EXHIBIT 10.28
ALTERNATIVE ASSET PURCHASE AGREEMENT
This ALTERNATIVE ASSET PURCHASE AGREEMENT is entered into as of this
5th day of January, 2006 among BRANDYWINE COGNAC I LLC, a Delaware limited
liability company ("MERGER SUB"), BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership ("BRANDYWINE OP"), XXXXXXXX PROPERTIES ACQUISITION
PARTNERS, L.P., a Delaware limited partnership ("OPERATING PARTNERSHIP"),
XXXXXXXX PROPERTIES REAL ESTATE FUND I, L.P., a Delaware limited partnership
("OTHER SELLER" and, collectively with Operating Partnership, Merger Sub and
Brandywine OP, "SELLER") and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New
Jersey corporation (together with its successors and assigns, "PRUDENTIAL").
RECITALS
Reference is made to the Agreement and Plan of Merger dated as of
October 3, 2005 by and among Brandywine Realty Trust, Brandywine OP, Merger Sub,
Brandywine Cognac II, LLC, Xxxxxxxx Properties Trust and Operating Partnership
(as it may be amended, the "MERGER AGREEMENT") and the Master Agreement dated as
of October 3, 2005 between Brandywine OP and Prudential (as amended, the "MASTER
AGREEMENT"). This Agreement is referred to in the Master Agreement as the
"ALTERNATIVE ASSET PURCHASE AGREEMENT" and is being delivered in connection with
the Merger Agreement and the Master Agreement, in each case subject to the terms
and conditions hereof.
In consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the parties hereto hereby agree as follows:
Section 1. Capitalized Terms. Capitalized terms used in this Agreement
without definition shall have the respective meaning given them in the Merger
Agreement.
Section 2. Effectiveness of this Agreement. Notwithstanding anything to
the contrary, including, without limitation, the execution and delivery of this
Agreement as of the date hereof, this Agreement shall not become effective
unless and until the following condition is are satisfied: each of Operating
Partnership and Brandywine OP has delivered to Prudential a certification, in
form and substance reasonably satisfactory to Prudential, that confirms that all
conditions to such party's and its affiliates' obligations to effect the REIT
Merger and the OP Merger have been irrevocably satisfied or waived in writing
(the "EFFECTIVENESS CONDITIONS"). Upon the occurrence of the Effectiveness
Conditions, this Agreement shall become fully effective as if executed and
delivered as of such date.
Section 3. Identification of Specified Assets and Specified Interest.
Listed on Exhibit A hereto are certain properties (collectively, the "FEE OWNED
PROPERTIES"), which are owned by the entities listed on Exhibit A as the owners
thereof (each, a "PROPERTY OWNER"). Listed on Exhibit B hereto is a property
commonly known as High Bluff Ridge located in Del Mar, California (the "JOINT
VENTURE OWNED PROPERTY") owned by the entity listed thereon as
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the owner thereof (the "JOINT VENTURE PROPERTY OWNER"). The Fee Owned Properties
and all of the right, title and interest of the Company or its Affiliate (the
"JOINT VENTURE INTEREST OWNER") in the Joint Venture Owned Property (the "JOINT
VENTURE INTEREST") shall be conveyed to one (1) or more entities designated by
Prudential (each such entity, a "TRANSFEREE") in accordance with the terms of
this Agreement. The Fee Owned Properties are more particularly described below
and are referred to in this Agreement with the following and with the Joint
Venture Interest, collectively, as the "SPECIFIED ASSETS":
(a) All of that land more particularly described on Exhibit C and all
improvements located thereon (the "REAL PROPERTY");
(b) All right, title and interest, if any, of the applicable Property
Owner, in and to any land lying in the bed of any street, road or access way,
opened or proposed, in front of, at a side of or otherwise adjoining the Real
Property;
(c) All right, title and interest of the applicable Property Owner,
reversionary or otherwise, in and to all easements in, upon or benefiting the
Real Property and all other rights and appurtenances belonging or in any wise
pertaining thereto;
(d) Any condemnation award to be made after the date of this Agreement
for any claim of condemnation hereafter occurring, in connection with the Real
Property and/or the other interests described in the foregoing subparagraphs
10.01(a) through (c), of this Section 3, and in and to any award for damage
hereafter occurring to the Real Property and/or such interests;
(e) All right, title and interest of the applicable Property Owner in
and to any permits, approvals, agreements, rights and entitlements pertaining to
the Real Property, in each of the foregoing cases to the extent assignable;
(f) All right, title and interest of the applicable Property Owner in
and to all air rights, water rights and mineral rights with respect to the Real
Property or appurtenant to the Real Property;
(g) Any and all rights to the present or future use of wastewater,
drainage, water or other utility facilities that pertain to or benefit the Real
Property, including, without limitation, all reservations, credits, commitments
or letters covering any such use in the future;
(h) All right, title and interest of the applicable Owner in and to any
and all reversionary rights attributable to the Real Property;
(i) All right, title and interest of the applicable Property Owner in
and to all consents, authorizations, variances or waivers, licenses, credits,
permits and approvals from any governmental or quasi-governmental agency,
department, board, commission, bureau or other entity or instrumentality with
respect to the Real Property, in each of the foregoing cases to the extent
assignable; and
(j) All right, title and interest of the applicable Property Owner in
and to all contracts, agreements, plans, specifications, site plans,
construction drawings, schematics and
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renderings, studies, reports, documents, materials and information, and any
other tangible or intangible property, rights and benefits relating to the Real
Property, in each of the following cases to the extent assignable.
