or after retirement, other than benefits under Benefit Plans set
forth on the Disclosure Schedule or under the form of employment contracts. All
of the Benefit Plans which are pension benefit plans are the subject of
favorable determination or opinion letters from the IRS such that the employers
maintaining such Benefit Plans, are entitled to rely on the compliance of such
Benefit Plans as to the form of the Plan with the applicable requirements of
Sections 401(a) and 501(a) of the Code; and no determination letter with respect
to any Benefit Plan has been revoked nor, to the best knowledge of the Company,
has revocation been threatened, nor has any Benefit Plan been amended since the
date of its most recent determination letter or application therefore in any
request which would adversely affect its qualification or materially increase
its cost. Neither the Company nor any ERISA Affiliate maintains or sponsors any
nonqualified deferred compensation plan or arrangements. There are no pending
or, to the best knowledge of the Company, threatened claims, actions or
lawsuits, other than routine claims for benefits in the ordinary course,
asserted or instituted against (i) any Benefit Plan or its assets, (ii) any
ERISA Affiliate with respect to any Benefit Plan, or (iii) any fiduciary with
respect to any Benefit Plan for which the Company, or its Subsidiaries may be
directly or indirectly liable, through indemnification obligations or otherwise.
Neither the Company, nor any of its Subsidiaries has engaged, directly or
indirectly, in a non-exempt prohibited transaction (as defined in Section 4975
of the Code or Section 406 of ERISA) in connection with any Benefit Plan.
As of the date of this Agreement, none of the assets of the
Company or its Subsidiaries are required to be treated as "plan assets," within
the meaning of Title I of ERISA ("Plan Assets").
2.20 CONTRACTS AND AGREEMENTS.
(a) The Company has filed as exhibits to its SEC
Reports and/or the Registration Statement all of the contracts and agreements
required to be so filed by the 1933 Act, the Exchange Act and the rules and
regulations of the SEC. True and correct copies of all such agreements have been
provided to the Purchasers prior to the date hereof. Neither the Company nor any
Subsidiary is a party to any contract or agreement which is material to the
business, properties, assets, operations or condition (financial or otherwise)
of the Company and its Subsidiaries taken as a whole which has not been filed as
an Exhibit to, or otherwise described in, the Registration Statement or the SEC
Reports.
(b) Neither the Company nor any Subsidiary is (i) in
default under any agreement, contract or instrument to which it is a party or by
which it is bound, which default is reasonably likely to have a material adverse
effect on the business, properties, assets, operations
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or condition (financial or otherwise) of the Company and its Subsidiaries taken
as a whole, (ii) in violation of the Declaration of Trust, Bylaws or the
Agreement of Limited Partnership of Brandywine Operating Partnership, L.P. dated
August 22, 1996, as it will be amended in the form of amendment attached hereto
as Exhibit B (the "Partnership Agreement") (or other organizational documents),
or (iii) in default with respect to any order, writ, injunction or decree of any
court or governmental agency binding on it, and no event has occurred which with
notice or lapse of time, or both, would create any default or violation
described in clauses (i) through (iii).
2.21 ABSENCE OF CERTAIN DEVELOPMENTS. Since the Balance Sheet
Date, neither the Company nor any Subsidiary has (a) mortgaged, pledged or
subjected to lien, charge or any other encumbrance any of its assets, tangible
or intangible, except Permitted Liens, (b) sold, assigned or transferred any of
its tangible assets or canceled any debts or obligations except in the ordinary
course of business, (c) suffered any extraordinary losses, or waived any rights
of substantial value (whether or not in the ordinary course of business), (d)
made any changes in officer compensation, (e) entered into any material
transaction other than in the ordinary course of business, (f) made any change
in any of its material contracts, the Declaration of Trust, Bylaws or
Partnership Agreement (or other organizational documents), or in any
arrangements or agreements of any nature relating to its officers and directors,
(g) sold any equity interests or (h) established any record dates for dividends
or other distributions on other than customary quarterly record dates in
accordance with past practice.
2.22 CONTRACTS WITH INSIDERS. Excluding any agreements or
transactions that would not be required to be disclosed pursuant to Items 402 or
404 of Regulation S-K, no officer or trustee of the Company, or, to the
Company's knowledge, holder of more than 5% of the Company's outstanding Common
Shares, is a party to any contract, agreement, or arrangement providing for the
Company's or a Subsidiary's employment of, furnishing of services to the Company
or a Subsidiary by, the rental of real or personal property by the Company or a
Subsidiary from, or otherwise requiring payments by the Company or a Subsidiary
to, any such person or entity, or, to the Company's knowledge, any member of
such person's family, or any corporation, partnership or other entity in which
such person or entity, or, to the Company's knowledge, any member of such
person's family, has an interest or of which such person, or, to the Company's
knowledge, any member of such person's family, is an officer, director, trustee,
or beneficiary.
