Exhibit 10.6
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
AGREEMENT OF PURCHASE AND SALE
between
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES,
a Pennsylvania limited partnership
("▇▇▇▇▇▇▇▇")
and
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
("BRANDYWINE OP")
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS.........................................................1
1.1 Definitions...........................................................1
ARTICLE II. PURCHASE AND SALE; DEPOSIT; PAYMENT OF
PURCHASE PRICE; STUDY PERIOD...................................................7
2.1 Purchase and Sale.....................................................7
2.2 Payment of Purchase Price.............................................8
2.3 Deposit...............................................................8
2.4 Deliveries............................................................8
ARTICLE III. ▇▇▇▇▇▇▇▇' REPRESENTATIONS AND WARRANTIES.........................11
3.1 Organization and Power...............................................12
3.2 Authorization, Execution and Disclosure..............................12
3.3 Non-contravention....................................................12
3.4 No Special Taxes.....................................................12
3.5 Compliance with Existing Laws and Restrictive Covenants..............13
3.6 Personal Property....................................................13
3.7 Operating Agreements.................................................13
3.8 Condemnation Proceedings; Roadways...................................13
3.9 Actions or Proceedings...............................................13
3.10 Bankruptcy.........................................................14
3.11 Hazardous Substances...............................................14
3.12 Parties in Possession..............................................15
3.13 Leases.............................................................15
3.14 Leased Property....................................................15
3.15 No Unpaid Charges..................................................15
3.16 Access.............................................................15
3.17 No Commitments.....................................................15
3.18 ▇▇▇▇▇▇▇▇ Is Not a "Foreign Person".................................15
3.19 Leasing Commissions................................................16
3.20 Other Agreements...................................................16
3.21 Existing Secured Indebtedness......................................16
3.22 Employment on "At-Will" Basis......................................16
1.1 Architect's..........................................................16
3.23 Agreement..........................................................16
3.24 Budget.............................................................16
3.25 LIMITATIONS ON REPRESENTATIONS AND WARRANTIES......................17
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ARTICLE IV. BRANDYWINE OP'S REPRESENTATIONS AND WARRANTIES....................18
4.1 Organization and Power...............................................18
4.2 Non-contravention....................................................19
4.3 Litigation...........................................................19
4.4 Bankruptcy...........................................................19
4.5 Authorization, Execution and Disclosure..............................19
ARTICLE V. CONDITIONS PRECEDENT...............................................20
5.1 As to Brandywine OP's Obligations....................................20
5.2 As to ▇▇▇▇▇▇▇▇' Obligations..........................................21
ARTICLE VI. COVENANTS OF ▇▇▇▇▇▇▇▇.............................................21
6.1 Operating Agreements.................................................21
6.2 Warranties and Guaranties............................................22
6.3 Insurance............................................................22
6.4 Operation of Property Prior to Closing...............................22
6.5 Construction Agreements..............................................23
6.6 No Marketing.........................................................23
ARTICLE VII. CLOSING..........................................................24
7.1 Closing..............................................................24
7.2 ▇▇▇▇▇▇▇▇' Deliveries.................................................24
7.3 Brandywine OP's Deliveries...........................................26
7.4 Mutual Deliveries....................................................26
7.5 Closing Costs........................................................27
7.6 Expense Allocations..................................................27
7.7 Costs Associated with Payment of Total Project Costs.................28
7.8 Leasing Commissions..................................................28
ARTICLE VIII. GENERAL PROVISIONS..............................................29
8.1 Condemnation.........................................................29
8.2 Risk of Loss.........................................................29
8.3 Broker...............................................................30
8.4 Bulk Sale............................................................30
ARTICLE IX. LIABILITY OF BRANDYWINE OP; INDEMNIFICATION BY ▇▇▇▇▇▇▇▇;
DEFAULT; TERMINATION RIGHTS...................................................30
9.1 Liability of Brandywine OP...........................................30
9.2 Indemnification by ▇▇▇▇▇▇▇▇..........................................31
9.3 Default by ▇▇▇▇▇▇▇▇/Failure of Conditions Precedent..................31
9.4 Indemnification by Brandywine OP.....................................32
9.5 Default by Brandywine OP/Failure of Conditions Precedent.............33
9.6 Costs and Attorneys' Fees............................................33
9.7 Limitation of Liability..............................................33
ARTICLE X. MISCELLANEOUS PROVISIONS...........................................34
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10.1 Completeness; Modification.........................................34
10.2 Assignments........................................................34
10.3 Successors and Assigns.............................................34
10.4 Days...............................................................34
10.5 Governing Law......................................................34
10.6 Counterparts.......................................................35
10.7 Severability.......................................................35
10.8 Notices............................................................35
10.9 Escrow Agent.......................................................36
10.10 Incorporation by Reference.........................................36
10.11 Survival...........................................................37
10.12 Further Assurances.................................................37
10.13 No Partnership.....................................................37
10.14 Time of Essence....................................................37
10.15 Signatory Exculpation..............................................37
10.16 Rules of Construction..............................................38
10.17 Like-Kind Exchange.................................................38
10.18 SEC Reporting (8-K) Requirements...................................38
EXHIBITS
Exhibit A - Land
Exhibit B - Total Project Costs as of February 28, 2001
Exhibit C - Authorizations
Exhibit D - Permitted Title Exceptions
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AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "AGREEMENT") is made as of
this ____ day of March, 2001, between ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, a
Pennsylvania limited partnership and/or assigns (collectively, "▇▇▇▇▇▇▇▇"), and
BRANDYWINE OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
("BRANDYWINE OP").
R E C I T A T I O N S:
▇. ▇▇▇▇▇▇▇▇ is the owner of a fee estate in certain real property
located in the Commonwealth of Pennsylvania, as more particularly identified on
Exhibit A, attached hereto and made a part hereof for all purposes.
B. Brandywine OP is desirous of acquiring such property from
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ is desirous of conveying such property to Brandywine OP,
for the Purchase Price and upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and in
consideration of the mutual covenants, promises and undertakings of the parties
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties, it is
agreed:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. The following terms shall have the indicated meanings:
"ACT OF BANKRUPTCY" shall mean if a party hereto or any general
partner thereof shall (a) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its property, (b) admit in writing its
inability to pay its debts as they become due, (c) make a general assignment for
the benefit of its creditors, (d) file a voluntary petition or commence a
voluntary case or proceeding under the Federal Bankruptcy Code (as now or
hereafter in effect), (e) be adjudicated a bankrupt or insolvent, (f) file a
petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or adjustment of debts,
(g) fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case or proceeding
under the Federal Bankruptcy Code (as now or hereafter in effect), or (h) take
any corporate or partnership action for the purpose of effecting any of the
foregoing; or if a proceeding or case shall be commenced, without the
application or consent of a party hereto or any general partner thereof, in any
court of competent jurisdiction seeking (1) the liquidation, reorganization,
dissolution or winding-up, or the composition or
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readjustment of debts, of such party or general partner, (2) the appointment of
a receiver, custodian, trustee or liquidator for such party or general partner
or all or any substantial part of its assets, or (3) other similar relief under
any law relating to bankruptcy, insolvency, reorganization, winding-up or
composition or adjustment of debts, and such proceeding or case shall continue
undismissed for a period of ninety (90) consecutive days; or an order (including
an order for relief entered in an involuntary case under the Federal Bankruptcy
Code, as now or hereafter in effect) judgment or decree approving or ordering
any of the foregoing shall be entered and continue unstayed and in effect, for a
period of ninety (90) consecutive days.
"APPLICABLE LAWS" shall mean any applicable building, zoning,
subdivision, environmental, health, safety or other governmental laws, statutes,
ordinances, resolutions, rules, codes, regulations, orders or determinations of
any Governmental Authority or of any insurance boards of underwriters (or other
body exercising similar functions), or any restrictive covenants or deed
restrictions affecting the Property or the ownership, operation, use,
maintenance or condition thereof.
"ARCHITECT'S AGREEMENT" shall mean the architect's and engineer's
agreement between ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ & Associates dated March 22, 2000.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean one or more
assignment and assumption agreements whereby, subject to the allocation
provisions in SECTION 7.7 hereof, (a) ▇▇▇▇▇▇▇▇ (1) assigns and Brandywine OP
assumes the Architect's Agreement, to the extent assignable, (2) assigns all of
▇▇▇▇▇▇▇▇' right, title and interest in and to the Intangible Personal Property
and the Authorizations, to the extent assignable, and (3) indemnifies, defends
and holds Brandywine OP and its agents, employees, officers, directors,
shareholders and contractors harmless with respect to all defaults, liabilities,
claims, costs and expenses (including, without limitation, reasonable attorneys'
fees) relating to acts or omissions accruing under such Architect's Agreement
before the Closing Date; and (b) Brandywine OP indemnifies, defends and holds
▇▇▇▇▇▇▇▇ harmless with respect to all defaults, liabilities, claims, costs and
expenses (including, without limitation, reasonable attorneys' fees) relating to
acts or omissions accruing under such Architect's Agreement after the Closing
Date.
"AUTHORIZATIONS" shall mean all licenses, permits, approvals and
consents, including, without limitation, all architectural, mechanical,
structural and/or electrical plans and specifications, drawings, approvals and
licenses listed on EXHIBIT C attached hereto obtained in connection with the
Project, required by any governmental or quasi-governmental agency, body,
department, commission, board, bureau, instrumentality or officer, any owners
association created pursuant to deed restrictions affecting the Real Property or
otherwise appropriate with respect to the construction, ownership, operation,
leasing, maintenance, or use of the Property or any part thereof.
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"BRANDYWINE OP" shall mean Brandywine Operating Partnership, L.P.,
a Delaware limited partnership.
"BRANDYWINE OP'S OBJECTIONS" shall mean the objections defined as
such in SECTION 2.4(d) hereof.
"BRANDYWINE OP'S ORGANIZATIONAL DOCUMENTS" shall mean the
organizational documents and all amendments thereto of Brandywine OP.
"BUDGET" shall have the meaning ascribed to such term in SECTION
2.4(b)(4) hereof.
"CLOSING" shall mean the Closing of the purchase and sale of the
Property pursuant to this Agreement and shall be deemed to occur on the Closing
Date.
"CLOSING DATE" shall mean the date on which the Closing occurs.
"CLOSING DOCUMENTS" shall mean the documents defined as such in
SECTION 7.1 hereof.
"DEED" shall mean that certain special warranty deed conveying
title to the Land and subject only to Permitted Title Exceptions affecting each
such Parcel. If there is any difference between the description of the Land as
shown on Exhibit A attached hereto and the description of the Land shown on the
Survey, the description of the Land to be contained in the Deed and the
description of the Land set forth in the Title Commitment shall conform to the
description shown on the Survey.
"DEPOSIT" shall mean all amounts deposited from time to time with
Escrow Agent by Brandywine OP pursuant to SECTION 2.3 hereof, plus all interest
or other earnings that may accrue thereon. All cash Deposits shall be invested
by Escrow Agent in a commercial bank or banks acceptable to Brandywine OP at
money market rates, or in such other investments as shall be approved in writing
by ▇▇▇▇▇▇▇▇ and Brandywine OP. The Deposit shall be held and disbursed by Escrow
Agent in strict accordance with the terms and provisions of this Agreement.
"DEVELOPMENT/CONSULTING AGREEMENT" shall mean the
development/consulting agreement to be entered into by and between Brandywine OP
and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ containing terms and conditions mutually agreed upon by the
parties, that provides, among other things, for the completion of the Project as
directed by Brandywine OP in its sole discretion and for the payment to ▇▇▇▇▇▇▇▇
of $200,000.00 upon the completion of construction and issuance of a certificate
of occupancy for each building comprising the Project that is developed on the
Land.
"ENVIRONMENTAL DAMAGES" shall mean all third-party claims,
judgments, damages, losses, penalties, fines, liabilities (including, without
limitation, punitive damages and strict
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liability), encumbrances, liens, costs and expenses of investigation and defense
of any claim, whether or not such is ultimately defeated, and of any settlement
or judgment, of whatever kind or nature, contingent or otherwise, matured or
unmatured, including, without limitation, attorneys' fees and disbursements and
consultants' fees, any of which arise as a result of the existence of Hazardous
Materials upon, about or beneath the Property or migrating or threatening to
migrate from the Property, or as a result of the existence of a violation of
Environmental Requirements pertaining to the Property.
"ENVIRONMENTAL REQUIREMENTS" shall mean (i) all applicable
statutes, regulations, rules, policies, ordinances, codes, licenses, permits,
orders, approvals, plans, authorizations, and similar items, of all Governmental
Authorities, and (ii) all judicial, administrative and regulatory decrees,
judgments and orders, in each case of (i) and (ii) relating to the protection of
human health or the environment from Hazardous Materials and health and safety
of employees or the public from Hazardous Materials, including, without
limitation, all requirements thereof pertaining to reporting, licensing,
permitting, investigation and remediation of emissions, discharges, releases or
threatened releases of Hazardous Materials into the air, surface water,
groundwater or land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
"ESCROW AGENT" shall mean Chicago Title Insurance Company, whose
address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇.
