Exhibit 10.5
CONTRIBUTION AGREEMENT
between
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
A DELAWARE LIMITED PARTNERSHIP
("XXXXXXXX")
and
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
A DELAWARE LIMITED PARTNERSHIP
("BRANDYWINE OP")
TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINITIONS........................................................3
1.1. Definitions........................................................3
ARTICLE II - CONTRIBUTION AND ISSUANCE; STUDY PERIOD; PROPERTY SUBJECT
TO MASS MUTUAL LOAN..............................................11
2.1. Contribution......................................................11
2.2. Issuance of the Common Units and the Special Units................12
2.3. Deposit...........................................................13
2.4. Study Period......................................................13
ARTICLE III - BRANDYWINE OP'S REPRESENTATIONS AND WARRANTIES..................18
3.1. Organization and Power............................................18
3.2. Authorization, Execution and Disclosure...........................18
3.3. Non-contravention.................................................19
3.4. No Special Taxes..................................................19
3.5. Compliance with Existing Laws and Restrictive Covenants...........19
3.6. Operating Agreements..............................................20
3.7. Condemnation Proceedings; Roadways................................20
3.8. Actions or Proceedings............................................20
3.9. Bankruptcy........................................................21
3.10. Hazardous Substances..............................................21
3.11. Parties in Possession.............................................21
3.12. Leases............................................................22
3.13. Leased Property...................................................22
3.14. Personal Property.................................................22
3.15. Additional Representations and Warranties with Respect to the
Tysons Partnership Interest and Tysons Partnership................22
3.16. No Unpaid Charges.................................................23
3.17. Condition of Improvements.........................................23
3.18. Access............................................................24
3.19. No Commitments....................................................24
3.20. Not a "Foreign Person"............................................24
3.21. Leasing Commissions...............................................24
3.22. Other Agreements..................................................24
3.23. Existing Secured Indebtedness.....................................25
3.24. Employment on "At-Will" Basis.....................................25
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PAGE
3.25. Additional Representations and Warranties with Respect to the
Issuance of Common Units and Preferred Units......................25
3.26. LIMITATIONS ON REPRESENTATIONS AND WARRANTIES.....................26
ARTICLE IV - XXXXXXXX' REPRESENTATIONS AND WARRANTIES.........................28
4.1. Organization and Power............................................28
4.2. Non-contravention.................................................28
4.3. Litigation........................................................28
4.4. Bankruptcy........................................................29
4.5. Authorization, Execution and Disclosure...........................29
4.6. The Common Units..................................................29
4.7. Allocation Methodology............................................29
ARTICLE V - CONDITIONS PRECEDENT..............................................30
5.1. As to Xxxxxxxx' Obligations.......................................30
5.2. As to Brandywine OP's Obligations.................................31
ARTICLE VI - COVENANTS OF BRANDYWINE OP.......................................32
6.1. Operating Agreements..............................................32
6.2. Warranties and Guaranties.........................................33
6.3. Insurance.........................................................33
6.4. Operation of Property Prior to Closing............................33
6.5. No Marketing......................................................35
ARTICLE VII - CLOSING.........................................................35
7.1. Closing...........................................................35
7.2. Brandywine OP's Deliveries........................................36
7.3. Xxxxxxxx' Deliveries..............................................38
7.4. Mutual Deliveries.................................................39
7.5. Closing Costs.....................................................39
7.6. Miscellaneous Payments and Revenue and Expense Allocations........40
ARTICLE VIII - GENERAL PROVISIONS.............................................42
8.1. Condemnation......................................................42
8.2. Risk of Loss......................................................42
8.3. Broker............................................................43
8.4. 8260 Greensboro...................................................43
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PAGE
ARTICLE IX - LIABILITY OF XXXXXXXX; INDEMNIFICATION BY BRANDYWINE OP;
DEFAULT; TERMINATION RIGHTS......................................44
9.1. Liability of Xxxxxxxx.............................................44
9.2. Indemnification by Brandywine OP..................................44
9.3. Default by Brandywine OP/Failure of Conditions Precedent..........45
9.4. Indemnification by Xxxxxxxx.......................................46
9.5. Default by Xxxxxxxx/Failure of Conditions Precedent...............46
9.6. Costs and Attorneys' Fees.........................................47
9.7. Limitation of Liability...........................................47
ARTICLE X - MISCELLANEOUS PROVISIONS..........................................47
10.1. Completeness; Modification........................................47
10.2. Assignments.......................................................47
10.3. Successors and Assigns............................................47
10.4. Days..............................................................48
10.5. Governing Law.....................................................48
10.6. Counterparts......................................................48
10.7. Severability......................................................48
10.8. Notices...........................................................48
10.9. Escrow Agent......................................................49
10.10. Incorporation by Reference........................................50
10.11. Survival..........................................................50
10.12. Further Assurances................................................50
10.13. No Partnership....................................................50
10.14. Time of Essence...................................................51
10.15. Signatory Exculpation.............................................51
10.16. Rules of Construction.............................................51
10.17. SEC Reporting (8-K) Requirements..................................51
EXHIBITS
Exhibit A - Amended and Restated Tysons Partnership Agreement
Exhibit B - FFI Consent
Exhibit C - Management Agreement Assignment and Assumption Agreement
Exhibit D-1 - Mass Mutual Consent
Exhibit D-2 - Mass Mutual Loan Documents
Exhibit E - Partnership Assignment and Assumption Agreement
Exhibit F - Replacement Exchange Agreement
Exhibit G - Replacement Registration Rights Agreement
Exhibit H - Form of Fourteenth Amendment to Xxxxxxxx Partnership Agreement
Exhibit I - Form of Termination Agreement
Exhibit J - [Intentionally Omitted]
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PAGE
Exhibit K - Tenant Estoppel
Exhibit L - Mass Mutual Estoppel
Exhibit M - Excluded Personal Property
SCHEDULES
Schedule 3.6 - Assumed Operating Agreements
Schedule 3.12 - Rent Roll and Accounts Receivable Report
Schedule 3.19 - Outstanding Leasing Commissions
Schedule 6.4(g) - Approved New Leases
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CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "AGREEMENT") is made as of this ____ day
of March, 2001, between XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P., a
Delaware limited partnership ("XXXXXXXX"), and BRANDYWINE OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership ("BRANDYWINE OP").
