Exhibit 10.4
PA - ENTITY TRANSFERS
AGREEMENT OF PURCHASE AND SALE
among
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
a Delaware limited partnership
("XXXXXXXX"),
XXXXXXXX PROPERTIES LIMITED, INC.,
a Delaware corporation
("PPL")
and
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
("BRANDYWINE OP")
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS........................................................2
1.1 Definitions........................................................2
ARTICLE II. PURCHASE AND SALE; DEPOSIT; PAYMENT OF PURCHASE PRICE;
STUDY PERIOD; ASSIGNMENTS SUBJECT TO EXISTING NOTES AND LIENS.................9
2.1 Purchase and Sale..................................................9
2.2 Payment of Purchase Price; Assignments Subject to Existing Notes
and Liens..........................................................9
2.3 Deposit...........................................................10
2.4 Study Period......................................................11
ARTICLE III. XXXXXXXX' REPRESENTATIONS AND WARRANTIES........................15
3.1 Organization and Power............................................15
3.2 Authorization, Execution and Disclosure...........................16
3.3 Non-contravention.................................................16
3.4 No Special Taxes..................................................16
3.5 Compliance with Existing Laws and Restrictive Covenants...........17
3.6 Personal Property.................................................17
3.7 Operating Agreements..............................................17
3.8 Condemnation Proceedings; Roadways................................17
3.9 Actions or Proceedings............................................18
3.10 Bankruptcy........................................................18
3.11 Hazardous Substances..............................................18
3.12 Parties in Possession.............................................19
3.13 Leases............................................................19
3.14 Leased Property...................................................19
3.15 No Unpaid Charges; Financial Statements...........................19
3.16 Condition of Improvements.........................................20
3.17 Access............................................................20
3.18 No Commitments....................................................20
3.19 None of the Partnerships nor Xxxxxxxx Is a "Foreign Person".......20
3.20 Leasing Commissions...............................................20
3.21 Other Agreements..................................................20
3.22 Existing Secured Indebtedness.....................................21
3.23 Employment on "At-Will" Basis.....................................21
3.24 Additional Representations and Warranties with Respect to
the Partnerships..................................................21
3.25 Representations and Warranties of PPL.............................22
3.26 LIMITATIONS ON REPRESENTATIONS AND WARRANTIES.....................23
ARTICLE IV. BRANDYWINE OP'S REPRESENTATIONS AND WARRANTIES...................25
4.1 Organization and Power............................................25
4.2 Non-contravention.................................................25
4.3 Litigation........................................................25
4.4 Bankruptcy........................................................25
4.5 Authorization, Execution and Disclosure...........................25
ARTICLE V. CONDITIONS PRECEDENT..............................................26
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5.1 As to Brandywine OP's Obligations.................................26
5.2 As to Xxxxxxxx' Obligations.......................................27
ARTICLE VI. COVENANTS OF XXXXXXXX............................................28
6.1 Operating Agreements..............................................28
6.2 Warranties and Guaranties.........................................28
6.3 Insurance.........................................................28
6.4 Operation of Property Prior to Closing............................29
6.5 No Marketing......................................................30
6.6 Put/Call Agreement................................................31
6.7 Tax Returns.......................................................31
6.8 Ground Lessor Estoppels...........................................32
6.9 Leased Property...................................................32
ARTICLE VII. CLOSING.........................................................32
7.1 Closing...........................................................32
7.2 Xxxxxxxx' Deliveries..............................................32
7.3 Brandywine OP's Deliveries........................................35
7.4 Mutual Deliveries.................................................35
7.5 Closing Costs.....................................................35
7.6 Revenue and Expense Allocations...................................36
7.7 Delinquent Rents..................................................37
7.8 Costs Associated with Certain Leasing Activities..................38
ARTICLE VIII. GENERAL PROVISIONS.............................................38
8.1 Condemnation......................................................38
8.2 Risk of Loss......................................................39
8.3 Broker............................................................39
ARTICLE IX. LIABILITY OF BRANDYWINE OP; INDEMNIFICATION BY XXXXXXXX;
DEFAULT; TERMINATION RIGHTS..................................................40
9.1 Liability of Brandywine OP........................................40
9.2 Indemnification by Xxxxxxxx.......................................40
9.3 Default by Xxxxxxxx/Failure of Conditions Precedent...............41
9.4 Indemnification by Brandywine OP..................................42
9.5 Default by Brandywine OP/Failure of Conditions Precedent..........42
9.6 Costs and Attorneys' Fees.........................................42
9.7 Limitation of Liability...........................................43
ARTICLE X. MISCELLANEOUS PROVISIONS..........................................43
10.1 Completeness; Modification........................................43
10.2 Assignments.......................................................43
10.3 Successors and Assigns............................................43
10.4 Days..............................................................43
10.5 Governing Law.....................................................44
10.6 Counterparts......................................................44
10.7 Severability......................................................44
10.8 Notices...........................................................44
10.9 Escrow Agent......................................................45
10.10 Incorporation by Reference........................................45
10.11 Survival..........................................................45
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10.12 Further Assurances................................................46
10.13 No Partnership....................................................46
10.14 Time of Essence...................................................46
10.15 Signatory Exculpation.............................................46
10.16 Rules of Construction.............................................46
10.17 SEC Reporting (8-K) Requirements..................................47
EXHIBITS
Exhibit A - Land
Exhibit B - Description of Ground Leases
Exhibit C - Tenant's Estoppel Certificate
Exhibit D - Excluded Tangible Personal Property
Exhibit E - Existing Notes and Existing Liens
Exhibit F - Form of Lender Estoppel Certificate
Exhibit G - Form of Amended and Restated Partnership
Exhibit H - Capital Accounts of Xxxxxxxx in the Partnerships
SCHEDULES
Schedule 3.7 Operating Agreements
Schedule 3.13 Rent Roll and Accounts Receivable Report
Schedule 3.20 Outstanding Leasing Commissions
Schedule 6.4(g) Approved New Leases
Schedule 6.6 Allocation of Aggregate Price among Retained Interests
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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, among XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P., a
Delaware limited partnership ("XXXXXXXX"), XXXXXXXX PROPERTIES LIMITED, INC., a
Delaware corporation ("PPL") and BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership ("BRANDYWINE OP").
R E C I T A T I O N S:
A. 000 Xxxxxxxxx Xxxxxxxxx Associates, L.P. ("111 ARRANDALE") is the owner
of a fee estate located in the Commonwealth of Pennsylvania that is identified
as the 111 Arrandale Land on EXHIBIT A attached hereto (the "111 ARRANDALE
LAND"), 000 Xxxxxxxx Xxx Associates, L.P. ("440 CREAMERY WAY") is the owner of a
fee estate located in the Commonwealth of Pennsylvania that is identified as the
000 Xxxxxxxx Xxx Xxxx on EXHIBIT A attached hereto (the "440 CREAMERY WAY
LAND"), 000 Xxxxxxxx Xxx Associates, L.P. ("442 CREAMERY WAY") is the owner of a
fee estate located in the Commonwealth of Pennsylvania that is identified as the
000 Xxxxxxxx Xxx Xxxx on EXHIBIT A attached hereto (the "442 CREAMERY WAY
LAND"), 481 Xxxx Xxxxx Way Associates, L.P. ("481 XXXX XXXXX") is the owner of a
fee estate located in the Commonwealth of Pennsylvania that is identified as the
481 Xxxx Xxxxx Land on EXHIBIT A attached hereto (the "481 XXXX XXXXX LAND"),
and 000 Xxxxxxxxx Xxxxxxxxx Associates, L.P. ("100 ARRANDALE") is the owner of a
fee estate located in the Commonwealth of Pennsylvania that is identified as the
100 Arrandale Land on EXHIBIT A attached hereto (the "100 ARRANDALE LAND").
B. Southpoint Land Holdings, Inc. ("SOUTHPOINT INC.") is the ground lessor
under the ground leases identified on EXHIBIT B attached hereto as the
Southpoint Ground Leases, and Valleybrooke Land Holdings, Inc. ("VALLEYBROOKE
INC.") is the ground lessor under the ground leases identified on EXHIBIT B
attached hereto as the Valleybrooke Ground Leases.
X. Xxxxxxxx owns an eighty-eight percent (88%) limited partnership interest
and a one percent (1%) general partnership interest in each of 111 Arrandale,
100 Arrandale, 000 Xxxxxxxx Xxx, 442 Creamery Way, and 481 Xxxx Xxxxx (which
interests are referred to in the Partnership Agreements (as hereinafter defined)
as the "CAPITAL PERCENTAGE INTERESTS"). In addition, Xxxxxxxx owns a ninety-nine
percent (99%) "Profit Percentage Interest" in each of 111 Arrandale, 100
Arrandale, 000 Xxxxxxxx Xxx, 000 Xxxxxxxx Xxx and 481 Xxxx Xxxxx.
D. PPL owns 89 of the 100 outstanding shares of common stock in each of
Southpoint Inc. and Valleybrooke Inc., and PPL has the right to require that the
holders of the remaining 11 shares of outstanding common stock in each of
Southpoint Inc. and Valleybrooke Inc. sell such shares to PPL upon demand
pursuant to a Put and Call Option Agreement for Remaining Shares dated as of
October 22, 1997 (the "OPTION AGREEMENT") among PPL, Xxxxx X. Xxxxxxxxxxx, Xx.,
Xxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxx (Xxxxxxxxxxx, Xxxxxxx and Xxxxx are
collectively called the "SHAREHOLDERS").
E. Brandywine OP (or its designee) is desirous of acquiring (i) from
Xxxxxxxx certain of Xxxxxxxx' partnership interests in 111 Arrandale, 100
Arrandale, 000 Xxxxxxxx Xxx,
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000 Xxxxxxxx Xxx and 481 Xxxx Xxxxx, and (ii) from PPL 78 shares of common stock
in each of Southpoint Inc. and Valleybrooke Inc., and Xxxxxxxx and PPL are
desirous of transferring such partnership interests and common stock to
Brandywine OP (or its designee), 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 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.
"ADDITIONAL RETAINED INTERESTS" shall mean the entire right, title
and interest of each of Xxxxxx and Xxxxxx in each of the Partnerships (which
interest, in aggregate, is comprised of an eleven percent [11%] Capital
Percentage Interest and a one percent [1%] Profit Percentage Interest in each of
the Partnerships).
"AMENDED AND RESTATED PARTNERSHIP AGREEMENTS" shall mean the amended
and restated limited partnership agreements of each of the Partnerships that
shall be executed by Xxxxxxxx and Brandywine OP upon the assignment by Xxxxxx
and Xxxxxx to Brandywine OP of
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their respective 5.5% limited partnership interests in each of the Partnerships,
which Amended and Restated Partnership Agreements shall be generally in the form
of Exhibit G hereto.
"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.
