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EXHIBIT 10.39
FIRST AMENDMENT TO OPTION AGREEMENT
THIS FIRST AMENDMENT TO OPTION AGREEMENT ("FIRST AMENDMENT")
is made as of the ___ day of November, 1996, by and between C/N Horsham Towne
Limited Partnership, a Pennsylvania limited partnership, having an address c/o
The Xxxxxxx Company, 00 Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
(hereinafter called "OPTIONOR"), and Brandywine Operating Partnership, L.P., a
Delaware limited partnership, having an address c/o Brandywine Realty Trust, 00
Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000 (hereinafter
called "OPTIONEE").
BACKGROUND
A. Optionor and Optionee are parties to a certain Option
Agreement dated the 22nd day of August, 1996 (the "AGREEMENT") pursuant to which
Optionor granted to Optionee the right and option (the "OPTION") to acquire
certain tracts or parcels of ground, and all improvements thereon, located at
255, 355, 455 and 000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxx, 00000, all
as more fully described in Exhibit "A" to the Agreement, and therein and herein
referred to as the "Property".
B. Optionor and Optionee desire to amend the Agreement to
redefine the Exchange Price (as such term is defined in the Agreement) and for
certain other purposes, all as more fully set forth herein.
AGREEMENT
The parties hereto, in consideration of the sum of Ten
($10.00) Dollars, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, agree as
follows:
1. Paragraph 1 of the Agreement is hereby amended and restated
in its entirety as follows:
Optionor does hereby grant to Optionee the right and option
(the "OPTION") to acquire the Property for the Exchange Price
(as defined below), and otherwise upon the terms and
conditions set forth herein. The Optionee may exercise the
Option by delivering written notice to the Optionor and New
England Mutual Life Insurance Company (the "LENDER") in
accordance with Section 16 of this Agreement at any time
during the Option Period (as defined below), or during any
extension thereof.
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2. Paragraph 4 of the Agreement is hereby amended and restated
in its entirety as follows:
The Exchange Price for the Property (the "EXCHANGE PRICE")
shall be equal to Ten ($10.00) Dollars, plus Optionee's
assumption of all sums due and owing under the note, mortgage
and any other loan document evidencing or securing the
mortgage loan encumbering the Property at the time the Option
is exercised.
3. Paragraph 6 of the Agreement is hereby amended by the
addition of the following sentence:
Consent of the holder of the mortgage on the Property for
conveyance of the Property under and subject to the mortgage
shall include a statement by the holder as to the status of
outstanding defaults thereunder (declared or otherwise), and a
confirmation of all sums due and owing under the mortgage
obligation as of the date of such statement.
4. Paragraph 16 of the Agreement is hereby amended by changing
the notice address for Optionee to the following address:
Xxxxxx X. Xxxxxxx, President & CEO
Brandywine Realty Trust
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
5. Paragraph 17 of the Agreement is hereby amended and
restated in its entirety as follows:
During the term of this Agreement, Optionor shall have the
right to fund the costs incurred by Optionor with respect to
new leases for space in the Property (including, but not
limited to, costs of tenant improvements, brokerage
commissions and legal fees) through capital loans made by
Optionor or an affiliate for such purpose ("CAPITAL
IMPROVEMENT LOANS"). All such Capital Improvement Loans shall
bear interest at the prime rate and shall be payable out of
cash flow from the Property remaining after payments of third
party debt. Upon exercise by Optionee of the Option, Optionor
shall advise Optionee if any Improvement Loan
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will remain outstanding at Closing hereunder. Optionee shall
assume all obligations under any such Capital Improvement
Loans outstanding at Closing, and shall indemnify and hold
Optionor harmless from any obligations accruing under any such
Loan after the date of Closing. Anything herein contained to
the contrary notwithstanding, from and after this date,
Optionor shall not assume or incur additional indebtedness for
capital improvements to the Property without the prior written
consent of Optionee, which consent shall not be unreasonably
withheld, conditioned or delayed.
6. Except to the extent expressly modified hereby, all of the
terms, conditions, covenants and agreements contained in the Agreement shall
remain in full force and effect and unmodified hereby, and as such, the
Agreement is hereby ratified and affirmed by Optionor and Optionee.
IN WITNESS WHEREOF, the parties hereto have executed, sealed
and delivered this Agreement the day and year first above written.
OPTIONOR:
C/N HORSHAM TOWNE
LIMITED PARTNERSHIP,
A PENNSYLVANIA LIMITED PARTNERSHIP
BY:______________________________________/S/
OPTIONEE:
BRANDYWINE OPERATING PARTNERSHIP, L.P.
BY: BRANDYWINE REALTY TRUST,
ITS GENERAL PARTNER
BY:______________________________________/S/
XXXXXX X. XXXXXXX, PRESIDENT & CEO
[Continued on the next page]
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The address of the above-named Optionee is:
c/o Brandywine Realty Trust
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
By:________________________________________
Name:_________________________________
Title:________________________________,
On behalf of Optionee
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