Section 4. Conveyance of Specified Assets and Joint Venture Interest;
Specified Assets Purchase Price. On the Closing Date (such day, the "SPECIFIED
ASSETS CLOSING DATE"), Operating Partnership shall cause to be conveyed by each
Property Owner and the Joint Venture Interest Owner to the applicable
Transferee(s) such Property Owner's Specified Asset(s). The closing under this
Section 4 (the "SPECIFIED ASSETS CLOSING") shall take place at the offices of
Xxxxxx Xxxxxxxx LLP, Philadelphia, Pennsylvania or through escrow arrangements
that are satisfactory to Seller and Prudential. Each such conveyance by a
Property Owner shall be made by delivery and recordation of a deed in the
applicable form of Exhibit D hereto (each, a "DEED") and delivery and
recordation, if applicable, of the other documents and instruments listed in
Section 6. The conveyance of the Joint Venture Interest by the Joint Venture
Interest Owner shall be made by delivery of an assignment of interest in the
form of Exhibit E hereto (the "ASSIGNMENT OF INTEREST"). In exchange for the
conveyance of all of the Specified Assets in accordance with the terms of this
Section, Prudential shall pay or cause to be paid to Operating Partnership the
sum of $747,650,417 (the "SPECIFIED ASSETS PURCHASE PRICE"), subject to
adjustment as provided in this Agreement and less the outstanding balance of any
indebtedness on any of the Specified Assets or 70% of the outstanding
indebtedness on the Joint Venture Owned Property that is not repaid in full on
or before the Specified Assets Closing Date. The Specified Assets Purchase
Price, as adjusted as provided herein, shall be paid by wire transfer of
immediately available funds pursuant to wiring instructions provided by
Operating Partnership to Prudential in writing not less than two (2) business
days prior to the Specified Assets Closing Date.
Section 5. Prorations and Adjustments.
(a) Taxes and Assessments. Ad valorem, personal property and similar
taxes (including assessments) for the then current tax period relating to the
Specified Assets and, to the extent of the Joint Venture Interest, the Joint
Venture Owned Property shall be prorated between the applicable Property Owner
or other owner and the applicable Transferee at the Specified Assets Closing as
of 11:59 p.m. on the day immediately preceding the Specified Assets Closing
Date. If the Specified Assets Closing occurs before the tax rate or assessed
valuation for a Specified Asset or the Joint Venture Owned Property, as the case
may be, is fixed for the then current tax year, apportionment of taxes and other
amounts hereunder shall be made on the basis of the tax rate for the preceding
year applied to the latest assessed respective valuation of the applicable
Specified Asset or the Joint Venture Owned Property, as applicable, and when the
tax rate and assessed valuations are fixed for the tax year in which the
Specified Assets Closing occurs, Operating Partnership and the applicable
Transferee hereby agree to adjust the proration of taxes hereunder and, if
necessary, to refund or pay such sums to the other party as shall be necessary
to effect such adjustment.