"ASSIGNED PARTNERSHIP INTERESTS" shall mean (a) a seventy-eight
percent (78%) Capital Percentage Interest (comprised of the entire one percent
(1%) Capital Percentage Interest owned by Xxxxxxxx as a general partner and a
seventy-seven percent (77%) Capital Percentage Interest owned by Xxxxxxxx as a
limited partner) and (b) a ninety-eight percent (98%) Profit Percentage Interest
(comprised of the entire one percent (1%) Profit Percentage Interest owned by
Xxxxxxxx as a general partner and a ninety-seven percent (97%) Profit Percentage
Interest owned by Xxxxxxxx as a limited partner), in each of the Partnerships.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean one or more
agreements whereby, subject to the allocation provisions in SECTION 7.8 hereof,
(a) Xxxxxxxx (1) assigns all of Xxxxxxxx' right, title and interest in and to
the Intangible Personal Property, to the extent assignable, and (2) indemnifies,
defends and holds Brandywine OP, the Partnerships and their respective agents,
employees, officers, partners, 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 the Assumed Operating Agreements before the Closing
Date; and (b) Brandywine OP indemnifies, defends and holds Xxxxxxxx harmless
with respect to all defaults, liabilities, claims, costs and expenses
(including, without limitation, reasonable attorneys' fees) relating to acts or
omissions accruing under the Assumed Operating Agreements after the Closing
Date.
"ASSIGNMENT OF LEASES" shall mean the agreement whereby, subject to
the allocation provisions in SECTION 7.8 hereof, (a) Xxxxxxxx indemnifies,
defends and holds Brandywine OP, the Partnerships and their respective agents,
employees, officers, partners, 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 Leases before the Closing Date; and (b) Brandywine
OP indemnifies, defends and holds Xxxxxxxx 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 Leases after the Closing Date.
"ASSIGNMENT OF PARTNERSHIP INTERESTS" shall mean one or more
assignment and assumption agreements whereby (a) Xxxxxxxx assigns to Brandywine
OP (or its designee), all of Xxxxxxxx' right, title and interest in and to the
Assigned Partnership Interests free of liens and encumbrances, (b) Brandywine OP
assumes all of Xxxxxxxx' right, title and interests in and to the Assigned
Partnership Interests and indemnifies, defends and holds Xxxxxxxx and its
agents, employees, officers, directors and shareholders harmless with respect to
all defaults, liabilities, claims, costs and expenses (including, without
limitation, reasonable attorneys' fees) relating to
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acts or omissions relating to the Assigned Partnership Interests or the
Partnerships after the Closing Date, and (c) Xxxxxxxx indemnifies, defends and
holds Brandywine OP and its agents, employees, officers, partners, directors and
shareholders harmless with respect to all defaults, liabilities, claims, costs
and expenses (including, without limitation, reasonable attorneys' fees)
relating to acts or omissions relating to the Assigned Partnership Interests or
the Partnerships accruing before the Closing Date.
"ASSUMED OPERATING AGREEMENTS" shall mean the Operating Agreements
listed on SCHEDULE 3.7 hereto which are not to be terminated pursuant to the
last sentence of SECTION 3.7 hereof..
"AUTHORIZATIONS" shall mean all licenses, permits and approvals
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.
"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.
"CAPITAL PERCENTAGE INTERESTS" shall have the meaning ascribed to
such term in the applicable Partnership Agreements.
"CLOSING" shall mean the Closing of the purchase and sale of the
Assigned Partnership Interests and Purchased Stock 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.
"CORPORATIONS" shall mean Southpoint Inc. and Valleybrooke Inc.
"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 Xxxxxxxx and Brandywine OP. The Deposit shall be held and disbursed by Escrow
Agent in strict accordance with the terms and provisions of this Agreement.
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"ENVIRONMENTAL DAMAGES" shall mean all third-party claims, judgments,
damages, losses, penalties, fines, liabilities (including, without limitation,
punitive damages and strict 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 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx
Xxxxxx.
"EXISTING LIENS" shall mean the deed(s) of trust, mortgage(s),
assignments of leases, indemnities, loan agreements and other security
instruments securing, evidencing or executed in connection with the Existing
Notes described on EXHIBIT E hereto.
"EXISTING NOTES" shall mean the promissory notes described on EXHIBIT
E hereto.
"FIRPTA CERTIFICATES" shall mean the affidavit of Xxxxxxxx and PPL
under Section 1445 of the Internal Revenue Code, as amended, certifying that
neither Xxxxxxxx nor PPL is 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.
"XXXXXX" shall mean Xxxxx X. Xxxxxx, the holder of a 5.5% limited
partnership interest in each of the Partnerships.
"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.
"GROUND LEASE" shall mean each existing ground lease, and all
amendments thereto, under which Xxxxxxxx leases the Leasehold Estate Land, as
identified on EXHIBIT A-2 hereto.
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"GROUND LESSOR" shall mean each ground lessor under each Ground
Lease, which Ground Lessor shall mean and include each of Southpoint Inc. and
Valleybrooke Inc.
"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 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 various Parcels.
"INSURANCE POLICIES" shall mean all policies of insurance maintained
by or on behalf of Xxxxxxxx, the Partnerships or the Corporations pertaining to
the Property, its operation, or any part thereof.
"INTANGIBLE PERSONAL PROPERTY" shall mean all intangible personal
property owned or possessed by Xxxxxxxx, the Partnerships or the Corporations
and used in connection with the ownership, operation, leasing, occupancy or
maintenance of the Property, including, without limitation, (1) Xxxxxxxx', the
Partnerships' or the Corporations' exclusive right to use any trade names
associated with the Property and all variations thereof (other than variants of
Xxxxxxxx' legal name, all rights to which shall be retained by Xxxxxxxx), (2)
the Authorizations, (3) escrow accounts (subject to the provisions of Section
7.6 hereof), utility and development rights and privileges, general intangibles,
business records, plans and specifications pertaining to the Real Property and
the Personal 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.
"XXXXXX" shall mean Xxxxxxxxxxx Xxxxxx, the holder of a 5.5% limited
partnership interest in each of the Partnerships.
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"LAND" shall mean those certain parcels of real estate lying and
being in 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 Xxxxxxxx, the Partnerships or the Corporations 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 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,
together with any and all amendments thereto; provided, the Leases shall not
include any Ground Lease.
"NOTE" shall mean a full recourse unsecured promissory note executed
by Brandywine OP, payable to Xxxxxxxx, bearing interest at the rate of 9.22% per
annum, payable interest only quarterly, with the first installment of interest
being payable on the first day of the calendar month that is three (3) full
calendar months following the Closing Date and continuing on the first day of
each quarter-annual anniversary of such date thereafter, and the entire
principal balance of and all accrued interest on the Note shall be due and
payable on the date that is three (3) years and one (1) day following the
Closing Date. The principal balance of the Note shall be equal to seventy-eight
percent (78%) of the amount by which the Purchase Price exceeds the outstanding
principal balance of the Existing Notes on the Closing Date.
"OPERATING AGREEMENTS" shall mean all management, service, supply and
maintenance contracts, if any, in effect with respect to the Property and all
other contracts (other than the Leases) that affect the Property or are
otherwise related to the construction, ownership, operation, occupancy or
maintenance of the Property.
"OWNER'S TITLE POLICY" shall mean an owner's policy of title
insurance for the Fee Estate Land and a leasehold policy of title insurance for
the Leasehold Estate Land issued to the Partnership by the Title Company,
pursuant to which the Title Company insures Brandywine OP's ownership of fee
simple title to the Fee Estate Land and leasehold title to the Leasehold Estate
Land subject only to Permitted Title Exceptions. The Owner's Title Policy shall
insure the Partnership in the aggregate 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.
"PARCEL" shall mean each individual tract of the Land described on
EXHIBIT A hereto.
"PARTNERSHIP AGREEMENTS" shall mean the limited partnership
agreements, as amended, creating the Partnerships.
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"PARTNERSHIPS" shall mean 111 Arrandale, 100 Arrandale, 000 Xxxxxxxx
Xxx, 000 Xxxxxxxx Xxx and 481 Xxxx Xxxxx.
"PERMITTED TITLE EXCEPTIONS" shall mean the Existing Liens, Existing
Notes and those exceptions to title to the Real Property that are satisfactory
to Brandywine OP as determined pursuant to SECTION 2.4(d) hereof.
"PERSONAL PROPERTY" shall mean collectively the Tangible Personal
Property and the Intangible Personal Property.
"XXXXXXXX' ORGANIZATIONAL DOCUMENTS" shall mean the organizational
documents and all amendments thereto of Xxxxxxxx.
"PROFIT PERCENTAGE INTEREST" shall have the meaning ascribed to such
term in the applicable Partnership Agreements.
"PROPERTY" shall mean collectively the Real Property and the Personal
Property.
"PURCHASED STOCK" shall mean seventy-eight (78) shares of common
stock in each of Southpoint Inc. and Valleybrooke Inc. to be sold by PPL to
Brandywine OP (or its designee) on the Closing Date.
"PURCHASE PRICE" shall mean $20,104,512.00 payable in the manner
described in SECTION 2.2 hereof.
"REAL PROPERTY" shall mean the Land and the Improvements.
"RENT ROLL" shall have the meaning ascribed to such term in SECTION
2.4(b)(2) of this Agreement.
"RETAINED INTERESTS" shall mean all right, title and interest to be
retained by Xxxxxxxx in each of the Partnerships other than the Assigned
Partnership Interests (which interest is comprised of an eleven percent [11%]
Capital Percentage Interest and a one percent [1%] Profit Percentage Interest)
and the eleven (11) shares of common stock to be retained by PPL in each of
Southpoint Inc. and Valleybrooke Inc.
"STUDY PERIOD" shall mean the period commencing on the date this
Agreement has been fully executed and delivered by all parties hereto, and
continuing through February 16, 2001. Except as expressly noted herein to the
contrary, time periods herein referred to shall mean the time periods as in
effect, from time to time, at Dallas, Texas.
"SUBMISSION MATTERS" shall mean all items Xxxxxxxx is required to
deliver to Xxxxxxxx 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.
8
"TANGIBLE PERSONAL PROPERTY" shall mean the items of tangible
personal property consisting of all furniture, fixtures, equipment, machinery
and other personal property of every kind and nature located on or used or
useful in the ownership and operation of the Property and owned by Xxxxxxxx, the
Partnerships or the Corporations, including, without limitation, Xxxxxxxx', the
Partnerships' or the Corporations' interest as lessee with respect to any such
Tangible Personal Property, other than (a) the items of personal property
identified on EXHIBIT D hereto, and (b) the Leased Property.
"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.
"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; ASSIGNMENTS SUBJECT TO EXISTING NOTES AND LIENS
2.1 PURCHASE AND SALE. On the Closing Date, Xxxxxxxx agrees to sell the
Assigned Partnership Interests free and clear of all liens and encumbrances, PPL
agrees to sell the Purchased Stock free and clear of liens and encumbrances and
Brandywine OP agrees to purchase the Assigned Partnership Interests and
Purchased Stock in accordance with and subject to the other terms and conditions
set forth herein.