"FIRPTA CERTIFICATE" shall mean the affidavit of ▇▇▇▇▇▇▇▇ under
Section 1445 of the Internal Revenue Code, as amended, certifying that ▇▇▇▇▇▇▇▇
is not a foreign corporation, foreign partnership, foreign trust, foreign estate
or foreign person (as those terms are defined in the Internal Revenue Code and
regulations promulgated thereunder), in form and substance satisfactory to
Brandywine OP.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, county,
municipal or other government or any governmental or quasi-governmental agency,
department, commission, board, bureau, officer or instrumentality, foreign or
domestic, or any of them.
"HAZARDOUS MATERIALS" shall mean any chemical substance: (i) which
is or becomes defined as a "HAZARDOUS SUBSTANCE," "HAZARDOUS WASTE," "HAZARDOUS
MATERIAL," "POLLUTANT," "CONTAMINANT," OR "TOXIC," "EXPLOSIVE," "CORROSIVE,"
"FLAMMABLE," "INFECTIOUS," "RADIOACTIVE," "CARCINOGENIC," or "MUTAGENIC"
material under any law, regulation, rule, order, or other authority of the
federal, state or local governments, or any agency, department, commission,
board, or instrumentality thereof, regarding the protection of human health or
the environment from such chemical substances including, but not limited to, the
following federal laws and their amendments, analogous state and local laws, and
any regulations promulgated thereunder: the Clean Air Act, the Clean Water Act,
the Oil Pollution Control Act, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1986, the
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Emergency Planning and Community Right to Know Act, the Solid Waste Disposal
Act, the Resource Conservation and Recovery Act, the Safe Drinking Water Act,
the Federal Insecticide, Fungicide and Rodenticide Act, and the Toxic Substances
Control Act, including, without limitation, asbestos and gasoline and other
petroleum products (including crude oil or any fraction thereof); (ii) without
limitation, which contains gasoline, diesel fuel or other petroleum
hydrocarbons; (iii) without limitation, which contains asbestos-containing
materials or urea formaldehyde foam insulation; or (iv) without limitation,
radon gas; provided, however, the term "HAZARDOUS MATERIALS" shall not include
de minimis quantities of substances of kinds and in amounts ordinarily and
customarily used or stored in properties similar to the Property for the
purposes of cleaning or other maintenance or operations and otherwise in
compliance with Environmental Requirements.
"IMPROVEMENTS" shall mean all buildings, improvements, fixtures and
other items of real estate located on the Land, if any.
"INSURANCE POLICIES" shall mean all policies of insurance
maintained by or on behalf of ▇▇▇▇▇▇▇▇ pertaining to the Property, its
operation, or any part thereof.
"INTANGIBLE PERSONAL PROPERTY" shall mean all intangible personal
property, if any, owned or possessed by ▇▇▇▇▇▇▇▇ and used in connection with the
ownership, operation, leasing, occupancy or maintenance of the Property,
including, without limitation, (1) ▇▇▇▇▇▇▇▇' exclusive right to use any trade
names associated with the Property and all variations thereof (other than
variants of ▇▇▇▇▇▇▇▇ OP's legal name, all rights to which shall be retained by
▇▇▇▇▇▇▇▇), (2) the Authorizations, (3) utility and development rights and
privileges, general intangibles, business records, plans and specifications
pertaining to the Real Property, and (4) any unpaid award for taking by
condemnation or any damage to the Land by reason of a change of grade or
location of or access to any street or highway.
"LAND" shall mean that certain parcel of real estate lying and
being in the and the Commonwealth of Pennsylvania, as more particularly
described on Exhibit A attached hereto, together with all easements, rights,
privileges, remainders, reversions and appurtenances thereunto belonging or in
any way appertaining, and all of the estate, right, title, interest, claim or
demand whatsoever of ▇▇▇▇▇▇▇▇ therein, in the streets and ways adjacent thereto
and in the beds thereof, either at law or in equity, in possession or
expectancy, now or hereafter acquired.
"LEASED PROPERTY" shall mean all leased items of Tangible Personal
Property.
"LEASES" shall mean all leases, tenancies and other rights of
occupancy or use for any portion of the Real Property and leasehold estate, if
any, together with any and all amendments thereto.
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"LIMITED PARTNER" shall mean the entities defined collectively as
the Limited Partner in the Partnership Agreement.
"OPERATING AGREEMENTS" shall mean all management, service, supply
and maintenance contracts, if any, in effect with respect to the Property and
all other contracts that affect the Property or are otherwise related to the
construction, development, ownership, operation, occupancy or maintenance of the
Property including, the Architect's Agreement.
"OWNER'S TITLE POLICY" shall mean an owner's policy of title
insurance for the Land issued to Brandywine OP by the Title Company, pursuant to
which the Title Company insures Brandywine OP's ownership of fee simple title to
the Land subject only to Permitted Title Exceptions. The Owner's Title Policy
shall insure Brandywine OP in the amount of the Purchase Price and shall be
acceptable in form and substance to Brandywine OP. Brandywine OP may require
such deletions of standard exceptions and such title endorsements as are legally
available and customarily required by institutional investors purchasing
property comparable to the Property in each State where the Property is
situated. The description of the Land in the Owner's Title Policy shall be by
courses and distances or by reference to a legal, subdivided lot and shall be
identical to the description shown on the Survey.
"PARTNERSHIP AGREEMENT" shall mean the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Associates
Agreement of Limited Partnership dated as of October 22, 1999 among ▇▇▇▇▇▇▇▇ and
the Limited Partner.
"PERMITTED TITLE EXCEPTIONS" shall mean those exceptions to title
to the Real Property that are satisfactory to Brandywine OP as determined
pursuant to SECTION 2.4(d) hereof and listed on EXHIBIT D.
"▇▇▇▇▇▇▇▇' ORGANIZATIONAL DOCUMENTS" shall mean the organizational
documents and all amendments thereto of ▇▇▇▇▇▇▇▇.
"▇▇▇▇▇▇▇▇ OP" shall mean ▇▇▇▇▇▇▇▇ Properties Acquisition Partners,
L.P., a Delaware limited partnership and the general partner of ▇▇▇▇▇▇▇▇.
"PROJECT" shall mean the construction of (i) an approximately
103,000 square foot office building currently under development and (ii) an
additional office building contemplated to be constructed, each as contemplated
by the Authorizations on the Land.
"PROPERTY" shall mean collectively the Real Property and the
Personal Property.
"PURCHASE PRICE" shall mean the sum of (a) $5,700,000.00, plus (b)
Total Project Costs as of the Closing Date, payable in the manner described in
SECTION 2.2 hereof. In addition, as provided in SECTION 2.2, the Limited Partner
shall also be paid, at Closing, a one time payment of $200,000.00 to be
allocated among the Limited Partners in accordance with their respective
percentage interests set forth in the Partnership Agreement.
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"REAL PROPERTY" shall mean the Land and the Improvements.
"SUBMISSION MATTERS" shall mean all items ▇▇▇▇▇▇▇▇ is required to
deliver to ▇▇▇▇▇▇▇▇ pursuant to SECTION 2.4(b) hereof.
"SURVEY" shall mean the survey defined as such in and prepared
pursuant to SECTION 2.4(d) hereof.
"TANGIBLE PERSONAL PROPERTY" shall mean the items of tangible
personal property consisting of all furniture, fixtures, equipment, machinery
and other personal property that has been ordered with respect to the Project
(e.g., steel), if any.
"TITLE COMMITMENT" shall mean the title commitment and exception
documents defined as such in SECTION 2.4(d) hereof.
"TITLE COMPANY" shall mean Fidelity National Title Insurance
Company or other title insurance underwriter selected by Brandywine OP.
"TOTAL PROJECT COSTS" shall mean the construction costs incurred in
the development of the Project, including, without limitation, demolition costs,
site preparation costs, permit fees, architect's and engineer's fees, impact
fees, hard and soft construction costs, the total amount of which Total Project
Costs incurred as of February 28, 2001 (the "Approved Cost Date") is
specifically listed on EXHIBIT B hereto. Total Project Costs shall also include
additional costs incurred in the development of the Project that are incurred
between the Approved Cost Date and Closing Date, specifically in accordance with
SECTION 6.4(g).
"UCC REPORTS" shall mean the reports defined as such in SECTION
2.4(d) hereof.
"UTILITIES" shall mean public sanitary and storm sewers, natural
gas (if any), telephone, public water facilities, electrical facilities and all
other utility facilities and services (if any) necessary or appropriate for the
operation and occupancy of the Property as an office building.
"WARRANTIES AND GUARANTIES" shall mean all warranties and
guaranties relating to the Improvements, or the Tangible Personal Property or
any part thereof.
ARTICLE II.
PURCHASE AND SALE; DEPOSIT; PAYMENT OF PURCHASE PRICE;
STUDY PERIOD
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2.1 PURCHASE AND SALE. On the Closing Date, ▇▇▇▇▇▇▇▇ agrees to sell and
Brandywine OP agrees to purchase the Property in accordance with and subject to
the other terms and conditions set forth herein.
2.2 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to
▇▇▇▇▇▇▇▇ in the following manner:
(a) Brandywine OP shall receive a credit against the Purchase Price
in an amount equal to the cash Deposit.
(b) Brandywine OP shall pay the amount by which the Purchase Price
exceeds the sum of the cash Deposit, as adjusted in the manner specified in
Article VII and as set forth below, to ▇▇▇▇▇▇▇▇ at Closing by making a wire
transfer of immediately available funds to the account of ▇▇▇▇▇▇▇▇.
(c) In addition, Brandywine OP shall pay at Closing the additional
sum of $200,000.00 to the Limited Partner to be allocated among the Limited
Partner in accordance with the respective percentage interests set forth in the
Partnership Agreement.
2.3 DEPOSIT. Within three (3) days after the execution hereof by both
▇▇▇▇▇▇▇▇ and Brandywine OP and as a condition precedent to the effectiveness of
this Agreement, Brandywine OP shall deliver to Escrow Agent a wire transfer or
check (a) in the sum of Fifty Dollars ($50.00) (the "Independent
CONSIDERATION"), payable to the order of ▇▇▇▇▇▇▇▇ representing the INDEPENDENT
Consideration for ▇▇▇▇▇▇▇▇' execution of this Agreement (which check or the
proceeds of which wire transfer shall thereafter be delivered by Escrow Agent to
▇▇▇▇▇▇▇▇), and (b) in the sum of $5,000,000.00 (the proceeds of which wire
transfer or check Escrow Agent shall deposit and invest in an interest bearing
account at a financial institution acceptable to Brandywine OP or as otherwise
agreed to in writing by ▇▇▇▇▇▇▇▇ and Brandywine OP). The proceeds of the wire
transfer or check are referred to herein as the "Deposit" and Escrow Agent shall
hold and invest the Deposit pursuant to the terms, conditions and provisions of
this Agreement. All accrued interest on the Deposit shall become part of the
Deposit. The Deposit (regardless of whether it is the proceeds of a wire
transfer or check) shall be either (a) returned to Brandywine OP pursuant
hereto, or (b) paid to ▇▇▇▇▇▇▇▇ pursuant hereto. For purposes of reporting
earned interest with respect to the Deposit, ▇▇▇▇▇▇▇▇' Federal Tax
Identification Number is ▇▇-▇▇▇▇▇▇▇, and Brandywine OP's Federal Tax
Identification Number is ▇▇-▇▇▇▇▇▇▇.
2.4 DELIVERIES.
(a) Brandywine OP and its agents, contractors and duly authorized
representatives have completed, at Brandywine OP's expense, such economic,
surveying, engineering, topographic, environmental, marketing and other tests,
studies and investigations as Brandywine OP deemed appropriate.
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(b) ▇▇▇▇▇▇▇▇ has delivered or made available at the Property the
following to Brandywine OP, to the extent reasonably available to ▇▇▇▇▇▇▇▇:
(1) Copies of all Authorizations including, without limitation,
all certificates of occupancy, permits, authorizations, approvals
(including drawings and enacting ordinances, if any), special
exceptions, variances, and licenses issued by Governmental Authorities
having jurisdiction over the Property and copies of all certificates
issued by the local board of fire underwriters (or other body
exercising similar functions) relating to the Property. For the purpose
of this Agreement any Submission Matters in the possession of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ OP or ▇▇▇▇▇▇▇▇' management company shall be deemed to be
"reasonably available to ▇▇▇▇▇▇▇▇."
(2) A construction budget for the estimated costs to complete
construction of the Project (the "BUDGET").
(3) All existing surveys and title policies for the Property
that are reasonably available to ▇▇▇▇▇▇▇▇.
(4) To the extent in ▇▇▇▇▇▇▇▇' possession or reasonably
available to ▇▇▇▇▇▇▇▇, any information in ▇▇▇▇▇▇▇▇' possession or
reasonably available to ▇▇▇▇▇▇▇▇ regarding current renditions or
assessments on the Property or notices relative to change in valuation
for ad valorem taxes.
(5) A complete list of all Warranties and Guaranties in effect
as of the date of this Agreement, if any, and complete copies of all
such Warranties and Guaranties.