(b) Rents. All rents and other payments from tenants under the Space
Leases affecting the Specified Assets or Operating Partnership's or its
Affiliate's interest in the Joint Venture Owned Property shall be prorated
between the applicable Property Owner and the applicable Transferee as of 11:59
p.m. on the day immediately preceding the Specified Assets Closing Date. Each
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Property Owner shall be entitled to all rents, charges, and other revenue of any
kind attributable to any period under the Leases affecting its Specified Assets
to, but not including, the Specified Assets Closing Date. Each Transferee of a
Fee Owned Property shall be entitled to all rents, charges and other revenue of
any kind attributable to any period under the Leases affecting its Specified
Assets on and after the Specified Assets Closing Date. The Joint Venture
Interest Owner and the Transferee thereof shall prorate such rent, charges and
other revenue attributable to the Joint Venture Owned Property on a similar
basis in accordance with their interests. Rents or other reimbursements due
landlord under the Leases affecting Specified Assets not collected as of the
Specified Assets Closing Date shall not be prorated at the time of the Specified
Assets Closing, but each applicable Transferee shall make a good faith effort
(which shall not include bringing legal action against a tenant) to collect the
same on the applicable Seller's behalf and to tender the same to Operating
Partnership upon receipt (which obligation of such Transferee shall survive the
Specified Assets Closing and not be merged therein for a period of four (4)
months); provided, however, that all rents, escalations and other reimbursements
due landlord under the Leases affecting its Specified Assets collected by a
Transferee on or after the Specified Assets Closing Date, less the reasonable
costs of collection, shall first be applied to all amounts due under the Leases
affecting its Specified Assets at the time of collection (i.e., current rents
and sums due such Transferee as the current owner and landlord) with the balance
(if any) payable to Operating Partnership, but only to the extent of amounts
delinquent and actually due to Operating Partnership. The owner of the Joint
Venture Interest and the Transferee thereof shall treat rents and other
reimbursements due landlord under the Leases affecting the Joint Venture Owned
Property on a similar basis in accordance with their interests.
(c) Security Deposits.
(i) At the Specified Assets Closing, each Transferee will
receive a credit against the Specified Assets Purchase Price in an
amount equal to the amount of the tenant security deposits which are
held in the form of cash by the applicable Property Owner pursuant to
the Leases affecting its Specified Assets.
(ii) With respect to any security deposits held by a Property
Owner under any Leases affecting its Specified Assets which are in the
form of letters of credit, such Property Owner shall (i) deliver to the
applicable Transferee at the Specified Assets Closing such letters of
credit, (ii) execute and deliver such other instruments as the issuers
of such letters of credit shall reasonably require, (iii) cooperate
with the applicable Transferee to change the named beneficiary under
such letters of credit to such Transferee, and (iv) at the applicable
Transferee's request, until such time as such letters of credit have
been properly transferred to such Transferee, draw on such letters of
credit in accordance with any request therefor made by such Transferee.
(d) Leasing Expenses. At the Specified Assets Closing, each Property
Owner shall receive a credit (an upward adjustment) with respect to the
Specified Assets Purchase Price for any obligations for (i) brokerage
commissions or finders' fees and (ii) tenant improvement allowances, in each
case, incurred by such Property Owner in entering into Leases affecting its
Specified Assets, that were executed on or after October 3, 2005, and (iii)
reasonable legal fees, costs and expenses actually incurred by such Property
Owner in entering into Leases affecting its Specified Assets which were executed
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on or after October 3, 2005, and with respect to Leases not reflected on
Schedule K, as and to the extent that such legal fees, costs and expenses were
expressly approved by Prudential in connection with its approval of such Lease.
In addition, the applicable Transferee shall be responsible to pay any brokerage
commissions which are due and payable subsequent to the Specified Assets Closing
Date in connection with any renewal or expansion of a Lease affecting its
Specified Assets. Notwithstanding the foregoing, no Property Owner shall receive
a credit at the Specified Assets Closing, or otherwise be entitled to any
reimbursement at any other time, for any obligations for (i) brokerage
commissions or finders' fees, (ii) tenant improvement allowances incurred by
such Property Owner in entering into any Leases affecting its Specified Assets
that were executed prior to October 3, 2005, or (iii) legal fees, costs or
expenses not described in item (iii) of the first sentence of this subsection
(d). In the event that any obligations described in the preceding sentence are
not paid in full by the applicable Property Owner as of the Specified Assets
Closing Date, the applicable Transferee shall receive a credit against the
Specified Assets Purchase Price in an amount equal to the amount of such unpaid
obligations which are attributable to the Leases affecting its Specified Assets.