2.2 PAYMENT OF PURCHASE PRICE; ASSIGNMENTS SUBJECT TO EXISTING NOTES AND
LIENS. The Purchase Price shall be paid to Xxxxxxxx and PPL 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 acknowledge and agree that the Property is
subject to the unpaid balances of the Existing Notes payable to the lienholders
described in EXHIBIT E hereto having approximate unpaid principal balances in
the amounts specified in EXHIBIT E, and subject to the obligations contained in
the Existing Liens. Notwithstanding the foregoing, (i) to the extent that any of
the Existing Notes or Existing Liens (or the loan documents executed in
connection therewith) create personal liability for specified acts, omissions or
occurrences (such acts, omissions or occurrences being referred to as "CARVE-OUT
ACTIVITIES") and the associated personal liability being referred to as
"CARVE-OUT LIABILITY"), (A) Brandywine OP shall, if
9
Closing occurs, be responsible for any such Carve-Out Liability attributable to
Carve-Out Activities accruing and occurring from and after the Closing Date, and
shall and does hereby indemnify and hold Xxxxxxxx harmless with respect thereto,
and (B) Xxxxxxxx shall and does hereby indemnify and hold Brandywine OP harmless
with respect to Carve-Out Liability attributable to Carve-Out Activities
accruing or occurring prior to the Closing Date. If permitted by the holders of
the Existing Notes, Xxxxxxxx shall be released from all Carve-Out Liability
under the Existing Notes and Liens and Brandywine OP shall execute such
documents as the holders of the Existing Notes may require to evidence the
assumption by Brandywine OP of the Carve-Out Liability. If permitted by any
holder of an Existing Note, Xxxxxxxx shall be released from all Carve-Out
Liability under such Existing Note and Existing Liens securing payment of such
existing Note, and Brandywine OP shall execute such documents as the holder of
any such Existing Note may reasonably require to evidence the assumption by
Brandywine OP of the Carve-Out Liability attributable to Carve-Out Activities of
Brandywine OP or any of the Partnerships or Corporations accruing and occurring
from and after the Closing Date. The provisions of this SECTION 2.2(b) shall
survive the Closing.
(c) Brandywine OP shall pay the amount by which the Purchase Price
exceeds the sum of (a) the cash Deposit, plus (b) the outstanding principal
balance of the Existing Notes on the Closing Date, as adjusted in the manner
specified in ARTICLE VII and as set forth below, to Xxxxxxxx at Closing by
executing and delivering the Note to Xxxxxxxx. Brandywine OP shall receive a
credit against the Purchase Price in an amount equal to the outstanding
principal balance of the Existing Notes on the Closing Date. The Purchase Price
shall be allocated among Assigned Partnership Interests and Purchased Stock in a
manner to be agreed upon by Xxxxxxxx, PPL and Brandywine OP on or before the
Closing Date.
2.3 DEPOSIT. Within three (3) days after the execution hereof by both
Xxxxxxxx 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 Xxxxxxxx representing the Independent
Consideration for Xxxxxxxx' execution of this Agreement (which check or the
proceeds of which wire transfer shall thereafter be delivered by Escrow Agent to
Xxxxxxxx), and (b) the sum of $100,000.00 (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 Xxxxxxxx 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 Xxxxxxxx pursuant hereto. For purposes of reporting earned interest with
respect to the Deposit, Xxxxxxxx' Federal Tax Identification Number is
00-0000000, and Brandywine OP's Federal Tax Identification Number is 00-0000000.
2.4 STUDY PERIOD.
(a) Brandywine OP and its agents, contractors and duly authorized
representatives shall have the right, until 5:00 p.m., Dallas, Texas time on the
last day of the Study Period, and thereafter unless, as provided below,
Brandywine OP notifies Xxxxxxxx in
10
writing prior to the expiration of the Study Period that Brandywine OP has
elected to terminate this Agreement, to enter upon the Real Property and to
perform, at Brandywine OP's expense, such economic, surveying, engineering,
topographic, environmental, marketing and other tests, studies and
investigations as Brandywine OP may deem appropriate. If such tests, studies and
investigations do not warrant, in Brandywine OP's sole, absolute and
unreviewable discretion, the acquisition of the Assigned Partnership Interests
and the Purchased Stock for the purposes contemplated by Brandywine OP, then
Brandywine OP may elect not to proceed with this transaction and shall notify
Xxxxxxxx and Escrow Agent, in writing prior to the expiration of the Study
Period, that Brandywine OP has elected to terminate this Agreement, in which
event this Agreement automatically shall terminate, the Deposit shall be
promptly returned to Brandywine OP and Brandywine OP, Xxxxxxxx and PPL shall be
released from all further liability or obligation hereunder except those which
expressly survive a termination of this Agreement. If Brandywine OP does not so
notify Xxxxxxxx of its determination to terminate this Agreement prior to the
expiration of the Study Period, then Brandywine OP shall be deemed to have
waived its right to terminate this Agreement pursuant to this SECTION 2.4.
(b) Xxxxxxxx has delivered or made available at the Property the
following to Brandywine OP:
(1) Copies of all Leases in effect as of the date of this
Agreement, together with, to the extent in Xxxxxxxx' possession or
reasonably available to Xxxxxxxx, copies of all correspondence
received from or sent to tenants of the Property.
(2) a Rent Roll (herein so called) certificate (with current
rent roll and accounts receivable report attached) for the Property
containing the following information with respect to each Lease: (i)
a description of the space occupied thereby (including square feet,
type of space, floor and tenant's pro rata share of common elements),
(ii) tenant's name, (iii) the commencement date and expiration date
thereof, (iv) the rental rate per square foot, (v) the amount of
fixed monthly rental, (vi) the amount of any percentage or other
additional rental and/or common area maintenance, tax, insurance and
operating expenses and any other charges payable thereunder and, if
applicable, the base year used in each Lease, (vii) the amount of any
prepayment in rental, (viii) the amount of the security deposit or
any other deposit thereunder, (ix) any free rent, concessions,
rebates, refunds, refurbishment allowances or other inducements which
any tenant will be entitled to receive after December 31, 2000
(including, without limitation, any of the foregoing that may be
payable in connection with renewals, extensions or expansions
expressly contemplated in any of such Leases), (x) any options
provided thereunder, including, without limitation, any renewal
options, expansion options, purchase options and rights of first
refusal and (xi) delinquency in rental or other charges set forth in
the attached accounts receivable report.
(3) To the extent in Xxxxxxxx' possession or reasonably
available to Xxxxxxxx, 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
11
the Property. For the purpose of this Agreement any Submission
Matters in the possession of Xxxxxxxx or Xxxxxxxx' management company
shall be deemed to be "reasonably available to Xxxxxxxx."
(4) To the extent in Xxxxxxxx' possession or reasonably
available to Xxxxxxxx: (X) operating statements showing all income
and expenses, profits and losses of the Property for the previous
three (3) calendar years, which shall reflect (i) ad valorem taxes
for the City, County and State or Commonwealth; (ii) expenses
incurred for such period for water, electricity, natural gas and
other utility charges; (iii) other operating expenses; (iv) total
rents collected from tenants for such periods; and (v) other revenue
collected and nature of such revenue; and (Y) financial statements
for the Property for the previous three (3) calendar years,
including, if available, the reports of accountants thereon.
(5) Operating and capital expenditure budgets for the current
calendar year and, to the extent in Xxxxxxxx' possession or
reasonably available to Xxxxxxxx, for the previous three (3) calendar
years.
(6) All existing surveys and title policies for the Property
that are reasonably available to Xxxxxxxx.
(7) A complete list of all Operating Agreements and leasing
commission agreements relating to the Property in effect as of the
date of this Agreement and complete copies of all such Operating
Agreements and leasing commission agreements.
(8) A complete list of all Tangible Personal Property.
(9) To the extent in Xxxxxxxx' possession or reasonably
available to Xxxxxxxx, any information in Xxxxxxxx' possession or
reasonably available to Xxxxxxxx regarding current renditions or
assessments on the Property or notices relative to change in
valuation for ad valorem taxes.
(10) A complete list of all Warranties and Guaranties in effect
as of the date of this Agreement and complete copies of all such
Warranties and Guaranties.
(11) 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 Xxxxxxxx' possession or reasonably
available to Xxxxxxxx, 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.
(12) If in Xxxxxxxx' possession or reasonably available to
Xxxxxxxx, 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.
12
(13) If in Xxxxxxxx' possession or reasonably available to
Xxxxxxxx, copies of as-built plans and specifications for the
Property.
(14) Parking, structural, mechanical or other engineering reports
or studies related to the Property, if any, in Xxxxxxxx' possession
or reasonably available to Xxxxxxxx.
(15) To the extent in the possession of Xxxxxxxx or any affiliate
of Xxxxxxxx or Xxxxxxxx' property manager, copies of credit reports
and financial information on all tenants in possession of any of the
Property and of any guarantors of such tenants' obligations.
(16) Copies of all approvals from any owners associations having
jurisdiction over the Real Property and copies of all correspondence
from any such owners association.
(17) Copies of the Existing Notes, Existing Liens and copies of
any uncured notices of default or event of default from the holder(s)
of the Existing Notes.
(18) A copy of each Ground Lease, and all amendments thereto.
(19) Copies of the Partnership Agreements and the organizational
documents and minute books of each of Southpoint Inc. and
Valleybrooke Inc., and financial statements and tax returns for each
of the Partnerships, Southpoint Inc. and Valleybrooke Inc. for the
years 1998, 1999 and 2000, to the extent reasonably available to
Xxxxxxxx.
(20) Copies of all Insurance Policies in effect, together with
the name and telephone number of either a contact person at each
insurance company or the insurance broker involved with the issuance
of the Insurance Policies.
Any reference to a document or information being in the possession of
Xxxxxxxx or similar phrase shall be construed to include documents or
information currently in the possession of any of the Partnerships or
Corporations.
During the Study Period and thereafter until the Closing, Xxxxxxxx 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 Partnerships, Southpoint Inc.,
Valleybrooke Inc. and the Property which come into Xxxxxxxx' possession or
control or are otherwise reasonably available to Xxxxxxxx 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 Xxxxxxxx hereby agrees to deliver, to the extent
reasonably 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.
13
(c) Brandywine OP shall indemnify and defend Xxxxxxxx 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) On or before 5:00 p.m. Dallas, Texas time on the date that is
five (5) days after the date of this Agreement, Xxxxxxxx shall deliver to
Brandywine OP, at Xxxxxxxx' sole cost and expense, the most recent Surveys of
the Land and the Improvements for all of the Land and Improvements which
constitute the Property, which are in the possession of Xxxxxxxx. Such Surveys
shall have been prepared by a Surveyor(s) licensed to practice in the State
where the Property is located. During the Study Period, Brandywine OP shall have
the right to update such Surveys, at Brandywine OP's sole cost. On or before the
Closing Date, Brandywine OP shall cause the Title Company to furnish to
Brandywine OP, at Xxxxxxxx' sole cost and expense, (i) a title insurance
commitment bearing an effective date subsequent to the date of this Agreement
issued by the Title Company covering the Real Property, binding the Title
Company to issue a ALTA Form Owner's Policy of Title Insurance, showing title to
be held currently by the Partnerships in a good, indefeasible and insurable
condition, together with legible copies of all documents identified in such
title insurance commitment as exceptions to title certified as true and complete
by the Title Company (collectively, the "TITLE COMMITMENT"), and (ii) reports of
searches of the Uniform Commercial Code records of both the county and State in
which the Property is located (collectively, the "UCC REPORTS") with respect to
the state of title to the Property. Prior to the expiration of the Study Period,
Brandywine OP shall notify Xxxxxxxx of any matters shown on the Survey or
identified in the Title Commitment or the UCC Reports that Brandywine OP is
unwilling to accept (collectively, "BRANDYWINE OP'S OBJECTIONS"); however,
Brandywine OP may not object to any Ground Lease, the Existing Notes and
Existing Liens. 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, Xxxxxxxx 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.
