Commercial Leasing Agreement
By and Between
BRANDYWINE INDUSTRIAL PARTNERSHIP, L.P.
("Owner")
and
BRANDYWINE REALTY SERVICES CORPORATION
("Manager")
for
PROPERTIES SCHEDULED ON EXHIBIT A
("Properties")
COMMERCIAL LEASING AGREEMENT
TABLE OF CONTENTS
Page
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0.2 Owner................................................................................................1
0.3 Broker...............................................................................................2
0.4 Property.............................................................................................2
0.5 Commission...........................................................................................2
0.6 Term ................................................................................................2
0.8 Key Agents...........................................................................................2
2. EXCLUSIVE BROKER; TERM...................................................................................2
2.1 Engagement...........................................................................................2
2.2 Leasing Only.........................................................................................2
3. COMMISSION.....................................................................................................2
3.1 During Term.........................................................................................2
3.2 After Expiration of Term or Earlier Termination of Agreement........................................2
3.3 No Commission.......................................................................................3
3.4 No Additional Payments..............................................................................3
4. DUTIES AND AUTHORITY OF BROKER...........................................................................4
4.1 Leasing.............................................................................................4
4.2 Key Agents..........................................................................................4
4.3 Deposits............................................................................................4
4.4 Advertising.........................................................................................4
4.5 Monthly Report......................................................................................4
4.6 Marketing Plan......................................................................................5
4.7 Limitation on Authority.............................................................................5
4.8 No Representations..................................................................................5
4.9 Professional Consultants............................................................................5
4.10 Insurance..........................................................................................5
5. INDEMNITY................................................................................................6
6. DEFAULT; TERMINATION.....................................................................................6
6.1 For Cause...........................................................................................6
6.2 Without Cause.......................................................................................6
6.3 Other Agreement.....................................................................................7
Page
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7. REPRESENTATIONS AND WARRANTIES OF BROKER.................................................................7
7.1 Organization........................................................................................7
7.2 Manner of Performance...............................................................................7
7.3 Authorization.......................................................................................7
7.4 Validity............................................................................................7
7.5 Licenses............................................................................................7
7.6 Conflicts of Interest...............................................................................7
7.7 Independent Contractor..............................................................................8
7.8 Year 2000 Compliance................................................................................8
7.9 Cooperation.........................................................................................8
7.10 Unrelated Business Taxable Income...................................................................8
8. MISCELLANEOUS............................................................................................9
8.1 Owner's Representative..............................................................................9
8.2 Discrimination......................................................................................9
8.3 Entire Agreement....................................................................................9
8.4 Successors; Assignment..............................................................................9
8.5 Attorneys' Fees.....................................................................................9
8.6 Governing Law......................................................................................10
8.7 Headings...........................................................................................10
8.8 Notices............................................................................................10
8.9 Construction.......................................................................................10
8.10 Number; Gender.....................................................................................10
8.11 Time is of the Essence.............................................................................10
8.12 Exhibits...........................................................................................10
8.13 Other Brokers......................................................................................10
8.14 Confidentiality....................................................................................11
8.15 No Personal Liability..............................................................................11
8.16 Inquiries and Offers to Purchase Property..........................................................11
Exhibit A Schedule of Properties
Exhibit B Compensation
Exhibit C Schedule of Key Agents
Exhibit D Lease Form
Exhibit E Form of Monthly Report
COMMERCIAL LEASING AGREEMENT
THIS COMMERCIAL LEASING AGREEMENT (the "Agreement") is made as of June
17, 1999, between BRANDYWINE INDUSTRIAL PARTNERSHIP, L.P., a Delaware limited
partnership ("Owner"), and BRANDYWINE REALTY SERVICES CORPORATION, a
Pennsylvania corporation ("Broker").
RECITALS
A. Owner owns those certain parcels of land scheduled on Exhibit
A to this Agreement, the improvements and fixtures thereon, and all
appurtenances thereto (said land, improvements, fixtures and appurtenances and
any personal property of Owner on said land or in such improvements being herein
called individually a "Property" and collectively the "Properties").
B. Broker has experience in leasing space in buildings similar to
that comprising the Properties and its personnel possess the skills and
experience necessary for the efficient leasing of space in the buildings
comprising the Properties.
C. Owner desires to engage Broker to manage the leasing
operations of the Properties consistent with Owner's objective of maximizing the
Properties' economic value. Broker desires to accept such engagement.
D. Broker is an affiliate of Brandywine Operating Partnership,
L.P. and Brandywine Realty Trust (collectively known as "Brandywine").
Brandywine or other affiliates of Brandywine have an ownership interest in
Owner. The rights of Broker hereunder, and under that certain Commercial
Property Management Agreement of even date herewith (the "Management Agreement")
between Owner and Manager, are coupled with an interest and are intended to
continue for the duration of Brandywine's interest in Owner.
