Exhibit 10.7
RIGHT OF FIRST OFFER AGREEMENT
(THREE TOWER BRIDGE)
THIS RIGHT OF FIRST OFFER AGREEMENT (the "Agreement") is made as of this
3rd day of November, 1997 by THREE TOWER BRIDGE ASSOCIATES, a Pennsylvania
limited partnership ("TTBA"), and BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership ("BOP").
BACKGROUND:
TTBA is the tenant and holder of a purchase option pursuant to a Lease
Agreement dated March 28, 1996, between ▇▇▇▇▇▇▇▇▇▇ County Industrial Development
Corporation and TTBA (the "Lease Agreement") with regard to a certain parcel of
land and all the improvements located thereon identified on Exhibit "A" attached
hereto and made a part hereof (the "Premises").
The parties hereto desire to enter into this Agreement for the purpose of
confirming that in the event TTBA desires to sell the Premises or assign its
interest in the Lease Agreement, it shall first offer to sell the Premises or
assign such interest to BOP.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, TTBA hereby agrees as follows:
1. Right of First Offer; Procedure
a. If TTBA at any time during the term of this Agreement decides
that it is interested in selling the Premises or assigning its interest under
the Lease Agreement, TTBA shall so advise BOP by written notice as hereinafter
set forth (the "Offering Notice"). The Offering Notice shall outline the price
("Asking Price") TTBA shall seek to obtain in negotiations with any prospective
purchaser. If BOP, by reply notice given within twenty (20) days after the
Offering Notice, advises TTBA that it is interested in purchasing the Premises
or obtaining an assignment of its interest for substantially the same price and
terms, then TTBA and BOP shall in good faith attempt to negotiate and agree upon
a contract (a "Sale Contract") for purchase of the Premises, it being
understood, however that TTBA shall have no obligation to sell to BOP for a
price less than the Asking Price or upon terms other than those acceptable to
TTBA. If TTBA and BOP cannot agree within thirty (30) days after BOP's notice
of interest to TTBA, then TTBA shall be free to offer the Premises for sale to a
third party for substantially the same price and terms as specified in the
Offering Notice, and TTBA shall be free to negotiate, agree upon and close the
sale with such third party on substantially the same price and terms, free and
clear of any rights of BOP. "Substantially the same price and terms," as used
herein, means
that the price shall be not more than ten percent (10%) less than the price
specified in TTBA's previous notice to BOP.
b. If, following failure of TTBA and BOP to agree upon a Sale
Contract, TTBA decides that it is interested in selling the Premises or
assigning its interest in the Lease Agreement for a price and on terms not
"substantially the same price and terms" as contained in the Offering Notice, or
if TTBA is unable to enter into an agreement to sell the Premises or assign its
interest upon "substantially the same price and terms" within one year after the
Offering Notice, TTBA shall so advise BOP by sending an additional Offering
Notice to BOP, and the process set forth in subsection 1(a) hereof shall be
repeated as if the additional Offering Notice were the original Offering Notice.
2. Miscellaneous.
a. Interest of ▇▇▇▇▇▇ Engineering. BOP acknowledges and agrees that
TTBA may be admitting ▇▇▇▇▇▇ Engineering Group Inc. as a seventy percent (70%)
limited partner in order to comply with requirements of the Pennsylvania
Industrial Development Authority. Such admission shall not be subject to any
right of first offer contained herein.
b. Notices. All notices, demands, requests, calls and other
communications required by or permitted under this Agreement shall be in writing
(whether or not a writing is expressly required hereby), and shall be directed
as follows:
(i) If to TTBA
c/o Oliver ▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation
One Tower Bridge
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(ii) If to BOP:
Brandywine Operating Partnership, L.P.
c/o Brandywine Realty Trust
Newtown Corporate Campus
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any entity may specify a different address by sending to the
other party a notice by registered or certified mail of such different address.