Xxxxxxxx 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 Xxxxxxxx agrees to cure such non-monetary
Brandywine OP's Objections as hereinafter provided. Xxxxxxxx shall notify
Brandywine OP on or before the Closing Date whether Xxxxxxxx agrees to cure such
non-monetary Brandywine OP's Objections. If Xxxxxxxx notifies Brandywine OP in
writing on or before the Closing Date that Xxxxxxxx agrees to cure such
non-monetary Brandywine OP's Objections, Xxxxxxxx shall correct such
non-monetary Brandywine OP's Objections on or before the Closing Date to the
reasonable satisfaction of Brandywine OP. If Xxxxxxxx does not notify Brandywine
OP on or before the Closing Date of its agreement to cure such non-monetary
Brandywine OP's Objections, Xxxxxxxx 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
14
(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. Xxxxxxxx shall not, after the date of this Agreement, permit
the Partnerships to 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. The Existing Notes, Existing Liens, each Ground Lease and all title
matters revealed by the Title Commitment, UCC Reports and Survey and not
objected to by Brandywine OP as provided above (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 close the transactions
described in this Agreement if title to the Real Property on the Closing Date is
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 any of the Partnerships' acts or
omissions, then, unless Xxxxxxxx notifies Brandywine OP in writing by the
Closing Date that Xxxxxxxx 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 Xxxxxxxx, 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.
XXXXXXXX' REPRESENTATIONS AND WARRANTIES
To induce Brandywine OP to enter into this Agreement and to acquire the
Assigned Partnership Interests, Xxxxxxxx makes the following representations and
warranties with respect to the Property, the Partnerships and the Corporations,
as applicable, upon each of which Xxxxxxxx acknowledges and agrees that
Brandywine OP is entitled to rely and has relied:
3.1 ORGANIZATION AND POWER. Xxxxxxxx is a limited partnership duly
formed, validly existing and in good standing under the laws of the State of
Delaware, is duly qualified to transact business in the Commonwealth of
Pennsylvania and State of Delaware, 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 and under any document or instrument required to be executed and
delivered on behalf of Xxxxxxxx hereunder. PPL is a corporation duly formed,
validly existing and in good standing under the laws of the State of Delaware,
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 and under any document
or instrument required to be executed and delivered on behalf of PPL hereunder.
15
3.2 AUTHORIZATION, EXECUTION AND DISCLOSURE. This Agreement has been duly
authorized by all necessary action on the part of Xxxxxxxx and PPL, has been
duly executed and delivered by Xxxxxxxx and PPL, constitutes the valid and
binding agreement of Xxxxxxxx and PPL 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 consents of the holders of the
Existing Notes, there is no other person or entity who has an ownership interest
in the Property, the Partnerships or the Corporations or whose consent is
required in connection with Xxxxxxxx' or PPL's performance of its obligations
hereunder which has not been obtained. The person executing this Agreement on
behalf of Xxxxxxxx and PPL has the authority to do so. Neither Xxxxxxxx nor PPL
has or will intentionally conceal any information regarding the Partnerships,
the Corporations or the Property.
3.3 NON-CONTRAVENTION. The execution and delivery of, and the performance
by Xxxxxxxx of its obligations under, this Agreement do not and will not (a)
contravene, or constitute a default under, any provision of (i) Xxxxxxxx'
Organizational Documents, the articles of incorporations and bylaws of PPL, the
articles of incorporation and bylaws of the Corporations, or any of the
Partnership Agreements, (ii) applicable law or regulation or any agreement,
judgment, injunction, order, decree or other instrument binding upon Xxxxxxxx or
to which the Property is subject, the result of which could have a material
adverse effect on either the value of the Property or Xxxxxxxx' ability to
assign the Assigned Partnership Interests to Brandywine OP (or its designee)
and/or Xxxxxxxx' ability to perform its obligations under this Agreement, or
PPL's ability to transfer the Purchased Stock to Brandywine OP (or its designee)
and or PPL's ability to perform its obligations under this Agreement, or (iii)
result in the creation of any lien or other encumbrance on any asset of
Xxxxxxxx, PPL, any of the Partnerships or the Corporations. There are no
outstanding agreements (written or oral) pursuant to which Xxxxxxxx, any of the
Partnerships or the Corporations (or any predecessor to or representative of
Xxxxxxxx) 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. Xxxxxxxx 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 Xxxxxxxx'
knowledge, each of the Partnerships possesses all Authorizations, 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. Neither Xxxxxxxx,
nor, to Xxxxxxxx' knowledge, either any of the Partnerships or the Corporations,
has received any notice within the past three years, 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 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. Except for the Existing Liens, all of the Personal
Property owned by the Partnerships is free and clear of all liens and
encumbrances except for those which
16
will be discharged by Prentiss at Closing, and each of the Partnerships has good
and merchantable title thereto.
3.7 OPERATING AGREEMENTS. There are no management, service, supply,
maintenance, employment or other contracts in effect with respect to the
Property, the Partnerships or the Corporations of any nature whatsoever, written
or oral, other than the Assumed Operating Agreements and the Operating
Agreements to be terminated pursuant to the last sentence of this SECTION 3.7.
To Xxxxxxxx' knowledge, each of the Partnerships and each of the Corporations
has performed all of its respective obligations under each of the Assumed
Operating Agreements in all material respects and no fact or circumstance has
occurred which, by itself or with the passage of time or the giving of notice or
both, would constitute a default under any of the Assumed Operating Agreements.
To Xxxxxxxx' knowledge, all other parties to the Assumed Operating Agreements
have performed all of their obligations thereunder in all material respects, and
are not in default thereunder in any material respect. Neither Xxxxxxxx, the
Partnerships nor the Corporations has received any notice of any intention by
any of the parties to any of the Assumed Operating Agreements to cancel the
same, nor has Xxxxxxxx, the Partnerships or the Corporations canceled any of
same. At the written request or Brandywine OP, Xxxxxxxx shall cause any
Operating Agreements designated by Brandywine OP which are terminable without
penalty to be terminated as of the Closing Date.
3.8 CONDEMNATION PROCEEDINGS; ROADWAYS. Xxxxxxxx has received no notice
of any condemnation or eminent domain proceeding pending or, to Xxxxxxxx'
knowledge, no such action is threatened, against the Property or any part
thereof. Xxxxxxxx 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 Xxxxxxxx to be threatened against or affecting Xxxxxxxx, any
of the Partnerships or the Corporations 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 Xxxxxxxx or any of the Partnerships or any of
the Corporations 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 Xxxxxxxx, any of the Partnerships, any of the
Corporations or the Property, (c) is reasonably likely to materially and
adversely affect the ability of Xxxxxxxx to perform its obligations hereunder,
or under any document to be delivered pursuant hereto, or the ability of the
Partnerships or the Corporations to own and operate their respective Property,
(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 any of the Partnerships, the Corporations or 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
Xxxxxxxx, any of the Partnerships or the Corporations.
3.11 HAZARDOUS SUBSTANCES. To Xxxxxxxx' knowledge, neither any of the
Partnerships. the Corporations nor any previous owner, tenant, occupant or user
of the Property, nor any other
17
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 Xxxxxxxx' knowledge, no Hazardous Materials have migrated from or to
the Property upon, about, or beneath other properties in violation of any
Environmental Requirements. To Xxxxxxxx' knowledge, neither the Property nor its
existing or prior uses fail or failed to materially comply with Environmental
Requirements. Xxxxxxxx has no knowledge of any permits, licenses or other
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. To Xxxxxxxx' knowledge, neither any of the Partnerships, the
Corporations 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 any of the Partnerships or the
Corporations (or Brandywine OP after Closing) may be liable. To Xxxxxxxx'
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 Xxxxxxxx' 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 Xxxxxxxx' knowledge, there are no underground or above
ground chemical treatment or storage tanks, or gas or oil xxxxx are located on
the Property. The representations and warranties made by Xxxxxxxx in this
SECTION 3.11 shall be subject to the matters disclosed in the environmental
reports delivered by Xxxxxxxx to Brandywine OP pursuant to SECTION 2.4(b)(12)
hereof.
3.12 PARTIES IN POSSESSION. There are no parties in possession of the
Property except for tenants under written leases, copies of which will be
delivered to Brandywine OP pursuant to the terms hereof.
3.13 LEASES. There are no leases, concessions or occupancy agreements in
effect with respect to the Real Property other than the Leases listed on the
Rent Roll attached as SCHEDULE 3.13; and SCHEDULE 3.13 attached hereto is a
complete and correct list of all Leases in effect on the date of this Agreement.
Neither Xxxxxxxx nor the Partnerships has sent out any written notice of any
default to any tenant under any Lease which has not been cured, except as set
forth on SCHEDULE 3.13. To Xxxxxxxx' knowledge, each of the Partnerships has
performed all obligations required of it under all of the Leases and there
remain no unfulfilled obligations of any of the Partnerships under the Leases,
the nonperformance of which could entitle a tenant to damages under such Lease
or could cause any of the Partnerships to be in default under such Lease. Except
as shown on SCHEDULE 3.13, no tenant has given written notice to any of the
Partnerships of its intention to institute litigation with respect to any Lease
that has not been dismissed, and Xxxxxxxx has not been served with a citation
notifying any of the Partnerships of any litigation with respect to any Lease
that has not been dismissed. None of the Leases and none of the rents or other
amounts payable thereunder have been assigned, pledged or encumbered except for
(a) any assignments, pledges or encumbrances which will be fully released on or
before the Closing Date, and (b) the Existing Liens. The Rent Roll is true,
correct and complete in all material respects as of the date shown in the Rent
Roll and, to Xxxxxxxx'
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knowledge, there has been no material adverse change with respect to any of the
items shown on the Rent Roll during the period from the date thereof to the date
of this Agreement, except as shown thereon.
3.14 LEASED PROPERTY. To Xxxxxxxx' knowledge, all leases of the Leased
Property, if any, are in good standing and free from default.
3.15 NO UNPAID CHARGES; FINANCIAL STATEMENTS. Subject to SECTION 7.8
hereof, 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, or for which
Brandywine OP will be responsible or which will be due upon the initial
occupancy of vacant space (such as water or sewer connection or tap-in fee). The
financial statements and tax returns of the Partnerships and the Corporations
delivered pursuant to SECTION 2.4(b)(20) were true, correct and complete in all
material respects as of the respective dates thereof.
3.16 CONDITION OF IMPROVEMENTS. Neither Xxxxxxxx, any of the Partnerships
nor any of the Corporations has received any written notice, from any third
party alleging that (a) any of the Improvements (i) are defective in design or
construction, (ii) are not in operating condition and a satisfactory state of
repair, or (iii) have roof leaks, (b) any mechanical systems are not in
reasonable working order and repair, or (c) any of the Partnerships or
Corporations has failed to operate the Property in a commercially reasonable
manner consistent with a modern office building; provided, however, the
foregoing representation and warranty as to notices received shall not include
any representation or warranty as to notices concerning the aesthetic or other
subjective quality of the design of the Property or any system, element or
component thereof and no representation or warranty shall be deemed made as to
any defect disclosed in any property condition report obtained by Brandywine OP
in connection with the Property.
3.17 ACCESS. Xxxxxxxx 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.
3.18 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, any of the
Partnerships or the Corporations 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, none of the Partnerships is 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.
3.19 NONE OF THE PARTNERSHIPS NOR XXXXXXXX IS A "FOREIGN PERSON". None of
the Partnerships nor Xxxxxxxx is a "FOREIGN PERSON" within the meaning of
Section 1445 of the Internal Revenue Code, as amended (i.e., neither the
Partnerships nor Xxxxxxxx is 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).
19
3.20 LEASING COMMISSIONS. No brokerage or leasing commissions or other
fees or compensation are due or payable, or which will become due and payable as
a result of agreements in place, to any person, firm, corporation or other
entity with respect to or on account of any of the Leases or any extension or
renewals thereof, except as set forth on SCHEDULE 3.20 OR 6.4(g) hereof.