NOW, THEREFORE, in consideration of the foregoing and of the full and
faithful performance by Broker of all the terms, conditions, and obligations
imposed upon Broker hereunder, Owner and Broker agree as follows:
1. BASIC TERMS. This Paragraph 1 contains the basic terms of this
Commercial Leasing Agreement (the "Agreement") between the Owner and the Broker
named below. All other Paragraphs of this Agreement are to be read in
conjunction with the basic terms contained in this Paragraph 1.
0.1 Date: June __, 1999
1.2 Owner: Brandywine Industrial Partnership, L.P.
c/o INVESCO Realty Advisors, Inc.
Xxx Xxxxxxx Xxxxxx, Xxxxx 000
0000 XXX Xxxxxxx, XX 2
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx
Asset Manager
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1.3 Broker: Brandywine Realty Services Corporation
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Xx.
With a notice copy to General Counsel
1.4 Properties: The real property scheduled on Exhibit A
with all improvements located thereon.
1.5 Commission: See Exhibit B attached hereto and Paragraphs
3 and 6 hereafter.
1.6 Term: See Section 2.3
1.7 Key Agents: See Exhibit C attached hereto
2. EXCLUSIVE BROKER; TERM.
2.1 Engagement. Owner hereby engages Broker as Owner's exclusive
real estate broker in connection with the leasing of the Properties for the term
set forth in Section 2.3, unless sooner terminated pursuant to the provisions
hereof. Broker accepts such engagement and agrees to use its best efforts to
lease the Properties and every part thereof during the Term of this Agreement.
Owner agrees to cooperate with Broker in leasing the Properties and to refer to
Broker all inquiries of anyone interested in the Properties.
2.2 Leasing Only. This Agreement relates to leasing only and
Broker shall have no right to recover any commission or other fee hereunder
relating to any sale of the Properties or any portion thereof.
2.3 Term. This Agreement shall commence on the date of this Agreement
and, unless sooner terminated as set forth below, shall continue for so long as
Owner owns any of the Properties and Brandywine or an affiliate of Brandywine
holds its ownership interest in Owner, unless earlier terminated in accordance
with Section 6.1 hereof.
3. COMMISSION.
3.1 During Term. Owner shall pay Broker the commission set forth
in Paragraph 1.5, if, during the term: (i) a third party tenant satisfactory to
Owner is procured by Broker, Owner, or any third party; (ii) such tenant and
Owner enter into a written lease, upon terms and conditions satisfactory to
Owner in its sole discretion, covering all or part of any of the Properties; and
(iii) such lease is fully executed by Owner and such tenant (together with any
lease guaranties required by Owner).
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3.2 After Expiration of Term or Earlier Termination of Agreement.
Owner shall also pay Broker a commission if, within ninety (90) days after the
expiration of the Term or earlier termination of this Agreement, any Property is
leased to (or Owner enters into a contract to lease the Property thereafter
resulting in a lease of the Property with) any person or entity (i) with whom
Broker is involved in pending and active negotiations for a lease of space in
the Property at the time of termination or expiration of the Term of this
Agreement, provided further that Broker continues to have through the closing an
active role in the negotiation and closing of the lease (Owner agrees not to
exclude Broker or prohibit Broker from continuing in an active role), or (ii)
whom Broker has introduced to the Properties. Broker shall as a condition
precedent to its rights and Owner's obligations hereunder, submit a written list
of such persons or entities with whom Broker claims to have pending and active
negotiations or to have introduced to the Properties (containing full and
complete names, addresses, telephone numbers and primary contact persons,
together with copies of any written proposals to and from such parties) to Owner
no later than five (5) days following the expiration of the Term or earlier
termination of this Agreement. If Broker fails to submit that list within such
time period, Broker shall not be entitled to any commission under this Paragraph
3.2 or otherwise. Notwithstanding anything to the contrary contained herein, if
another licensed real estate broker claims a commission with respect to any
lease under this Paragraph 3.2, Owner's sole obligation regarding the payment of
such commission shall be to pay such commission at the joint direction of Broker
and such other broker or in accordance with the final decision of a court of
competent jurisdiction.
3.3 No Commission. Notwithstanding Paragraphs 3.1, 3.2 or any
other provisions hereof, Broker shall not be entitled to any commission: (i) in
the event of a default by Broker under this Agreement which is material and
adverse and which has not been cured within thirty (30) days after notice or
(ii) in the event of a lease, at any time, of all or any part of the Property to
a venture, partnership or other entity in which Owner is a principal or
beneficiary or has an ownership interest, or to any affiliate of Owner, or to
any of their successors or assigns.
3.4 No Additional Payments. The compensation to Broker provided
herein includes all costs, taxes, fees and charges, and no additional payments
shall be made by Owner to Broker in connection with any lease, except that Owner
shall be liable for the costs of any professional consultants engaged pursuant
to Section 4.9.