The Joint Venture Interest Owner and the Transferee thereof shall prorate any
brokerage commissions, finder's fees, tenant improvement allowances, and legal
fees attributable to the Joint Venture Owned Property on a similar basis to that
described in this subsection (d) in accordance with their interests.
(e) Operating Expenses. Operating expenses, including, without
limitation, interest on debt assumed by a Transferee, for the Specified Assets
and the Joint Venture Owned Property shall be prorated as of 11:59 p.m. on the
day immediately preceding the Specified Assets Closing Date. Each Property Owner
shall pay all utility charges and other operating expenses attributable to its
Specified Assets to, but not including, the Specified Assets Closing Date, and
each Transferee shall pay all utility charges and other operating expenses
attributable to its Specified Assets on or after the Specified Assets Closing
Date. The Joint Venture Interest Owner and its Transferee shall prorate utility
charges and operating expenses attributable to the Joint Venture Owned Property
on a similar basis in accordance with their interests. To the extent that the
amount of actual consumption of any utility services is not determined prior to
the Specified Assets Closing Date, a proration shall be made at the Specified
Assets Closing based on the last available reading and post-closing adjustments
between each Property Owner or the Joint Venture Interest Owner and the
applicable Transferee and thereafter a final proration shall be made as
described below in subsection (g). No Property Owner shall assign to any
Transferee any deposits which such Property Owner has with any of the utility
services or companies servicing the Specified Assets. Each Transferee shall
arrange with such services and companies to have accounts opened in its name
beginning at 12:01 a.m. on the Specified Assets Closing Date.
(f) Capital Expenditures. Each Transferee shall be entitled to receive
a credit against the Specified Assets Purchase Price at the Specified Assets
Closing in an amount equal to the amount of capital expenditures, tenant
improvement work and other similar expenses which were budgeted to be spent by
the applicable Property Owner prior to the Specified Assets Closing Date
pursuant to Schedule 5.01 of the Merger Agreement in the event that each of the
following conditions is satisfied: (i) such budgeted capital expenditures,
tenant improvement work and other similar expenses were not expended by the
applicable Seller in accordance with Schedule 5.01 to the Merger Agreement, (ii)
the work contemplated by the applicable line item in Schedule 5.01 to the Merger
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Agreement was not completed as of the Specified Assets Closing Date to
Prudential's satisfaction, and (iii) Prudential has not received an explanation
satisfactory to Prudential as to why such work has not been completed as of the
Specified Assets Closing Date. The Joint Venture Interest Owner and the
Transferee thereof shall prorate any such capital expenditures, tenant
improvement work and other similar expenses attributable to the Joint Venture
Owned Property on a similar basis to that described in this subsection (f) in
accordance with their interests.
(g) Post Closing True Up. The parties agree that all of the prorations
required by this Section 5 are, based on the information available to the
parties as of Specified Assets Closing Date, as set forth on Schedule K attached
hereto. Notwithstanding that agreement, for a period of sixty (60) days
following the Specified Assets Closing Date (the "POST CLOSING ADJUSTMENT
PERIOD"), each Property Owner, Joint Venture Interest Owner, and each Transferee
shall promptly notify each other in the event that such party obtains knowledge
that the amount of an item listed in any section of this Section 5 or any
estimate thereof as of the Specified Assets Closing Date has proven to be
incorrect (whether as a result of an error in calculation or a lack of complete
and accurate information as of the Specified Assets Closing Date). In such
event, the Property Owner, Joint Venture Interest Owner, and each Transferee
with knowledge of the error shall provide the other parties with notice and
reasonable evidence of such error, and the party owing money as a result of such
error or adjustment shall thereafter promptly pay to the party owed money as a
result of such error or adjustment the sum necessary to correct such error or
make such adjustment. Without limiting the foregoing, during the Post Closing
Adjustment Period, each Transferee shall have the opportunity to request
reasonable evidence that work required by Section 5.01 to the Merger Agreement
applicable to its Specified Assets and listed on Schedule K as "Projects
Completed" have actually been completed to Transferee's reasonable satisfaction.
In the event that a Transferee does not receive evidence that such work has been
completed to Transferee's reasonable satisfaction during the Post Closing
Adjustment Period, then the applicable Property Owner shall promptly pay the
applicable amount reflected on Schedule K for such work to the applicable
Transferee.