(6) Copies of all soil tests, structural engineering tests,
inspection reports, asbestos surveys, masonry tests, percolation tests,
water, oil, gas, mineral, radon, formaldehyde, PCB or other
environmental tests, audits or reports, market studies and site plans
related to the Property in ▇▇▇▇▇▇▇▇' possession or reasonably available
to ▇▇▇▇▇▇▇▇, together with copies of any and all correspondence,
reports and other written documentation regarding the environmental
aspects of the property or any toxic substances or equipment affecting
or related to the Property.
(7) Copies of complete sets of all architectural, mechanical,
structural and/or electrical plans and specifications used in
connection with the construction of or alterations or repairs to the
Property.
(8) Copy of the Architect's Agreement for the Property.
(9) Parking, structural, mechanical or other engineering
reports or studies related to the Property.
9
(10) Copies of all approvals from any owners associations
having jurisdiction over the Real Property and copies of all
correspondence from any such owners association.
From execution of this Agreement and thereafter until the Closing,
▇▇▇▇▇▇▇▇ shall make available to Brandywine OP, copies of all materials,
correspondence, books, records, financial statements, operating statements and
any and all other materials or information relating to the Property which come
into ▇▇▇▇▇▇▇▇' possession or control or are otherwise reasonably available to
▇▇▇▇▇▇▇▇ from and after the date on which the Submission Matters were delivered
to Brandywine OP.
Notwithstanding anything herein to the contrary, although Brandywine OP
has not received all of the deliveries described in this SECTION 2.4(b),
Brandywine OP has completed its feasibility study pursuant to SECTION 2.4(a) but
reserves the right to require, and ▇▇▇▇▇▇▇▇ hereby agrees to deliver to the
extent available to it, any item described in SECTION 2.4(b) not previously
delivered at any time during the period expiring six (6) months after the
Closing Date, which agreement shall survive the Closing Date for such six (6)
month period.
(c) Brandywine OP shall indemnify and defend ▇▇▇▇▇▇▇▇ against any
loss, damage or claim for personal injury or property damage (including
reasonable attorney's fees) arising from the entry upon the Property pursuant to
this SECTION 2.4 by Brandywine OP or any agents, contractors or employees of
Brandywine OP. Brandywine OP, at its own expense, shall restore any damage to
the Property caused by any of the tests or studies made by Brandywine OP. This
provision shall survive any termination of this Agreement and a closing of the
transaction contemplated hereby.
(d) The Permitted Title Exceptions are listed on EXHIBIT D to this
Agreement. Any title exceptions not listed on EXHIBIT D shall be deemed to be
objectionable by Brandywine OP and shall be handled in accordance with this
SECTION 2.4. (collectively, "BRANDYWINE OP'S OBJECTIONS"). If any of Brandywine
OP's Objections consist of delinquent taxes, mortgages, deeds of trust, security
agreements, construction or mechanics' liens, tax liens or other liens or
charges in a fixed sum or capable of computation as a fixed sum, then, to that
extent, notwithstanding anything herein to the contrary, ▇▇▇▇▇▇▇▇ shall be
obligated to pay and discharge (or bond against in a manner sufficient to cause
the Title Company to insure over such Brandywine OP's Objections) any such
Brandywine OP's Objections and Escrow Agent is authorized to pay and discharge
at Closing such Brandywine OP's Objections to the extent not paid and discharged
or bonded against at Closing. ▇▇▇▇▇▇▇▇ shall not be obligated to incur any
expenses to cure any non-monetary Brandywine OP's Objections (including, without
limitation, any lis pendens filed against the Property) unless ▇▇▇▇▇▇▇▇ agrees
to cure such non-monetary Brandywine OP's Objections as hereinafter provided.
▇▇▇▇▇▇▇▇ shall notify Brandywine OP on or before the Closing Date whether
▇▇▇▇▇▇▇▇ agrees to cure such non-monetary Brandywine OP's Objections. If
▇▇▇▇▇▇▇▇ notifies Brandywine OP in writing on or before the Closing Date that
10
▇▇▇▇▇▇▇▇ agrees to cure such non-monetary Brandywine OP's Objections, ▇▇▇▇▇▇▇▇
shall correct such non-monetary Brandywine OP's Objections on or before the
Closing Date to the reasonable satisfaction of Brandywine OP. If ▇▇▇▇▇▇▇▇ does
not notify Brandywine OP on or before the Closing Date of its agreement to cure
such non-monetary Brandywine OP's Objections, ▇▇▇▇▇▇▇▇ shall be deemed to have
elected not to cure such non-monetary Brandywine OP's Objections, and Brandywine
OP shall elect (1) to waive such non-monetary Brandywine OP's Objections or (2)
to terminate this Agreement, in which case the Deposit shall be promptly
returned to Brandywine OP and the parties hereto shall be released from all
further obligations hereunder except those which expressly survive a termination
of this Agreement. ▇▇▇▇▇▇▇▇ shall not, after the date of this Agreement, subject
the Real Property to or permit or suffer to exist any liens, encumbrances,
covenants, conditions, restrictions, easements or other title matters or seek
any zoning changes or take any other action which may affect or modify the
status of title without Brandywine OP's prior written consent. All title matters
listed on EXHIBIT D (other than those rendering title defeasible and delinquent
taxes, mortgages, deeds of trust, security agreements and other liens and
charges that are to be paid at Closing or bonded against as provided above)
shall be deemed Permitted Title Exceptions. Notwithstanding the foregoing,
Brandywine OP shall not be required to take title to the Real Property subject
to any matters which (i) may arise subsequent to the effective date of the Title
Commitment, UCC Reports and Survey examined by Brandywine OP during the Study
Period and (ii) impairs title to any portion of the Property and will not be
released or bonded against on or before the Closing Date. If a title exception
is disclosed by the Title Company which was not shown in the Title Commitment or
Survey and was not the result of ▇▇▇▇▇▇▇▇' acts or omissions, then, unless
▇▇▇▇▇▇▇▇ notifies Brandywine OP in writing by the Closing Date that ▇▇▇▇▇▇▇▇
agrees to take such action as may be necessary to release such title exception
on or before the Closing Date, Brandywine OP may (i) terminate this Agreement by
written notice to ▇▇▇▇▇▇▇▇, in which event the Deposit shall be promptly
returned to Brandywine OP and the parties hereto shall be released from all
further obligations hereunder except those which expressly survive a termination
of this Agreement, or (ii) waive its objections to such title exception and
consummate the transactions contemplated herein.
ARTICLE III.
▇▇▇▇▇▇▇▇' REPRESENTATIONS AND WARRANTIES
To induce Brandywine OP to enter into this Agreement and to acquire the
Property, ▇▇▇▇▇▇▇▇ makes the following representations and warranties with
respect to the Property, upon each of which ▇▇▇▇▇▇▇▇ acknowledges and agrees
that Brandywine OP is entitled to rely and has relied:
3.1 ORGANIZATION AND POWER. ▇▇▇▇▇▇▇▇ is a limited partnership duly
formed, validly existing and in good standing under the laws of the Commonwealth
of Pennsylvania, and has all requisite powers and all material governmental
licenses, authorizations, consents and approvals to carry on its business as now
conducted and to enter into and perform its obligations hereunder
11
and under any document or instrument required to be executed and delivered on
behalf of ▇▇▇▇▇▇▇▇ hereunder.
3.2 AUTHORIZATION, EXECUTION AND DISCLOSURE. This Agreement has been
duly authorized by all necessary action on the part of ▇▇▇▇▇▇▇▇, has been duly
executed and delivered by ▇▇▇▇▇▇▇▇, constitutes the valid and binding agreement
of ▇▇▇▇▇▇▇▇ and is enforceable in accordance with its terms, subject to the
effect of applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting the rights of creditors generally.
Except for the waiver of the special restrictions on sale set forth in SECTION
5.2 of the Partnership Agreement in favor of the Limited Partner in ▇▇▇▇▇▇▇▇
that are not affiliates of ▇▇▇▇▇▇▇▇, there is no other person or entity who has
an ownership interest in the Property or whose consent is required in connection
with ▇▇▇▇▇▇▇▇' performance of its obligations hereunder which has not been
obtained. ▇▇▇▇▇▇▇▇ covenants to deliver a copy of this Agreement to the Limited
Partner, within one (1) business day of execution of this Agreement, in order to
trigger the Limited Partner rights under SECTION 5.2 of the Partnership
Agreement. The person executing this Agreement on behalf of ▇▇▇▇▇▇▇▇ has the
authority to do so. ▇▇▇▇▇▇▇▇ has not and will not intentionally conceal any
information regarding the Property.
3.3 NON-CONTRAVENTION. The execution and delivery of, and the
performance by ▇▇▇▇▇▇▇▇ of its obligations under, this Agreement do not and will
not (a) contravene, or constitute a default under, any provision of (i)
▇▇▇▇▇▇▇▇' Organizational Documents, (ii) applicable law or regulation or any
agreement, judgment, injunction, order, decree or, subject to SECTION 3.2 above,
other instrument binding upon ▇▇▇▇▇▇▇▇ or to which the Property is subject, the
result of which could have a material adverse effect on the value of the
Property or ▇▇▇▇▇▇▇▇' ability to convey the Property to Brandywine OP and/or
▇▇▇▇▇▇▇▇' ability to perform its obligations under this Agreement, or (iii)
result in the creation of any lien or other encumbrance on any asset of
▇▇▇▇▇▇▇▇. There are no outstanding agreements (written or oral) pursuant to
which ▇▇▇▇▇▇▇▇ (or any predecessor to or representative of ▇▇▇▇▇▇▇▇) has agreed
to sell or has granted an option or right of first refusal to purchase the
Property or any part thereof.
3.4 NO SPECIAL TAXES. ▇▇▇▇▇▇▇▇ has no knowledge of, nor has it received
any notice of, any special taxes or assessments relating to the Property or any
part thereof or any planned public improvements that may result in a special tax
or assessment against the Property.
3.5 COMPLIANCE WITH EXISTING LAWS AND RESTRICTIVE COVENANTS. To
▇▇▇▇▇▇▇▇' knowledge, ▇▇▇▇▇▇▇▇ possesses all Authorizations available for the
current state of construction of the Project, each of which is valid and in full
force and effect, and no provision, condition or limitation of any of the
Authorizations has been breached or violated. ▇▇▇▇▇▇▇▇ has received no notice
within the past year, of any existing or threatened violation of any provision
of any (a) Applicable Laws including, but not limited to, those of environmental
agencies or insurance boards of underwriters with respect to the ownership,
operation, use, maintenance or condition of the Property or any part thereof, or
requiring any repairs or alterations to the Property other than
12
those that have been made prior to the date hereof, and (b) restrictive
covenants or deed restrictions affecting the Real Property.
3.6 PERSONAL PROPERTY. There is no personal property being conveyed by
▇▇▇▇▇▇▇▇ hereunder, except for such personal property that has been ordered with
respect to the Project (e.g., steel), if any.
3.7 OPERATING AGREEMENTS. Except for the Architect's Agreement, there
are no Operating Agreements or other contracts in effect with respect to the
Property of any nature whatsoever, written or oral.
3.8 CONDEMNATION PROCEEDINGS; ROADWAYS. ▇▇▇▇▇▇▇▇ has received no notice
of any condemnation or eminent domain proceeding pending or, to ▇▇▇▇▇▇▇▇'
knowledge, no such action is threatened, against the Property or any part
thereof. ▇▇▇▇▇▇▇▇ has no knowledge of any change or proposed change in the
route, grade or width of, or otherwise affecting, any street, creek or road
adjacent to or serving the Real Property.
3.9 ACTIONS OR PROCEEDINGS. There is no action, suit or proceeding
pending or known to ▇▇▇▇▇▇▇▇ to be threatened against or affecting ▇▇▇▇▇▇▇▇ in
any court, before any arbitrator or before or by any Governmental Authority
which (a) in any manner raises any question affecting the validity or
enforceability of this Agreement or any other agreement or instrument to which
▇▇▇▇▇▇▇▇ is a party or by which it is bound and that is or is to be used in
connection with, or is contemplated by, this Agreement, (b) is reasonably likely
to materially and adversely affect the business, financial position or results
of operations of ▇▇▇▇▇▇▇▇ or the Property, (c) is reasonably likely to
materially and adversely affect the ability of ▇▇▇▇▇▇▇▇ to perform its
obligations hereunder, or under any document to be delivered pursuant hereto,
(d) is reasonably likely to create a lien on the Property, any part thereof or
any interest therein or (e) is reasonably likely to otherwise materially and
adversely affect the Property, any part thereof or any interest therein or the
use, operation, condition or occupancy thereof.
3.10 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to
▇▇▇▇▇▇▇▇.
