Exhibit 10.8
RIGHT OF FIRST OFFER AGREEMENT
(ONE TOWER BRIDGE)
THIS RIGHT OF FIRST OFFER AGREEMENT (the "Agreement") is made as of this
3rd day of November, 1997 by ▇▇▇▇▇▇ TOWER ASSOCIATES, a Pennsylvania limited
partnership ("OTA"), and BRANDYWINE OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership ("BOP").
BACKGROUND:
OTA is the managing general partner and a general partner and limited
partner of Tower Bridge Partners I, a Pennsylvania limited partnership (the
"Partnership") pursuant to an Amended and Restated Agreement of Limited
Partnership dated as of December 30, 1986 by and among OTA, Provestco, Inc., a
Delaware corporation ("Provestco"), and TB Land Associates Limited Partnership,
a Delaware limited partnership ("TBL") as modified on January 19, 1987 as
further modified by a Second Amendment to Amended and Restated Partnership
Agreement dated April 15, 1989 (the "Partnership Agreement") and attached hereto
as Exhibit "A", for the purpose of owning, developing and operating a certain
parcel of land and all the improvements located thereon identified on Exhibit
"B" attached hereto and made a part hereof (the "Premises").
The parties hereto desire to enter into this Agreement for the purpose of
confirming that in the event OTA desires to sell or assign its general or
limited partnership interests (each, an "Interest" and collectively,
"Interests") in the Partnership Agreement, it shall first offer to sell or
assign such interest to BOP.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, OTA hereby agrees as follows:
1. Right of First Offer; Procedure
a. If OTA at any time during the term of this Agreement decides that
it is interested in selling or assigning any Interest or Interests under the
Partnership Agreement, OTA shall so advise BOP by written notice as hereinafter
set forth (the "Offering Notice"). The Offering Notice shall outline the price
("Asking Price") OTA shall seek to obtain in negotiations with any prospective
purchaser. If BOP, by reply notice given within twenty (20) days after the
Offering Notice, advises OTA that it is interested in purchasing the Interest or
Interests, for substantially the same price and terms, then OTA and BOP shall in
good faith attempt to negotiate and agree upon a contract (a "Sale Contract")
for purchase of the Interest or Interests, it
being understood, however that OTA shall have no obligation to sell to BOP for a
price less than the Asking Price or upon terms other than those acceptable to
OTA. If OTA and BOP cannot agree within thirty (30) days after BOP's notice of
interest to OTA, then OTA shall be free to offer any Interest or Interests for
sale to a third party for substantially the same price and terms as specified in
the Offering Notice, and OTA shall be free to negotiate, agree upon and close
the sale with such third party on substantially the same price and terms, free
and clear of any rights of BOP. "Substantially the same price and terms," as
used herein, means that the price shall be not more than ten percent (10%) less
than the price specified in OTA's previous notice to BOP.
b. If, following failure of OTA and BOP to agree upon a Sale
Contract, OA decides that it is interested in selling any Interest or
Interests in the Partnership Agreement for a price and on terms not
"substantially the same price and terms" as contained in the Offering Notice,
or if OTA is unable to enter into an agreement to sell any Interest or
Interests upon "substantially the same price and terms" within one year after
the Offering Notice, OTA shall so advise BOP by sending an additional
Offering Notice to BOP, and the process set forth in subsection 1(a) hereof
shall be repeated as if the additional Offering Notice were the original
Offering Notice.
2. Limitations on Right of First Offer
a. Consents; Prior Rights of First Refusal. BOP acknowledges and
agrees that its rights hereunder are subject to the prior rights set forth in
any provisions concerning the transfer of any Interest or Interests in the
Partnership Agreement, including, without limitation, (i) the right of the
general partners of the Partnership to withhold consent to such transfer in
their sole discretion as set forth in Sections 7.01 and 7.02 of the
Partnership Agreement, and (ii) the right of first refusal of any partner of
the Partnership set forth in Section 7.07 of the Partnership Agreement.
b. Exclusions from Right of First Offer. BOP acknowledges and
agrees that (i) a partner or partners of the Partnership possess the right to
sell or purchase partnership interests to resolve a deadlock of the general
partners as set forth in Section 7.06 of the Partnership Agreement, and (ii)
the Partnership possesses the right to sell, exchange, assign, lease or
otherwise dispose of, mortgage or otherwise hypothecate all or any portion of
the Premises, and that such rights shall not be subject to any right of first
offer contained in this Agreement.
3. Miscellaneous.
a. Notices. All notices, demands, requests, calls and other
communications required by or permitted under this Agreement shall be in writing
(whether or not a writing is expressly required hereby), and shall be directed
as follows:
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(i) If to OTA
c/o Oliver ▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation
One Tower Bridge
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(ii) If to BOP:
Brandywine Operating Partnership, L.P.
c/o Brandywine Realty Trust
Newtown Corporate Campus
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief
Executive Officer
Any entity may specify a different address by sending to the
other party a notice by registered or certified mail of such different address.