R E C I T A T I O N S:
A. Brandywine OP is the owner of a partnership interest (the "TYSONS
PARTNERSHIP INTEREST") in Brandywine Tysons International Partners, a Delaware
general partnership (the "TYSONS PARTNERSHIP") as more particularly described in
that certain Partnership Agreement dated as of September 14, 1999 (the "ORIGINAL
TYSONS PARTNERSHIP AGREEMENT") between Brandywine OP and FFI Tysons Partners,
L.P. (formerly known as Baita Tysons Partners, L.P.), a Georgia limited
partnership ("BAITA").
B. Under the Original Tysons Partnership Agreement, Brandywine OP is the
Managing Partner and, as such Managing Partner, Brandywine OP has caused the
Tysons Partnership to enter into that certain Management and Leasing Agreement
(the "MANAGEMENT AGREEMENT") dated as of September 14, 1999 with Brandywine
Realty Services Corporation, an affiliate of Brandywine OP ("BRSCO").
C. Tysons Partnership is the indirect owner (through two subsidiary limited
partnerships, being Brandywine Tysons, L.P. and Brandywine 1676, L.P.) of two
properties (collectively, the "Property") situate at, and known as, 0000
Xxxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx ("8260 GREENSBORO") and 0000
Xxxxxxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx ("0000 INTERNATIONAL") and as more
particularly described in Exhibit A to the Original Tysons Partnership
Agreement.
D. Brandywine OP is desirous of contributing, and Xxxxxxxx is desirous of
accepting, the Tysons Partnership Interest, and Xxxxxxxx is also desirous of
replacing Brandywine OP as the Managing Partner of the Tysons Partnership and of
having the Management Agreement assigned to one of its affiliates by BRSCO, all
under the terms and conditions described herein.
NOW, THEREFORE, in consideration of the foregoing premises and in
consideration of the mutual covenants, promises and undertakings of the parties
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties, it is
agreed:
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ARTICLE I
DEFINITIONS
1.1. DEFINITIONS. The following terms shall have the indicated meanings:
"ACT OF BANKRUPTCY" shall mean if a party hereto or any general partner
thereof shall (a) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all
or a substantial part of its property, (b) admit in writing its inability to pay
its debts as they become due, (c) make a general assignment for the benefit of
its creditors, (d) file a voluntary petition or commence a voluntary case or
proceeding under the Federal Bankruptcy Code (as now or hereafter in effect),
(e) be adjudicated a bankrupt or insolvent, (f) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization,
winding-up or composition or adjustment of debts, (g) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case or proceeding under the Federal Bankruptcy
Code (as now or hereafter in effect), or (h) take any corporate or partnership
action for the purpose of effecting any of the foregoing; or if a proceeding or
case shall be commenced, without the application or consent of a party hereto or
any general partner thereof, in any court of competent jurisdiction seeking (1)
the liquidation, reorganization, dissolution or winding-up, or the composition
or readjustment of debts, of such party or general partner, (2) the appointment
of a receiver, custodian, trustee or liquidator for such party or general
partner or all or any substantial part of its assets, or (3) other similar
relief under any law relating to bankruptcy, insolvency, reorganization,
winding-up or composition or adjustment of debts, and such proceeding or case
shall continue undismissed for a period of ninety (90) consecutive days; or an
order (including an order for relief entered in an involuntary case under the
Federal Bankruptcy Code, as now or hereafter in effect) judgment or decree
approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of ninety (90) consecutive days.
"ADDITIONAL SPECIAL DISTRIBUTION" shall have the meaning set forth in
SECTION 11.4 of the Original Tysons Partnership Agreement.
"AMENDED AND RESTATED TYSONS PARTNERSHIP AGREEMENT" shall mean an Amended
and Restated Partnership Agreement in the form attached hereto and made a part
hereof as EXHIBIT A, which Xxxxxxxx and FFI will execute in connection with the
Closing.