3.11 HAZARDOUS SUBSTANCES. To ▇▇▇▇▇▇▇▇' knowledge, neither ▇▇▇▇▇▇▇▇ nor
any previous owner, tenant, occupant or user of the Property, nor any other
person, has engaged in or permitted any operations or activities upon, or any
use or occupancy of the Property or any portion thereof, for the purpose of or
in any way involving the handling, manufacture, treatment, storage, use,
generation, release, discharge, refining, dumping or disposal of any Hazardous
Materials on, under, in or about the Property in violation of any Applicable
Laws. To ▇▇▇▇▇▇▇▇' knowledge, no Hazardous Materials have migrated from or to
the Property upon, about, or beneath other properties in violation of any
Environmental Requirements. To ▇▇▇▇▇▇▇▇' knowledge, neither the Property nor its
existing or prior uses fail or failed to materially comply with Environmental
Requirements. ▇▇▇▇▇▇▇▇ has no knowledge of any permits, licenses or other
13
authorizations which are required under any Environmental Requirements with
regard to the current uses of the Property which have not been obtained and
complied with. ▇▇▇▇▇▇▇▇ has delivered all reports that reference the presence of
asbestos on the Property. To ▇▇▇▇▇▇▇▇' knowledge, the asbestos located on the
Property and identified in such report was removed fully by ▇▇▇▇▇▇▇▇' licensed
contractor in connection with the demolition of the Improvements in accordance
with all Environmental Requirements. To ▇▇▇▇▇▇▇▇' knowledge, neither ▇▇▇▇▇▇▇▇
nor any prior owner, occupant or user of the Property has received any written
notice concerning any alleged violation of Environmental Requirements in
connection with the Property or any liability for Environmental Damages in
connection with the Property for which ▇▇▇▇▇▇▇▇ (or Brandywine OP after Closing)
may be liable. To ▇▇▇▇▇▇▇▇' knowledge, no Hazardous Materials are constructed,
deposited, stored or otherwise located on, under, in or about the Property in
violation of any Environmental Requirements. To ▇▇▇▇▇▇▇▇' knowledge, there
exists no writ, injunction, decree, order or judgment outstanding, nor any
lawsuit, claim, proceeding, citation, summons or investigation, pending or
threatened, relating to any alleged violation of Environmental Requirements on
the Property, or from the suspected presence of Hazardous Materials thereon, or
relating to any Environmental Damages. To ▇▇▇▇▇▇▇▇' knowledge, there are no
underground or above ground chemical treatment or storage tanks, or gas or oil
▇▇▇▇▇ are located on the Property. The representations and warranties made by
▇▇▇▇▇▇▇▇ in this SECTION 3.11 shall be subject to the matters disclosed in the
(a) Phase I Environmental Report of Pennoni Associates, Inc. dated October 1,
1999 and (b) Asbestos Remediation Report prepared by Pennoni Associates, Inc.
dated October 19, 2000 and delivered by ▇▇▇▇▇▇▇▇ to Brandywine OP pursuant to
SECTION 2.4(b)(6) hereof.
3.12 PARTIES IN POSSESSION. There are no parties in possession of the
Property.
3.13 LEASES. There are no leases, concessions or occupancy agreements
in effect with respect to the Real Property.
3.14 LEASED PROPERTY. There are no leases in effect for leased
property.
3.15 NO UNPAID CHARGES. Subject to SECTION 7.7 hereof and other than
Total Project Costs, there are no unpaid charges, debts, liabilities, claims or
obligations arising from the construction, occupancy, ownership, use or
operation of the Property which could give rise to any mechanic's or
materialmen's or other statutory lien against the Property, or any part thereof;
however, ▇▇▇▇▇▇▇▇ shall be responsible for obtaining lien waivers in accordance
with SECTION 7.7 hereof with respect to all sums paid or accrued as Total
Project Costs pursuant to SECTION 2.2 hereof. ▇▇▇▇▇▇▇▇ represents and warrants
that the Total Project Costs listed on Exhibit B are true, complete and accurate
and fully reflect the costs incurred in connection with the Project through the
Approved Cost Date.
14
3.16 ACCESS. ▇▇▇▇▇▇▇▇ has no knowledge of any pending or threatened
governmental proceeding or any other fact or condition which would limit or
result in the termination of the Property's existing access to and from public
streets or roads.
3.17 NO COMMITMENTS. No commitments have been made to any Governmental
Authority, utility company, school board, church or other religious body, or any
homeowners' association or any other organization, group or individual, relating
to the Property which would impose an obligation upon Brandywine OP to make any
contribution or dedication of money or land or to construct, install or maintain
any improvements of a public or private nature on or off the Property. Without
limiting the generality of the foregoing, ▇▇▇▇▇▇▇▇ is not a party to any paving
agreements or undertakings, payback agreements, revenue bonds, utility debt
service expenses or other charges or expenses upon or relating to any of the
Property or applicable thereto, except for any of the foregoing delivered by
▇▇▇▇▇▇▇▇ pursuant to SECTION 2.4(b) listed on Exhibit C.
3.18 ▇▇▇▇▇▇▇▇ IS NOT A "FOREIGN PERSON". ▇▇▇▇▇▇▇▇ is not a "FOREIGN
PERSON" within the meaning of Section 1445 of the Internal Revenue Code, as
amended (i.e., ▇▇▇▇▇▇▇▇ is not a foreign corporation, foreign partnership,
foreign trust, foreign estate or foreign person as those terms are defined in
the Internal Revenue Code and regulations promulgated thereunder).
3.19 LEASING COMMISSIONS. No brokerage or leasing commissions or other
fees or compensation are due or payable, or, except as set forth in Section
5.4.2 of the Partnership Agreement, which will become due and payable as a
result of agreements in place or agreements to agree, to any person, firm,
corporation or other entity with respect to any lease or the sale of the
Property.
3.20 OTHER AGREEMENTS. Except for the Limited Partner rights in the
Partnership Agreement, there are no options, contracts or other obligations
outstanding for the sale, exchange or transfer of any of the Property or any
interest therein which would be superior to the rights of Brandywine OP under
this Agreement or which would survive Closing.
3.21 EXISTING SECURED INDEBTEDNESS. There is no debt secured by liens
on the Real Property, or any portion thereof, which will not be released and
discharged as of the Closing.
3.22 EMPLOYMENT ON "AT-WILL" BASIS. All persons and entities presently
employed in connection with the operation and maintenance of the Property are
employed on an "AT WILL" basis, are dischargeable upon thirty (30) days' notice
and, unless otherwise directed by Brandywine OP, shall be terminated by ▇▇▇▇▇▇▇▇
as of Closing. There are no labor disputes pending, nor to the best of ▇▇▇▇▇▇▇▇'
knowledge, contemplated pertaining to the operation or maintenance of the
Property, or any part thereof. ▇▇▇▇▇▇▇▇ has no employment agreements, either
written or oral, with any person which would require Brandywine OP to employ any
person after the date hereof or the Closing Date.
15
3.23 ARCHITECT'S AGREEMENT. The Architect's Agreement between ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇ and Associates dated March 22, 2000 is the only agreement in effect
on the date hereof with respect to the Project.
3.24 BUDGET. The Budget is ▇▇▇▇▇▇▇▇' best estimate, as of the date
hereof, of Total Project Costs incurred and to be incurred to complete the
Project.
3.25 LIMITATIONS ON REPRESENTATIONS AND WARRANTIES. BRANDYWINE OP
HEREBY AGREES AND ACKNOWLEDGES THAT, EXCEPT AS SET FORTH IN THIS ARTICLE III, OR
AS OTHERWISE EXPRESSLY STATED HEREIN OR IN THE DEED OR IN ANY DOCUMENTS EXECUTED
IN CONNECTION HEREWITH, NEITHER ▇▇▇▇▇▇▇▇ NOR ANY AGENT, ATTORNEY, EMPLOYEE OR
REPRESENTATIVE OF ▇▇▇▇▇▇▇▇ HAS MADE ANY REPRESENTATION WHATSOEVER REGARDING THE
SUBJECT MATTER OF THIS AGREEMENT, OR ANY PART HEREOF, INCLUDING (WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING) REPRESENTATIONS OR WARRANTIES AS TO
THE PHYSICAL NATURE OR CONDITION OF THE PROPERTY OR THE CAPABILITIES THEREOF,
AND THAT BRANDYWINE OP, IN EXECUTING, DELIVERING AND/OR PERFORMING THIS
AGREEMENT, DOES NOT RELY UPON ANY STATEMENT AND/OR INFORMATION TO WHOMEVER MADE
OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, BY ANY INDIVIDUAL, FIRM
OR CORPORATION EXCEPT THOSE EXPRESSLY CONTAINED HEREIN OR DELIVERED PURSUANT
THERETO OR IN ANY DOCUMENTS EXECUTED IN CONNECTION HEREWITH. EXCEPT AS OTHERWISE
PROVIDED HEREIN, BRANDYWINE OP AGREES TO TAKE THE PROPERTY "AS IS," AS OF THE
DATE HEREOF, REASONABLE WEAR AND TEAR EXCEPTED. IN ADDITION, EXCEPT AS SET FORTH
HEREIN, ▇▇▇▇▇▇▇▇ MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE COMPLIANCE
WITH ANY ENVIRONMENTAL REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE
PROPERTY OF HAZARDOUS MATERIALS. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE
THE CLOSING OR ANY TERMINATION HEREOF.
Each of the representations and warranties contained in this ARTICLE III and its
various subparagraphs are intended for the benefit of Brandywine OP and may be
waived in whole or in part by Brandywine OP. All rights and remedies arising in
connection with the untruth or inaccuracy of any such representations and
warranties shall survive the Closing of the transaction contemplated hereby as
provided in SECTION 10.11 hereof, except to the extent that ▇▇▇▇▇▇▇▇ gives
Brandywine OP written notice prior to Closing of the untruth or inaccuracy of
any representation or warranty, Brandywine OP otherwise obtains actual knowledge
prior to Closing of the untruth or inaccuracy of any representation or warranty,
and Brandywine OP nevertheless elects to close this transaction; provided,
however that the foregoing exception shall not apply with respect to any leasing
commission claimed under Section 5.4.2 of the Partnership Agreement. Brandywine
OP shall be deemed to have actual knowledge of the untruth or inaccuracy of any
16
representation or warranty only if (i) Brandywine OP receives written notice
from ▇▇▇▇▇▇▇▇ satisfying the foregoing requirements, or (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ has
actual knowledge of any such untruth or inaccuracy. Except to the extent
otherwise expressly provided in the immediately preceding sentence, no
investigation, audit, inspection, review or the like conducted by or on behalf
of Brandywine OP shall be deemed to terminate the effect of any such
representations, warranties and covenants, it being understood that Brandywine
OP has the right to rely thereon and that each such representation and warranty
constitutes a material inducement to Brandywine OP to execute this Agreement and
to close the transaction contemplated hereby and to pay the Purchase Price to
▇▇▇▇▇▇▇▇.
If any of ▇▇▇▇▇▇▇▇' representations and warranties made hereunder are found by
Brandywine OP to be incorrect prior to Closing to the extent they affect the
Property or its operation in any material respect, Brandywine OP shall inform
▇▇▇▇▇▇▇▇ in writing and Brandywine OP's sole remedy, except as otherwise
expressly provided in CLAUSE (a)(ii) of the first sentence of SECTION 9.3 hereof
or the last sentence of SECTION 9.3 hereof, shall be termination of this
Agreement on account thereof and refund of the Deposit. If Brandywine OP elects
not to so terminate this Agreement, any remedy of Brandywine OP for breach of
such warranties and representations made prior to the Closing shall be deemed to
be irrevocably waived. Notwithstanding anything to the contrary contained in
this Article, if ▇▇▇▇▇▇▇▇ breaches any representation or warranty made by
▇▇▇▇▇▇▇▇ and if prior to Closing Brandywine OP notifies ▇▇▇▇▇▇▇▇ that it elects
to terminate this Agreement on account of such breach, ▇▇▇▇▇▇▇▇ may by written
notice to Brandywine OP given or before the Closing Date agree to cure the
breach (which breach must be cured on or before the Closing Date), and
Brandywine OP shall thereupon be obligated to close the transaction and accept
such cure as Brandywine OP's sole remedy for such breach.
The term "TO ▇▇▇▇▇▇▇▇' KNOWLEDGE" or similar phrase shall mean the knowledge of
▇▇▇▇▇▇▇▇ OP's chief executive officer, general counsel, chief financial officer,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and the current building engineer, property
manager and leasing agent (collectively, "▇▇▇▇▇▇▇▇' PERSONNEL WITH KNOWLEDGE")
for the Property and such inquiry shall include the direction by ▇▇▇▇▇▇▇▇ to
such persons to review all files in their possession relating to the operation,
ownership, maintenance and management of the Property. ▇▇▇▇▇▇▇▇ covenants that
if prior to Closing ▇▇▇▇▇▇▇▇ obtains actual knowledge that any of the facts
represented and warranted by ▇▇▇▇▇▇▇▇ under this Agreement are or become untrue
or inaccurate in any material respect, it will promptly inform Brandywine OP in
writing of its discovery.
▇▇▇▇▇▇▇▇' Personnel with Knowledge shall not have any personal liability under
this Agreement in their respective capacities as officers and/or directors of
▇▇▇▇▇▇▇▇.
17
ARTICLE IV.