3.5 Earnout Provisions. With respect to each of the Properties
known as 6755 Snowdrift Road, 0000 Xxxxx Xxx and 0000 Xxxxxxxxxx Xxxxx, Xxxxx
will pay Broker a one-time additional earnout fee of $200,000 for each of these
three Properties which meets or exceeds the Property's NOI Target on or before
the second anniversary date of this Agreement. The NOI Target for each Property
is set forth below, and shall be calculated as the annualized net operating
income from the Property based on leases with tenants in occupancy, and computed
in a manner consistent with the budget and reporting provisions of the
Management Agreement between Owner and Broker. The NOI Targets are as follows:
0000 Xxxxxxxxx Xxxx $500,000
0000 Xxxxx Xxx $350,000
0000 Xxxxxxxxxx Xxxxx $615,000
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4. DUTIES AND AUTHORITY OF BROKER. Owner shall from time to time
prescribe for use by Broker in connection with its duties hereunder lease rates,
terms, concessions, allowances, and forms to apply regarding the leasing of
space in a Property. Attached hereto as Exhibit D is the lease form currently
required to be used at the Properties by Owner. Broker shall use all of such
information and materials then prescribed for use in connection with its efforts
hereunder. Broker shall endeavor to keep the Properties fully leased and shall
perform the following duties:
4.1 Leasing. Broker shall, except with respect to Manager Leasing
Rights set forth above, negotiate all leases and all renewals, extensions, and
amendments of leases covering space in the Properties. Broker shall endeavor to
obtain and provide to Owner a current financial statement relating to each
prospective tenant, and shall complete Owner's lease analysis form, which shall
be submitted to Owner with Broker's recommendation regarding Owner's execution
of a lease with such prospective tenant. Owner reserves the right to determine
all terms, conditions, and provisions of any lease and to reject any lease in
its discretion. Broker shall perform other reasonable standard leasing
activities upon Owner's request.
4.2 Key Agents. If there are any Key Agents designated in
Paragraph 1.8, then Broker shall assign those Key Agents to be primarily
responsible for performing the duties of Broker hereunder during the entire Term
hereof.
4.3 Deposits. Broker is authorized to conditionally accept a
deposit from any prospective tenant in connection with the presentation of a
proposed written offer to Owner, but Owner shall not thereby incur any liability
or obligation to such proposed tenant, Broker, or any other third party.
4.4 Advertising. Broker is authorized to advertise, at its sole
expense, the Properties and to place "For Lease" signs on the Properties,
subject to Owner's reasonable control over the type and location of such signs.
Owner and Broker agree to cooperate so as to keep each other informed prior to
the publication or distribution of any publicity releases relating to the
Properties. All advertisements and all such releases prepared by Broker shall be
subject to prior written approval by Owner. Broker shall not publish, display or
distribute any such advertisement or release without Owner's prior written
consent. Advertising and promotional materials shall be prepared in full
compliance with federal, state, and municipal laws, ordinances, and regulations
pertaining to fair housing or otherwise affecting the leasing and/or advertising
of the Properties.
4.5 Monthly Report. Broker shall prepare and furnish to Owner and
Owner's property manager, as soon as possible after the end of each month during
the Term and in no event later than the twenty-fifth (25th) day of the month, a
monthly report, in reasonable detail, summarizing Broker's activities hereunder
and the results obtained therefrom for the previous month. The report shall be
in the form attached hereto as Exhibit E or such other form as may be reasonably
acceptable to Owner and broker and shall include such information regarding
advertising, people contacted, expenses incurred, property showings and related
matters as Owner reasonably requests. The foregoing information shall be
submitted both in a consolidated format as to include all of the Properties
covered hereby as well as in a separate or individual format with respect to
each Property.
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4.6 Marketing Plan. Within thirty (30) days of the date of this
Agreement, Broker in cooperation with the property manager for the Properties
shall prepare and provide to Owner a marketing plan for the leasing of space
within the Properties. Said marketing plan shall be in a form reasonably
acceptable to Owner. Broker shall update such marketing plan at least annually
and shall submit such updated plan to Owner and the property manager of the
Properties no later than thirty (30) days after the property manager's request.
Broker shall make whatever changes may be requested by Owner in any marketing
plan submitted by Broker. In its leasing of space within the Properties, Broker
shall perform substantially pursuant to the marketing plan then in effect.
4.7 Limitation on Authority. Notwithstanding any provision to the
contrary contained herein, Broker expressly acknowledges, confirms and agrees
that it is acting as an independent contractor and not as Owner's agent.