3.21 OTHER AGREEMENTS. 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, other than
buy/sell provisions in the Partnership Agreements.
3.22 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, other than the Existing Notes and the Existing
Liens. None of the Partnerships is in default under the Existing Notes or the
Existing Liens, to Xxxxxxxx' knowledge, no event has occurred which, with the
passage of time or the giving of notice, or both, would constitute a default
thereunder, and EXHIBIT E is true, accurate and complete in all material
respects.
3.23 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 Xxxxxxxx
as of Closing. There are no labor disputes pending, nor to the best of Xxxxxxxx'
knowledge, contemplated pertaining to the operation or maintenance of the
Property, or any part thereof. Neither Xxxxxxxx, any of the Partnerships nor the
Corporations has any 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.
3.24 ADDITIONAL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE
PARTNERSHIPS.
(a) Each of the Partnerships is a limited partnership duly organized
and validly existing under the laws of the Commonwealth of Pennsylvania, and
each of the Partnerships is in good standing in such state;
(b) The Partnership Agreements delivered pursuant to SECTION
2.4(b)(20) are true and correct copies of the agreements of limited partnership
of the Partnerships, as amended through the date hereof. The Partnership
Agreements list all existing Partners (individually, a "PARTNER" and
collectively, the "PARTNERS") of the Partnership; and the Partnership Agreements
accurately list the percentage ownership interests of Xxxxxxxx in each of the
Partnerships; however, in making the foregoing representation and warranty,
Xxxxxxxx has assumed that neither Xxxxxx nor Xxxxxx has assigned or encumbered
any of their respective partnership interests in the Partnerships. Xxxxxxxx is
the sole owner of the partnership interests shown on such books and in the
Partnership Agreements as being owned by Xxxxxxxx, free and clear of all liens
and encumbrances. The partnership interests issued by the Partnerships have been
issued in compliance with the Partnership Agreements, and such interests were
not issued in violation of any federal or state securities laws;
20
(c) As of the date hereof, the capital account of each of the
Partners in the Partnerships is as set forth on EXHIBIT H and none of the
Partners has been asked to make a capital contribution to any of the
Partnerships other than capital contributions that have been made in full as of
the date hereof;
(d) There are no equity, revenue, cash flow, profit or other
participations or similar rights which apply to the Partnerships except as set
forth in the Partnership Agreements;
(e) Except as provided in the Partnership Agreements, there are no
rights, subscriptions, options, rights of first refusal, conversion rights or
other agreements to purchase or to otherwise acquire any securities or
obligations of any kind convertible into any partnership interest or other
equity interests or participation interests in any Partnerships except for those
rights created by the put/call agreements to be assigned by Xxxxxxxx pursuant to
the Assignment of Put/Call Agreements; and
(f) None of the Partnerships has engaged in any business other than
the ownership, development, leasing and management of the Property, and none of
the Partnerships has any subsidiaries or has ever owned stock, shares or
interests of any kind whatsoever in any entity.
(g) Xxxxxxxx shall cause each of the Partnerships to make the
election provided under Section 754 of the Internal Revenue Code of 1986, as
amended, if requested by Brandywine OP or its designee at any time after the
Closing Date. Brandywine OP may make such request for one or more of the
Partnerships without being required to make such request for all of the
Partnerships.
3.25 REPRESENTATIONS AND WARRANTIES OF PPL. To induce Brandywine OP to
induce to enter into this Agreement and to acquire the Purchased Stock, PPL and
Xxxxxxxx make the following representations and warranties, jointly and
severally, with respect to the Ground Lease, Valleybrooke Inc. and Southpoint
Inc., upon each of which PPL and Xxxxxxxx acknowledge and agree that Brandywine
OP is entitled to rely and has relied:
(a) Each of Southpoint Inc. and Valleybrooke Inc. is duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania;
(b) The authorized equity securities of each of Southpoint Inc. and
Valleybrooke Inc. consist solely of 1,000 shares of each such corporation, of
which 100 shares are issued and outstanding for each such corporation (the
"OUTSTANDING SHARES"). The Outstanding Shares are duly authorized, validly
issued, fully paid and nonassessable. PPL is the record and beneficial owner of,
and has good title to, eighty-nine (89) shares of each of Southpoint Inc. and
Valleybrooke Inc., free and clear of all liens, claims, security interests,
assignments, options, voting trusts, proxies, voting agreements, understandings
or arrangements with respect to voting, and adverse claims to title of any kind
or character. Except for the Option Agreement, there are no outstanding
subscriptions, options, warrants, calls or rights of any kind relating to or
providing for the issuance, sale, delivery or transfer of securities of any
class of either Southpoint Inc. or Valleybrooke Inc.;
21
(c) Except for the liabilities or obligations shown in the financial
statements of Southpoint Inc. and Valleybrooke Inc. delivered pursuant to
SECTION 2.4(b)(20) hereof, neither of such corporations has any liabilities or
obligations, other than liabilities accrued and discharged in such Corporations'
ordinary course of business. The financial statements and tax returns of
Southpoint Inc. and Valleybrooke Inc. delivered pursuant to SECTION 2.4(b)(20)
were true, correct and complete in all material respects as of the respective
dates thereof;
(d) Neither Southpoint Inc. nor Valleybrooke Inc. is a "FOREIGN
PERSON" within the meaning of Section 1445 of the Internal Revenue Code, as
amended;
(e) Neither Southpoint Inc. nor Valleybrooke Inc. has engaged in any
business or activities other than the business of owning the real property
described in each Ground Lease;
(f) The articles of incorporation, bylaws and minute books of each of
Southpoint Inc. and Valleybrooke Inc. delivered pursuant to SECTION 2.4(b)(20)
hereof are true and complete copies thereof; and
(g) Each Ground Lease is valid and in full force and effect. No
Ground Lessor is in default under any Ground Lease; to PPL's knowledge, no event
has occurred which, with the passage of time or the giving of notice, or both,
would constitute a default under any Ground Lease; and EXHIBIT B is a true,
accurate and complete description, in all material respects, of each Ground
Lease and all amendments thereto.
3.26 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 ANY DOCUMENTS EXECUTED IN CONNECTION
HEREWITH, NEITHER XXXXXXXX, PPL NOR ANY AGENT, ATTORNEY, EMPLOYEE OR
REPRESENTATIVE OF XXXXXXXX OR PPL HAS MADE ANY REPRESENTATION WHATSOEVER
REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, OR ANY PART THEREOF, 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 ASSIGNED PARTNERSHIP INTERESTS
AND PURCHASED STOCK "AS IS," AS OF THE DATE HEREOF AND INDIRECT INTERESTS IN THE
PROPERTY. IN ADDITION, EXCEPT AS SET FORTH HEREIN, XXXXXXXX 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.
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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 Xxxxxxxx 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. Brandywine OP
shall be deemed to have actual knowledge of the untruth or inaccuracy of any
representation or warranty only if (i) Brandywine OP receives written notice
from Xxxxxxxx satisfying the foregoing requirements, or (ii) Xxxxxx X. Xxxxxxx,
Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx or Xxxx X. Xxxxxxxx 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
Xxxxxxxx.
If any of Xxxxxxxx' or PPL's 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 or any of the
subject matter thereof, or the ownership of the Assigned Partnership Interests
or the Purchased Stock, Brandywine OP shall inform Xxxxxxxx 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
Xxxxxxxx or PPL breaches any representation or warranty made by Xxxxxxxx or PPL
and if prior to Closing Brandywine OP notifies Xxxxxxxx or PPL that it elects to
terminate this Agreement on account of such breach, Xxxxxxxx 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 XXXXXXXX' KNOWLEDGE" or similar phrase shall mean the knowledge of
Xxxxxxxx' chief executive officer, general counsel, chief financial officer,
Xxxx Xxxxxxxxxxx, Xxxxx Xxxxxxxx and the current building engineer, property
manager and leasing agent (collectively, "XXXXXXXX' PERSONNEL WITH KNOWLEDGE")
for the Property and such inquiry shall include the direction by Xxxxxxxx to
such persons to review all files in their possession relating to the operation,
ownership, maintenance and management of the Property. Xxxxxxxx covenants that
if prior to Closing Xxxxxxxx obtains actual knowledge that any of the facts
represented and warranted by Xxxxxxxx under this Agreement are or become untrue
or inaccurate in any material respect, it will promptly inform Brandywine OP in
writing of its discovery.
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Xxxxxxxx' Personnel with Knowledge shall not have any personal liability under
this Agreement in their respective capacities as officers and/or directors of
Xxxxxxxx.
ARTICLE IV.
BRANDYWINE OP'S REPRESENTATIONS AND WARRANTIES
To induce Xxxxxxxx and PPL to enter into this Agreement and to assign the
Assigned Partnership Interests and Purchased Stock, Brandywine OP hereby makes
the following representations and warranties, upon each of which Brandywine OP
acknowledges and agrees that Xxxxxxxx and PPL 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 Assigned Partnership Interests and Purchased Stock
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.
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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) XXXXXXXX' AND PPL'S DELIVERIES. Xxxxxxxx and PPL 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 Xxxxxxxx pursuant to
SECTIONS 7.2 AND 7.4 hereof.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS; OBLIGATIONS OF
XXXXXXXX AND PPL; CERTIFICATE. All of Xxxxxxxx' and PPL'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;
Xxxxxxxx and PPL shall have performed in all material respects all of their
respective covenants and other obligations under this Agreement; and Xxxxxxxx
and PPL 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) CONDITION OF IMPROVEMENTS. The Improvements and the Tangible
Personal Property (including but not limited to the mechanical systems,
plumbing, electrical, wiring, fixtures, heating, air conditioning and
ventilating equipment, elevators, boilers, equipment, roofs, structural members
and furnaces) shall be in the same condition at Closing as they are as of the
date hereof, reasonable wear and tear excepted. None of the Partnerships shall
have removed or caused or permitted to be removed any part or portion of the
Real Property or the Tangible Personal Property without Brandywine OP's prior
written consent unless the same is replaced, prior to Closing, with a similar
item of at least equal suitability, quality and value, free and clear of any
lien or security interest.
(e) UTILITIES. All of the Utilities shall be installed in and
operating at the Property, and service shall be available for the removal of
garbage and other waste from the Property.
(f) DUE DILIGENCE MATERIALS. All rent rolls, lists, schedules and
other documents furnished by Xxxxxxxx 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 Xxxxxxxx or PPL or Brandywine
OP otherwise had actual knowledge prior to the end of the Study Period.
(g) NO ADDITIONAL PROCEEDINGS; TENANT DEFAULTS. Except for matters as
to which Brandywine OP was given written notice by Xxxxxxxx or otherwise had
actual knowledge prior to the end of the Study Period, on the Closing Date,
there shall be no (a) litigation pending
25
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, (iv) to enjoin the
violation of any law, rule, regulation, restrictive covenant or zoning ordinance
that may be applicable to the Property, or (v) claiming defaults or other
liability of any of the Partnerships under Leases by tenants leasing five
percent (5%) or more of the rentable square feet of the Improvements, in the
aggregate or (b) monetary default in excess of thirty (30) days for which a
written notice of default has been given to a tenant and which constitutes an
event of default under, and as defined in, the applicable Lease, or any
threatened or reasonably anticipated material default or other material default
by tenants leasing five percent (5%) or more of the rentable square feet of the
Improvements, in the aggregate.