BRANDYWINE OP'S REPRESENTATIONS AND WARRANTIES
To induce ▇▇▇▇▇▇▇▇ to enter into this Agreement and to convey the
Property, Brandywine OP hereby makes the following representations and
warranties, upon each of which Brandywine OP acknowledges and agrees that
▇▇▇▇▇▇▇▇ is entitled to rely and has relied:
4.1 ORGANIZATION AND POWER. Brandywine OP is a limited partnership,
duly formed, validly existing and in good standing under the laws of the State
of Delaware, and has all requisite partnership powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its businesses as now conducted and to enter into and perform its obligations
under this Agreement and any document or instrument required to be executed and
delivered on behalf of Brandywine OP hereunder. Brandywine OP has the financial
capability to acquire the Property pursuant to this Agreement.
4.2 NON-CONTRAVENTION. The execution and delivery of this Agreement and
the performance by Brandywine OP of its obligations hereunder do not and will
not contravene, or constitute a default under, any provisions of Brandywine OP's
Organizational Documents or applicable law or regulation, or any agreement,
judgment, injunction, order, decree or other instrument binding upon Brandywine
OP.
4.3 LITIGATION. There is no action, suit or proceeding, pending or
known to be threatened, against or affecting Brandywine OP or Brandywine OP in
any court or before any arbitrator or before any Governmental Authority which
(a) in any manner raises any question affecting the validity or enforceability
of this Agreement or any other agreement or instrument to which Brandywine OP is
a party or by which it is bound and that is to be used in connection with, or is
contemplated by, this Agreement, (b) could materially and adversely affect the
business, financial position or results of operations of Brandywine OP, or (c)
could materially and adversely affect the ability of Brandywine OP to perform
its obligations hereunder, or under any document to be delivered pursuant
hereto.
4.4 BANKRUPTCY. No Act of Bankruptcy has occurred with respect to
Brandywine OP.
4.5 AUTHORIZATION, EXECUTION AND DISCLOSURE. This Agreement has been
duly authorized by all necessary action on the part of Brandywine OP, has been
duly executed and delivered by Brandywine OP, constitutes the valid and binding
agreement of Brandywine OP and is enforceable in accordance with its terms,
subject to the effect of applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar laws affecting the rights of creditors
generally.
18
ARTICLE V.
CONDITIONS PRECEDENT
5.1 AS TO BRANDYWINE OP'S OBLIGATIONS. Brandywine OP's obligations
hereunder are subject to the satisfaction of the following conditions precedent:
(a) ▇▇▇▇▇▇▇▇' DELIVERIES. ▇▇▇▇▇▇▇▇ shall have delivered to or for
the benefit of Brandywine OP, on or before the Closing Date, all of the
documents and other information required of ▇▇▇▇▇▇▇▇ pursuant to SECTIONS 7.2
AND 7.4 hereof.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS; OBLIGATIONS OF
▇▇▇▇▇▇▇▇; CERTIFICATE. All of ▇▇▇▇▇▇▇▇' representations and warranties made in
this Agreement shall be true and correct in all material respects as of the date
hereof and as of the date of Closing as if then made; ▇▇▇▇▇▇▇▇ shall have
performed in all material respects all of its covenants and other obligations
under this Agreement; and ▇▇▇▇▇▇▇▇ shall have executed and delivered to
Brandywine OP at Closing a certificate to the foregoing effect.
(c) TITLE INSURANCE. Good and indefeasible fee simple title to the
Land shall be insurable as such by the Title Company, subject only to Permitted
Title Exceptions as determined in accordance with SECTION 2.4 hereof and
including, without limitation, all applicable deletions of standard exceptions
and endorsements permitted under applicable state law which are customarily
required by institutional investors purchasing property comparable to the
Property.
(d) UTILITIES. All of the Utilities have been installed at least to
the Property line.
(e) DUE DILIGENCE MATERIALS. All lists, schedules and other
documents furnished by ▇▇▇▇▇▇▇▇ to Brandywine OP under this Agreement shall be
true and correct in all material respects, except for inaccuracies as to which
Brandywine OP was given written notice by ▇▇▇▇▇▇▇▇ or otherwise had actual
knowledge prior to the execution of this Agreement.
(f) NO ADDITIONAL PROCEEDINGS. Except for matters as to which
Brandywine OP was given written notice by ▇▇▇▇▇▇▇▇ or otherwise had actual
knowledge prior to the execution of this Agreement, on the Closing Date, there
shall be no (a) litigation pending or threatened, seeking (i) to enjoin the
consummation of the transactions contemplated hereunder, (ii) to recover title
to the Property, or any part thereof or any interest therein, (iii) to increase
substantially ad valorem taxes theretofore assessed against any of the Property,
or (iv) to enjoin the violation of any law, rule, regulation, restrictive
covenant or zoning ordinance that may be applicable to the Property.
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(g) CONSENTS FROM PARTIES TO THE ARCHITECT'S AGREEMENT. The
consents and agreements to be delivered at Closing required to assign, to the
extent assignable, the rights under the Architect's Agreement from ▇▇▇▇▇▇▇▇ to
Brandywine OP.
(h) LIMITED PARTNER RIGHTS. The rights of the Limited Partner under
SECTION 5.2 of the Partnership Agreement shall have terminated or have been
waived or deemed waived for the transaction described in this Agreement.
Each of the conditions contained in this SECTION 5.1 are intended for the
benefit of Brandywine OP and may be waived in whole or in part, by Brandywine
OP, but only by an instrument in writing signed by Brandywine OP.
5.2 AS TO ▇▇▇▇▇▇▇▇' OBLIGATIONS. ▇▇▇▇▇▇▇▇' obligations hereunder are
subject to the satisfaction of the following conditions precedent:
(a) BRANDYWINE OP'S DELIVERIES. Brandywine OP shall have delivered
to or for the benefit of ▇▇▇▇▇▇▇▇, on or before the Closing Date, all of the
documents and payments required of Brandywine OP pursuant to SECTIONS 7.3 AND
7.4 hereof.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS; OBLIGATIONS OF
BRANDYWINE OP. All of Brandywine OP's representations and warranties made in
this Agreement shall be true and correct in all material respects as of the date
hereof and as of the date of Closing as if then made and Brandywine OP shall
have performed in all material respects all of its covenants and other
obligations under this Agreement.
Each of the conditions contained in this Section are intended for the benefit of
▇▇▇▇▇▇▇▇ and may be waived in whole or in part, by ▇▇▇▇▇▇▇▇, but only by an
instrument in writing signed by ▇▇▇▇▇▇▇▇.
ARTICLE VI.
COVENANTS OF ▇▇▇▇▇▇▇▇
To induce Brandywine OP to enter into this Agreement and to purchase
the Property, and to pay the Purchase Price therefor, ▇▇▇▇▇▇▇▇ covenants and
agrees to the following:
6.1 OPERATING AGREEMENTS. Prior to the Closing Date, ▇▇▇▇▇▇▇▇ shall not
enter into any new management agreement, maintenance or repair contract, supply
contract, lease in which it is lessee or other agreements with respect to the
Property which cannot be terminated on or before the Closing Date, nor shall
▇▇▇▇▇▇▇▇ enter into any agreements modifying the Architect's Agreement in any
material respect, unless (a) any such agreement or modification will not bind
Brandywine OP or the Property after the date of Closing or (b) ▇▇▇▇▇▇▇▇ has
obtained Brandywine OP's prior written consent to such agreement or
modification. ▇▇▇▇▇▇▇▇ agrees to cancel and terminate effective as of the
Closing Date ▇▇▇▇▇▇▇▇' management agreement,
20
development agreement, and any other Operating Agreements, if any, other than
the Architect's Agreement (which latter agreement will be assigned to Brandywine
OP), to the extent assignable.
6.2 WARRANTIES AND GUARANTIES. ▇▇▇▇▇▇▇▇ shall not before or after
Closing release or modify any Warranties and Guaranties, if any, except with the
prior written consent of Brandywine OP.
6.3 INSURANCE. Prior to the Closing Date, ▇▇▇▇▇▇▇▇ shall pay all
premiums on, and shall not cancel or voluntarily allow to expire, any of
▇▇▇▇▇▇▇▇' Insurance Policies unless such policy is replaced, without any lapse
of coverage, by another policy or policies providing coverage at least as
extensive as the policy or policies being replaced. ▇▇▇▇▇▇▇▇ hereby indemnifies
and holds Brandywine OP harmless from and against all losses, costs, damages and
expenses resulting from actions involving bodily or personal injury or property
damage in or about any of the Property that occurred prior to the Closing Date,
regardless of when the claim was made, but only to the extent coverage under the
applicable Insurance Policy or Policies is not sufficient and paid, and this
indemnity shall survive the Closing Date.
6.4 OPERATION OF PROPERTY PRIOR TO CLOSING. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ OP
represent, warrant, covenant and agree with Brandywine OP that, between the date
of this Agreement and the date of Closing:
(a) Subject to the restrictions contained herein, ▇▇▇▇▇▇▇▇ shall
operate the Property in the same manner in which ▇▇▇▇▇▇▇▇ operated the Property
prior to the execution of this Agreement, so as to keep the Property in good
condition, reasonable wear and tear excepted.
(b) ▇▇▇▇▇▇▇▇ shall maintain its books of account and records in the
usual, regular and ordinary manner, in accordance with sound accounting
principles applied on a basis consistent with the basis used in keeping its
books in prior years.
(c) ▇▇▇▇▇▇▇▇ shall maintain in full force and effect all Insurance
Policies.
(d) ▇▇▇▇▇▇▇▇ shall punctually perform and discharge all obligations
and undertakings of ▇▇▇▇▇▇▇▇ under the Architect's Agreement and shall not
permit a default by ▇▇▇▇▇▇▇▇ to occur thereunder.
(e) ▇▇▇▇▇▇▇▇ shall use and operate the Property in compliance with
Applicable Laws and the requirements of any Insurance Policy affecting the
Property.
(f) ▇▇▇▇▇▇▇▇ shall cause to be paid prior to delinquency all ad
valorem and other taxes due and payable with respect to the Property or its
operation.
21
(g) Without the express prior written consent of Brandywine OP,
▇▇▇▇▇▇▇▇ shall not enter into leases of any kind or nature affecting the
Property.
(h) ▇▇▇▇▇▇▇▇ shall cause all debts and liabilities for labor,
materials, services and equipment incurred in the construction, operation and
development of the Property, including leasehold improvements, to be promptly
paid; provided, all such costs incurred as of the Approved Cost Date shall be
deemed Total Project Costs comprising a portion of the Purchase Price. Any costs
that are incurred or requested for inclusion as Total Project Costs after the
Approved Cost Date, shall only be included as Total Project Costs to the extent
such expenditures are approved by Brandywine OP, which approval shall not be
unreasonably withheld, conditioned or delayed and shall be deemed granted if
Brandywine OP does not respond to such request in three (3) business days,
following the written submission from ▇▇▇▇▇▇▇▇ for inclusion of such costs (the
"Approved Total Project Costs").
(i) Neither ▇▇▇▇▇▇▇▇ nor ▇▇▇▇▇▇▇▇' managing agent shall (1) make
any agreements which shall be binding upon Brandywine OP with respect to the
Property, or (2) reduce, or cause to be reduced any rents or any other revenues
over which ▇▇▇▇▇▇▇▇ has operational control.
(j) ▇▇▇▇▇▇▇▇ shall promptly deliver to Brandywine OP upon
Brandywine OP's request such reports showing the revenue and expenses of the
Property as ▇▇▇▇▇▇▇▇ customarily keeps or receives internally for its own use.
(k) ▇▇▇▇▇▇▇▇ shall not in any manner change, modify, extend, renew
or terminate any Operating Agreement without the express written consent of
Brandywine OP.
(l) ▇▇▇▇▇▇▇▇ shall promptly advise Brandywine OP of any litigation,
arbitration or administrative hearing concerning or affecting the Property of
which ▇▇▇▇▇▇▇▇ obtains actual knowledge.
6.5 CONSTRUCTION AGREEMENTS. Without the express prior written consent
of Brandywine OP, ▇▇▇▇▇▇▇▇ shall not enter into any Operating Agreements
affecting the Property.
6.6 NO MARKETING. ▇▇▇▇▇▇▇▇ shall not market the Property for sale or
enter into discussions or negotiations with potential purchasers of the Property
unless this Agreement has been terminated pursuant to its terms.
The foregoing covenants of ▇▇▇▇▇▇▇▇ are for the benefit of Brandywine OP or its
assignee of its rights under this Agreement.
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ARTICLE VII.