2.23 ENVIRONMENTAL MATTERS. Neither the Company nor its
Subsidiaries have (a) caused any substance or waste that is listed or defined as
hazardous or toxic under applicable environmental laws or petroleum products
(collectively "Hazardous Materials") to be improperly maintained or disposed of
on, under or at any of its or their properties, or any part thereof, in a manner
which violates, or could give rise to liability under, applicable environmental
laws, or (b) failed to remediate, alter, mitigate or xxxxx any condition
required to be remediated, altered, mitigated or abated under such environmental
laws, to the extent the Company and its
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Subsidiaries have been notified of the existence of a condition required to be
remediated, altered, mitigated or abated. Except as set forth in the
environmental site assessments provided by the Company to the Purchasers, (i) to
the Company's knowledge, each of its properties, and the properties of its
Subsidiaries, is in compliance, and has heretofore complied, with all
environmental laws in all material respects, (ii) to the Company's knowledge,
there has been no discharge of Hazardous Materials by any tenant of any property
of the Company or its subsidiaries in quantities requiring response, remediation
or removal, and (iii) the Company has not received any written notice from any
governmental unit or other person or entity that it or its Subsidiaries, or any
of its or their properties or operations conducted thereon, are not or have not
been in compliance with all environmental laws.
2.24 CERTAIN AGREEMENTS. The SEC Reports, the Registration
Statement and/or the Disclosure Letter list all employment and severance
agreements that the Company and each Subsidiary has entered into with its
officers and employees. The issuance and sale of the Common Shares to the
Purchasers hereunder, and the completion of the other transactions provided for
herein or in the Registration Rights Agreement will not give any employee the
right to terminate his or her employment and receive severance or other payments
from the Company or any Subsidiary, or result in the acceleration of vesting of
any outstanding option issued by the Company.
2.25 BOOKS AND RECORDS. The books and records of the Company
and its Subsidiaries accurately and fairly reflect their respective income,
expenses, assets and liabilities, and the Company and its Subsidiaries maintain
internal accounting controls which provide reasonable assurance that: (a)
transactions are executed in accordance with management's authorization; (b)
transactions are recorded as necessary to permit preparation of reliable
financial statements and to maintain accountability for earnings and assets; (c)
access to assets is permitted only in accordance with management's
authorization; (d) the recorded accountability of all assets is compared with
existing assets at reasonable intervals; and (e) all intercompany transactions,
charges and expenses among or between the Company, any Subsidiary, or any other
affiliate of the Company are accurately reflected in all financial statements.
2.26 CERTAIN PAYMENTS. Neither the Company nor any of its
Subsidiaries, nor, to the Company's knowledge, any trustee, officer, agent or
employee of any such entity, or any other person or entity associated with or
acting for or on behalf of the Company or any of its Subsidiaries has directly
or indirectly (a) made any unlawful contribution, gift, bribe, rebate, payoff,
influence payment, kickback, or other payment to any person or entity, private
or public, regardless of form, whether in money, property or services, (i) to
obtain favorable treatment in securing business, (ii) to pay for favorable
treatment for business secured, or (iii) to obtain special concessions or
special concessions already obtained, for or in respect of the Company or any of
its Subsidiaries, or (b) established or maintained any fund or asset that has
not been recorded in the books and records of the Company and its Subsidiaries,
or (c) taken any other action in violation of any provision of the Foreign
Corrupt Practices Act of 1977, as amended.
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19
2.27 LABOR AGREEMENTS AND ACTIONS. Neither the Company nor any
Subsidiary is bound by or subject to, any written or oral, express or implied,
contract, commitment or arrangement with any labor union, and no labor union has
requested or, to the knowledge of the Company, has sought to represent any of
the employees, representatives or agents of the Company or any Subsidiary. There
is no strike or other labor dispute involving the Company or any Subsidiary
pending, or to the knowledge of the Company threatened, nor is the Company aware
of any labor organization activity involving any of the employees of the Company
or any Subsidiary. The Company is not aware that any officer or key employee, or
that any group of key employees, intends to terminate his, her or their
employment with the Company or any Subsidiary, nor does the Company or any
Subsidiary have a present intention to terminate the employment of any of the
foregoing. The employment of each employee of the Company or any Subsidiary is
terminable at the will of the applicable employer without further liability of
such employer to such employee except for the payment of such employee's normal
salary accrued but not paid through the date of such termination.
2.28 ENTIRE BUSINESS; ETC. All of the assets (including the
Company's and its Subsidiaries' interests under franchises, licenses, leases and
permits) necessary for the conduct of the business of the Company and its
Subsidiaries as presently conducted are held exclusively by the Company or a
Subsidiary.
2.29 REGISTRATION STATEMENT. The Registration Statement on
Form S-11 (SEC File No. 333-13969) initially filed by the Company with the SEC
on October 11, 1996 (the "Registration Statement"), as it shall be amended from
time to time, will comply at all times in all material respects with the
provisions of the 1933 Act and the rules and regulations thereunder, as
applicable, except that no representation is made by the Company with respect to
information supplied in writing by the Purchasers specifically for inclusion in
the Registration Statement ("Purchasers Information") and, at the date hereof,
at the Closing Date, at the date that the Registration Statement is declared
effective by the SEC and at each date that sales of Common Shares are made
pursuant to the Registration Statement, except for Purchasers Information, the
Registration Statement, as it shall be amended from time to time, will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Unless the otherwise specifically provided, references to the
Registration Statement are to the Registration Statement as originally filed, as
modified by the form of Amendment No. 1 thereto attached hereto as Exhibit C.
2.30 INFORMATION. Neither this Agreement nor any document
delivered to the Purchasers pursuant hereto, including the SEC Reports (except
to the extent modified by the Disclosure Letter) and the Registration Statement,
contains an untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. There is no fact,
development or threatened development known to the Company which could
reasonably be expected to
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materially adversely effect the business, assets, properties, operations,
prospects or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole which has not been set forth in this Agreement,
the Disclosure Letter, the SEC Reports or the Registration Statement.