"APPLICABLE LAWS" shall mean any applicable building, zoning, subdivision,
environmental, health, safety or other governmental laws, statutes, ordinances,
resolutions, rules, codes, regulations, orders or determinations of any
Governmental Authority or of any insurance boards of underwriters (or other body
exercising similar functions), or any restrictive covenants or deed restrictions
affecting the Property or the ownership, operation, use, maintenance or
condition thereof.
"APPLICABLE SHARE PRICE" shall mean the average closing price of the Common
Shares during the thirty trading days ending on the last trading day prior to
the Closing Date.
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"ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean one or more agreements
whereby (a) Brandywine OP indemnifies, defends and holds Xxxxxxxx harmless with
respect to all defaults, liabilities, claims, costs and expenses (including,
without limitation, reasonable attorneys' fees) relating to acts or omissions
accruing under the Assumed Operating Agreements before the Closing Date (but
excluding, in any event, ordinary course accruals); and (b) Xxxxxxxx (directly
or through Tysons Partnership) indemnifies, defends and holds Brandywine OP
harmless with respect to all defaults, liabilities, claims, costs and expenses
(including, without limitation, reasonable attorneys' fees) relating to acts or
omissions accruing under such the Assumed Operating Agreements after the Closing
Date.
"ASSIGNMENT OF LEASES" shall mean the agreement whereby (a) Brandywine OP
indemnifies, defends and holds Xxxxxxxx harmless with respect to all defaults,
liabilities, claims, costs and expenses (including, without limitation,
reasonable attorneys' fees) relating to acts or omissions accruing under such
Leases before the Closing Date (but excluding, in any event, ordinary course
accruals); and (b) Xxxxxxxx (directly or through Tysons Partnership)
indemnifies, defends and holds Brandywine OP harmless with respect to all
defaults, liabilities, claims, costs and expenses (including, without
limitation, reasonable attorneys' fees) relating to acts or omissions accruing
under such Leases after the Closing Date.
"ASSUMED OPERATING AGREEMENTS" shall mean the Operating Agreements listed
on SCHEDULE 3.6 hereto which are not to be terminated pursuant to the last
sentence of SECTION 3.6 hereof.
"AUTHORIZATIONS" shall mean all licenses, permits and approvals required by
any governmental or quasi-governmental agency, body, department, commission,
board, bureau, instrumentality or officer, any owners association created
pursuant to deed restrictions affecting the Property or otherwise appropriate
with respect to the construction, ownership, operation, leasing, maintenance, or
use of the Property or any part thereof.
"BRANDYWINE OP" shall mean Brandywine Operating Partnership, L.P., a
Delaware limited partnership.
"BRANDYWINE OP'S ORGANIZATIONAL DOCUMENTS" shall mean the organizational
documents and all amendments thereto of Brandywine OP.
"CLOSING" shall mean the Closing of the contribution of the Tysons
Partnership Interest and the issuance of the Common Units and the Special Units
pursuant to this Agreement and shall be deemed to occur on the Closing Date.
"CLOSING DATE" shall mean the date on which the Closing occurs.
"CLOSING DOCUMENTS" shall mean the documents defined as such in SECTION 7.1
hereof.
"CODE" shall mean the federal Internal Revenue Code of 1986, as amended.
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"COMMON UNITS" shall mean Common Units of Limited Partnership interests in
Xxxxxxxx.
"COMMON SHARES" shall mean common shares of beneficial interest in the
Trust which, when and if issued upon redemption of Common Units, will be issued
in accordance with the Xxxxxxxx Partnership Agreement, including the Fourteenth
Amendment thereto.
"DEPOSIT" shall mean all amounts deposited from time to time with Escrow
Agent by Xxxxxxxx pursuant to SECTION 2.3 hereof, plus all interest or other
earnings that may accrue thereon. All cash Deposits shall be invested by Escrow
Agent in a commercial bank or banks acceptable to Xxxxxxxx at money market
rates, or in such other investments as shall be approved in writing by Xxxxxxxx
and Brandywine OP. The Deposit shall be held and disbursed by Escrow Agent in
strict accordance with the terms and provisions of this Agreement.
"ENVIRONMENTAL DAMAGES" shall mean all third-party claims, judgments,
damages, losses, penalties, fines, liabilities (including, without limitation,
punitive damages and strict liability), encumbrances, liens, costs and expenses
of investigation and defense of any claim, whether or not such is ultimately
defeated, and of any settlement or judgment, of whatever kind or nature,
contingent or otherwise, matured or unmatured, including, without limitation,
attorneys' fees and disbursements and consultants' fees, any of which arise as a
result of the existence of Hazardous Materials upon, about or beneath the
Property or migrating or threatening to migrate from the Property, or as a
result of the existence of a violation of Environmental Requirements pertaining
to the Property.
"ENVIRONMENTAL REQUIREMENTS" shall mean (i) all applicable statutes,
regulations, rules, policies, ordinances, codes, licenses, permits, orders,
approvals, plans, authorizations, and similar items, of all Governmental
Authorities, and (ii) all judicial, administrative and regulatory decrees,
judgments and orders, in each case of (i) and (ii) relating to the protection of
human health or the environment from Hazardous Materials and health and safety
of employees or the public from Hazardous Materials, including, without
limitation, all requirements thereof pertaining to reporting, licensing,
permitting, investigation and remediation of emissions, discharges, releases or
threatened releases of Hazardous Materials into the air, surface water,
groundwater or land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
"ESCROW AGENT" shall mean Chicago Title Insurance Company.