CLOSING
7.1 CLOSING. Provided the Limited Partners do not exercise their right
to purchase the Property pursuant to Section 5.2 of the Partnership Agreement,
the Closing shall occur on the eleventh (11th) day after execution of this
Agreement. As more particularly described below, at the Closing the parties
hereto will meet to (i) execute all of the documents required to be delivered in
connection with the transactions contemplated hereby (the "CLOSING DOCUMENTS"),
(ii) deliver the same to Escrow Agent, and (iii) take all other action required
to be taken in respect of the transactions contemplated hereby. The Closing will
occur at the offices of the Escrow Agent. At the Closing, the Title Company
shall update the title to the Property and, provided there has been no change in
the status of title as reflected in the Title Commitment and Survey which has
not been waived by Brandywine OP pursuant to SECTION 2.4(d) hereof, and Escrow
Agent shall record the Deed, release and date, where appropriate, the Closing
Documents in accordance with the joint instructions of ▇▇▇▇▇▇▇▇ and Brandywine
OP and shall send, by wire transfer, all sums, if any, owing to ▇▇▇▇▇▇▇▇ or
Brandywine OP hereunder to ▇▇▇▇▇▇▇▇ or Brandywine OP, as applicable. At Closing,
the Escrow Agent shall additionally send, by wire transfer to ▇▇▇▇▇▇▇▇ all sums
owing to ▇▇▇▇▇▇▇▇ hereunder. As provided herein, the parties hereto will agree
upon adjustments and prorations to certain items which cannot be exactly
determined at the Closing and will make the appropriate adjustments with respect
thereto. Possession of the Property shall be delivered to Brandywine OP on the
Closing Date, subject only to Permitted Title Exceptions.
7.2 ▇▇▇▇▇▇▇▇' Deliveries. At the Closing, ▇▇▇▇▇▇▇▇ shall deliver to
Escrow Agent all of the following instruments, each of which shall have been
duly executed and, where applicable, acknowledged and/or sworn on behalf of
▇▇▇▇▇▇▇▇ and shall be dated as of the Closing Date:
(a) The certificate required by SECTION 5.1(b) hereof.
(b) The Deed.
(c) The Assignment and Assumption Agreement.
(d) Such agreements, affidavits or other documents as may be
required by the Title Company to issue the Owner's Title Policy subject only to
the Permitted Title Exceptions and to eliminate such standard exceptions and to
issue the endorsements thereto which are customarily required by institutional
investors purchasing property comparable to the Property.
(e) An updated Title Commitment issued by the Title Company, dated
as of the date and time of Closing, subject only to the Permitted Title
Exceptions.
(f) The FIRPTA Certificate.
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(g) All original Warranties and Guaranties, if any, in ▇▇▇▇▇▇▇▇'
possession or reasonably available to ▇▇▇▇▇▇▇▇.
(h) Executed originals or copies of all Authorizations as required
hereunder and any other documents or instruments affecting the Property or the
development, ownership and operation thereof.
(i) All current real estate and personal property tax bills in
▇▇▇▇▇▇▇▇' possession or under its control.
(j) All books, records, operating reports, appraisal reports, files
and other materials in ▇▇▇▇▇▇▇▇' possession or control which are necessary in
Brandywine OP's reasonable discretion to maintain continuity of operation of the
Property. Brandywine OP covenants to permit ▇▇▇▇▇▇▇▇ to photocopy any of the
matters described in this SUBPARAGRAPH 7.2(k) for a period of three (3) years
following the Closing Date, which covenant of Brandywine OP shall survive for
such three (3) year period.
(k) Written notice executed by ▇▇▇▇▇▇▇▇ notifying all interested
parties that the Property has been conveyed to Brandywine OP effective as of the
Closing Date and directing that all inquiries and the like be forwarded to
Brandywine OP at the address to be provided by Brandywine OP (or as otherwise
directed by Brandywine OP).
(l) A current UCC Report showing no financing statements by
▇▇▇▇▇▇▇▇ as Debtor covering the Property.
(m) Possession of the Property subject only to the Permitted Title
Exceptions.
(n) Certified copies of a incumbency certificate and resolutions
authorizing the execution by ▇▇▇▇▇▇▇▇ of this Agreement and all documents to be
executed by ▇▇▇▇▇▇▇▇ on the Closing Date.
(o) Estoppel letters from each owners association, if any, created
pursuant to restrictive covenants or deed restrictions affecting the Real
Property certifying that (i) the Real Property complies with such restrictive
covenants or deed restrictions, and (ii) no assessments are due and owing with
respect to the Real Property; provided, ▇▇▇▇▇▇▇▇ may execute an estoppel letter
certifying to the foregoing matters for an owners association or property owner
that does not execute any such estoppel letter, which estoppel letter shall
continue in effect unless and until the applicable estoppel letter is
subsequently provided from any such owners association or property owner.
(p) Any other document or instrument reasonably requested by
Brandywine OP in connection with the transactions contemplated hereby.
24
(q) Consents and certificates from each party to the Architect's
Agreement, other than ▇▇▇▇▇▇▇▇, in a form reasonably acceptable to Brandywine OP
and each such party.
(r) A certificate from ▇▇▇▇▇▇▇▇ certifying to the Total Project
Costs paid or accrued by ▇▇▇▇▇▇▇▇ as of the Closing Date.
7.3 BRANDYWINE OP'S DELIVERIES.
(a) At the Closing, Brandywine OP shall deliver to Escrow Agent the
balance of the Purchase Price described in SECTION 2.2(b) hereof. In addition,
Brandywine OP shall pay $200,000.00 to the Limited Partner as provided in
SECTION 2.2 (c).
(b) At the Closing, Brandywine OP shall deliver to ▇▇▇▇▇▇▇▇ the
Assignment and Assumption Agreement duly executed by Brandywine OP.
(c) At the Closing, Brandywine OP shall deliver to ▇▇▇▇▇▇▇▇ any
other document or instrument reasonably requested by ▇▇▇▇▇▇▇▇ in connection with
the transactions contemplated hereby.
7.4 MUTUAL DELIVERIES. At the Closing, Brandywine OP and ▇▇▇▇▇▇▇▇ shall
mutually execute and deliver each to the other:
(a) A final closing statement reflecting the adjustments and
prorations required hereunder and the allocation of income and expenses required
hereby.
(b) Such other and further documents, papers and instruments as may
be reasonably required by the parties hereto in connection with the transactions
contemplated hereby or their respective counsel.
7.5 CLOSING COSTS. Except as is explicitly provided in this Agreement,
each party hereto shall pay its own legal fees and expenses. ▇▇▇▇▇▇▇▇ shall pay
for the costs associated with the releases of any deeds of trust, mortgages and
other financing encumbering the Property that ▇▇▇▇▇▇▇▇ is to cause to be
released pursuant to this Agreement and for any costs associated with any
corrective instruments. ▇▇▇▇▇▇▇▇ shall pay all costs for title searches, tax
certificates and all premiums for the issuance of the Title Policy; all costs of
providing the matters described in SECTIONS 2.4(b) AND (d) to Brandywine OP; and
one-half (1/2) of any escrow fees or similar charges of the Escrow Agent.
Brandywine OP shall pay one-half (1/2) of any escrow fees or similar charges of
the Escrow Agent. ▇▇▇▇▇▇▇▇ shall pay all prepayment penalties and other costs
and expenses payable in connection with debt which ▇▇▇▇▇▇▇▇ is required to
prepay on the Closing Date. ▇▇▇▇▇▇▇▇ shall pay all assessments levied or pending
against the Property as of the Closing Date. Transfer taxes and documentary
transfer stamps shall be paid in accordance with the local customs in the States
in which the Property is located. All other expenses incurred by ▇▇▇▇▇▇▇▇ or
Brandywine OP with respect to the Closing shall be borne and paid for
exclusively by
25
the party incurring same, without reimbursement, except to the extent otherwise
specifically provided herein.
7.6 EXPENSE ALLOCATIONS. All expenses with respect to the Property, and
applicable to the period of time before and after Closing, determined in
accordance with sound accounting principles consistently applied, shall be
allocated between ▇▇▇▇▇▇▇▇ and Brandywine OP as provided herein. ▇▇▇▇▇▇▇▇ shall
be responsible for all expenses for the period of time up to but not including
the Closing Date, and Brandywine OP shall be responsible for all expenses for
the period of time from, after and including the date of Closing. Such
adjustments shall be shown on the closing statements (with such supporting
documentation as the parties hereto may require being attached as exhibits to
the closing statements) and shall increase or decrease (as the case may be) the
cash amount payable by the parties hereto. Without limiting the generality of
the foregoing, the following items of expense shall be allocated at Closing:
(a) Real estate property taxes for the Property for the current
calendar year 2001.
(b) Expenses under the Architect's Agreement as long as the items
were listed on Exhibit B or approved for inclusion as a Total Project Costs by
Brandywine OP in accordance with SECTION 6.4(g).
(c) Utility charges (including, but not limited to, charges for
water, sewer and electricity).
(d) Municipal or other governmental improvement liens, which shall
be paid by ▇▇▇▇▇▇▇▇ at Closing to the extent of the work commenced as of the
Closing Date, and which shall be assumed by Brandywine OP at Closing to the
extent of work that has been authorized, but not physically commenced.
(e) All other expenses of the Property.
▇▇▇▇▇▇▇▇ shall pay or cause to be paid all real estate taxes and installments
for special assessments (prorated to the Closing Date) for the Property due and
payable in, or deferred with respect to the years prior to, the year in which
the Closing occurs. All installments for special assessments (prorated to the
Closing Date) pending, levied or due and payable on or prior to the Closing Date
shall be paid by ▇▇▇▇▇▇▇▇ on or before the Closing Date. All subdivision and
platting costs and expenses heretofore incurred by ▇▇▇▇▇▇▇▇, including, without
limitation, all subdivision exactions, fees and costs and all dedication of land
for parks and other public uses or payment of fees in lieu thereof, shall be
paid by ▇▇▇▇▇▇▇▇ on or prior to the Closing Date.
If accurate allocations cannot be made at Closing because current bills are not
obtainable (as, for example, in the case of utility bills and/or real estate or
personal property taxes), the parties shall allocate such expenses at Closing on
the best available information, subject to adjustment upon
26
receipt of the final ▇▇▇▇ or other evidence of the applicable revenue or
expense. The obligation to make the adjustment shall survive the closing of the
transaction contemplated by this Agreement. Any expense incurred by ▇▇▇▇▇▇▇▇ or
Brandywine OP with respect to the Property after the Closing Date shall be
promptly allocated in the manner described herein and the parties shall promptly
pay or reimburse any amount due. The proration provisions of this Agreement
shall survive the closing of the transaction contemplated hereby for a period of
eighteen (18) months.
7.7 COSTS ASSOCIATED WITH PAYMENT OF TOTAL PROJECT COSTS. Except as
otherwise expressly set forth in this SECTION 7.7 and SECTION 6.4 (g) as
approved, all Approved Total Project Costs, not listed on Exhibit B and not
otherwise approved by Brandywine OP in accordance with SECTION 6.4(g), owing or
which could become due and owing in respect to the Project shall be paid by
▇▇▇▇▇▇▇▇ when due, and ▇▇▇▇▇▇▇▇ shall indemnify and hold harmless Brandywine OP
for claims brought against the Property or Brandywine OP arising therefrom,
which indemnity shall survive the Closing Date. ▇▇▇▇▇▇▇▇ covenants and agrees to
use commercially reasonable to efforts to obtain and deliver at Closing lien
waivers for Total Project Costs reimbursable by Brandywine OP pursuant to
SECTION 2.2 hereof. ▇▇▇▇▇▇▇▇ covenants and agrees to use commercially reasonable
efforts to pursue all such lien waivers for items reimbursed by Brandywine OP
pursuant to SECTION 2.2 that are not obtained as of the Closing Date. The
provisions of this SECTION 7.7 shall survive the Closing Date.
7.8 LEASING COMMISSIONS. ▇▇▇▇▇▇▇▇ covenants and agrees to provide the
indemnity set forth in SECTION 9.2, below for any leasing commissions that are
claimed under Section 5.4.2 of the Partnership Agreement. The foregoing covenant
shall survive Closing.
ARTICLE VIII.
GENERAL PROVISIONS
8.1 CONDEMNATION. In the event of any actual or threatened taking,
pursuant to the power of eminent domain, of all or any portion of the Real
Property, or any proposed sale in lieu thereof, ▇▇▇▇▇▇▇▇ shall give written
notice thereof to Brandywine OP promptly after ▇▇▇▇▇▇▇▇ learns or receives
notice thereof. If all or any part of the Real Property is, or is to be, so
condemned or sold, Brandywine OP shall have the right to terminate this
Agreement pursuant to SECTION 9.3 hereof. If Brandywine OP elects not to
terminate this Agreement, all proceeds, awards and other payments arising out of
such condemnation or sale (actual or threatened) shall be paid or assigned, as
applicable, to Brandywine OP at Closing and there shall be no reduction in the
Purchase Price. ▇▇▇▇▇▇▇▇ shall not settle or compromise any such proceeding
without Brandywine OP's written consent. If Brandywine OP elects to terminate
this Agreement by giving ▇▇▇▇▇▇▇▇ written notice thereof prior to the Closing,
the Deposit shall be promptly returned to Brandywine OP and all rights and
obligations of ▇▇▇▇▇▇▇▇ and Brandywine OP hereunder (except those set forth
herein which expressly survive a termination of this Agreement) shall terminate
immediately.