(h) ESTOPPEL LETTERS. The estoppel letters to be delivered at Closing
pursuant to SECTION 7.2(h) hereof shall have been obtained and delivered and
shall reflect no facts at material variance with the facts disclosed on the Rent
Roll and records provided to Brandywine OP during the Study Period.
(i) LENDER ESTOPPEL LETTERS. The lender consent and estoppel letters
to be delivered at Closing pursuant to SECTION 7.2(w) hereof shall have been
obtained and delivered and shall reflect no facts at material variance with the
facts represented and warranted by Xxxxxxxx to Brandywine OP hereunder.
(j) GROUND LESSOR ESTOPPEL LETTERS. Estoppel letters from each Ground
Lessor pursuant to SECTION 7.2(w) hereof.
(k) ASSIGNMENT OF STOCK BY SHAREHOLDERS. PPL shall have caused the
Shareholders to have transferred to Brandywine OP (or its designee), for no
payment by Brandywine OP, the eleven (11) shares of outstanding common stock in
each of Southpoint Inc. and Valleybrooke Inc., free and clear of all liens,
claims and security interests.
(l) ESTOPPEL LETTER FROM XXXXXX AND XXXXXX. The estoppel letter from
Xxxxxx and Xxxxxx pursuant to SECTION 7.2(s).
(m) OTHER ESTOPPEL LETTERS. Estoppel letters described in SECTION
7.2(t) hereof.
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 XXXXXXXX' OBLIGATIONS. Xxxxxxxx' 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 Xxxxxxxx, 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
26
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
Xxxxxxxx and may be waived in whole or in part, by Xxxxxxxx, but only by an
instrument in writing signed by Xxxxxxxx.
ARTICLE VI.
COVENANTS OF XXXXXXXX
To induce Brandywine OP to enter into this Agreement and to acquire the
Assigned Partnership Interests and the Purchased Stock, and to pay the Purchase
Price therefor, Xxxxxxxx and PPL, as applicable, covenant and agree to the
following:
6.1 OPERATING AGREEMENTS. Xxxxxxxx shall not permit, prior to the
Closing, any of the Partnerships or the Corporations to enter into any new
management agreement, maintenance or repair contract, supply contract, lease in
which any of the Partnerships or the Corporations is lessee or other agreements
with respect to the Property which cannot be terminated on or before the Closing
Date, nor shall Xxxxxxxx permit any of the Partnerships or the Corporations to
enter into any agreements modifying the Operating Agreements in any material
respect, unless (a) any such agreement or modification will not bind the
Partnerships, the Corporations, Brandywine OP or the Property after the date of
Closing or (b) Xxxxxxxx has obtained Brandywine OP's prior written consent to
such agreement or modification. Xxxxxxxx agrees to cause the Partnerships and
the Corporations to cancel and terminate effective as of the Closing Date all
property management agreements affecting the Property or any portion thereof and
the Operating Agreements to be terminated pursuant to the last sentence of
SECTION 3.7 hereof.
6.2 WARRANTIES AND GUARANTIES. Xxxxxxxx shall not permit, prior to the
Closing, any of the Partnerships or the Corporations before or after Closing to
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, Xxxxxxxx shall cause the
Partnerships and the Corporations to pay all premiums on, and shall not cancel
or voluntarily allow to expire, any of Xxxxxxxx' 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. Xxxxxxxx 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. Xxxxxxxx and Brandywine OP
represent, warrant, covenant and agree with Brandywine OP that, between the date
of this Agreement and the date of Closing:
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(a) Subject to the restrictions contained herein, Xxxxxxxx shall
cause the Partnerships to operate the Property in the same manner in which the
Partnerships 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) Xxxxxxxx shall cause the Partnerships to maintain their
respective 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 such books in prior years.
(c) Xxxxxxxx shall cause the Partnerships to maintain in full force
and effect all Insurance Policies.
(d) Xxxxxxxx shall cause the Partnerships to punctually perform and
discharge all obligations and undertakings of the Partnerships under the Leases
and shall not permit a default by the Partnerships to occur thereunder.
(e) Xxxxxxxx shall cause the Partnerships to use and operate the
Property in compliance with Applicable Laws and the requirements of any
mortgage, ground lease, Lease, Operating Agreement and Insurance Policy
affecting the Property.
(f) Xxxxxxxx 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.
(g) Without the express prior written consent of Brandywine OP (which
consent shall not be unreasonably withheld and shall be deemed to have been
given if Brandywine OP fails to respond to a written request from Xxxxxxxx for
such consent within two (2) business days following Brandywine OP's receipt of
any such request), none of the Partnerships shall: (i) enter into new Leases of
any kind or nature affecting the Property; or (ii) grant a renewal or extension
of any existing Lease, or consent to any assignment, sublease or expansion of
any existing lease or portion thereof which, by the terms of any such Lease,
requires any of the Partnerships' prior consent as a condition to any such
renewal, extension, assignment, sublease or expansion. Xxxxxxxx shall not permit
any of the Partnerships, without the express written consent of Brandywine OP,
in any manner to change, modify, extend, renew or terminate any Lease except as
required by the terms thereof, or waive in any material respect any of the
tenant's obligations under any Lease; provided, Leases with Xxxxxxxx' management
company may be terminated on or before the Closing Date without the prior
consent of Brandywine OP. Xxxxxxxx shall not permit any of the Partnerships to
apply all or any part of the security or damage deposit of a tenant under any
Lease to obligations of such tenant, unless such tenant has vacated its portion
of the Property as of the Closing Date. Notwithstanding the foregoing,
Brandywine OP hereby approves the new Leases which have been entered into by any
of the Partnerships and costs associated therewith, as more particularly
described in SCHEDULE 6.4(g) hereto.
(h) Xxxxxxxx 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.
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(i) Neither Xxxxxxxx, any of the Partnerships, the Corporations nor
Xxxxxxxx' managing agent shall (1) make any agreements which shall be binding
upon Brandywine OP, the Partnerships or the Corporations, or (2) reduce, or
cause to be reduced any rents or any other revenues over which Xxxxxxxx has
operational control.
(j) Xxxxxxxx shall promptly deliver to Brandywine OP upon Brandywine
OP's request such reports showing the revenue and expenses of the Property the
Partnerships and the Corporations as Xxxxxxxx customarily keeps or receives
internally for its own use.
(k) Except as required by the terms thereof or hereof, Xxxxxxxx shall
not permit any of the Partnerships or the Corporations in any manner to change,
modify, extend, renew or terminate any Operating Agreement which would be
binding on Brandywine OP, the Partnerships or the Corporations without the
express written consent of Brandywine OP.
(l) Xxxxxxxx shall promptly advise Brandywine OP of any litigation,
arbitration or administrative hearing concerning or affecting the Property, the
Partnerships or the Corporations of which Xxxxxxxx obtains actual knowledge.
(m) Xxxxxxxx shall cause the Partnerships to keep the Existing Notes
current, shall comply with the terms and provisions of the Existing Notes and
the Existing Liens and shall immediately send Brandywine OP copies of all
correspondence received from any of the holders of the Existing Notes. Xxxxxxxx
shall not permit any of the Partnerships to modify any provisions of the
Existing Notes or the Existing Liens.
(n) PPL shall cause Southpoint Inc. and Valleybrooke Inc. to maintain
each Ground Lease in full force and effect and shall not permit Southpoint Inc.
or Valleybrooke Inc. to enter into any modification or amendment to any Ground
Lease without the prior written consent of Brandywine OP.
6.5 NO MARKETING. Xxxxxxxx shall not permit any of the Partnerships to
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.
6.6 PUT/CALL AGREEMENT. Xxxxxxxx and PPL hereby grant to Brandywine OP
(or its designee) the irrevocable right and option to acquire any or all of the
Retained Interests owned by it, free and clear of all liens and encumbrances, at
any time upon three (3) days prior written notice; provided that in no event may
Brandywine OP (or its designee) exercise its option to acquire less than all of
the Retained Interests owned by Xxxxxxxx in any given Partnership or the common
shares of PPL in each of Southpoint Inc. and Valleybrooke Inc. If Brandywine OP
(or its designee) exercises its purchase option prior to the date that is one
day after the third anniversary of the Closing Date, then the exercise notice
shall contain the agreement of Brandywine OP to pay all Pennsylvania real estate
transfer taxes that may become payable upon the transfer of any or all of such
Retained Interests as a result of the option being exercised prior to such date.
At any time after the date that is one day after the third anniversary of the
Closing Date, Xxxxxxxx may require Brandywine OP (or its designee) to acquire
all and not less than all of the Retained Interests, free and clear of all liens
and encumbrances, at any time upon three (3) days prior written notice. The
aggregate price payable by Brandywine OP (or its designee) for
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the Retained Interests (whether due to the exercise by Brandywine OP of the
purchase option or to the exercise by Xxxxxxxx of the sale option), which shall
be payable in immediately available funds, shall be equal to eleven percent
(11%) of the amount by which the Purchase Price exceeds the outstanding
principal balance of the Existing Notes on the Closing Date (the "AGGREGATE
PRICE") minus the aggregate amount of distributions, if any, made by the
Partnerships to Xxxxxxxx on account of the Retained Interests. Set forth on
SCHEDULE 6.6 attached hereto is an allocation of the Aggregate Price among the
Retained Interests, which shall be applicable in the event that Brandywine OP
exercises its option to acquire less than all of the Retained Interests. In
addition, Xxxxxxxx hereby grants to Brandywine OP (or its designee) the
irrevocable right and option to acquire the entire Additional Retained Interest,
free and clear of all liens and encumbrances, at any time after August 25, 2001,
and Xxxxxxxx agrees to take such actions as may be permitted under the Call
Option Agreement (Cash) dated as of August 25, 1998 (the "Call Agreement") among
Xxxxxx, Xxxxxx and Xxxxxxxx to provide for the acquisition by Brandywine OP (or
its designee) of the entire Additional Retained Interest. In addition,
Brandywine OP hereby agrees to acquire, upon the request of Xxxxxxxx, the entire
Additional Retained Interest, free and clear of all liens and encumbrances, at
any time after August 25, 2001. The price payable by Brandywine OP (or its
designee) to Xxxxxxxx on account of the acquisition by Brandywine OP (or its
designee) of the Additional Retained Interest shall be equal to eleven percent
(11%) of the amount by which the Purchase Price exceeds the outstanding
principal balance of the Existing Notes on the Closing Date and shall be payable
by Brandywine OP pursuant to a promissory note in the form of the Note referred
to in SECTION 1.1 with the exception of the principal amount thereof (which
shall be the foregoing dollar amount) and the fact that interest shall accrue
thereon from the date of issuance thereof. Xxxxxxxx shall pay to Xxxxxx and
Xxxxxx all amounts required to be paid to them under the Call Agreement in
connection with the acquisition of the Additional Retained Interest. The
provisions of this SECTION 6.6 shall survive the Closing Date.
6.7 TAX RETURNS. Xxxxxxxx shall deliver to Brandywine OP, for its review
and comment, copies of federal income tax returns for the Partnerships
attributable to the period from January 1, 2001 to the Closing Date prior to the
date such tax returns are filed with the Internal Revenue Service. Xxxxxxxx
shall be responsible for the costs to prepare the foregoing tax returns.
6.8 GROUND LESSOR ESTOPPELS. Xxxxxxxx shall cause each Ground Lessor to
deliver the estoppel certificates described in SECTION 7.2(w) hereof.