"EXCLUDED PERSONAL PROPERTY" shall mean those items of personal property
identified on EXHIBIT M. For clarity, the items identified on EXHIBIT M consist
of items that neither Brandywine OP nor BRSCO contributed to Tysons Partnership
or a Subsidiary Entity (nor were any of such items purchased by Tysons
Partnership or a Subsidiary Entity) but which, in furtherance of services which
BRSCO has performed for the Property, have been used at the Property.
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"FFI" shall mean FFI Tysons Partners, L.P. (formerly Baita Tysons Partners,
L.P.), a Georgia limited partnership.
"FFI CONSENT" shall mean a document evidencing FFI's consent to the
transactions contemplated by this Agreement, in substantially the form attached
hereto as EXHIBIT B.
"FIRPTA CERTIFICATE" shall mean the affidavit of Brandywine OP under
Section 1445 of the Code, as amended, certifying that neither Brandywine OP,
Tysons Partnership nor any of the Subsidiary Entities is a foreign corporation,
foreign partnership, foreign trust, foreign estate or foreign person (as those
terms are defined in the Code and regulations promulgated thereunder), in form
and substance satisfactory to Xxxxxxxx.
"FOURTEENTH AMENDMENT" shall mean the Fourteenth Amendment to the Xxxxxxxx
Partnership Agreement.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, county, municipal
or other government or any governmental or quasi-governmental agency,
department, commission, board, bureau, officer or instrumentality, foreign or
domestic, or any of them.
"HAZARDOUS MATERIALS" shall mean any chemical substance: (i) which is or
becomes defined as a "HAZARDOUS SUBSTANCE," "HAZARDOUS WASTE," "HAZARDOUS
MATERIAL," "POLLUTANT," "CONTAMINANT," or "TOXIC," "EXPLOSIVE," "CORROSIVE,"
"FLAMMABLE," "INFECTIOUS," "RADIOACTIVE," "CARCINOGENIC," or "MUTAGENIC"
material under any law, regulation, rule, order, or other authority of the
federal, state or local governments, or any agency, department, commission,
board, or instrumentality thereof, regarding the protection of human health or
the environment from such chemical substances including, but not limited to, the
following federal laws and their amendments, analogous state and local laws, and
any regulations promulgated thereunder: the Clean Air Act, the Clean Water Act,
the Oil Pollution Control Act, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1986, the Emergency Planning and Community
Right to Know Act, the Solid Waste Disposal Act, the Resource Conservation and
Recovery Act, the Safe Drinking Water Act, the Federal Insecticide, Fungicide
and Rodenticide Act, and the Toxic Substances Control Act, including, without
limitation, asbestos and gasoline and other petroleum products (including crude
oil or any fraction thereof); (ii) without limitation, which contains gasoline,
diesel fuel or other petroleum hydrocarbons; (iii) without limitation, which
contains asbestos-containing materials or urea formaldehyde foam insulation; or
(iv) without limitation, radon gas; provided, however, the term "HAZARDOUS
MATERIALS" shall not include de minimis quantities of substances of kinds and in
amounts ordinarily and customarily used or stored in properties similar to the
Property for the purposes of cleaning or other maintenance or operations and
otherwise in compliance with Environmental Requirements.
"IMPROVEMENTS" shall mean all buildings, improvements, fixtures and other
items of real estate located on 8260 Greensboro and 1676 International.
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"INSURANCE POLICIES" shall mean all policies of insurance maintained by or
on behalf of Brandywine OP, Tysons Partnership and/or the Subsidiary Entities
pertaining to the Property, its operation, or any part thereof.
"INTANGIBLE PERSONAL PROPERTY" shall mean all intangible personal property
owned or possessed by Tysons Partnership or a Subsidiary Entity and used in
connection with the ownership, operation, leasing, occupancy or maintenance of
the Property, including, without limitation, (1) Tysons Partnership's exclusive
right to use any trade names associated with the Property and all variations
thereof (other than variants of the legal name of Brandywine OP, Brandywine
Realty Trust or FFI, all rights to which shall be retained by Brandywine OP,
Brandywine Realty Trust, FFI or their respective affiliates), (2) the
Authorizations, utility and development rights and privileges, general
intangibles, business records, plans and specifications pertaining to the
Property and the Personal Property, and (3) any unpaid award for taking by
condemnation or any damage to the Parcels by reason of a change of grade or
location of or access to any street or highway.
"LEASED PROPERTY" shall mean all leased items of Personal Property.
"LEASES" shall mean all leases, tenancies and other rights of occupancy or
use for any portion of the Property, together with any and all amendments
thereto.