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8.2 RISK OF LOSS. The risk of any loss or damage to the Property prior
to the recordation of the Deed shall remain upon ▇▇▇▇▇▇▇▇. If any such loss or
damage occurs prior to Closing which exceeds an amount equal to five percent
(5%) of the Purchase Price, Brandywine OP shall have the right to terminate this
Agreement pursuant to SECTION 9.3 hereof. If Brandywine OP elects not to
terminate this Agreement pursuant to the immediately preceding sentence or a
loss or damage occurs prior to Closing which does not exceed five percent (5%)
of the Purchase Price, all insurance proceeds and rights to proceeds arising out
of such loss or damage, less the reasonable expenses incurred in collecting such
proceeds and, to the extent payable from insurance proceeds, reasonable expenses
incurred in securing the Property following a casualty, shall be paid or
assigned, as applicable, to Brandywine OP at Closing, and Brandywine OP shall
receive as a credit against the Purchase Price in the amount of any deductibles
under the policies of insurance covering such loss or damage and there shall be
no further reduction in the Purchase Price. If Brandywine OP elects to terminate
this Agreement pursuant to this SECTION 8.2 by giving ▇▇▇▇▇▇▇▇ written notice
thereof prior to the Closing, the Deposit shall be promptly returned to
Brandywine OP and all rights and obligations of ▇▇▇▇▇▇▇▇ and Brandywine OP
hereunder (except those set forth herein which expressly survive a termination
of this Agreement) shall terminate immediately.
8.3 BROKER. There is no real estate broker involved in this
transaction. Brandywine OP warrants and represents to ▇▇▇▇▇▇▇▇ that Brandywine
OP has not dealt with any real estate broker in connection with this
transaction, nor has Brandywine OP been introduced to the Property or to
▇▇▇▇▇▇▇▇ by any real estate broker, and Brandywine OP shall indemnify ▇▇▇▇▇▇▇▇
and hold ▇▇▇▇▇▇▇▇ harmless from and against any claims, suits, demands or
liabilities of any kind or nature whatsoever arising on account of the claim of
any other person, firm or corporation to a real estate brokerage commission or a
finder's fee or a financial advisory fee as a result of having dealt with
Brandywine OP, or as a result of having introduced Brandywine OP to ▇▇▇▇▇▇▇▇ or
to the Property. In like manner, ▇▇▇▇▇▇▇▇ warrants and represents to Brandywine
OP that ▇▇▇▇▇▇▇▇ has not dealt with any real estate broker in connection with
this transaction, nor has ▇▇▇▇▇▇▇▇ been introduced to Brandywine OP by any real
estate broker, and ▇▇▇▇▇▇▇▇ shall indemnify Brandywine OP and save and hold
Brandywine OP harmless from and against any claims, suits, demands or
liabilities of any kind or nature whatsoever arising on account of the claim of
any person, firm or corporation to a real estate brokerage commission or a
finder's fee or a financial advisory fee as a result of having dealt with
▇▇▇▇▇▇▇▇ in connection with this transaction. This provision shall survive any
termination of this Agreement and a closing of the transaction contemplated
hereby.
8.4 BULK SALE. It shall be the obligation of ▇▇▇▇▇▇▇▇ to comply with
any bulk sale requirements, statutes, laws, ordinances and regulations
promulgated with respect thereto, if any, in the State in which the Property is
located, or in or by any governmental entity having jurisdiction with respect
thereto, and to provide proof of such compliance or proof that no such
compliance is required, to Brandywine OP, at or prior to Closing. In any event,
▇▇▇▇▇▇▇▇ shall indemnify Brandywine OP and save and hold Brandywine OP harmless
from and against any
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claims, suits, demands, liabilities or obligations of any kind or nature
whatsoever, including all costs of defending same, and reasonable attorneys'
fees paid or incurred in connection therewith, arising out of or relating to any
claim made by any third party or any liability asserted by any third party that
any applicable bulk sales law or like statute has not been complied with. The
provisions of this Section shall survive the Closing of the transaction
contemplated hereby.
ARTICLE IX.
LIABILITY OF BRANDYWINE OP; INDEMNIFICATION BY ▇▇▇▇▇▇▇▇;
DEFAULT; TERMINATION RIGHTS
9.1 LIABILITY OF BRANDYWINE OP. Except for obligations expressly
assumed or agreed to be assumed by Brandywine OP hereunder, Brandywine OP is not
assuming any obligations of ▇▇▇▇▇▇▇▇ or any liability for claims arising out of
any act, omission or occurrence which occurs, accrues or arises prior to the
Closing Date, and ▇▇▇▇▇▇▇▇ hereby indemnifies and holds Brandywine OP harmless
from and against any and all claims, costs, penalties, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) that may at any
time be incurred by Brandywine OP as a result of (a) obligations of ▇▇▇▇▇▇▇▇ not
expressly assumed or agreed to be assumed by Brandywine OP hereunder, or (b)
acts, omissions or occurrences which occur, accrue or arise prior to the Closing
Date. Brandywine OP hereby indemnifies and holds ▇▇▇▇▇▇▇▇ harmless from and
against any and all claims, costs, penalties, damages, losses, liabilities and
expenses (including reasonable attorneys' fees) that may at any time be incurred
by ▇▇▇▇▇▇▇▇ as a result of acts, omissions or occurrences relating to the
Property arising and accruing from and after the Closing Date. The provisions of
this Section shall survive the Closing of the transaction contemplated hereby.
9.2 INDEMNIFICATION BY ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ hereby indemnifies and holds
Brandywine OP and Brandywine OP's officers, directors, shareholders, agents and
employees (collectively, the "INDEMNIFIED PARTIES") harmless from and against
any and all claims, costs, penalties, damages, losses, liabilities and expenses
(including reasonable attorneys' fees) that may at any time be incurred by
Brandywine OP, whether incurred before or after Closing, as a result of any
inaccuracy or breach by ▇▇▇▇▇▇▇▇ of any of its representations, warranties,
covenants or obligations set forth herein or in any other document delivered by
▇▇▇▇▇▇▇▇ pursuant hereto except for any breach or inaccuracy of any
representation or warranty as to which ▇▇▇▇▇▇▇▇ has given Brandywine OP written
notice prior to Closing of the untruth or inaccuracy or of which Brandywine OP
otherwise had actual knowledge prior to the Closing and nevertheless elected to
consummate the Closing; provided, however, the foregoing knowledge limitation on
▇▇▇▇▇▇▇▇' indemnity shall not apply to any leasing commissions that may be
claimed against Brandywine OP under Section 5.4.2 of the Partnership Agreement
or limit Brandywine OP's remedy described in SECTION 9.3(a)(ii) hereof or in the
last sentence of SECTION 9.3 hereof. The provisions of this Section shall
survive the Closing of the transaction contemplated hereby as provided in
SECTION 10.11 hereof, and shall, following any assignment of this Agreement by
29
Brandywine OP, continue in favor of the Indemnified Parties of the original
Brandywine OP hereunder as well the Indemnified Parties of any assignee during
said survival period.
9.3 DEFAULT BY ▇▇▇▇▇▇▇▇/FAILURE OF CONDITIONS PRECEDENT. If any
condition set forth herein for the benefit of Brandywine OP cannot or will not
be satisfied prior to Closing, or upon the occurrence of any other event that
would entitle Brandywine OP to terminate this Agreement and its obligations
hereunder, and if ▇▇▇▇▇▇▇▇ fails to cure any such matter or satisfy that
condition within ten (10) business days after notice thereof from Brandywine OP
(or such other time period as may be explicitly provided for herein), Brandywine
OP, at its option, may elect (a) to terminate this Agreement, in which event (i)
the Deposit, less the Independent Consideration, shall be promptly returned to
Brandywine OP, (ii) if the condition which has not been satisfied is a breach of
a representation, warranty or covenant known by ▇▇▇▇▇▇▇▇ to have been inaccurate
or misleading when made, then ▇▇▇▇▇▇▇▇ shall be obligated upon demand to
reimburse Brandywine OP for Brandywine OP's actual out-of-pocket inspection,
financing and other costs related to Brandywine OP's entering into this
Agreement, inspecting the Property and preparing for a Closing of the
transaction contemplated hereby, including, without limitation, Brandywine OP's
attorneys' fees incurred in connection with the preparation, negotiation and
execution of this Agreement and in connection with Brandywine OP's due diligence
review, audits and preparation for a Closing up to an aggregate amount equal to
$50,000.00; provided, the foregoing shall not limit or include the sums which
may be payable by ▇▇▇▇▇▇▇▇ pursuant to SECTION 9.6 below, and (iii) all other
rights and obligations of ▇▇▇▇▇▇▇▇ and Brandywine OP hereunder (except those set
forth herein which expressly survive a termination of this Agreement) shall
terminate immediately; (b) elect to proceed to Closing; or (c) seek to enforce
▇▇▇▇▇▇▇▇' obligations hereunder by specific performance. If Brandywine OP elects
to proceed to Closing and there is either a misrepresentation or breach of a
warranty by ▇▇▇▇▇▇▇▇ (other than a breach of a representation or warranty of
which Brandywine OP had actual knowledge prior to the Closing and nevertheless
elected to consummate the Closing) or the breach of a covenant by ▇▇▇▇▇▇▇▇ or a
failure by ▇▇▇▇▇▇▇▇ to perform its obligations hereunder first discovered by
Brandywine OP after the Closing Date, Brandywine OP shall retain all remedies
accruing as a result thereof, including, but not limited to, the remedy of
specific performance of ▇▇▇▇▇▇▇▇' covenants and obligations and the remedy of
the recovery of all reasonable damages resulting from ▇▇▇▇▇▇▇▇' breach of
warranty or covenant. Notwithstanding the foregoing, if the condition which has
not been satisfied is a breach of one or more representations and warranties by
▇▇▇▇▇▇▇▇ in this Agreement, Brandywine OP has elected to proceed to Closing, and
Brandywine OP can reasonably quantify the damage resulting from such breach of
representations and warranties with reasonable support for such calculation of
damages, then (i) if the aggregate damage is no greater than $15,000.00 (the
"FIRST THRESHOLD LEVEL"), then ▇▇▇▇▇▇▇▇ shall have no obligation to either cure
such breaches of representations and warranties or pay Brandywine OP at Closing
in the event Brandywine OP elects to close the transaction described in this
Agreement; (ii) if such aggregate damage is greater than the First Threshold
Level but less than $250,000.00, then ▇▇▇▇▇▇▇▇ must prior to the Closing Date
either cure such breaches of representations and warranties to the reasonable
satisfaction of Brandywine OP or
30
▇▇▇▇▇▇▇▇ shall pay Brandywine OP at the Closing an amount equal to the actual
damages as reasonably determined by Brandywine OP as aforesaid, less the First
Threshold Level; and (iii) in the event the aggregate damages resulting from
such breaches of representations and warranties would exceed $250,000.00, then
Brandywine OP may either (A) terminate this Agreement, in which event the
Deposit (less the Independent Consideration) shall be promptly refunded, or (B)
Brandywine OP may close the transaction as described in this Agreement and
Brandywine OP shall be paid by ▇▇▇▇▇▇▇▇ the amount of $235,000.00, which amount
shall be the maximum aggregate amount payable by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ OP and/or
PPL under the last sentence of SECTION 9.3 of this Agreement.
9.4 INDEMNIFICATION BY BRANDYWINE OP. Brandywine OP hereby indemnifies
and holds ▇▇▇▇▇▇▇▇ harmless from and against any and all claims, costs,
penalties, damages, losses, liabilities and expenses (including reasonable
attorneys' fees) that may at any time be incurred by ▇▇▇▇▇▇▇▇, whether incurred
before or after Closing, as a result of any inaccuracy or breach by Brandywine
OP of any of its representations, warranties, covenants or obligations set forth
herein or in any other document delivered by Brandywine OP pursuant hereto
except for any breach or inaccuracy of any representation or warranty as to
which Brandywine OP has given ▇▇▇▇▇▇▇▇ written notice prior to Closing of the
untruth or inaccuracy or of which ▇▇▇▇▇▇▇▇ otherwise had actual knowledge prior
to the Closing and nevertheless elected to consummate the Closing. The
provisions of this Section shall survive the Closing of the transaction
contemplated hereby.
9.5 DEFAULT BY BRANDYWINE OP/FAILURE OF CONDITIONS PRECEDENT. If any
condition set forth herein for the benefit of ▇▇▇▇▇▇▇▇ (other than a default by
Brandywine OP) cannot or will not be satisfied prior to Closing, and if
Brandywine OP fails to satisfy that condition within ten (10) business days
after notice thereof from ▇▇▇▇▇▇▇▇ (or such other time period as may be
explicitly provided for herein), ▇▇▇▇▇▇▇▇ may, at its option, elect either (a)
to terminate this Agreement in which event the Deposit shall be promptly
returned to Brandywine OP and the parties hereto shall be released from all
further obligations hereunder except those which expressly survive a termination
of this Agreement, or (b) to waive its right to terminate, and instead, to
proceed to Closing. If, prior to Closing, Brandywine OP defaults in performing
any of its obligations under this Agreement (including its obligation to
purchase the Property), and Brandywine OP fails to cure any such default within
ten (10) business days after notice thereof from ▇▇▇▇▇▇▇▇, then ▇▇▇▇▇▇▇▇' sole
remedy for such default shall be either (i) to terminate this Agreement and
retain the Deposit or (ii) to pursue the remedy of specific performance
compelling Brandywine OP to purchase the Property pursuant to the provisions of
this Agreement.
