CONSENT AND CONFIRMATION AGREEMENT
Exhibit 10.3
Consent and Confirmation Agreement, dated as of February 13, 2006 (this “Agreement”), by and between Brandywine Operating Partnership, L.P., a Delaware limited partnership (“Brandywine”) and Xxxxxx X. Xxxxx (“Xxxxx”).
Background
Brandywine and Xxxxx executed a Modification Agreement dated as of June 20, 2005 (the “2005 Agreement”). The 2005 Agreement sets forth the rights and obligations of each of Brandywine and Xxxxx with respect to the office property known as 000 Xxxxxxx Xxxxx (the “Property”).
Xxxxxxxx Xxxxx & Co. desires to purchase the Property pursuant to an Agreement of Sale in substantially the form attached hereto as Exhibit A (the “Sales Agreement”).
NOW, THEREFORE, intending to be legally bound, the parties agree as follows:
1. Brandywine Consent. Brandywine consents to the execution and delivery of the Sales Agreement by Xxxxx.
2. Xxxxx Confirmation and Agreement. Xxxxx agrees that he shall not provide any waivers, consents or approvals under the Sales Agreement without the prior written consent of Brandywine and agrees and confirms that under and in accordance with the Modification Agreement one-half of the net payments (i.e., proceeds net of repayment of the mortgage loan secured by the Property, transfer taxes and brokerage commissions payable by the seller under the Sales Agreement) made by Purchaser under the Sales Agreement, including any forfeiture of the security deposit provided for therein, shall be paid to Brandywine. In no event shall Brandywine have any liability for any representations, warranties, covenants or agreements of Xxxxx in
or arising under the Sales Agreement.
3. Authorship; Advice of Counsel. Each of the parties has actively participated in the negotiation and drafting of this Agreement, and each has received independent legal advice from its attorney concerning this Agreement. In the event of a dispute regarding this Agreement, the parties will be conclusively deemed to be the joint authors of this Agreement, and no provision of this Agreement will be interpreted against a party by reason of authorship. Xxxxx acknowledges and confirms that he has received independent legal advice from his attorney concerning the Sales Agreement and that Brandywine has not provided him with any advice, whether legal, tax or otherwise, concerning the Sales Agreement or the transactions
provided for therein.
4. Governing Law. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of New Jersey.
5. Amendments. This Agreement may not be amended or otherwise changed in any respect whatsoever except by a writing signed by each of the parties hereto.
6. Entire Agreement. This Agreement contains the entire agreement between the parties concerning the subject matter hereof and supersedes any and all prior or contemporaneous agreements, whether written or oral, concerning the subject matter hereof; provided that, notwithstanding the execution and delivery of this Agreement, the 2005 Agreement shall continue in full force and effect.
7. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument.
8. Facsimile. A facsimile copy of an original written signature shall be deemed to have the same effect as an original written signature.
IN WITNESS THEREOF, this Agreement has been executed by each of the undersigned as of the day, month and year first above written.
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BRANDYWINE OPERATING PARTNERSHIP, L.P.
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By:
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BRANDYWINE REALTY TRUST,
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its General Partner
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By:
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Name: Xxxxxx X. Xxxxxxx
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Title: President and Chief Executive Officer
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Xxxxxx X. Xxxxx
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