"MANAGEMENT AGREEMENT ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean an
assignment and assumption agreement in substantially the form attached hereto as
EXHIBIT C whereby (a) BRSCO (1) assigns and Manager assumes the Management
Agreement and the rights and obligations of BRSCO with respect thereto, and (2)
indemnifies, defends and holds Manager and its agents, employees, officers,
directors, shareholders and contractors harmless with respect to all defaults,
liabilities, claims, costs and expenses (including, without limitation,
reasonable attorneys' fees) relating to acts or omissions by BRSCO accruing with
respect to such Management Agreement before the Closing Date; (b) the assignor
and assignee apportion fees due thereunder as of the Closing Date as provided in
SECTION 7.6 hereof; and (c) Manager indemnifies, defends and holds BRSCO
harmless with respect to all defaults, liabilities, claims, costs and expenses
(including, without limitation, reasonable attorneys' fees) relating to acts or
omissions accruing with respect to such Management Agreement after the Closing
Date.
"MANAGER" shall mean Xxxxxxxx Properties Management, L.P., a Texas limited
partnership.
"MASS MUTUAL" shall mean Massachusetts Mutual Life Insurance Company.
"MASS MUTUAL CONSENT" shall mean a document evidencing Mass Mutual's
consent to the transactions contemplated by this Agreement in substantially the
form attached as EXHIBIT D-1.
"MASS MUTUAL LOANS" shall mean those certain mortgage loans secured by the
Property in the initial aggregate principal amount of $61.5 million.
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"MASS MUTUAL LOAN DOCUMENTS" shall mean those certain loan documents
scheduled on EXHIBIT D-2 attached hereto and made a part hereof.
"NYSE" shall mean the New York Stock Exchange.
"OPERATING AGREEMENTS" shall mean all management, service, supply and
maintenance contracts, if any, in effect with respect to the Property and all
other contracts (other than the Leases) that affect the Property or are
otherwise related to the construction, ownership, operation, occupancy or
maintenance of the Property.
"ORIGINAL EXCHANGE AGREEMENT" shall mean the Exchange Agreement dated as of
September 14, 1999 between Brandywine OP and FFI.
"ORIGINAL NON-RECOURSE GUARANTY" shall mean collectively the two
Non-Recourse Guaranty agreements executed by Brandywine OP in favor of Mass
Mutual and which are part of the Mass Mutual Loan Documents.
"ORIGINAL REGISTRATION RIGHTS AGREEMENT" shall mean the Registration Rights
Agreement dated as of September 14, 1999 among Brandywine OP, Brandywine Realty
Trust and Baita.
"ORIGINAL TRUE UP" shall mean that certain letter agreement between
Brandywine OP and Baita dated as of September 14, 1999.
"OWNER'S TITLE POLICY" shall mean an owner's policy of title insurance for
the Property issued to Xxxxxxxx by the Title Company, pursuant to which the
Title Company insures ownership of fee simple title to the Property by the
applicable Subsidiary Entities subject only to Permitted Title Exceptions. The
Owner's Title Policy shall be acceptable in form and substance to Xxxxxxxx.
Xxxxxxxx may require such deletions of standard exceptions and such title
endorsements as are legally available and customarily required by institutional
investors purchasing property comparable to the Property in the Commonwealth of
Virginia, including a non-imputation endorsement. The legal descriptions in the
Owner's Title Policy shall be by courses and distances or by reference to a
legal, subdivided lot and shall be identical to the description shown on the
Survey.
"PARCEL" shall mean each individual tract of the Property.
"PARTNERSHIP ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean an assignment
and assumption agreement in substantially the form attached hereto as EXHIBIT E
whereby (a) Brandywine OP (1) contributes and assigns and Xxxxxxxx accepts and
assumes the Tysons Partnership Interest, free of liens and encumbrances, and the
rights and obligations of Brandywine OP with respect thereto, and (2)
indemnifies, defends and holds Xxxxxxxx and its agents, employees, officers,
directors, partners, shareholders and contractors harmless with respect to all
defaults, liabilities, claims, costs and expenses (including, without
limitation, reasonable attorneys' fees) (but in any event excluding ordinary
course accruals) relating to acts
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or omissions accruing with respect to the Tysons Partnership Interest or
Brandywine OP before the Closing Date; and (b) Xxxxxxxx indemnifies, defends and
holds Brandywine OP harmless with respect to all defaults, liabilities, claims,
costs and expenses (including, without limitation, reasonable attorneys' fees)
relating to acts or omissions accruing solely with respect to the Tysons
Partnership Interest, the Property, Tyson Partnership and the Subsidiary
Entities after the Closing Date.
"PERMITTED TITLE EXCEPTIONS" shall mean the Mass Mutual Loan Documents (and
the mortgages and other liens arising thereunder) and those exceptions to title
to the Real Property that are satisfactory to Xxxxxxxx as determined pursuant to
SECTION 2.4(c) hereof.
"PERSONAL PROPERTY" shall mean collectively the Tangible Personal Property
and the Intangible Personal Property.
"XXXXXXXX ORGANIZATIONAL DOCUMENTS" shall mean the organizational documents
and all amendments thereto of Xxxxxxxx.
"XXXXXXXX SECURITIES" shall mean, collectively, the Common Units and
Special Units.