Therefore, Broker shall be solely responsible for complying with all applicable
laws and regulations with respect to its employees, including but not limited
to, worker's compensation, hours of work, wages, social security, vacation time,
sick leave, unemployment insurance, the Immigration Reform and Control Act of
1986, working conditions and any other employer-employee related issues. Broker
has no authority to enter into, execute, make or acknowledge any contract,
covenant, agreement, lease or representation pertaining to the Properties
without the express prior written approval of Owner. Broker agrees in all oral
and written communications with prospective tenants to advise prospective
tenants that any and all lease proposals are proposals only and are contingent
upon the negotiation and final execution by Owner and by the prospective tenant
of a mutually acceptable and definitive lease embodying the full terms of the
agreement. Furthermore, Broker acknowledges that all oral and written lease
offers received by Broker shall be promptly reduced to writing and delivered to
Owner and shall not be binding or obligatory on Owner or create any liability on
Owner until Owner accepts such offer and evidences such acceptance by the
execution of a written contract containing all the material terms relevant
thereto.
4.8 No Representations. Broker shall make no representations or
warranties of any kind, express or implied, concerning the Properties or any
other matter without the prior written consent of Owner.
4.9 Professional Consultants. In regard to the marketing and
leasing of the Properties, Broker will utilize the services of such attorneys,
accountants and financial professionals as Owner may from time to time
designate.
4.10 Insurance Broker agrees to carry Comprehensive General
Liability Insurance (including Contractual Liability) with a minimum limit of
$2,000,000 Comprehensive Crime Insurance with a minimum limit of $500,000,
Employer's Liability Insurance with a minimum limit of $300,000 (combined single
limit) and statutory worker's compensation insurance for the protection of the
interest of Owner and Broker. In each such policy of insurance, Broker agrees to
designate Owner and Owner's Representative (as defined in Section 8.1) as
additional insured's along with Broker. Each such policy of insurance shall be
in a form acceptable to Owner. A certificate of each policy issued by the
carrier shall be delivered promptly to Owner by Broker. Each policy shall
require the carrier to give Owner at least thirty (30) calendar days prior
written notice of cancellation. It is understood and agreed, with respect to any
insurance provided hereunder and covering Owner's interests, that Broker shall
be solely responsible for the payment of all premiums thereon and the same shall
not be a reimbursable expense paid by Owner.
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5. INDEMNITY. Owner shall indemnify, hold harmless and defend Broker
from all losses, damages, costs, claims and liabilities (including without
limitation court costs and reasonable attorneys' fees relating thereto) caused
solely by any materially incorrect information supplied by Owner concerning the
Properties. Broker shall indemnify, hold harmless and defend Owner from all
losses, damages, costs, claims and liabilities (including without limitation
court costs and reasonable attorneys' fees relating thereto) arising out of or
related to (a) any intentional misrepresentation of material information , or
any failure to disclose material information known to Broker, regarding the
Properties to a prospective tenant by Broker or any agent or representative of
Broker; (b) any material adverse fact known by Broker relating to any tenant or
proposed transaction which Broker fails to disclose to Owner; (c) any material
and adverse breach of or default under this Agreement by Broker; and/or (d) any
act by Broker inconsistent with or outside the scope of this Agreement and the
limited authority conferred hereby. Broker shall pay any and all costs, taxes,
fees, and charges that may be imposed by others on the solicitation, listing,
brokerage, advertising and negotiating of the transactions contemplated by this
Agreement.
6. DEFAULT; TERMINATION.
6.1 For Cause. If either party fails to fully and timely perform
any covenant set forth herein or fails to satisfy any condition specified
herein, the consequences of which are material and adverse, or if any
representation or warranty by such party is determined to be false, misleading,
or erroneous in any material respect (a "Default"), then the party not in
default shall have the right to terminate this Agreement if the default is not
cured within thirty (30) days after written notice thereof to the defaulting
party (unless the default is non-curable, in which case no cure period shall
exist). The dissolution, termination, merger, consolidation, reorganization,
bankruptcy, insolvency, or assignment for the benefit or the creditors of
Broker, or termination or suspension of Broker's real estate broker's license,
or cessation on Broker's part to continue to do business shall effect an
immediate termination of this Agreement without notice. In the event of a
termination for a Default, Owner shall not be liable to Broker for any
commission or other fee or expense hereunder; otherwise, Owner shall not be
liable to Broker for any commission or other fee hereunder except to the extent
set forth in Paragraph 3.2.
6.2 Termination Upon Sale. This Agreement shall automatically
terminate upon payment in full of all obligations to Broker hereunder and: (i)
the termination of the Investment Management Agreement between the Owner's
Representative and an affiliate of Owner; or (ii) the consummation of any sale
or other disposition of the Properties by Owner, and as to any Property, the
consummation of a sale or other disposition of that Property. In the event of a
termination of this Agreement as to one or more of the properties, Owner shall
not be liable to Broker for any commission or other fee hereunder with respect
to the Property or properties in question, except to the extent set forth in
Paragraph 3.2. Notwithstanding the foregoing, Owner may relieve itself of the
obligation to pay any further commission to Broker under this Agreement if Owner
shall cause the new owner of the Properties or its management agent to assume in
writing the outstanding obligations of Owner under this Agreement. No new owner
shall have any obligation or liability hereunder unless it has assumed the same
in writing.