Any notice, demand, request, call or other communication required or permitted
to be given or made under this Agreement will be deemed given or made (i) when
delivered by hand delivery at its address set forth above, or (ii) three
business days following its deposit in the U.S. Mail, addressed to such address,
postage
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prepaid, registered or certified, return receipt requested (with a copy by
regular U.S. mail, first class, postage prepaid), or (iii) on the next business
day following its deposit with Federal Express or another nationally recognized
express delivery service, addressed to such address (with a copy by regular U.S.
mail, first class, postage prepaid).
c. Representations and Warranties. The parties hereto warrant and
represent to one another that the execution and delivery of this Agreement will
not result in a breach of, or constitute a default under, any indenture,
mortgage or agreement to which any of the respective parties hereto is a party
or by which its assets are bound.
d. Binding Effect; No Assignment. All of the terms and conditions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, personal representatives, successors and
assigns, provided, however, that BOP shall have no right to assign, hypothecate,
pledge or grant a security interest in this Agreement or any interest herein to
any person or entity without the express written consent of TTBA, which consent
may be withheld for any reason or for no reason. Notwithstanding the foregoing,
the rights and obligations of BOP may be assigned to an entity which meets the
requirements set forth in subsection 7.01(B) of the Partnership Agreement of
Four Tower Bridge Associates.
e. Expiration. This Agreement shall automatically expire on the
date which is the fourth (4th) anniversary hereof unless before such time it
shall have been extended or terminated in writing.
f. No Recording. This Agreement shall not be lodged for recording
in any place or office of public record and any action in violation of this
provision shall be deemed to be a default hereunder and permit the other party
hereto to terminate this Agreement immediately and without further notice.
Notwithstanding the foregoing, Brandywine Realty Trust, the general partner of
BOP may make any filings it deems necessary to comply with securities laws with
the Securities and Exchange Commission disclosing this transaction.
g. Brokerage. The parties hereto represent and warrant that each
has not dealt with any broker, agent, finder or other intermediary in connection
with this Agreement other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., payment of whom is covered
by a separate agreement dated _______, 1997. The parties hereto agree to
indemnify, defend and hold the other harmless of, from and against any damages,
costs, claims, losses or liabilities whatsoever (including attorney's fees,
expenses and court costs) arising from any breach by the other of the foregoing
warranties, representations and agreements.
h. Time of the Essence. Time, wherever mentioned herein, shall be
of the essence of this Agreement.
i. Written Evidence of Waiver. If BOP shall fail to exercise its
right of first offer within the applicable time period set forth herein, TTBA
may, but shall not be obligated to,
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request that BOP so certify in writing formally waiving its right of first
offer, whereupon BOP shall execute and deliver such certification within five
(5) business days after receipt of written request therefor.
j. Savings Clause. In the event any portion of this Agreement shall
be deemed to violate that certain Open-end Mortgage and Security Agreement from
the ▇▇▇▇▇▇▇▇▇▇ County Industrial Development Corporation and Three Tower Bridge
Associates, as mortgagor, and The Union Labor Life Insurance Company, as
mortgagee, such portion of this Agreement shall be of no force or effect, but
all remaining portions of this Agreement shall continue in full force and
effect.
k. Entire Agreement. This is the entire agreement between the
parties hereto regarding the transaction contemplated hereby and there are no
other terms, covenants, conditions, warranties, representations or statements,
oral or otherwise, of any kind whatsoever. Any agreement hereafter made shall
be ineffective to change, modify, discharge or effect an abandonment of this
Agreement in whole or in part unless such agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
l. Headings. The headings incorporated in this Agreement are for
convenience and reference only and are not a part of this Agreement and do not
in any way control, define, limit, or add to the terms and conditions hereof.
m. Governing Law. This Agreement shall be construed, interpreted
and governed by the laws of the Commonwealth of Pennsylvania.
n. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and such counterparts together
shall constitute one and the same instrument.
o. Limitations on Recourse.
(i) No recourse shall be had for any of the obligations of
the BOP or BOP-Sub hereunder 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, whether by virtue of any statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
all of such liability being expressly waived and released by each of the other
parties hereto.
(ii) No recourse shall be had for any of the obligations of
TTBA hereunder or for any claim based thereon or otherwise in respect thereof
against any past, present or future partner or employee of TTBA or any
shareholder, officer, director or employee of any
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general partner of TTBA, whether by virtue of any statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise, all of such liability
being expressly waived and released by each of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THREE TOWER BRIDGE ASSOCIATES
By: THREE ▇▇▇▇▇▇ TOWER ASSOCIATES
By: THREE ▇▇▇▇▇▇ TOWER CORPORATION,
general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership
By: BRANDYWINE REALTY TRUST, its duly
authorized general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Chairman of the Board
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Exhibit "A"
Legal Description