"XXXXXXXX PARTNERSHIP AGREEMENT" shall mean the Second Amended and Restated
Partnership Agreement, as amended, of Xxxxxxxx.
"PROPERTY" shall mean collectively the Parcels and Improvements located
thereon.
"RENT ROLL" shall have the meaning ascribed to such term in SECTION
2.4(b)(2) of this Agreement.
"REPLACEMENT EXCHANGE AND REGISTRATION RIGHTS AGREEMENTS" shall mean those
certain Exchange Agreement and Registration Rights Agreement in the form
attached hereto, and made a part hereof, as EXHIBITS F AND G.
"REPLACEMENT TRUE UP" shall mean a letter agreement between Xxxxxxxx and
Baita substantially in the form of the Original True Up.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SPECIAL UNITS" shall mean those certain 7.5% Series E Cumulative
Redeemable Preferred Units, in the form included in the Fourteenth Amendment to
the Xxxxxxxx Partnership Agreement attached hereto, and made a part hereof, as
EXHIBIT H, having an aggregate stated value in the amount of $10,000,000.
"STUDY PERIOD" shall mean the period commencing on the date this Agreement
has been fully executed and delivered by all parties hereto, and continuing
through February 16,
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2001. Except as expressly noted herein to the contrary, time periods herein
referred to shall mean the time periods as in effect, from time to time, at
Dallas, Texas.
"SUBMISSION MATTERS" shall mean all items Brandywine OP is required to
deliver to Xxxxxxxx pursuant to SECTION 2.4(b) hereof.
"SUBSIDIARY ENTITIES" shall mean Brandywine Tysons, L.P., a Delaware
limited partnership (the owner of 8260 Greensboro), Brandywine 1676, L.P., a
Delaware limited partnership (the owner of 1676 International) and Brandywine
Tysons, L.L.C., a Delaware limited liability company (the general partner of
Brandywine Tysons, L.P. and Brandywine 1676, L.P.).
"SUBSTITUTE NON-RECOURSE GUARANTY" shall mean collectively the two
Non-Recourse Guaranty agreements substantially in form of the Original
Non-Recourse Guaranty, which Xxxxxxxx will execute and deliver to Mass Mutual as
part of the Closing hereunder.
"SURVEY" shall mean the surveys defined as such in and prepared pursuant to
SECTION 2.4(c) hereof.
"TANGIBLE PERSONAL PROPERTY" shall mean the items of tangible personal
property consisting of all furniture, fixtures, equipment, machinery and other
personal property of every kind and nature located on or used or useful in the
ownership and operation of the Property and owned by Tysons Partnership or a
Subsidiary Entity, including, without limitation, the interest as lessee of
Tysons Partnership or a Subsidiary Entity with respect to any such Tangible
Personal Property, other than the items of personal property identified on
EXHIBIT M hereto, the title to which is not being contributed or transferred
pursuant to this Agreement.
"TERMINATION AGREEMENT" shall mean that certain Termination of Exchange and
Registration Rights Agreement in the form attached hereto, and made a part
hereof, as EXHIBIT I, and which will terminate the Original Exchange Agreement
and the Original Registration Rights Agreement.
"TITLE COMMITMENT" shall mean the title commitment and exception documents
defined as such in SECTION 2.4(c) hereof.
"TITLE COMPANY" shall mean Chicago Title Insurance Company or other title
insurance underwriter selected by Xxxxxxxx.
"TRUST" shall mean Xxxxxxxx Properties Trust, a Maryland real estate
investment trust.
"UCC REPORTS" shall mean the reports defined as such in SECTION 2.4(d)
hereof.
"UTILITIES" shall mean public sanitary and storm sewers, natural gas (if
any), telephone, public water facilities, electrical facilities and all other
utility facilities and services (if
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any) necessary or appropriate for the operation and occupancy of the Property as
an office building.
"WARRANTIES AND GUARANTIES" shall mean all warranties and guaranties
relating to the Improvements or any part thereof.
ARTICLE II
CONTRIBUTION AND ISSUANCE;
STUDY PERIOD; PROPERTY SUBJECT TO MASS MUTUAL LOAN
2.1. CONTRIBUTION.
(a) (i) On the Closing Date, Brandywine OP agrees to contribute,
free and clear of all liens and encumbrances, and Xxxxxxxx agrees to accept, the
Tysons Partnership Interest, including the right to receive the outstanding
balance on the Closing Date of the Additional Special Distribution (which will
be distributable in accordance with the terms of the Original Tysons Partnership
Agreement as the same may be amended on or after the Closing Date by Xxxxxxxx
and FFI), in accordance with and subject to the other terms and conditions set
forth herein. On the Closing Date, Brandywine OP shall cause BRSCO to assign the
Management Agreement to Manager and Xxxxxxxx shall cause Manager to accept such
assignment pursuant to the Management Agreement Assignment and Assumption
Agreement.