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6.3 Other Agreement. If Owner has engaged Broker to act in a
separate capacity as Owner's independent contractor or agent with respect to the
Properties (for example, as sales broker or property manager) pursuant to a
separate or additional agreement, then any default by Broker under any such
separate or additional agreement shall be a default hereunder; and in such event
of default, termination shall be concurrent with the effective termination date
under such agreement, notwithstanding anything to the contrary herein.
7. REPRESENTATIONS AND WARRANTIES OF BROKER. To induce Owner to enter
into this Agreement, Broker makes the following representations and warranties,
which shall survive the execution and expiration or earlier termination of this
Agreement:
7.1 Organization. Broker is duly organized, validly existing and
in good standing under the laws of and is qualified to do business in the state
where the Properties are located. Broker has all power and authority required to
execute, deliver and perform this Agreement.
7.2 Manner of Performance. Broker is experienced in the business
of leasing space in real property similar to the Properties in the states in
which the Properties are located.
7.3 Authorization. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary action on the part of
Broker.
7.4 Validity. This Agreement constitutes a legal, valid and
binding agreement of the Broker enforceable against Broker in accordance with
its terms except as limited by bankruptcy, insolvency, receivership and similar
laws of general application.
7.5 Licenses. During the entire term of this Agreement Broker
shall cause all persons performing licensable activities to have and to maintain
in full force and effect all licenses which are required by applicable law, and
all permits necessary to perform its obligations under this Agreement, and shall
pay all taxes, fees, or charges imposed on the business engaged in by Broker
hereunder.
7.6 Conflicts of Interest. Owner acknowledges that Broker is the
leasing agent for other properties which may compete with the Properties and
which are owned by Brandywine or affiliates of Brandywine. Attached hereto as
Exhibit F is a current list of such other competing properties. Broker will
provide Owner with an updated Exhibit F from time to time as Broker either
becomes the broker for other competing Brandywine properties or ceases to be the
broker for properties on Exhibit F. Broker acknowledges that an affiliate of
Broker intends to enter into a joint venture with an affiliate of Owner and that
the joint venture has a first priority right to development and acquisition of
industrial properties by Broker's affiliate in the states of Pennsylvania, New
Jersey and Maryland.
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If requested by Owner, Broker will provide to Owner nonproprietary
market information concerning the competing properties on the most current
Exhibit F; provided, however, that this shall not require Broker to disclose to
Owner confidential information about such properties.
7.7 Independent Contractor. Broker's status under this Agreement
is that of an independent contractor and not as an agent or employee of Owner.
7.8 Year 2000 Compliance. Broker shall use commercially reasonable
efforts to assure that all computer systems and programs which Broker will use
to create the monthly reports under this Agreement shall properly and accurately
account for the transition from the twentieth century to the twenty-first
century, and no data, calculation, process, or application will be rendered
lost, inaccessible, or inaccurate as a result of such transition. Broker shall
make no representations or warranties regarding the compliance of the Properties
with Year 2000 issues, without Owner's consent.
7.9 Cooperation. Broker shall cooperate with Owner and Owner's
property manager in connection with space planning to accommodate tenants,
installation of tenant finish, and tenant move-in arrangements. Broker shall
also cooperate with Owner's property manager in the preparation of annual
budgets, including budgeting of lease-up of the Properties, tenant improvement,
and leasing costs.
7.10 Unrelated Business Taxable Income. In its review process,
Owner shall be responsible for making its own determination of whether an action
will result in the allocation of unrelated business taxable income under
Internal Revenue Code Section 512, as amended from time to time, to Owner or to
any direct or indirect partner of Owner. Broker shall not be responsible for
making any such determination on Owner's behalf. Broker acknowledges that Owner
has informed Broker of certain restrictions and prohibitions on leasing
arrangements that could cause Owner to recognize unrelated business taxable
income. Broker will endeavor not to bring forward to Owner any transaction which
contains or involves any of the following:
(1) the determination of the amount of rent is
expressed in whole or in part as a percentage of the income or
profits derived by the tenant from the space leased (other
than an amount based on a fixed percentage or percentages of
gross receipts or gross sales);
(2) more than ten percent (10%) of the rent is
attributable to personal property, determined at the time the
personal property is placed in service and by reference to
relative adjusted bases of the personal and other property
leased to the tenant (and not by reference to any allocation
contained in the lease documents);
(3) services are rendered to the tenant or occupant
primarily for the tenant's convenience and which are other
than those usually or customarily rendered in connection with
the rental of space for occupancy only; or
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(4) the tenant leases only personal property; or:
(5) the Properties become stock in trade or other
property of a kind that would properly be includable in
inventory if on hand at the close of the taxable year; or
(6) the Properties become property held primarily
for sale to customers in the ordinary course of a trade or
business.