2.31 INVESTMENT COMPANY. Each of the Company and its
Subsidiaries is not, and upon the issuance and sale of the Common Shares as
herein contemplated and the application of the net proceeds therefrom, will not
be, an "investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
2.32 COMMODITY EXCHANGE ACT. The Common Shares, upon issuance,
will be excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules and
regulations of the Commodity Futures Trading Commission under the Commodity
Exchange Act (the "Commodity Exchange Act Regulations").
SECTION 3. PURCHASER'S REPRESENTATIONS AND WARRANTIES
Each Purchaser understands that the Common Shares will not be
registered under the 1933 Act, on the grounds that the sales provided for in
this Agreement are exempt pursuant to Section 4(2) of the 1933 Act and/or
Regulation D promulgated under Section 4(2) of the 1933 Act, and that the
reliance of the Company on such exemptions is predicated in part on each
Purchaser's representations, warranties, covenants and acknowledgments set forth
in this Section 3. Each Purchaser (except with respect to Section 3.12 which is
solely a representation and warranty of Xxxxxx Xxxxxxx Institutional Fund,
Inc.-U.S. Real Estate Portfolio) severally and not jointly represents and
warrants to the Company as follows:
3.1 PRE-EXISTING ENTITY. Such Purchaser is the sole owner of
the economic interest in the Common Shares to be issued thereto and that such
Purchaser was not organized for the specific purpose of purchasing the Common
Shares to be purchased by it hereunder.
3.2 BENEFICIAL OWNERSHIP. Except as set forth on Schedule 3.2,
as of the date hereof and prior to the purchase of the Common Shares, (a) it is
not the "beneficial owner" of any securities of the Company, as such term is
defined in Rule 13d-3 promulgated under the Exchange Act, and (b) it is not a
member of a group which has acquired beneficial ownership of securities of the
Company for purposes of Sections 13(d) and 13(g) of the Exchange Act.
3.3 PRINCIPAL PLACE OF BUSINESS. The address of its principal
place of business or residence is as set forth on Schedule A herein.
3.4 PURCHASE WITHOUT VIEW TO DISTRIBUTION. The Common Shares
to be purchased by it are being acquired by such Purchaser for its own account
for investment purposes, not as a nominee or agent, and not with a view to
resale or distribution within the
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meaning of the 1933 Act, and the rules and regulations thereunder, and such
Purchaser will not distribute the Common Shares in violation of the 1933 Act or
in a manner that will cause the Company to lose its exemption from the
registration requirements under the 1933 Act with respect to the offer and sale
of the Common Shares.
3.5 RESTRICTIONS ON TRANSFER. Such Purchaser (a) acknowledges
that the Common Shares are not registered under the 1933 Act or under any state
securities laws and that the Common Shares to be acquired by it must be held
indefinitely by it unless they are subsequently registered under the 1933 Act
and under any applicable state securities laws or an exemption from registration
is available, (b) is aware that any routine sales pursuant to Rule 144
promulgated under the 1933 Act of the Common Shares may be made only in limited
amounts and in accordance with the terms and conditions of that Rule and that in
such cases where the Rule is not applicable, compliance with some other
registration exemption will be required, (c) is aware that Rule 144 is not
presently available for use by such Purchaser for resale of the Common Shares
and (d) is aware that, except as provided in the Registration Rights Agreement,
the Company is not obligated to register under the 1933 Act any sale, transfer
or other disposition of the Common Shares.
3.6 NO GENERAL SOLICITATION. It is making this investment
based upon its own investigation of and discussions with the Company, which
investigation and discussions commenced prior to the filing of the Registration
Statement, and not from or through any broker, dealer or other third party.
3.7 ACCESS TO INFORMATION. The Company has made available to
it the opportunity to ask questions of and receive answers from the Company's
officers and trustees concerning the terms and conditions of this transaction
and the business and financial condition of the Company and its Subsidiaries,
and to acquire, and each Purchaser has received to its satisfaction, such
additional information, in addition to that set forth herein, about the business
and financial condition of the Company and its Subsidiaries and the terms and
conditions of this transaction as it has requested.
3.8 ADDITIONAL REPRESENTATIONS OF THE PURCHASERS. That (a) it
is an "accredited investor" as such term is defined in Rule 501 promulgated
under the 1933 Act, and either individually or together with its parent has
assets in excess of $100 million, (b) its financial situation is such that it
can afford to bear the economic risk of holding the Common Shares for an
indefinite period of time and suffer complete loss of its investment in the
Common Shares, (c) its knowledge and experience in financial and business
matters are such that it is capable of evaluating the merits and risks of its
purchase of the Common Shares as contemplated by this Agreement and (d) the
purchase of the Common Shares by it has been duly and properly authorized and
this Agreement has been duly executed by it or on its behalf.
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3.9 LEGENDS. Such Purchaser understands that the certificates
evidencing the Common Shares shall bear the legend set forth in Section 8.2
herein.
3.10 REGISTRATION STATEMENT. None of the material supplied by
it in writing specifically for inclusion in the Registration Statement will, at
the date that the Registration Statement is declared effective by the SEC and at
each date that Common Shares are sold pursuant to the Registration Statement,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading.