6.9 LEASED PROPERTY. Xxxxxxxx shall be solely responsible for all
obligations relating to the Leased Property, and neither the Partnerships nor
Brandywine OP shall have any obligations with respect thereto. The provisions of
this SECTION 6.9 shall survive the Closing.
The foregoing covenants of Xxxxxxxx and PPL are for the benefit of Brandywine OP
or its assignee of its rights under this Agreement.
ARTICLE VII.
CLOSING
7.1 CLOSING. The Closing shall occur within five (5) days after the
conditions precedent set forth in SECTIONS 5.1 AND 5.2 have been satisfied. As
more particularly described below, at the Closing the parties hereto will meet
to (i) execute all of the documents required to
30
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 release and date, where
appropriate, the Closing Documents in accordance with the joint instructions of
Xxxxxxxx and Brandywine OP and shall send, by wire transfer, all sums, if any,
owing to Xxxxxxxx or Brandywine OP hereunder to Xxxxxxxx or Brandywine OP, as
applicable. At Closing, the Escrow Agent shall additionally send, by wire
transfer to Xxxxxxxx all sums owing to Xxxxxxxx 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. Notwithstanding anything herein to the
contrary, if the Closing Date does not occur by April 30, 2001, and the
provisions of Section 9.3 or 9.5 are not applicable, then either party may
terminate this Agreement by notice to the other party hereto, in which event
neither party shall have any further obligation to the other except for the
indemnities and other provisions of this Agreement which expressly survive a
termination of this Agreement, and the Deposit, less the Independent
Consideration, shall be promptly refunded to Brandywine OP.
7.2 XXXXXXXX' DELIVERIES. At the Closing, Xxxxxxxx or PPL, as applicable,
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 Xxxxxxxx or PPL, as applicable, and shall be dated as of the
Closing Date:
(a) The certificate required by SECTION 5.1(b) hereof.
(b) The Assignment of Partnership Interests.
(c) Intentionally Deleted.
(d) Amendments to each of the certificates of limited partnership for
the Partnerships showing Brandywine OP (or its designee) as the successor to
Xxxxxxxx as a general partner in each of the Partnerships and the withdrawal of
Xxxxxxxx as the general partner of each of the Partnerships with regard to the
Assigned Partnership Interests only (the "AMENDMENTS TO CERTIFICATES OF LIMITED
PARTNERSHIP").
(e) Certificates of subsistence for each of the Partnerships,
Valleybrooke Inc. and Southpoint Inc. and certified copies of the articles of
incorporation for the Corporations and certificates of limited partnership of
each of the Partnerships from the Pennsylvania Secretary of State. Xxxxxxxx
shall deliver certified copies of the bylaws of the Corporations.
(f) An updated certified Rent Roll dated as of the date preceding the
Closing Date.
(g) Either (i) an estoppel letter in the form of EXHIBIT C hereto
dated not more than thirty (30) days prior to the Closing Date (a) from each of
the tenants under the Leases covering 7,500 square feet or more, and (b) from
tenants leasing, in the aggregate, at least
31
seventy-five percent (75%) of the remainder of the Improvements, or (ii) an
estoppel letter executed by Xxxxxxxx certifying to the matters specified in
EXHIBIT C hereto for any tenant which does not execute an estoppel letter. Any
estoppel letter provided by Xxxxxxxx for a Lease pursuant to CLAUSE (ii) above
shall state that Xxxxxxxx shall have no liability thereunder if Xxxxxxxx
subsequently provides to Brandywine OP an estoppel letter in the form of EXHIBIT
C from the tenant under such Lease.
(h) 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, including, without
limitation, a non-imputation endorsement.
(i) 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.
(j) The FIRPTA Certificates.
(k) All original Warranties and Guaranties in Xxxxxxxx' possession or
reasonably available to Xxxxxxxx.
(l) To the extent in Xxxxxxxx' possession or reasonably available to
Xxxxxxxx, a valid, final and unconditional certificate of occupancy for the Real
Property and Improvements, issued by the appropriate Governmental Authority and,
if required by Applicable Laws, transferred to Brandywine OP.
(m) Executed originals of all Leases, leases of Leased Property,
permits and, to the extent in Xxxxxxxx' possession or control, Authorizations
transferred or assigned to Brandywine OP at Closing as required hereunder and
any other documents or instruments affecting the Property or the ownership and
operation thereof.
(n) All current real estate and personal property tax bills in
Xxxxxxxx' possession or under its control.
(o) All books, records, operating reports, appraisal reports, files
and other materials in Xxxxxxxx' 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 Xxxxxxxx to photocopy any of the
matters described in this SUBPARAGRAPH 7.2(O) for a period of three (3) years
following the Closing Date, which covenant of Brandywine OP shall survive for
such three (3) year period.
(p) A current UCC Report showing no financing statements by any of
the Partnerships as Debtor covering the Property, except in favor of the holders
of the Existing Notes.
(q) All keys to all locks on the Property in the possession of
Xxxxxxxx, together with an accounting for such keys in the possession of others.
32
(r) Intentionally deleted.
(s) Certified copies of a incumbency certificate and resolutions
authorizing the execution by Xxxxxxxx and PPL of this Agreement and all
documents to be executed by Xxxxxxxx and PPL on the Closing Date.
(t) Estoppel letters from each owners association 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, and estoppel letters from adjoining property owners who are
parties to adjoining landowner agreements binding on any portion of the Real
Property; provided, Xxxxxxxx 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.
(u) Any other document or instrument reasonably requested by
Brandywine OP in connection with the transactions contemplated hereby.
(v) An estoppel certificate and consent executed by the present
holders of each of the Existing Notes substantially in the form of EXHIBIT F
attached hereto. Any and all fees and charges in connection with obtaining such
written consent or approval (specifically including, but not limited to, loan
transfer fees) shall be at Xxxxxxxx' sole cost and expense.
(w) An estoppel certificate executed by each Ground Lessor in a form
reasonably satisfactory to Xxxxxxxx and Brandywine OP.
(x) Written notice executed by Xxxxxxxx notifying all interested
parties, including, without limitation, all tenants under the Leases, that
Brandywine OP has replaced Xxxxxxxx as general partner of the Partnerships and
directing that all payments, inquiries and the like to the Partnerships be
forwarded to Brandywine OP (as the general partner) at the address to be
provided by Brandywine OP.
(y) The originals of the Assumed Operating Agreements.
7.3 BRANDYWINE OP'S DELIVERIES. At the Closing, Brandywine OP shall
deliver to Escrow Agent the following instruments, each of which shall have been
duly executed and, where applicable, acknowledged and/or sworn on behalf of
Brandywine OP and shall be dated as of the Closing Date:
(a) The Note.
(b) The Assignment of Partnership Interests.
(c) Intentionally Deleted.
(d) The amendments to certificates of limited partnership referred to
in SECTION 7.2(d) above.
33
(e) Any other document or instrument reasonably requested by Xxxxxxxx
or PPL in connection with the transactions contemplated hereby.
7.4 MUTUAL DELIVERIES. At the Closing, Brandywine OP and Xxxxxxxx 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. Xxxxxxxx shall pay
for the costs associated with the releases of any deeds of trust, mortgages and
other financing encumbering the Property that Xxxxxxxx is to cause to be
released pursuant to this Agreement and for any costs associated with any
corrective instruments. Xxxxxxxx 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. PPL
shall pay all costs payable to the Shareholders in connection with the
assignment to Brandywine OP (or its designee) of the shares of common stock in
each of Southpoint Inc. or Valleybrooke Inc. described in SECTION 5.1(l) hereof.
Brandywine OP shall pay one-half (1/2) of any escrow fees or similar charges of
the Escrow Agent. Xxxxxxxx shall pay all prepayment penalties and other costs
and expenses payable in connection with debt which Xxxxxxxx is required to
prepay on the Closing Date, and Xxxxxxxx shall pay all debt transfer and similar
fees associated with the Existing Notes and the Existing Liens and the premium
for a downdate endorsement to loan policies issued to the holders of the
Existing Notes if such endorsements are required by such holders. Xxxxxxxx shall
pay all assessments levied or pending against the Property as of the Closing
Date. To the extent that state and local transfer taxes or stamps are imposed in
connection with the transactions under this Agreement for any reason whatsoever,
the cost of such taxes or stamps shall be borne one-half by Brandywine OP and
one-half by Xxxxxxxx, except that Brandywine OP shall be solely responsible for
such transfer taxes if it elects to exercise its call right under any of the
Put/Call Agreements prior to the date that is three (3) years and one (1) day
following the Closing Date. Brandywine OP shall pay for the premium for the
Title Policy in excess of the sums payable by Xxxxxxxx pursuant to this SECTION
7.5. All other expenses incurred by Xxxxxxxx or Brandywine OP with respect to
the Closing shall be borne and paid for exclusively by the party incurring same,
without reimbursement, except to the extent otherwise specifically provided
herein.
7.6 REVENUE AND EXPENSE ALLOCATIONS. All revenues (including operating
expense escalations) and expenses with respect to the Property, the Corporations
and the Partnerships, and applicable to the period of time before and after
Closing, determined in accordance with sound accounting principles consistently
applied, shall be allocated between Xxxxxxxx and Brandywine OP as provided
herein. Xxxxxxxx shall be entitled to all revenue and shall be responsible for
all expenses for the period of time up to but not including the Closing Date,
and Brandywine OP shall be entitled to all revenue and shall be responsible for
all expenses for the
34
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 Purchase
Price payable by the parties hereto. Without limiting the generality of the
foregoing, the following items of revenue and expense shall be allocated at
Closing:
(a) Current rents.
(b) Real estate and personal property taxes for the Property for the
current calendar year 2001.
(c) Revenue and expenses under the Assumed Operating Agreements.
(d) Utility charges (including, but not limited to, charges for
water, sewer and electricity).
(e) Municipal or other governmental improvement liens, which shall be
paid by Xxxxxxxx at Closing where the work has physically commenced, and which
shall be assumed by Brandywine OP at Closing where the work has been authorized,
but not physically commenced.
(f) All other revenues (including CAM charges) and expenses of the
Property.
(g) Interest on the Existing Notes.
Brandywine OP shall receive a credit for purposes of calculating closing
prorations for the total of (i) prepaid rents and (ii) unforfeited security
deposits together with interest thereon held by any of the Partnerships under
Leases.
The amount of any escrow accounts held by the holder(s) of the Existing Notes
shall be transferred to Brandywine OP by Xxxxxxxx and paid for by Brandywine OP.
Xxxxxxxx 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 Xxxxxxxx on or before the Closing Date. All subdivision and
platting costs and expenses heretofore incurred by Xxxxxxxx or any of the
Partnerships, 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 Xxxxxxxx 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 revenue or expenses at
Closing on the best available information, subject to adjustment upon receipt of
the final xxxx 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 revenue received or expense incurred by
Xxxxxxxx, any of the Partnerships or Brandywine OP with respect to the Property
after the Closing Date shall be
35
promptly allocated in the manner described herein and the parties shall promptly
pay or reimburse any amount due. Xxxxxxxx shall calculate and deliver to
Brandywine OP for its approval and its transmittal to tenants under Leases,
reconciliations of operating costs for the calendar year 2000, and Brandywine OP
shall inform the tenants that Xxxxxxxx prepared such reconciliations and can be
contacted to discuss any questions concerning such reconciliations. The
proration provisions of this Agreement shall survive the closing of the
transaction contemplated hereby for a period of eighteen (18) months.