9.6 COSTS AND ATTORNEYS' FEES. In the event of any litigation or
dispute between the parties arising out of or in any way connected with this
Agreement, resulting in any litigation, then the prevailing party in such
litigation shall be entitled to recover its costs of prosecuting and/or
defending same, including, without limitation, reasonable attorneys' fees at
trial and all
31
appellate levels. The provisions of this Section shall survive the Closing of
the transaction contemplated hereby.
9.7 LIMITATION OF LIABILITY. Notwithstanding anything herein to the
contrary, except in the case of fraud by either party, the liability of each
party hereto resulting from the breach or default by either party shall be
limited to actual damages incurred by the injured party and except in the case
of fraud by either party, the parties hereto hereby waive their rights to
recover from the other party consequential, punitive, exemplary, and speculative
damages. The provisions of this SECTION 9.7 shall survive the Closing of the
transaction contemplated hereby.
ARTICLE X.
MISCELLANEOUS PROVISIONS
10.1 COMPLETENESS; MODIFICATION. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior discussions, understandings,
agreements and negotiations between the parties hereto. This Agreement may be
modified only by a written instrument duly executed by the parties hereto. Any
waiver of rights under this Agreement shall be effective only if in writing and
duly executed and delivered by the party against whom such waiver is asserted.
10.2 ASSIGNMENTS. Brandywine OP may assign its rights hereunder without
the consent of ▇▇▇▇▇▇▇▇ to any affiliate of Brandywine OP, in which event,
except as otherwise specified herein, such assignee shall be the "BRANDYWINE OP"
hereunder; however, any such assignment shall not relieve the original
Brandywine OP of its obligations under this Agreement, including specifically
the obligation to close the purchase of the Property in accordance with this
Agreement as though there were no assignment.
10.3 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns.
10.4 DAYS. If any action is required to be performed, or if any notice,
consent or other communication is given, on a day that is a Saturday or Sunday
or a legal holiday in the jurisdiction in which the action is required to be
performed or in which is located the intended recipient of such notice, consent
or other communication, such performance shall be deemed to be required, and
such notice, consent or other communication shall be deemed to be given, on the
first business day following such Saturday, Sunday or legal holiday. Unless
otherwise specified herein, all references herein to a "DAY" or "DAYS" shall
refer to calendar days and not business days.
10.5 GOVERNING LAW. This Agreement and all documents referred to herein
shall be governed by and construed and interpreted in accordance with the laws
of the State of Delaware.
32
10.6 COUNTERPARTS. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signature on behalf of both parties hereto appear on each counterpart
hereof. All counterparts hereof shall collectively constitute a single
agreement.
10.7 SEVERABILITY. If any term, covenant or condition of this
Agreement, or the application thereof to any person or circumstance, shall to
any extent be invalid or unenforceable, the remainder of this Agreement, or the
application of such term, covenant or condition to other persons or
circumstances, shall not be affected thereby, and each term, covenant or
condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
10.8 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered by hand, transmitted by
facsimile transmission, sent prepaid by Federal Express (or a comparable
overnight delivery service) or sent by the United States mail, certified,
postage prepaid, return receipt requested, at the addresses and with such copies
as designated below. Any notice, request, demand or other communication
delivered or sent in the manner aforesaid shall be deemed given or made (as the
case may be) when actually delivered to the intended recipient.
If to Brandywine OP: c/o Brandywine Realty Trust
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇▇: c/▇ ▇▇▇▇▇▇▇▇ Properties Acquisition Partners, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
33
If to Escrow Agent: Chicago Title Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the intended recipient may have specified in a
notice to the other party. Any party hereto may change its address or designate
different or other persons or entities to receive copies by notifying the other
party and Escrow Agent in a manner described in this Section.
10.9 ESCROW AGENT. Escrow Agent referred to in the definition thereof
contained in SECTION 1.1 hereof has agreed to act as such for the convenience of
the parties without fee or other charges for such services as Escrow Agent.
Escrow Agent shall not be liable: (a) to any of the parties for any act or
omission to act except for its own willful misconduct; (b) for any legal effect,
insufficiency, or undesirability of any instrument deposited with or delivered
by Escrow Agent or exchanged by the parties hereunder, whether or not Escrow
Agent prepared such instrument; (c) for any loss or impairment of funds that
have been deposited in escrow while those funds are in the course of collection,
or while those funds are on deposit in a financial institution, if such loss or
impairment results from the failure, insolvency or suspension of a financial
institution; (d) for the expiration of any time limit or other consequence of
delay, unless a properly executed written instruction, accepted by Escrow Agent,
has instructed Escrow Agent to comply with said time limit; or (e) for the
default, error, action or omission of either party to the escrow. Escrow Agent,
in its capacity as escrow agent, shall be entitled to rely on any document or
paper received by it, believed by such Escrow Agent, in good faith, to be bona
fide and genuine. In the event of any dispute as to the disposition of the
Deposit or any other monies held in escrow, or of any documents held in escrow,
Escrow Agent may, if such Escrow Agent so elects, interplead the matter by
filing an interpleader action in a court of general jurisdiction in the county
or circuit where the Real Property is located (to the jurisdiction of which both
parties do hereby consent), and pay into the registry of the court the Deposit,
or deposit any such documents with respect to which there is a dispute in the
Registry of such court, whereupon such Escrow Agent shall be relieved and
released from any further liability as Escrow Agent hereunder. Escrow Agent
shall not be liable for Escrow Agent's compliance with any legal process,
subpoena, writ, order, judgment and decree of any court, whether issued with or
without jurisdiction, and whether or not subsequently vacated, modified, set
aside or reversed.
10.10 INCORPORATION BY REFERENCE. All of the exhibits attached hereto
are by this reference incorporated herein and made a part hereof.
10.11 SURVIVAL. All of the representations, warranties, covenants and
agreements of ▇▇▇▇▇▇▇▇ and Brandywine OP made in, or pursuant to, this Agreement
shall survive Closing through the period ending twelve (12) months thereafter
and shall not merge into the Deed or any
34
other document or instrument executed and delivered in connection herewith;
provided, the covenants in the last sentence of SECTION 2.4(b) and SECTION 7.6
shall survive for the time periods described in such Sections, and the covenants
in SECTION 7.7 and the indemnities in this Agreement shall have an unlimited
survival period. In the event a claim for indemnity is asserted in good faith
prior to the expiration of the applicable survival period, the claim may be
asserted and the indemnity shall continue notwithstanding the expiration of the
survival period.
10.12 FURTHER ASSURANCES. ▇▇▇▇▇▇▇▇ and Brandywine OP each covenant and
agree to sign, execute and deliver, or cause to be signed, executed and
delivered, and to do or make, or cause to be done or made, upon the written
request of the other party, any and all agreements, instruments, papers, deeds,
acts or things, supplemental, confirmatory or otherwise, as may be reasonably
required by either party hereto for the purpose of or in connection with
consummating the transactions described herein. ▇▇▇▇▇▇▇▇ agrees to promptly
correct any defect, error or omission which may be discovered in the contents of
this Agreement or in any of the Exhibits or Schedules hereto.
10.13 NO PARTNERSHIP. This Agreement does not and shall not be
construed to create a partnership, joint venture or any other relationship
between the parties hereto except the relationship of ▇▇▇▇▇▇▇▇ and Brandywine OP
specifically established hereby.
10.14 TIME OF ESSENCE. Time is of the essence with respect to every
provision hereof.
10.15 SIGNATORY EXCULPATION. The signatory(ies) for ▇▇▇▇▇▇▇▇ and
Brandywine OP are executing this Agreement in his/their capacity as
representative of ▇▇▇▇▇▇▇▇ and Brandywine OP, respectively, and not individually
and, therefore, shall have no personal or individual liability of any kind in
connection with this Agreement and the transactions contemplated by it. No
recourse shall be had for any obligation of ▇▇▇▇▇▇▇▇ or Brandywine OP under this
Agreement or under any document executed in connection herewith or pursuant
hereto, or for any claim based thereon or otherwise in respect thereof, against
any past, present or future trustee, shareholder, officer or employee of
Brandywine Realty Trust, ▇▇▇▇▇▇▇▇ Properties Trust, ▇▇▇▇▇▇▇▇ or Brandywine OP,
whether by virtue of any statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being expressly waived
and released by the parties hereto and all parties claiming by, through or under
them.
10.16 RULES OF CONSTRUCTION. The following rules shall apply to the
construction and interpretation of this Agreement:
(a) Singular words shall connote the plural number as well as
the singular and vice versa, and the masculine shall include the
feminine and the neuter.
(b) All references herein to particular articles, sections,
subsections, clauses or exhibits are references to articles, sections,
subsections, clauses or exhibits of this Agreement.
35
(c) The table of contents and headings contained herein are
solely for convenience of reference and shall not constitute a part of
this Agreement nor shall they affect its meaning, construction or
effect.
(d) Each party hereto and its counsel have reviewed and revised
(or requested revisions of) this Agreement and have participated in the
preparation of this Agreement, and therefore any usual rules of
construction requiring that ambiguities are to be resolved against a
particular party shall not be applicable in the construction and
interpretation of this Agreement or any exhibits hereto.
(e) As used herein, the term or phrases "EFFECTIVE DATE," "DATE
OF THIS AGREEMENT" or "DATE HEREOF" shall mean the first date Escrow
Agent is in receipt of this Agreement executed by ▇▇▇▇▇▇▇▇ and
Brandywine OP.
10.17 LIKE-KIND EXCHANGE. ▇▇▇▇▇▇▇▇ agrees to cooperate reasonably with
Brandywine OP in effecting an exchange transaction which includes the Property,
pursuant to Section 1031 of the United States Internal Revenue Code, provided
that any such exchange transaction, and the related documentation, shall: (a) be
at the sole cost and expense of Brandywine OP; (b) not require ▇▇▇▇▇▇▇▇ to
execute any contract, make any commitment, or incur any obligations, contingent
or otherwise, to third parties; (c) not delay the Closing; (d) not include
▇▇▇▇▇▇▇▇ becoming involved in a transaction with a third party; and (e) not
otherwise be contrary to or inconsistent with the terms of this Agreement. In
preparation for any such exchange transaction, Brandywine OP shall be permitted
to transfer the Property to an affiliate of Brandywine OP prior to Closing.
10.18 SEC REPORTING (8-K) REQUIREMENTS. For the period of time
commencing on the date hereof and continuing through the second anniversary of
the Closing Date, and without limitation of other document production otherwise
required of ▇▇▇▇▇▇▇▇ hereunder, ▇▇▇▇▇▇▇▇ shall, from time to time, upon
reasonable advance written notice from Brandywine OP, provide Brandywine OP and
its representatives, with access to all financial and other information
pertaining to the period of ▇▇▇▇▇▇▇▇' ownership and operation of the Property,
which information is relevant and reasonably necessary, in the opinion of
outside, third party accountants (the "ACCOUNTANTS") for Brandywine OP, to
enable Brandywine OP and its Accountants to prepare financial statements in
compliance with any or all of (a) Rule 3-05 or 3-14 of Regulation S-X of the
Securities and Exchange Commission (the "COMMISSION"), as applicable; (b) any
other rule issued by the Commission and applicable to Brandywine OP or
Brandywine Realty Trust ("BRANDYWINE"); and (c) any registration statement,
report or disclosure statement filed with the Commission by Brandywine; and a
representation letter, signed by the individual(s) responsible for ▇▇▇▇▇▇▇▇'
financial reporting, as prescribed by generally accepted auditing standards
promulgated by the Auditing Standards Division of the American Institute of
Certified Public Accountants, which representation letter may be required by the
Accountants in order to render an opinion concerning Brandywine OP's or
Brandywine's financial statements.
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IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ and Brandywine OP have caused this
Agreement to be executed in their names by their respective duly authorized
representatives.
BRANDYWINE OP:
BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership
By: Brandywine Realty Trust, its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President & CEO
Date of Execution: ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, a Pennsylvania
limited partnership
By: ▇▇▇▇▇▇▇▇ Properties Acquisition
Partners, L.P., a Delaware limited
partnership, its general partner
By: ▇▇▇▇▇▇▇▇ Properties I, Inc., a
Delaware corporation, its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. August
Name: ▇▇▇▇▇▇ ▇. August
Title: President & CEO
Date of Execution: March 14, 2001
37
RECEIPT OF ESCROW AGENT
Chicago Title Insurance Company, as Escrow Agent, acknowledges receipt
of the sum of $5,000,050.00 by check or by wire transfer, from Brandywine OP as
described in SECTION 2.3 of the foregoing Agreement of Purchase and Sale, said
check or wire transfer to be held pursuant to the terms and provisions of said
Agreement.
DATED this _____ day of __________, 2001.
CHICAGO TITLE INSURANCE COMPANY
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
38