(h) This Section 5 shall survive the Specified Assets Closing.
Section 6. Delivery of Documents by Operating Partnership On the
Specified Assets Closing Date, Operating Partnership and Other Seller shall,
notwithstanding anything to the contrary, deliver or cause to be delivered to
Prudential the following:
(a) The Deeds and the Assignment of Interest, duly executed and
delivered by the applicable Property Owner or the Joint
Venture Interest Owner, as the case may be;
(b) All transfer, recordation and similar tax forms required in
connection with the Deeds and the Assignment of Interest, in
form and substance reasonably satisfactory to Prudential, duly
executed and delivered by the applicable Property Owner or the
Joint Venture Interest Owner, as the case may be;
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(c) A Xxxx of Sale in the form of Exhibit F hereto (each, a "XXXX
OF SALE"), duly executed and delivered by each applicable
Property Owner;
(d) An Assignment of Leases in the form of Exhibit G hereto (each,
an "ASSIGNMENT OF LEASES"), duly executed and delivered by
each applicable Property Owner;
(e) An Assignment of Intangibles in the form of Exhibit H hereto
(each, an "ASSIGNMENT OF INTANGIBLES"), duly executed and
delivered by each applicable Property Owner, together with
original copies of all permits, licenses, approvals, contracts
and other matters conveyed thereby to the extent reasonably
available in Operating Partnership's possession or under
Operating Partnership's control;
(f) All on-site books, records, files and keys related to each
Specified Asset and the Joint Venture Owned Property;
(g) Such affidavits and indemnities as are customarily required by
the title insurance company issuing the title insurance
policies on the Specified Assets or the Joint Venture Owned
Property, including, without limitation, as to parties in
possession, mechanic's liens, a gap closing, if applicable,
contest of encumbrances and no transfer of the Specified
Assets or Joint Venture Owned Property or grant of any option
or similar matter, and evidence of each Property Owner's and
the Joint Venture Interest Owner's authority to convey the
Specified Assets, which affidavits and indemnities are
reasonably satisfactory to Prudential and such title insurance
company. Notwithstanding the foregoing, with respect to
Specified Assets located in Virginia, no Property Owner of any
such Specified Asset shall be required to deliver an affidavit
covering mechanic's liens on such Specified Asset to the
extent resulting from work of a tenant under a lease affecting
such Specified Asset;
(h) A non-foreign affidavit in the form of Exhibit I hereto, duly
executed and delivered by each Property Owner and the Joint
Venture Interest Owner;
(i) To the extent obtained by Operating Partnership or its
affiliates, the Debt Assignment and Assumption Documents (as
defined below) duly executed and delivered by Operating
Partnership and all parties thereto other than the applicable
Transferee, it being acknowledged by Prudential, however, that
it shall not be a condition to Prudential's obligation to
close under this Agreement that Operating Partnership deliver
any Debt Assignment and Assumption documents Operating
Partnership has not been able to obtain despite the efforts
required under the Merger Agreement;
(j) Notices to all tenants under the Space Leases affecting the
Specified Properties in the form of Exhibit J hereto, duly
executed by or on behalf of each respective Property Owner;
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(k) Such other documents and instruments as are customary for real
property sales of comparable property in the applicable
jurisdiction and may be reasonably required by Prudential or
the title company in connection with the transactions
contemplated by this Agreement.
Section 7. Delivery of Documents by Transferees. On the Specified
Assets Closing Date, Prudential shall deliver or cause to be delivered to
Operating Partnership the following:
(a) The Assignment of Interest, duly executed and delivered by the
applicable Transferee;
(b) All transfer, recordation and similar tax forms required in
connection with the Deeds and the Assignment of Interest, in
form and substance reasonably satisfactory to Prudential, duly
executed and delivered by the applicable Transferee;
(c) Each Assignment of Lease, duly executed and delivered by each
applicable Transferee;
(d) Each Assignment of Intangibles, duly executed and delivered by
each applicable Transferee;
(e) The Debt Assignment and Assumption Documents, duly executed
and delivered by the applicable Transferees;
(f) The Closing Statements, duly executed and delivered by each
Transferee;
(g) A certification by Prudential that all representations and
warranties of Prudential contained in this Agreement are true
and correct;
(h) The Specified Assets Purchase Price, as adjusted in accordance
with this Agreement; and
(i) Such other documents and instruments as may be reasonably
required by Operating Partnership in connection with the
transactions contemplated by this Agreement.