8. MISCELLANEOUS.
8.1 Owner's Representative. Owner may designate one (1)
representative to serve as Owner's Representative in all dealings with Broker
hereunder. Whenever the approval or consent or other action of Owner is called
for hereunder, such approval, consent, or action shall be processed through the
Owner's Representative unless Owner notifies Broker otherwise in writing. The
exclusive Owner's Representative shall be Xxxx Xxxxx Invesco Realty Advisors,
Inc. Such representative may be changed at the discretion of Owner, at any time,
by a writing delivered to Broker. Notwithstanding the above, Owner's
Representative is acting as Owner's investment advisor and not as Owner's agent.
8.2 Discrimination. Owner and Broker shall not refuse to display
or lease the Properties to any person because of race, color, religion, national
origin, sex, marital status or physical disability.
8.3 Entire Agreement. This Agreement constitutes the entire
agreement between Owner and Broker with respect to the matters set forth herein
and supersedes all prior discussions, negotiations and agreements, whether oral
or written. No amendment of this Agreement shall be valid or binding unless made
in writing and signed by both Owner and Broker.
8.4 Successors; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their permitted successors
and assigns. This Agreement may not be assigned by either party hereto without
the other party's prior written consent, which may be withheld in such party's
sole discretion. Notwithstanding the foregoing, Owner has the right to assign
this Agreement without Broker's consent (i) to an affiliate provided that Owner
remains financially liable for the performance of its affiliate hereunder or
(ii) to any entity for which Invesco Realty Advisors acts as investment advisor
and which is of comparable financial capability as Bailard, Xxxxx & Xxxxxx
Properties II, Inc., in which latter event Owner shall thereafter have no
further obligation or liability hereunder. A corporate merger or acquisition of
Broker shall not constitute an assignment provided that the resulting entity is
still an affiliate of the Brandywine affiliates which own an interest in Owner.
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8.5 Attorneys' Fees. If either party hereto shall institute any
action or proceeding against the other party hereto relating to this Agreement,
the successful party in such action or proceeding shall be entitled to recover
from the unsuccessful party all fees and expenses incurred in connection
therewith, including, without limitation, court costs, reasonable attorneys'
fees, and related expenses.
8.6 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Pennsylvania.
8.7 Headings. The paragraph headings in this Agreement are
inserted for convenience only and are not intended to be used in construing the
substance of any of the provisions of this Agreement.
8.8 Notices. All notices, demands requests, approvals and other
communications required or permitted by this Agreement shall be in writing and
shall be deemed to have been given on the earlier of the date when presented
personally or otherwise delivered (whether by commercial delivery service, mail,
or otherwise) or on the third (3rd) day after the date when deposited in a
regularly maintained mail receptacle of the United States Postal Service,
postage prepaid, registered or certified, return receipt requested, addressed to
Owner or Broker, as the case may be, at its respective address set forth in
Paragraph 1 of this Agreement, or at such other address as Owner or Broker may
from time to time designate by written notice to the other party as herein
required. A copy of any notice sent to Owner shall be sent to Owner's
Representative.
8.9 Construction. If any of the provisions of this Agreement shall
for any reason be held to be invalid, illegal or unenforceable, such invalidity,
illegality, or unenforceability shall not affect any other provisions hereof,
and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
8.10 Number; Gender. Whenever used herein, the singular number
shall include the plural, and the plural shall include the singular, and the use
of any gender shall be applicable to all genders.
8.11 Time is of the Essence. Time is of the essence in each
provision of this Agreement.
8.12 Exhibits. All exhibits referred to in this Agreement are
incorporated herein by this reference.
8.13 Other Brokers. Broker is not authorized and empowered to
engage any other realtor, broker, or agent under or in connection with this
Agreement without the prior specific approval of Owner; provided, however,
Broker agrees to cooperate with other realtors, brokers, or agents in
endeavoring to lease the Properties, and the amount of the commission provided
to be paid hereunder by Owner shall constitute the entire amount which, in the
absence of an express written agreement of Owner to the contrary, Owner shall be
obligated to pay, jointly to Broker and such cooperating realtor, broker or
agent, with the division of such amount between Broker and such cooperating
realtor, broker or agent to be upon such basis specified in Exhibit B or, if no
division is so specified, then as they may agree. In the absence of the express
written agreement of Owner as specified in the proviso clause of the preceding
sentence, Broker agrees to protect and save Owner harmless from any liability to
any realtor, broker, or agent cooperating with or claiming under Broker.
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8.14 Confidentiality. All information and knowledge of the
Properties obtained by Broker from Owner or in the course of Broker's engagement
by Owner (the "Information") shall be kept confidential by Broker and shall not
be used by Broker for any purpose (including, without limitation, the marketing,
sale, or release thereof) other than as expressly permitted under this
Agreement. Owner acknowledges that the negotiation and enforcement of leases
(such as the calculation of CAM charges) will necessitate the disclosure by the
broker of certain elements of operating information respecting the Properties.
Otherwise, except as may be required by law, Broker will not disclose the
Information (or the fact of its existence) to any person other than employees of
Broker who have a need to know such information in connection with the
Properties and who are familiar with these confidentiality restrictions.