3.11 DUE AUTHORIZATION; ETC. It has all requisite power and
authority to execute and deliver this Agreement and each document required to be
executed and delivered by it prior to or at the Closing and to carry out the
transactions contemplated hereby and thereby. The execution, delivery and
performance by such Purchaser of this Agreement and such document to which it is
a party have been duly authorized. This Agreement has been duly executed and
delivered by such Purchaser and constitutes the valid and binding obligation of
such Purchaser, enforceable against it in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, moratorium,
reorganization and other similar laws relating to or affecting the enforcement
of creditors' rights generally, except that the availability of specific
performance, injunctive relief or other equitable relief or other equitable
remedies is subject to the discretion of the court before which any such
proceeding may be brought.
3.12 STATUS. Xxxxxx Xxxxxxx Institutional Fund, Inc - U.S.
Real Estate Portfolio is a regulated investment company as defined in Section
851 of the Code.
SECTION 4. CONDITIONS PRECEDENT TO THE PURCHASER'S
OBLIGATIONS
Each Purchaser's obligations to purchase and make payment for
the Common Shares subscribed for hereunder by it on the Closing Date is subject,
at its option, to the satisfaction of each of the following conditions:
4.1 REPRESENTATIONS AND WARRANTIES. On the Closing Date, the
representations and warranties contained in Section 2 shall be true and correct
in all material respects with the same effect as though made on and as of the
Closing Date, and the Company shall have so certified to the Purchasers in
writing.
4.2 PERFORMANCE. All the covenants, agreements and conditions
contained in this Agreement to be performed or complied with by the Company on
or prior to the Closing Date shall have been performed or complied with in all
material respects, and the Company shall have so certified to the Purchasers in
writing.
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4.3 OPINION OF COUNSEL TO THE COMPANY. On the Closing Date,
the Purchasers shall have received an opinion from counsel for the Company and
special Maryland Counsel to the Company, each dated the Closing Date, addressed
to the Purchasers in the forms of Exhibits D and E hereto, respectively.
4.4 PROCEEDINGS; CERTIFIED COPIES. All proceedings to be taken
in connection with the transactions contemplated by this Agreement to be
consummated on or prior to the Closing Date, and all documents incident thereto,
shall be satisfactory in form and substance to the Purchasers. The Purchasers
shall have received such certified copies or other copies of such documents as
it may reasonably request.
4.5 NO PROCEEDING OR LITIGATION. No suit, action, or other
proceeding seeking to restrain, prevent or change the transactions contemplated
hereby or otherwise questioning the validity or legality of such transactions
shall have been instituted and be pending.
4.6 NO MATERIAL ADVERSE CHANGE. There shall have been no
material adverse change since the Balance Sheet Date in the business,
properties, assets, operations, or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole.
4.7 ASE LISTING. On or prior to the Closing Date, the Common
Shares shall have been approved for listing on the ASE.
4.8 BLUE SKY COMPLIANCE. The Company shall have complied with
all applicable requirements of federal and state securities or "blue sky" laws
with respect to the issuance of the Common Shares sold at the Closing.
4.9 REGISTRATION RIGHTS. The Registration Rights Agreement,
substantially in the form of Exhibit F, shall have been executed and delivered
by all the parties thereto and shall be in full force and effect.
4.10 MARYLAND ANTI-TAKEOVER STATUTES, ETC. The Company and its
counsel shall have confirmed to the Purchasers' satisfaction that (a) this
Agreement, the Registration Rights Agreement and the transactions contemplated
hereby and thereby are exempt from the operation of the Maryland Anti-Takeover
Statutes and Section 11.5 of the Declaration of Trust; and (b) the Purchasers
are exempted from the restrictions set forth in Section 6.6 of the Declaration
of Trust, including without limitation from the Ownership Limit and the
Permissible Ownership Threshold.
4.11 SECONDARY OFFERING. The Registration Statement shall have
been declared effective by the SEC and the Secondary Offering shall have closed.
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4.12 BENEFICIAL OWNERSHIP. As a result of the sale of the
Common Shares, such Purchaser shall not be deemed to be the beneficial owner,
directly or indirectly, of 10% or more of the Outstanding common shares of
beneficial interest of the Company.
4.13 ENVIRONMENTAL REPRESENTATION LETTER. The Company shall
have delivered to each Purchaser a representation letter dated the Closing Date
concerning environmental matters in form and substance substantially similar to
that which is contained in the Underwriting Agreement for the Secondary Offering
4.14 TAX OPINION. On the Closing Date, Xxxxxx Xxxxxxxx shall
have delivered to the Company an opinion with respect to certain tax matters in
such form as may be reasonably acceptable to each Purchaser.
4.15 ADDITIONAL DOCUMENTS. The Company shall have delivered
such other documents necessary to effect the transactions contemplated hereby as
either Purchaser may reasonably request.
SECTION 5. CONDITIONS PRECEDENT TO THE COMPANY'S
OBLIGATIONS
The Company's obligation to sell the Common Shares subscribed
for by a Purchaser on the Closing Date is subject, at the Company's option, to
the satisfaction of each of the following conditions with respect to such
Purchaser:
5.1 REPRESENTATIONS AND WARRANTIES. On the Closing Date, the
representations and warranties contained in Section 3 shall be true and correct
in all material respects with the same effect as though made on and as of the
Closing Date and such Purchaser shall have so certified to the Company in
writing.