Section 8. Assignment. Operating Partnership and Other Seller
`acknowledge and agree that Prudential shall have the right to assign all of its
right, title and interest in, to and under this Agreement to one (1) or more
entities owned or advised by Prudential or any of its Affiliates (Prudential and
each of the foregoing, a "TRANSFEREE"). Upon any such assignment, each
applicable Transferee shall succeed to all applicable right, title and interest
of Prudential under this Agreement, and each applicable Transferee shall assume
all applicable obligations of Prudential under this Article first arising from
and after the date of such assignment. No such assignment by Prudential shall
release Prudential from its obligations under this Agreement.
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Section 9. Termination; Remedies. If the Merger Agreement is terminated
in accordance with its terms, this Agreement shall be deemed terminated and of
no further force or effect, except for any provisions which by their terms are
to survive the Specified Assets Closing. Without limiting any other term of this
Agreement or any rights at law or in equity, Operating Partnership and Other
Seller acknowledge and agree that the terms of this Agreement shall be
enforceable by one (1) or more actions in specific performance.
Section 10. Representations and Warranties. Operating Partnership and
Other Seller hereby jointly and severally represent and warrant to Prudential,
as of the date on which this Agreement becomes effective and as of the Specified
Assets Closing Date, as follows:
(a) Neither Operating Partnership nor Other Seller is, and is not
an affiliate (as defined in Section V(c) of Prohibited
Transaction Class Exemption 84-14 ("PTE 84-14")) of, any of
the Trustees of the Western Conference of Teamsters Pension
Trust Fund. None of Operating Partnership, Other Seller or any
affiliate (within the meaning of Part V(c) of PTE 84-14) of
either of them has the authority to appoint or terminate
Prudential as investment manager of any assets of the Western
Conference of Teamsters Pension Trust Fund or to negotiate the
terms of any management agreement with Prudential on behalf of
the Western Conference of Teamsters Pension Trust Fund, and
neither Operating Partnership nor Other Seller is a
participating employer in the Western Conference of Teamsters
Pension Trust Fund. The transaction contemplated by this
Agreement (the "TRANSACTION") is not specifically excluded by
Part I(b) of PTE 84-14. Neither Operating Partnership nor
Other Seller is a related party of Prudential (as defined by
Part V(h) of PTE 84-14). The terms of the Transaction have
been negotiated and determined at arm's length, as such terms
would be negotiated and determined by unrelated parties.
(b) Neither Operating Partnership nor Other Seller is a party in
interest (as defined in Section 3(14) of ERISA) with respect
to the Virginia Retirement System, the PRISA II 10% Plan or
any of the PRISA III 10% Plans (all as defined below), other
than by reason of providing services to the Virginia
Retirement System, a PRISA II 10% Plan or a PRISA III 10%
Plan, as the case may be, or by reason of a relationship to
such a service provider described in Section 3(14)(F), (G),
(H) or (I) of ERISA. Further, neither Operating Partnership
nor Other Seller exercises discretionary authority, control,
responsibility or influence with respect to the investment of
assets of the Virginia Retirement System, the PRISA II 10%
Plan in Prudential Property Investment Separate Account II
("PRISA II") or a PRISA III 10% Plan in Prudential Property
Investment Separate Account III ("PRISA III") or has
discretionary authority, control, responsibility or influence
with respect to the management or disposition of the assets of
the Virginia Retirement System, the PRISA II 10% Plan held in
PRISA II or a PRISA III 10% Plan held in PRISA III. For
purposes hereof, (i) "PRISA II 10% PLAN" shall mean the
Virginia Supplemental Retirement System, and (ii) "PRISA III
10% PLANS" shall mean (A) the General Board of Pension and
Health Benefits of the United Methodists Church incorporated
in Missouri as trustee of certain benefit and pension plans of
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the United Methodists Church, (B) STA-XXX of Baltimore Pension
Fund, and (C) the New York State Teachers' Retirement System.