8.15 No Personal Liability.
BROKER, ITS DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AGENTS AND
REPRESENTATIVES WILL LOOK SOLELY TO OWNER'S INTEREST IN THE PROPERTIES FOR
RECOVERY OF ANY JUDGMENT AGAINST OWNER OR OWNER'S REPRESENTATIVES ARISING OUT OF
THIS AGREEMENT.
IN NO EVENT SHALL EITHER PARTY HERETO, OR ANY DIRECT OR INDIRECT
PARTNER, MEMBER, SHAREHOLDER, BENEFICIARY, OWNER OR AFFILIATE THEREOF, OR ANY
OFFICER, DIRECTOR, EMPLOYEE, TRUSTEE, OR AGENT OF ANY OF THE FOREGOING OR ANY
AFFILIATE OR CONTROLLING PERSON THEREOF, BE LIABLE TO ANY INDEMNIFIED PARTY IN
CONTRACT, TORT OR OTHERWISE WITH RESPECT TO ANY INDIRECT, CONSEQUENTIAL, OR
EXEMPLARY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT.
8.16 Inquiries and Offers to Purchase Property. This is not an
exclusive listing agreement. Broker shall promptly refer to Owner all inquiries
and offers to purchase the Properties. Broker shall not disclose information
regarding the terms of any pending or existing lease transaction or any other
Property information without the prior written approval of Owner. Broker will
not be entitled to and shall not accept any portion of a commission, override,
or referral fee associated with the sale of the Properties (regardless of
whether or not Broker is the procuring cause) from any person without the proper
written agreement of the Owner.
OWNER: BROKER:
BRANDYWINE INDUSTRIAL. BRANDYWINE REALTY SERVICES
PARTNERSHIP, L.P. CORPORATION
By: By: /s/ Xxxxxx X. Xxxxxxx
------------------ ------------------------------
Name: Name: Xxxxxx X. Xxxxxxx
----------------- ------------------------------
Title: Title: President and CEO
----------------- ------------------------------
-11-
EXHIBIT A
TO COMMERCIAL LEASING AGREEMENT
SCHEDULE OF PROPERTIES
0000 Xxxxx Xxxxxxxxx
000 Xxxxx Xxxxxx
201/221 Kings Manor
000 Xxxxx Xxxxxx
000 Xxxxx Xxxxxx
000 Xxxxx Xxxxxx
0000 Xxxxxxxxxx Xxxxx
0000 Xxxxx Xxx
0000 Xxxxx Xxx
0000 Xxxxxxxxx Xxxx
0000 Xxxxxxxxx Xxxx
0000 Xxxxxxxxx Xxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxxx Xxxx
International Harvester Building
0000 Xxxxxxxx Xxxxx
1510 Xxxxxx Road
A-1
EXHIBIT B
TO COMMERCIAL LEASING AGREEMENT
COMPENSATION
A. NEW LEASES:
Subject to the terms and conditions in Section B hereafter, commissions
shall be payable in accordance with the following payment schedule and
rates:
1. Payment Schedule of Commissions:
(a) One-half (1/2) upon execution of a lease by Owner
and the tenant.
(b) One-half (1/2) upon the actual occupancy and
commencement of rent by such tenant of the leased
premises.
2. Rates:
(a) Except as provided below, in all new leases not
involving third-party brokers, the commission rate
for Broker will be:
6% of the Commissionable Gross Rental Receipts for
the first year of the lease, 5% for the second year,
4% for the third and 3% for each year thereafter.
less the exclusions described in Paragraph B.1 below.
(b) Except as provided below, in all new leases involving
third-party brokers, the commission rate will be:
To Broker:
3% of the Commissionable Gross Rental Receipts for
the first year of the lease, 2.5% for the second
year, 2% for the third and 1.5% for each year
thereafter.
less the exclusions described in Paragraph B.1 below
and
To third-party brokers:
6% of the Commissionable Gross Rental Receipts for
the first year of the lease, 5% for the second year,
4% for the third and 3% for each year thereafter.
less the exclusions described in Paragraph B.1 below.
B-1
It is agreed and understood that Owner shall have the
right, upon written notice to Broker, to separately
negotiate any commission paid to third-party brokers.
(c) The above payment schedule and rates are subject to
the following terms and conditions:
(i) Term of More than 10 Years: If a lease term
(including any and all renewal periods, whether by
virtue of a renewal option in the lease and/or a
renewal agreement or otherwise) is in excess of ten
(10) years, then no commission shall be paid for that
tenant's continued occupancy during any period
following the tenth (10th) anniversary of that
tenant's initial lease commencement date.