5.2 PERFORMANCE. All the covenants, agreements and conditions
contained in this Agreement to be performed or complied with by such Purchaser
on or prior to the Closing Date shall have been performed or complied with in
all material respects, and such Purchaser shall have so certified to the Company
in writing.
5.3 NO PROCEEDING OR LITIGATION. No suit, action, or other
proceeding seeking to restrain, prevent or change the transactions contemplated
hereby or otherwise questioning the validity or legality of such transactions
shall have been instituted and be pending.
5.4 ASE LISTING. On or prior to the Closing Date, the Common
Shares shall have been approved for listing on the ASE.
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5.5 ADDITIONAL DOCUMENTS. Such Purchaser shall have delivered
such other documents necessary to effect the transactions contemplated hereby as
the Company may reasonably request.
5.6 PROCEEDINGS; CERTIFIED COPIES. All proceedings to be taken
in connection with the transactions contemplated by this Agreement to be
consummated on or prior to the Closing Date, and all documents incident thereto,
shall be satisfactory in form and substance to the Company. The Company shall
have received such certified copies or other copies of such documents as it may
reasonably request.
5.7 NO SEC INTEGRATION CHALLENGE. The SEC shall not have
commented that the issuance of Common Shares pursuant to this Agreement shall or
may be required to be integrated with the sale of Common Shares pursuant to the
Registration Statement, which assertion, if made, has not been resolved to the
reasonable satisfaction of the Company after the Company has used its best
efforts to accomplish such resolution.
5.8 BENEFICIAL OWNERSHIP. As a result of the sale of the
Common Shares, such Purchaser shall not be deemed to be the beneficial owner,
directly or indirectly, of 10% or more of the outstanding common shares of the
beneficial interest of the Company.
SECTION 6. COVENANTS OF THE COMPANY AND EACH PURCHASER PRIOR TO CLOSING
6.1 PAYMENT OF EXPENSES.
(a) If the Closing occurs hereunder, each party shall
bear its own expenses.
(b) If the Closing hereunder does not occur, each
party shall bear its own expenses.
6.2 OPERATION OF BUSINESS IN ORDINARY COURSE. Prior to the
Closing, the Company and each Subsidiary will operate its business and the
business of each of its Subsidiaries only in the usual and normal course, and
will not, except as contemplated by the Registration Statement, as amended
through the date of this Agreement, including Amendment No. 1, without the
consent of the Purchasers, engage in any of the transactions described in
paragraphs (a), (b), (d), (e), (f), (except for the amendment in the form of
Exhibit C hereto), (g) or (h) of Section 2.21 hereof.
6.3 ACCESS TO INFORMATION.
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(a) Between the date hereof and the Closing Date, the
Company will give each Purchaser and its authorized representatives reasonable
access to all officers, employees, agents, properties, offices and other
facilities and to all books and records of the Company and its Subsidiaries, and
will permit each Purchaser to make such inspections as such Purchaser may
reasonably request and will cause the Company's officers and those of its
Subsidiaries to furnish each Purchaser promptly (i) a copy of each report,
schedule, registration statement and other document filed by it pursuant to the
requirements of federal securities laws and (ii) all other financial and
operating data and other information with respect to the business and properties
of the Company and any of its Subsidiaries as such Purchaser may from time to
time reasonably request.
(b) Each Purchaser will hold and will cause its
authorized representatives, consultants and advisors to hold in confidence,
unless compelled to disclose by judicial or administrative process or, in the
written opinion of its legal counsel, by other requirements of law, all
documents and information concerning the Company and its Subsidiaries furnished
to such Purchaser in connection with the transactions contemplated by this
Agreement (except to the extent that such information can be shown to have been
(i) previously known by such Purchaser from sources other than the Company, its
trustees, officers, representatives or affiliates, (ii) in the public domain
through no fault of such Purchaser or (iii) later lawfully acquired by such
Purchaser on a non-confidential basis from other sources who are not known by
such Purchaser to be bound by a confidentiality agreement or otherwise
prohibited from transmitting the information to such Purchaser by a contractual,
legal or fiduciary obligation) and will not release or disclose such information
to any other person or entity, except its auditors, attorneys, financial
advisors and other consultants, agents and representatives in connection with
this Agreement who need to know such information. If the transactions
contemplated by this Agreement are not consummated, such confidence shall be
maintained and, if requested by or on behalf of the Company, each Purchaser
will, and will use all reasonable efforts to cause its auditors, attorneys,
financial advisors and other consultants, agents and representatives to, return
to the Company or destroy all copies of written information furnished by the
Company to the Purchasers, or their agents representatives or advisors. It is
understood that each Purchaser shall be deemed to have satisfied its obligation
to hold such information confidential if it exercises the same care as it takes
to preserve confidentiality for its own similar information.
(c) No inquiry or investigation pursuant to Section
3.6 or this Section 6.3 shall affect any representation or warranty in this
Agreement made by the Company or its Subsidiaries or any condition to the
Purchasers' obligations set forth herein.
6.4 NOTIFICATION OF CERTAIN MATTERS. The Company shall give
prompt notice to the Purchasers, and the Purchasers shall give prompt notice to
the Company, of (a) the occurrence or nonoccurrence of any event the occurrence
or nonoccurrence of which would be likely to cause (i) any representation or
warranty contained in this Agreement to be untrue or inaccurate or (ii) any
covenant, condition or agreement contained in this Agreement not to be
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complied with or satisfied and (b) any failure of the Company or any Purchaser,
as the case may be, to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder; provided, however,
that the delivery of any notice pursuant to this Section 6.4 shall not cure such
breach or noncompliance or limit or otherwise affect the remedies available
hereunder to the party receiving such notice.
