EXHIBIT 10.29
UNIT REPURCHASE
AGREEMENT
This Unit Repurchase Agreement (this
“ Agreement ”) is made this 4
th
day of February, 2004,
by and between Prentiss Properties Acquisition Partners, L.P., a
Delaware limited partnership (the “ Purchaser
”), and Brandywine Operating Partnership, L.P., a Delaware
limited partnership (the “ Seller
”).
RECITALS
A. Pursuant to that certain
Contribution Agreement dated April 1, 2001 by and between the
Seller and the Purchaser (the “ Contribution
Agreement ”), Seller acquired 200,000 of the
Purchaser’s 7.5% Series E Cumulative Redeemable Preferred
Partnership Units (the “ Series E Preferred
Units ”) and 26,768 of the Purchaser’s Common
Units (“ Common Units ,” and together
with the Series E Preferred Units, the “ Units
”).
B. WHERAS, the Seller has sent a
notice to the Purchaser, dated January 30, 2004, requesting that
the Purchaser repurchase the Units.
C. WHEREAS, the Seller desires to
sell to the Purchaser and the Purchaser desires to repurchase from
the Seller the Units held by the Seller for the consideration and
upon the terms and subject to the conditions hereinafter set
forth.
D. WHEREAS, the Seller has executed
(i) that certain promissory note dated April 1, 2001 (the “
April 2001 Note ”), and (ii) that certain
promissory note dated August 26, 2001 (the “ August
2001 Note ,” collectively with the April 2001 Note,
the “ Notes ”), whereby Seller acts as
Maker and Purchaser acts as Payee of such Notes.
E. WHEREAS, Seller and Purchaser
desire to cancel the Notes in partial payment by Purchaser of the
Purchase Price (as defined below) of the Units.
NOW, THEREFORE, in consideration of
the premises and the mutual agreements and obligations contained
herein, the Seller and the Purchaser each agrees as
follows:
1. Purchase and Sale of the Units
.
1.1 General . On the terms
and subject to the conditions set forth in this Agreement and upon
the representations and warranties made herein by each of the
parties to the other, on the Closing Date (as hereinafter defined)
the Seller shall convey, assign, transfer and deliver to the
Purchaser, and the Purchaser shall repurchase and acquire from the
Seller, the Units.
1.2 Closing . The closing of
the transactions contemplated hereby (the “
Closing ”) shall take place at 10 a.m., eastern
time, on February 4, 2004, at the offices of the Purchaser, located
at 3890 West Northwest Highway, Suite 400, Dallas, Texas 75220, or
at such other time and place as mutually agreed upon by the
parties. The date and time of closing are referred to herein as the
“ Closing Date .”
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1.3 Purchase Price . The
purchase price for each Series E Preferred Unit will be $50.00 per
unit, plus accrued and unpaid distributions up to and including the
date of the Closing; provided , however , that the
same shall continue to accrue until the next business day if the
purchase price is received after 12:00 noon, eastern time, on the
Closing Date (the “ Series E Purchase Price
”), and $33.316 per Common Unit, which equals a price per
Common Unit equal to the average of the daily market price of
Prentiss Properties Trust’s, a Maryland real estate
investment trust (the “ Trust’s ”)
common shares of beneficial interest, par value $0.01 per share
(the “ Common Shares ”) for the ten
consecutive trading days preceding the date of this Agreement (the
“ Common Unit Purchase Price ”), such
Series E Purchase Price and Common Unit Purchase Price together
totaling $10,961,857.63, net of $9,236,452.72 which equals the
total unpaid principal and accrued interest on the Notes, for a
total purchase price of $1,725,404.91 (the “ Purchase
Price ”).
1.4 Closing: Delivery of
Documents .
(a) At the Closing, the Seller shall
deliver or cause to be delivered to the Purchaser (i) the
certificate representing the Series E Preferred Units being sold by
the Seller registered in the name of the Seller (the “
Series E Preferred Unit Certificate ”), (ii)
the Seventh Amendment to the Third Amended and Restated Agreement
of Limited Partnership of the Purchaser in the form attached hereto
as Exhibit A and (iii) a certificate of non-foreign status
in the form attached hereto as Exhibit B .
(b) At the Closing, the Purchaser
shall deliver to the Seller (i) the Purchase Price for the Units
being sold by the Seller by wire transfer of immediately available
funds into an account or accounts designated by the Seller, and
(ii) the Notes, each marked “cancelled.”
Seller and Purchaser agree that
cancellation of the Notes by Purchaser shall not in any way modify
any of the remaining obligations of Seller under the Agreement of
Purchase and Sale, dated April 1, 2001 by and between the Seller,
Purchaser and Brandywine Grande B, L.P., a Delaware limited
partnership (the “ Purchase Agreement ”),
including the requirement that Seller pay additional consideration
to acquire interests, as provided in the Purchase Agreement, in
certain entities.
As of the Closing, Seller consents
to Purchaser amending Exhibit A to the Third Amended and Restated
Agreement of Limited Partnership of Purchaser to remove Seller from
the list of holders of Purchaser’s Common Units.
2. Representations and Warranties of the
Seller . The Seller hereby represents and warrants to the
Purchaser as follows:
(a) Existence and Authority
Relative to Agreement . The Seller is a limited partnership
duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Seller has all necessary
corporate power and authority to execute and deliver this Agreement
and each other agreement, document or instrument to be executed or
delivered in connection herewith and to perform the obligations to
be performed by the Seller hereunder and
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thereunder. The execution, delivery and
performance of this Agreement by the Seller and the sale of the
Units by the Seller pursuant hereto have been duly authorized by
all necessary partnership action. This Agreement and each other
instrument or document to be executed in connection herewith shall,
upon the execution and delivery thereof by the Seller, constitute
the legal, valid and binding obligations of the Seller enforceable
against the Seller in accordance with the respective terms thereof,
except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and
general equitable principles.
(b) No Conflicts . Neither
the execution, delivery and performance of this Agreement, nor the
consummation of the transactions contemplated hereby nor compliance
by the Seller with any provisions hereof, will violate (with or
without the giving of notice or the lapse of time or both), or
conflict with, or result in any violation of or default under, any
agreement, indenture or other instrument to which the Seller is a
party or may be bound or any judgment, decree, order or award of
any court, governmental body or other authority to which the Seller
is subject and which is known to the Seller, or any provision of
the charter documents of the Seller.
(c) No Consents Required . No
application, notice, order, registration, qualification, waiver,
consent, approval or other action (collectively “
Consent ”) is required to be filed, given, obtained or
taken by the Seller by virtue of the execution, delivery and
performance of this Agreement or the consummation of the
transactions contemplated hereby, which has not already been
obtained.
(d) Proceedings .
Ther