(c) Neither Operating Partnership nor Other Seller is an employee
pension benefit plan subject to the provisions of Title IV of
ERISA or subject to the minimum funding standards under Part
3, Subtitle B, Title I of ERISA or Section 412 of the Internal
Revenue Code or Section 302 of ERISA. None of Operating
Partnership's or Other Seller's assets constitute assets of
any employee benefit plan subject to Part 4 of Subtitle B of
Title I of ERISA and/or Section 4975 of the Code. Neither
Operating Partnership nor Other Seller is a "governmental
plan" within the meaning of Section 3(32) of ERISA and none of
the Specified Assets or the Joint Venture Owned Property is
subject to State statutes regulating the investments of and
fiduciary obligations with respect to governmental plans.
(d) The transactions contemplated by this Agreement, the Merger
Agreement and the Master Agreement are exempt from any
requirement to make any filings under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and the
implementing regulations thereto, 16 C.F.R. parts 801-803,
because Operating Partnership and Other Seller have determined
that the aggregate fair market value of the non-exempt assets
constituting a portion of the Specified Assets of Operating
Partnership and Other Seller and the entities controlled by
Operating Partnership or Other Seller is less than
$53,100,000.
Section 11. Consent Required Outstanding Indebtedness. Notwithstanding
anything to the contrary contained in this Agreement, at all times prior to the
Specified Assets Closing Date, Operating Partnership and Other Seller shall use
commercially reasonable efforts to obtain the consent to the assumption of each
Consent Required Outstanding Indebtedness by the applicable Transferee from each
holder thereof and any other necessary party thereto (each, a "REQUIRED DEBT
CONSENT"). Neither Operating Partnership nor Other Seller shall have any
obligation to pay any assumption fee or other amount due to any holder of any
Consent Required Outstanding Indebtedness in order to obtain a Required Debt
Consent. Each Required Debt Consent so obtained shall be in form and substance
reasonably satisfactory to Prudential. Operating Partnership and Other Seller
agree that they shall not modify or permit to be modified any term of the
Consent Required Outstanding Indebtedness without Prudential's prior consent. If
Operating Partnership or Other Seller is not released from any obligations under
a non-recourse carve-outs guaranty pursuant to a Required Debt Consent,
Prudential shall indemnify, defend and hold harmless Operating Partnership
and/or Other Seller from any and all liability under such guaranty first arising
from and after such time as Prudential or the applicable Transferee becomes the
borrower thereunder.
Section 12. Closing Costs. Prudential shall pay or cause to be paid all
transfer and similar taxes and fees associated with the direct one (1) time
transfer of the Fee Owned Properties and Joint Venture Interest to each
Transferee pursuant to the terms of the Master Agreement and this Agreement.
Seller expressly retains all liability for all transfer and similar taxes and
fees other than those described in the preceding sentence. Each of Operating
Partnership, Other Seller and Prudential shall pay their own legal fees and
expenses associated with the transactions contemplated by this Agreement. This
Section 12 shall survive the Specified Assets Closing.
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Section 13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland, regardless of
the laws that might otherwise govern under applicable conflict or choice or law
rules.
Section 14. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or law,
or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that such transactions are fulfilled to the fullest extent possible.
Section 15. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
Section 16. Entire Agreement; No Third Party Counterparts. This
Agreement (including any exhibits and schedules hereto), taken together with the
Merger Agreement and the Master Agreement (a) constitutes the entire agreement,
and supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the transactions contemplated hereby and
thereby. This Agreement shall be binding upon and inure solely to the benefit of
each party hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
Section 17. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties, except as expressly permitted herein. Any
purported assignment without such consent shall be void. Subject to the
preceding sentences, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns
Section 18. Amendment. This Agreement may not be amended except in
writing by all parties hereto.
[Remainder of page intentionally blank.]
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above written.
MERGER SUB:
-----------
BRANDYWINE COGNAC I LLC, a Delaware
limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
BRANDYWINE OP:
--------------
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Brandywine Realty Trust, a Maryland corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
OPERATING PARTNERSHIP:
---------------------
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
a Delaware limited partnership
By: Xxxxxxxx Properties I, Inc., a Delaware
corporation, its general partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
OTHER SELLER:
------------
XXXXXXXX PROPERTIES REAL ESTATE FUND I, L.P.,
a Delaware limited partnership
By: Xxxxxxxx Properties Real Estate Fund I, LLC, a
Delaware limited liability company, its general
partner
By: Xxxxxxxx Properties II, Inc., a Delaware
corporation, its member
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
PRUDENTIAL:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Xxxxx X. Xxxxxx, Vice President