6.5 CONDITIONS PRECEDENT. The Company and each Purchaser shall
use their reasonable best efforts to cause the conditions specified in Sections
4 and 5 to be satisfied by the Closing Date.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY AND THE PURCHASERS
7.1 RULE 144.
(a) The Company covenants that (i) the Company will
use its best efforts to comply with the current public information requirements
of Rule 144(c)(1) under the 1933 Act; and (ii) at all such times as Rule 144 is
available for use by the holders of the Common Shares, the Company will furnish
each such holder upon request with all information within the possession of the
Company required for the preparation and filing of Form 144.
(b) At all times during which the Company is neither
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, nor exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange
Act, it will provide as promptly as practicable (in any event not later than 15
days after initial request) in written form, upon the written request of a
Purchaser or any prospective buyer of the Common Shares from a Purchaser, all
information required by Rule 144A(d)(4)(i) of the General Regulations
promulgated by the Commission under the Securities Act ("Rule 144A
Information"). The Company's obligations under this Section 7.1 shall at all
times be contingent upon such seller's obtaining from a prospective buyer an
agreement to take all reasonable precautions to safeguard any non-public Rule
144A Information from disclosure to anyone other than a person or entity who
will assist such buyer in evaluating the purchase of the Common Shares.
7.2 DELIVERY OF FINANCIAL STATEMENTS. From and after the date
hereof, the Company shall deliver to the Purchasers, until such time as the
Purchasers no longer own any Common Shares, a copy of each and every report on
Form 10-K, Form 8-K, Form 10-Q and all other reports and proxy statements filed
by the Company or any Subsidiary with the SEC within 15 days of such filing.
7.3 COMPLIANCE WITH LAWS. The Company will, and will cause
each Subsidiary to, comply in all material respects with all laws and
regulations applicable to the
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conduct of its business, including without limitation ERISA, environmental laws,
and employee safety laws. The Company shall use its best efforts to insure that
none of the assets of the Company or its Subsidiaries are required to be treated
as Plan Assets (as defined in Section 2.20) by any "benefit plan investor" (as
defined in Title I of ERISA). The Company shall take such actions as are
necessary, on an ongoing basis, to determine whether assets of the Company or
its Subsidiaries are required to be treated by a Benefit Plan Investor as
including Plan Assets and shall promptly notify the Purchasers in writing if, at
any time, it has reason to believe that any Benefit Plan Investor is likely to
be required to treat the assets of the Company or its Subsidiaries as Plan
Assets.
7.4 WAIVERS, CONSENTS, ETC. Compliance with any of the
covenants in this Section 7 may be waived, either generally or in the particular
instance, and any consent required thereunder may be given, by the Purchasers in
writing.
7.5 PRESS RELEASES. The Purchasers shall have the right
reasonably to approve any press release with respect to the transactions
contemplated by this Agreement. In addition, at no time may the Company use or
otherwise refer to the name of the Purchasers or any of its affiliates in any
press release, publication or other report without the prior consent of the
Purchasers not to be unreasonably withheld or delayed.
7.6 NO RESCISSION. To the extent permitted under applicable
law, each Purchaser hereby (i) waives any right of rescission it might have
arising out of the integration of the offer and sale of the Common Shares with
the public offering of common shares of beneficial interest pursuant to the
Registration Statement and (ii) covenants that it will not make any rescission
claim on that basis.
7.7 REIT STATUS. The Company will continue to elect to be
taxed as a real estate investment trust within the meaning of Sections 856-860
of the Code, and will continue to satisfy all of the requirements set forth in
those provisions and the regulations thereunder to be taxed as a real estate
investment trust within the meaning of those provisions and the regulations
thereunder.
SECTION 8. COMPLIANCE WITH 1933 ACT; RESTRICTIONS ON TRANSFERABILITY OF
COMMON SHARES
8.1 COMPLIANCE WITH 1933 ACT. The Common Shares shall not be
transferable, except upon the conditions specified in this Section 8, which
conditions are intended to ensure compliance with the provisions of the 1933 Act
and applicable state securities laws in respect of any such transfer.
8.2 RESTRICTIVE LEGEND. Each certificate evidencing the Common
Shares or other securities issued in respect of such Common Shares upon any
share split, share dividend,
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recapitalization, merger, consolidation, similar event, shall (unless otherwise
permitted by the provisions of Section 8.4) be stamped or otherwise imprinted
with the following legend:
"THE COMMON SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAW AND THE TRANSFERABILITY [T]HEREOF IS SUBJECT TO THE PROVISIONS OF A
SECURITIES PURCHASE AGREEMENT BETWEEN BRANDYWINE REALTY TRUST AND THE ORIGINAL
HOLDER OF THE SECURITIES EVIDENCED HEREBY."