(ii) The distributions declared by Xxxxxxxx in respect of the Common Units
issuable pursuant to this Agreement during the initial calendar quarter in which
the Closing occurs shall be pro-rated by Xxxxxxxx based on the number of days
the Common Units are outstanding during such quarter. For example, if the Common
Units issuable pursuant to this Agreement were issued on March 1, 2001, each of
such Common Units would be entitled to receive an amount equal to one-third of
the amount of the distributions payable to a Common Unit that was outstanding
during the full quarter. There shall be no such adjustment for the Special
Units, which shall accrue distributions from the Closing Date.
(b) It is the intent of the parties to this Agreement that the
transaction qualify as a tax-deferred contribution by Brandywine OP to Xxxxxxxx
of the Tysons Partnership Interest under Section 721 of the Code with respect to
the receipt of Common Units and Special Units by Brandywine OP.
(c) Xxxxxxxx makes no representations and warranties regarding the
tax consequences to Brandywine OP of the transactions under this Agreement.
(d) The Common Units and Special Units to be issued by Xxxxxxxx to
Brandywine OP shall not be sold, pledged, hypothecated or otherwise transferred
by Brandywine OP for a period of two years from the Closing Date.
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2.2. ISSUANCE OF THE COMMON UNITS AND THE SPECIAL UNITS.
(a) On the Closing Date, Xxxxxxxx shall issue, and Brandywine OP
shall accept, that number of Common Units which is equal to $650,000 divided by
the Applicable Share Price.
(b) On the Closing Date Xxxxxxxx shall issue, and Brandywine OP
shall accept, the Special Units in the aggregate stated value of $10,000,000.
(c) Xxxxxxxx acknowledges and agrees that the Property is subject to
the unpaid balances of the Mass Mutual Loans, and subject to the mortgage and
encumbrances securing the Mass Mutual Loans. Notwithstanding the foregoing, (i)
to the extent that any of the Mass Mutual Loan documents creates personal
liability for specified acts, omissions or occurrences (such acts, omissions or
occurrences being referred to as "CARVE-OUT ACTIVITIES") and the associated
personal liability being referred to as "CARVE-OUT LIABILITY"), (A) Xxxxxxxx
shall, if Closing occurs, be responsible for any such Carve-Out Liability
attributable to Carve-Out Activities accruing and occurring from and after the
Closing Date, and shall and does hereby indemnify and hold Brandywine OP
harmless with respect thereto, and (B) Brandywine OP shall and does hereby
indemnify and hold Xxxxxxxx harmless with respect to Carve-Out Liability
attributable to Carve-Out Activities of Brandywine OP accruing or occurring
prior to the Closing Date by virtue of acts or omissions of Brandywine OP. If
permitted by Mass Mutual, Brandywine OP shall be released from all Carve-Out
Liability under the Mass Mutual Loan Documents and Xxxxxxxx shall execute such
documents as Mass Mutual may reasonably require to evidence the assumption by
Xxxxxxxx of the Carve-Out Liability attributable to Carve-Out Activities of
Xxxxxxxx accruing and occurring from and after the Closing Date. The provisions
of this SECTION 2.2(c) shall survive the Closing.
(d) All items of taxable income or gain that are allocated to
Xxxxxxxx by the Tysons Partnership pursuant to Section 704(c) of the Code, as
well as any items of taxable income or gain recognized by Xxxxxxxx in respect of
the Tysons Partnership shall be allocated to Brandywine OP for federal income
tax purposes pursuant to Section 704(c) of the Code and the principles of Treas.
Reg. Section 1.704-3(a)(9) and Brandywine OP covenants to file its federal
income tax return in a manner consistent with the foregoing. Furthermore,
Brandywine OP will be allocated an amount of income equal to any gain recognized
by Xxxxxxxx upon the lapse of the Brandywine OP "bottom guaranty" of the $16.2
million Mass Mutual loan on January 5, 2004. The provisions of this SECTION
2.2(d) shall survive the Closing.
(e) The parties acknowledge that the fair market value of the Tysons
Partnership Interest is $10,650,000.
2.3. DEPOSIT. Within three (3) days after the execution hereof by both
Xxxxxxxx and Brandywine OP and as a condition precedent to the effectiveness of
this Agreement, Xxxxxxxx shall deliver to Escrow Agent a wire transfer or check
(a) in the sum of Fifty Dollars ($50.00) (the "INDEPENDENT CONSIDERATION"),
payable to the order of Brandywine OP representing the
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Independent Consideration for Xxxxxxxx' execution of this Agreement (which check
or the proceeds of which wire transfer shall thereafter be delivered by Escrow
Agent to Brandywine OP) and (b) in the sum of $300,000 (the proceeds of which
wire transfer or check Escrow Agent shall deposit and invest in an interest
bearing account at a financial institution acceptable to Xxxxxxxx or as
otherwise agreed to in writing by Xxxxxxxx and Brandywine OP). The proceeds of
the wire transfer or check are referred to herein as the "DEPOSIT" and Escrow
Agent shall hold and invest the Deposit pursuant to the terms, conditions and
provisions of this Agreement. All accrued interest on the Deposit shall become
part of the Deposit. The Deposit (regardless of whether it is the proceeds of a
wire transfer or check) shall be either (a) returned to Xxxxxxxx pursuant
hereto, or (b) paid to Brandywine OP pursuant hereto. For purposes of reporting
earned interest with respect to the Deposit, Xxxxxxxx' Federal Tax
Identification Number is 00-0000000, and Brandywine OP's Federal Tax
Identification Number is 00-0000000.