Any notice, demand, request, call or other communication required or permitted
to be given or made under this Agreement will be deemed given or made (i) when
delivered by hand delivery at its address set forth above, or (ii) three
business days following its deposit in the U.S. Mail, addressed to such address,
postage prepaid, registered or certified, return receipt requested (with a copy
by regular U.S. mail, first class, postage prepaid), or (iii) on the next
business day following its deposit with Federal Express or another nationally
recognized express delivery service, addressed to such address (with a copy by
regular U.S. mail, first class, postage prepaid).
b. Representations and Warranties. The parties hereto warrant and
represent to one another that the execution and delivery of this Agreement will
not result in a breach of, or constitute a default under, any indenture,
mortgage or agreement to which any of the respective parties hereto is a party
or by which its assets are bound.
c. Binding Effect; No Assignment. All of the terms and
conditions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, personal representatives,
successors and assigns, provided, however, that BOP shall have no right to
assign, hypothecate, pledge or grant a security interest in this Agreement or
any interest herein to any person or entity without the express written
consent of OTA, which consent may be withheld for any reason or for no
reason.
d. Expiration. This Agreement shall automatically expire on the
date which is the fourth (4th) anniversary hereof unless before such time it
shall have been extended or terminated in writing.
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e. No Recording. This Agreement shall not be lodged for
recording in any place or office of public record and any action in violation
of this provision shall be deemed to be a default hereunder and permit the
other party hereto to terminate this Agreement immediately and without
further notice. Notwithstanding the foregoing, Brandywine Realty Trust, the
general partner of BOP, may make any filings it deems necessary to comply
with securities laws with the Securities and Exchange Commission disclosing
this transaction.
f. Brokerage. The parties hereto represent and warrant that each
has not dealt with any broker, agent, finder or other intermediary in
connection with this Agreement other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., payment of
whom is covered by a separate agreement dated _______, 1997. The parties
hereto agree to indemnify, defend and hold the other harmless of, from and
against any damages, costs, claims, losses or liabilities whatsoever
(including attorney's fees, expenses and court costs) arising from any breach
by the other of the foregoing warranties, representations and agreements.
g. Time of the Essence. Time, wherever mentioned herein, shall
be of the essence of this Agreement.
h. Written Evidence of Waiver. If BOP shall fail to exercise its
right of first offer within the applicable time period set forth herein, OTA
may, but shall not be obligated to, request that BOP so certify in writing
formally waiving its right of first offer, whereupon BOP shall execute and
deliver such certification within five (5) business days after receipt of
written request therefor.
i. Savings Clause. In the event any portion of this Agreement
shall be deemed to violate that certain mortgage in favor of New York Life
Insurance Company dated December 27, 1989, such portion of this Agreement
shall be of no force or effect, but all remaining portions of this Agreement
shall continue in full force and effect.
j. Entire Agreement. This is the entire agreement between the
parties hereto regarding the transaction contemplated hereby and there are no
other terms, covenants, conditions, warranties, representations or
statements, oral or otherwise, of any kind whatsoever. Any agreement
hereafter made shall be ineffective to change, modify, discharge or effect an
abandonment of this Agreement in whole or in part unless such agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
k. Headings. The headings incorporated in this Agreement are for
convenience and reference only and are not a part of this Agreement and do
not in any way control, define, limit, or add to the terms and conditions
hereof.
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l. Governing Law. This Agreement shall be construed, interpreted
and governed by the laws of the Commonwealth of Pennsylvania.
m. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and such counterparts together
shall constitute one and the same instrument.
n. Limitations on Recourse.
(i) No recourse shall be had for any of the obligations of
the BOP or BOP-Sub hereunder or for any claim based thereon or otherwise in
respect thereof against any past, present or future trustee, shareholder,
officer or employee of Brandywine Realty Trust, whether by virtue of any statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
all of such liability being expressly waived and released by each of the other
parties hereto.
(ii) No recourse shall be had for any of the obligations of
OTA hereunder or for any claim based thereon or otherwise in respect thereof
against any past, present or future partner or employee of OTA or any
shareholder, officer, director or employee of any general partner of OTA,
whether by virtue of any statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all of such liability being expressly waived
and released by each of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
▇▇▇▇▇▇ TOWER ASSOCIATES
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CORPORATION, its sole
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
BRANDYWINE OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership
By: BRANDYWINE REALTY TRUST, its duly authorized
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
Chairman of the Board
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Exhibit "A"
Partnership Agreement
Exhibit "B"
Legal Description