8.3 RESTRICTIONS ON TRANSFERABILITY. The Company shall not be
required to register the transfer of the Common Shares on the books of the
Company unless the Company shall have been provided with an opinion of counsel
reasonably satisfactory to it prior to such transfer to the effect that
registration under the 1933 Act or any applicable state securities law is not
required in connection with the transaction resulting in such transfer;
provided, however, that no such opinion of counsel shall be necessary in order
to effectuate a transfer in accordance with the provisions of Rule 144(k) or
Rule 144A promulgated under the 1933 Act. Each certificate for Common Shares
issued upon any transfer as above provided shall bear the restrictive legend set
forth in Section 8.2 above, except that such restrictive legend shall not be
required if the opinion of counsel reasonably satisfactory to the Company
referred to above is to the further effect that such legend is not required in
order to establish compliance with the provisions of the 1933 Act and any
applicable state securities law, or if the transfer is made in accordance with
the provisions of Rule 144(k) under the 1933 Act. Nothing herein shall restrict
a transfer of any or all of the Securities to a Permitted Transferee (as defined
in Section 10.2).
8.4 TERMINATION OF RESTRICTIONS ON TRANSFERABILITY. The
conditions precedent imposed by this Section 8 upon the transferability of the
Common Shares shall cease and terminate as to any of the Common Shares when (i)
such securities shall have been registered under the 1933 Act and sold or
otherwise disposed of in accordance with the intended method of disposition by
the seller or sellers thereof set forth in the registration statement covering
such securities, (ii) at such time as an opinion of counsel satisfactory to the
Company shall have been rendered as required pursuant to the second sentence of
Section 8.3 to the effect that the restrictive legend on such securities is no
longer required, or (iii) when such securities are transferable in accordance
with the provisions of Rule 144(k) promulgated under the 1933 Act. Whenever the
conditions imposed by this Section 8 shall terminate as hereinabove provided
with respect to any of the Common Shares, the holder of any such securities
bearing the legend set forth in this Section 8 as to which such conditions shall
have terminated shall be entitled to receive from the Company, without expense
(except for the payment of any applicable transfer tax) and as expeditiously as
possible, new Common Shares certificates not bearing such legend.
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SECTION 9. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS
All covenants, agreements, representations and warranties made
herein and in the certificates delivered pursuant hereto shall survive the
execution and delivery of this Agreement and the issuance and sale of the Common
Shares hereunder in accordance with Section 10.9.
SECTION 10. MISCELLANEOUS
10.1 OWNER OF COMMON SHARES. The Company may deem and treat
the person or entity in whose name the Common Shares, as the case may be, are
registered as the absolute owner thereof for all purposes whatsoever, and the
Company shall not be affected by any notice to the contrary.
10.2 SUCCESSORS. This Agreement shall be binding upon and
except as provided herein, shall inure to the benefit of the respective
successors and permitted assigns of each of the parties hereto. The rights and
obligations of either party hereunder shall not be assignable without the prior
written consent of the other party.
10.3 BROKER OR FINDER. Each party to this Agreement represents
and warrants that, to the best of its knowledge, no broker or finder has acted
for such party in connection with this Agreement or the transactions
contemplated by this Agreement and that no broker or finder is entitled to any
broker's or finder's fee or other commission in respect thereof based in any way
on agreements, arrangements or understandings made by such party. The Company
shall indemnify the Purchasers against, and hold it harmless from, any
liability, cost or expense (including reasonable attorneys' fees and expenses)
resulting from any agreement, arrangement, or understanding made by the Company,
and the Purchasers shall indemnify the Company against, and hold the Company
harmless from, any liability, cost or expense (including reasonable attorneys'
fees and expenses) resulting from any agreement, arrangement, or understanding
made by any Purchaser with any third party, for brokerage or finder's fees or
other commissions in connection with this Agreement or any of the transactions
contemplated hereby.
10.4 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania.
10.5 NOTICE. Any notice or other communication required or
permitted hereunder shall be deemed given when delivered personally, or upon
receipt by the party entitled to receive the notice when sent by registered or
certified mail, postage prepaid, addressed as follows or to such other address
or addresses as may hereafter be furnished in writing by notice similarly given
by one party to the other:
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To the Company: Brandywine Realty Trust
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, President
With a copy to: Pepper, Xxxxxxxx & Xxxxxxx
3000 Two Xxxxx Square
00xx xxx Xxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
To the Purchasers: Xxxxxx Xxxxxxx Asset Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
With a copy to: Xxxxxx Xxxxxxx Asset Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx., Esq.
Notice to any holder of Common Shares, other than the Purchasers shall be given
in a like manner to such holder at the address reflected in the Company's
records.
10.6 FULL AGREEMENT. This Agreement, together with all
Exhibits attached hereto or delivered herewith, the Registration Rights
Agreement and any other documents delivered herewith, sets forth the entire
understanding of the parties with respect to the transactions contemplated
hereby.
10.7 HEADINGS. The headings of the sections of this Agreement
are inserted for convenience of reference only and shall not be considered a
part hereof.
10.8 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
10.9 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by the parties in this Agreement shall
survive the execution of this Agreement for a period of two years after the
Closing Date.