(ii) Renewals: If a lease for which a commission is
payable hereunder contains an option(s) to renew or
extend, and a lease term is renewed or extended
pursuant to such option, or if a current tenant
otherwise signs a renewal agreement and extends its
occupancy beyond the current expiration date of the
original lease, and the tenant commences payment of
regularly scheduled monthly base rental following the
expiration of all rental abatement, then subject to
Paragraph 2(c) hereof, Owner shall pay a leasing
commission with respect to the term of the extension
equal to three percent of the Commissionable Gross
Rental Receipts, and no other sums shall be owed with
respect to such lease. However, if a lease is
renegotiated or renewed to commence prior to the
expiration date of the original lease, the leasing
fee to Broker or third-party broker is a commission
equal to three percent calculated on the difference
between the income (Commissionable Gross Rental
Receipts) Owner would have received if the lease had
run its full term under its original terms and
conditions and the income (Commissionable Gross
Rental Receipts) Owner will receive for the duration
of the new lease under its new terms and conditions,
subject to Paragraph 2(c) hereof.
Expansions: If a tenant occupies additional space
pursuant to an option to expand contained in its
lease or otherwise and commences payment of regularly
scheduled monthly base rental following the
expiration of all rental abatement, then, subject to
Paragraph 2(c) hereof, Owner shall pay a leasing
commission with respect to the additional space equal
to what would otherwise be payable hereunder.
B-2
B. TERMS AND CONDITIONS:
1. Commissionable Gross Rental Receipts: Commissionable Gross Rental
Receipts shall mean all fixed rents, common area maintenance reimbursements and
tax and insurance reimbursements actually collected in cash by Owner or its
property manager from tenants of the Properties. The following shall be excluded
from Commissionable Gross Rental Receipts under any lease:
(a) Escalations in excess of the original base rent for
each year, as stated in the lease, including, without
limitation, escalations resulting from increases in
ad valorem/real estate taxes, in operating expense
pass-throughs, and/or in the Consumer Price Index or
similar index resulting in a corresponding increase
to the base rental (if applicable).
(b) Rentals credited to any tenant by reason of lease
takeover of lease pick-ups and/or Owner take-back or
subleasing.
(c) Additional rentals for special tenant services above
and over Owner's customary tenant services.
(d) Any cost and/or amortization of above building
standard cost and/or special leasehold improvements,
which have been paid by Owner and which have been
added to the rental rate per lease agreement.
(e) Late payment charges.
(f) Payments for parking.
(g) Rentals payable upon continuation of a tenancy on a
month-to-month or statutory basis or any other
tenancy following the expiration or termination of
the lease.
(h) Percentage rental in the case of retail leases.
(i) Relocation allowances, cash credits, payments, tenant
inducements, deferments, or abatements of rent or
other concession items.
(j) Sums designated as or in the nature of "additional
rent" under the lease (including but not limited to
payments from tenant to landlord for utility cost
reimbursements), except as otherwise provided herein.
(k) Security deposits (including any amount necessary to
restore any security deposit after application of
same).
(l) Rent for services of facilities available to tenant
at locations other than the demised premises covered
by the lease.
B-3
2. Cancellations: The leasing commission on the cancelable portion of a
lease term shall be deemed to be only contingently earned and payable.
Initially, a commission shall be payable only on the noncancelable portion of
the lease term, and such term shall apply for the purposes of calculating the
commission earned and payable. In the event the lease is not canceled, then the
contingent portion of the leasing commission shall be due and payable for the
remaining lease term. Additionally, if the lease is cancelled by the tenant and
the tenant pays Owner an amount equivalent to the unamortized tenant
improvements and leasing commissions as part of any termination fee, the
contingent portion of the leasing commission shall be due and payable to Broker.
3. Return of Commission: If and to the extent that the tenant or an
approved subtenant does not take occupancy under the terms of the lease, Broker
agrees to pay to Owner Broker's portion of the commission paid to Broker (which
is the amount of commission paid to Broker less any amounts paid to outside or
cooperating brokers). If the tenant or an approved subtenant takes occupancy of
less than all of the leased premises described in the lease, Broker agrees to
return to Owner a portion of commissions which may have been previously paid to
Broker, which portion shall be the fractional amount of the commission paid
relating to the fractional portion of the leased premises that are not occupied
by tenant (less any amounts paid to outside or cooperating brokers for such
fractional portion). In either event, if Broker has not yet made a payment to an
outside or cooperating broker and if Owner requests Broker to cooperate with
Owner in attempting to obtain a release from such outside or cooperating broker
without full payment of the agreed fee, Broker agrees that it will cooperate
with Owner's efforts.
B-4
EXHIBIT C
TO COMMERCIAL LEASING AGREEMENT
SCHEDULE OF KEY AGENTS
New Jersey Properties: Xxxxxx Xxxx and Xxxxxx Xxxxxxx
Philadelphia Western Suburbs: Xxxx Xxxxxxx, Xx., Xxxxx Xxxxx and Xxx Xxxxxx
Philadelphia Northern Suburbs: Xxxx XxXxxxx and Xxxxx Xxxx
Maryland Properties: N/A
Allentown Properties: Xxxx Xxxxxxxx
C-1