7.7 DELINQUENT RENTS. Any rents or other amounts which are delinquent as
of the Closing shall not be adjusted or prorated at Closing, but Brandywine OP
shall make a reasonable attempt to collect such amounts for the benefit of
Xxxxxxxx after the Closing; provided, however, that nothing contained herein
shall be construed to require Brandywine OP to institute any lawsuit or other
proceedings to collect such delinquent amounts. In this connection, the first
monies collected by Brandywine OP from tenants or other persons owing delinquent
rents or other amounts shall be applied to Brandywine OP's costs of collection,
then to the current rents or obligations of such person to Brandywine OP, and
the balance, if any, shall be delivered to Xxxxxxxx to the extent of the
delinquency. Xxxxxxxx shall be permitted to bring collection suits against
tenants owing rent to any of the Partnerships for periods prior to the Closing
Date that is more than thirty (30) days in arrears; however, Xxxxxxxx may not
bring any eviction actions against any tenants under any of the Leases.
7.8 COSTS ASSOCIATED WITH CERTAIN LEASING ACTIVITIES. Except as otherwise
expressly set forth in this SECTION 7.8, all refurbishment allowances, tenant
improvement costs and leasing commissions owing or which could become due and
owing with respect to Leases entered into on or before the Closing Date shall be
paid by Xxxxxxxx when due, and Xxxxxxxx shall indemnify and hold harmless
Brandywine OP and the Partnerships for claims brought against the Property, the
Partnerships or Brandywine OP arising therefrom, which indemnity shall survive
the Closing. Notwithstanding the foregoing: (i) Brandywine OP shall pay to
Xxxxxxxx at the Closing an amount equal to the cost of all (x) leasing
commissions paid by Xxxxxxxx, prior to the Closing Date, to brokers other than
affiliates of Xxxxxxxx and (y) capital improvement costs incurred and paid by
Xxxxxxxx prior to the Closing Date in completing tenant improvements pursuant to
(in the case of both (x) and (y)) (a) Leases entered into by any of the
Partnerships on or after January 1, 2001 and other Leases, which are described
on SCHEDULE 6.4(g) or which have been approved or deemed approved by Brandywine
OP pursuant to SECTION 6.4(g); (b) renewals, extensions or expansions of
existing Leases expressly requiring the approval of Xxxxxxxx as a condition to
the exercise of such options which are exercised on or after January 1, 2001,
which either are described on SCHEDULE 6.4(g) or have been approved or deemed
approved by Brandywine OP pursuant to SECTION 6.4(g); and (c) renewals,
extensions or expansions of existing Leases not requiring the approval of
Xxxxxxxx as a condition to the exercise of such options which have been
exercised on or after January 1, 2001; and (ii) Brandywine OP shall be
responsible for refurbishment allowances, tenant improvement costs and leasing
commissions shown in the Rent Roll or contained in Leases delivered pursuant to
SECTION 2.4(b)(1) hereof that have not previously been paid by Xxxxxxxx but are
payable following the Closing Date under existing Leases on or after January 1,
2001 or which are contained in Leases entered into between January 1, 2001 and
the Closing Date which are described on SCHEDULE 6.4(g) or which have been
approved or deemed approved pursuant to SECTION 6.4(g) hereof. The provisions of
this SECTION 7.8 shall survive the Closing Date.
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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, Xxxxxxxx shall give written
notice thereof to Brandywine OP promptly after Xxxxxxxx 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 retained by the
Partnerships at Closing and there shall be no reduction in the Purchase Price.
Xxxxxxxx shall not, and shall not permit the Partnerships or the Corporations
to, settle or compromise any such proceeding without Brandywine OP's written
consent. If Brandywine OP elects to terminate this Agreement by giving Xxxxxxxx
written notice thereof prior to the Closing, the Deposit shall be promptly
returned to Brandywine OP and all rights and obligations of Xxxxxxxx, PPL and
Brandywine OP hereunder (except those set forth herein which expressly survive a
termination of this Agreement) shall terminate immediately.
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 Xxxxxxxx. 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 retained by the
Partnerships 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; provided, however, Xxxxxxxx shall be entitled to retain rent
loss insurance proceeds received that are attributable to periods prior to the
Closing Date. If Brandywine OP elects to terminate this Agreement pursuant to
this SECTION 8.2 by giving Xxxxxxxx written notice thereof prior to the Closing,
the Deposit shall be promptly returned to Brandywine OP and all rights and
obligations of Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx by any real estate
broker, and Brandywine OP shall indemnify Xxxxxxxx and hold Xxxxxxxx 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 Xxxxxxxx or to the Property. In
like manner, Xxxxxxxx warrants and represents to Brandywine OP that Xxxxxxxx has
not dealt with any real estate broker in connection with this
37
transaction, nor has Xxxxxxxx been introduced to Brandywine OP by any real
estate broker, and Xxxxxxxx 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
Xxxxxxxx in connection with this transaction. This provision shall survive any
termination of this Agreement and a closing of the transaction contemplated
hereby.
ARTICLE IX.
LIABILITY OF BRANDYWINE OP; INDEMNIFICATION BY XXXXXXXX;
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 Xxxxxxxx, the Partnerships or the Corporations or
any liability for claims arising out of any act, omission or occurrence which
occurs, accrues or arises prior to the Closing Date (except to the extent such
assumption occurs as a matter of law), and Xxxxxxxx hereby indemnifies and holds
Brandywine OP, the Partnerships and the Corporations 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, the Partnerships and the Corporations as a result of (a)
obligations of Xxxxxxxx (i) not expressly assumed or agreed to be assumed by
Brandywine OP hereunder or (ii) which Brandywine OP is assuming as a matter of
law, but not otherwise expressly assuming hereunder or under any document to be
executed on the Closing Date that relate solely to any act, omission or
occurrence which occurs, accrues or arises prior to the Closing Date, or (b)
acts, omissions or occurrences which occur, accrue or arise prior to the Closing
Date. Brandywine OP hereby indemnifies and holds Xxxxxxxx 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 Xxxxxxxx as a result of acts, omissions or occurrences relating to the
Property, the Partnerships and the Corporation 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 XXXXXXXX. Xxxxxxxx hereby indemnifies and holds
Brandywine OP and Brandywine OP's officers, partners, 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 Xxxxxxxx or PPL of any of its representations,
warranties, covenants or obligations set forth herein or in any other document
delivered by Xxxxxxxx or PPL pursuant hereto except for any breach or inaccuracy
of any representation or warranty as to which Xxxxxxxx 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 Xxxxxxxx' indemnity shall not 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 Brandywine OP,
38
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 XXXXXXXX/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 Xxxxxxxx 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 Xxxxxxxx to have been inaccurate
or misleading when made, then Xxxxxxxx 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
$100,000.00; provided, the foregoing shall not limit or include the sums which
may be payable by Xxxxxxxx pursuant to SECTION 9.6 below, and (iii) all other
rights and obligations of Xxxxxxxx, PPL 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 Xxxxxxxx' and PPL's 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 Xxxxxxxx or PPL (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 Xxxxxxxx or PPL or a failure by Xxxxxxxx
or PPL to perform its respective 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 Xxxxxxxx' or PPL's covenants and obligations and the
remedy of the recovery of all reasonable damages resulting from Xxxxxxxx' or
PPL's 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 Xxxxxxxx or PPL in this Agreement and/or in
any of the other documents executed of even date herewith between Xxxxxxxx and
Brandywine OP or any of their respective affiliates (the "OTHER DOCUMENTS"),
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 $150,000.00 (the "FIRST THRESHOLD
LEVEL"), then neither Xxxxxxxx nor PPL shall have any 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 and under the Other Documents; (ii) if such aggregate damage is
greater than the First Threshold Level but less than $1,500,000.00, then
Xxxxxxxx must prior to the Closing Date either cure such breaches of
representations and warranties to the reasonable satisfaction of Brandywine OP
or Xxxxxxxx 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
39
the aggregate damages resulting from such breaches of representations and
warranties would exceed $1,500,000.00, then Brandywine OP may either (A)
terminate this Agreement and the Other Documents, 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 the
Other Documents and Brandywine OP shall be paid by Xxxxxxxx the amount of
$1,350,000.00, which amount shall be the maximum aggregate amount payable by
Xxxxxxxx and PPL under the last sentence of SECTION 9.3 of this Agreement and
all of the Other Documents.
9.4 INDEMNIFICATION BY BRANDYWINE OP. Brandywine OP hereby indemnifies
and holds Xxxxxxxx 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 Xxxxxxxx, 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 Xxxxxxxx written notice prior to Closing of the
untruth or inaccuracy or of which Xxxxxxxx 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 for the period described in SECTION 10.11 hereof.
9.5 DEFAULT BY BRANDYWINE OP/FAILURE OF CONDITIONS PRECEDENT. If any
condition set forth herein for the benefit of Xxxxxxxx (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 Xxxxxxxx (or such other time period as may be
explicitly provided for herein), Xxxxxxxx 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 Xxxxxxxx, then Xxxxxxxx' 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 perform its obligations 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
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
40
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 supersede 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 Xxxxxxxx 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.
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.
41
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: Brandywine Realty Trust
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxxx, General Counsel
Fax No.: 000-000-0000
If to Xxxxxxxx
and/or PPL: Xxxxxxxx Properties Acquisition Partners, L.P.
0000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn.: J. Xxxxx Xxxxxxx, General Counsel
Fax No.: (000) 000-0000
With a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn.: Xxxxxxx X. Xxxxxx, P.C.
Fax No.: (000) 000-0000
If to Escrow Agent: Chicago Title Insurance Company
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn.: Xxxxx Xxxxxx
Fax No.: (000) 000-0000
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
42
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 Xxxxxxxx, PPL 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 any document or instrument executed and
delivered in connection herewith; provided, however, the covenants in SECTIONS
2.4(b), 6.6 AND 7.6 shall survive for the time periods described in such
SECTIONS, and the indemnities in this Agreement and the covenants in SECTIONS
6.9 AND 7.8 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. Xxxxxxxx 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. Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx, PPL and
Brandywine OP are executing this Agreement in his/their capacity as
representative of Xxxxxxxx, PPL and Brandywine OP, respectively, and not
individually and, therefore, shall have no personal or
43
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
Xxxxxxxx, PPL 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, partner or employee of Brandywine Realty Trust,
Xxxxxxxx Properties Trust, Xxxxxxxx, PPL 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.
(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 Xxxxxxxx and Brandywine OP.
10.17 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
Xxxxxxxx hereunder, Xxxxxxxx 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 the respective Partnership's 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 Xxxxxxxx'
financial reporting, as prescribed by generally accepted
44
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.
45
IN WITNESS WHEREOF, Xxxxxxxx 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/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
Date of Execution: March 14, 2001
XXXXXXXX:
XXXXXXXX PROPERTIES ACQUISITION
PARTNERS, L.P., a Delaware limited partnership
By: Xxxxxxxx Properties I, Inc., a Delaware
corporation, its general partner
By: /s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
Date of Execution: March 14, 2001
PPL:
XXXXXXXX PROPERTIES LIMITED, INC., a
Delaware corporation
By: /s/ XXXXXX X. AUGUST
--------------------
Xxxxxx X. August
Name: Xxxxxx X. August
Title: President & CEO
Date of Execution: March 14, 2001
46
RECEIPT OF ESCROW AGENT
Chicago Title Insurance Company, as Escrow Agent, acknowledges receipt of
the sum of $100,050.00 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:
----------------------------
47