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10.10 SETTLEMENT OF DISPUTES. The parties will attempt in good
faith to resolve any and all controversies of every kind and nature between the
parties to this Agreement arising out of or in connection with the existence,
construction, validity, interpretation or meaning, performance, non-performance,
enforcement, operation, breach, continuance or termination of this Agreement
(each, a "Dispute") promptly by negotiations between senior executives of the
parties who have authority to settle the Dispute (and who do not have direct
responsibility for administration of this Agreement). The disputing party shall
give the other party written notice of the Dispute. Within 20 days after receipt
of said notice, the receiving party shall submit to the other a written
response. The notice and response shall include (a) a statement of each party's
position and a summary of the evidence and arguments supporting its position,
and (b) the name and title of the executive who will represent that party. The
executives shall meet at a mutually acceptable time and place within 30 days of
the date of the disputing party's notice and thereafter as often as they
reasonably deem necessary to exchange relevant information and to attempt to
resolve the Dispute. If the matter has not been resolved within 60 days of the
disputing party's notice, or if the party receiving said notice will not meet
within 30 days, either party may initiate mediation of the controversy or claim
in accordance with the Center for Public Resources Model Procedure for Mediation
of Business Disputes. If the Dispute has not been resolved pursuant to the
aforesaid mediation procedure within 60 days of the initiation of such
procedure, or if either party will not participate in a mediation, the Dispute
shall be submitted to arbitration in accordance with the rules of the American
Arbitration Association. The parties further agree that all matters shall be
governed by the laws of the Commonwealth of Pennsylvania. The parties further
agree that any arbitration conducted pursuant to this Section 10.10 shall be
held in Philadelphia, Pennsylvania before a panel of three arbitrators, one
selected by the Purchasers and one selected by the Company and the third
selected by the arbitrators selected by the parties. All deadlines specified in
this Section 10.10 may be extended by mutual agreement. The prevailing party in
any Dispute shall be entitled to reimbursement for its costs, including without
limitation attorneys' fees and expenses.
10.11 COUNTERPARTS. This Agreement may be executed in two or
more counterparts each of which shall be deemed an original, and all of which
shall be considered one and the same agreement and shall become effective when
two or more counterparts have been signed by each of the parties and delivered
to the other parties, it being understood that all parties need not sign the
same counterpart.
10.12 TERMINATION. This Agreement may be terminated prior to
the Closing with respect to the Company or a Purchaser:
(a) by mutual written consent of such Purchaser and
the Company;
(b) by either a Purchaser or the Company if the
Closing shall not have been consummated before January 31, 1997 (unless the
failure to so close by such date shall be due to the action or failure to act of
the party seeking to terminate this Agreement);
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(c) by either a Purchaser or the Company if any court
of competent jurisdiction or other governmental entity shall have issued a final
permanent order, decree or ruling or taken any other final action restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action is or shall have become
nonappealable;
(d) by a Purchaser if (i) there shall have been a
material breach on the part of the Company or any of its Subsidiaries of any
representation or warranty of the Company or its Subsidiaries set forth herein,
(ii) there shall have been any failure of the Company or any of its Subsidiaries
to perform or comply with its covenants or agreements hereunder and, in either
case, the aggregate effect of all such breaches or failures, as the case may be,
would be material to the Company and the Subsidiaries taken as a whole, or (iii)
the Board of Trustees shall have withdrawn, amended or modified in a manner
adverse to a Purchaser its approval or recommendation of this Agreement.
(e) by the Company if (i) there shall have been a
material breach of any representation or warranty on the part of such Purchaser
or (ii) there shall have been a failure of such Purchaser to perform or comply
with its covenants or agreements hereunder which failure has not been cured
within ten days after written notice thereof from the Company to such Purchaser
and, in either case, the aggregate effect of all such breaches and failures, as
the case may be, would be material.
10.13 EFFECT OF TERMINATION. In the event of the termination
and abandonment of this Agreement pursuant to Section 10.12, this Agreement
shall forthwith become void and have no effect, without any liability on the
part of any party hereto or its affiliates, trustees, directors, officers or
stockholders; provided, however, that nothing contained in this Section 10.13
shall relieve any party from liability for any breach of this Agreement;
provided further that Sections 6.1(b), 6.3(b), 8 and 10 shall survive any such
termination.
10.14 NON-RECOURSE. No recourse shall be had for any
obligation of the Company hereunder, or for any claim based thereon or otherwise
in respect thereof, against any past, present or future stockholder or (except
for any claim arising due to the bad faith, gross negligence, willful misconduct
or fraudulent misconduct of such person) against any trustee, stockholder,
officer or employee of the Company, whether by virtue of any statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all such
other liability being expressly waived and released by each other party hereto.
No recourse shall be had for any obligation of either Purchaser hereunder, or
for any claim based thereon or in respect thereof, against any past, present or
future stockholder or (except for any claim arising due to the bad faith, gross
negligence, willful misconduct or fraudulent misconduct of such person) against
any trustee, officer or employee of either or against any other person or
entity, whether by virtue of any statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such other liability being
expressly waived and released by each other party hereto.
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IN WITNESS WHEREOF, each of the parties hereto has fully
executed this Agreement as of the date first set forth above.
BRANDYWINE REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxx, President
XXXXXX XXXXXXX INSTITUTIONAL FUND, INC. -
U.S. REAL ESTATE PORTFOLIO, a Maryland corporation
By: XXXXXX XXXXXXX ASSET
MANAGEMENT INC., AS
By: /s/ INVESTMENT ADVISER
-----------------------------------------------
XXXXXX XXXXXXX SICAV SUBSIDIARY SA,
a Luxembourg corporation
By: XXXXXX XXXXXXX ASSET
MANAGEMENT INC., AS
By: INVESTMENT ADVISER
-----------------------------------------------
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