2.4. STUDY PERIOD.
(a) Xxxxxxxx and its agents, contractors and duly authorized
representatives shall have the right, until 5:00 p.m., Dallas, Texas time on the
last day of the Study Period, and thereafter unless, as provided below, Xxxxxxxx
notifies Brandywine OP in writing prior to the expiration of the Study Period
that Xxxxxxxx has elected to terminate this Agreement, to enter upon the
Property and to perform, at its expense, such economic, surveying, engineering,
topographic, environmental, marketing and other tests, studies and
investigations as Xxxxxxxx may xxxx appropriate. If such tests, studies and
investigations do not warrant, in Xxxxxxxx' sole, absolute and unreviewable
discretion, the acceptance of the Tysons Partnership Interest for the purposes
contemplated by Xxxxxxxx, then Xxxxxxxx may elect not to proceed with this
transaction and shall notify Brandywine OP and Escrow Agent, in writing prior to
the expiration of the Study Period, that Xxxxxxxx has elected to terminate this
Agreement, in which event this Agreement automatically shall terminate, the
Deposit shall be promptly returned to Xxxxxxxx and Xxxxxxxx and shall be
released from all further liability or obligation hereunder except those which
expressly survive a termination of this Agreement. If Xxxxxxxx does not so
notify Brandywine OP of its determination to terminate this Agreement prior to
the expiration of the Study Period, then Xxxxxxxx shall be deemed to have waived
its right to terminate this Agreement pursuant to this SECTION 2.4.
(b) Brandywine OP has delivered or made available at the Property
the following to Xxxxxxxx:
(1) Copies of all Leases in effect as of the date of this
Agreement, together with, to the extent in Brandywine OP's possession or
reasonably available to Brandywine OP, copies of all correspondence received
from or sent to tenants of the Property.
(2) a Rent Roll (herein so called) certificate (with current
rent roll and accounts receivable report attached) for the Property containing
the following information with respect to each Lease: (i) a description of the
space occupied thereby (including square feet, type of space, floor and tenant's
pro rata share of common elements),
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(ii) tenant's name, (iii) the commencement date and expiration date thereof,
(iv) the rental rate per square foot, (v) the amount of fixed monthly rental,
(vi) the amount of any percentage or other additional rental and/or common area
maintenance, tax, insurance and operating expenses and any other charges payable
thereunder and, if applicable, the base year used in each Lease, (vii) the
amount of any prepayment, (viii) the amount of the security deposit or any other
deposit thereunder, (ix) any free rent, concessions, rebates, refunds,
refurbishment allowances or other inducements which any tenant will be entitled
to receive after December 31, 2000 (including, without limitation, any of the
foregoing that may be payable in connection with renewals, extensions or
expansions expressly contemplated in any of such Leases), (x) any options
provided thereunder, including, without limitation, any renewal options,
expansion options, purchase options and rights of first refusal and (xi)
delinquency in rental or other charges set forth in the attached accounts
receivable report.
(3) To the extent in Brandywine OP's possession or reasonably
available to Brandywine OP, copies of all Authorizations including, without
limitation, all certificates of occupancy, permits, authorizations, approvals
(including drawings and enacting ordinances, if any), special exceptions,
variances, and licenses issued by Governmental Authorities having jurisdiction
over the Property and copies of all certificates issued by the local board of
fire underwriters (or other body exercising similar functions) relating to the
Property. For the purpose of this Agreement any Submission Matters in the
possession of Brandywine OP or BRSCO shall be deemed to be "reasonably available
to Brandywine OP."
(4) To the extent in Brandywine OP's possession or reasonably
available to Brandywine OP: (X) operating statements showing all income and
expenses, profits and losses of the Property for the previous three (3) calendar
years, which shall reflect (i) ad valorem taxes for the City, County and
Commonwealth; (ii) expenses incurred for such period for water, electricity,
natural gas and other utility charges; (iii) other operating expenses; (iv)
total rents collected from tenants for such periods; and (v) other revenue
collected and nature of such revenue; and (Y) financial statements for the
Property for the previous three (3) calendar years, including, if available, the
reports of accountants thereon.
(5) Operating and capital expenditure budgets for the current
calendar year and, to the extent in Brandywine OP's possession or reasonably
available to Brandywine OP, for the previous three (3) calendar years.
(6) All existing surveys and title policies for the Property
that are reasonably available to Brandywine OP.
(7) A complete list of all Operating Agreements and leasing
commission agreements relating to the Property in effect as of the date of this
Agreement and complete copies of all such Operating Agreements and leasing
commission agreements.
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(8) A complete list of all Tangible Personal Property and a
complete list of all Leased Property (if any) and complete copies of all lease
agreements related thereto.
(9) To the extent in Brandywine OP's possession or reasonably
available to Brandywine OP, any information in Brandywine OP's' possession or
reasonably available to Brandywine OP regarding current renditions or
assessments on the Property or notices relative to change in valuation for ad
valorem taxes.
(10) A complete list of all Warranties and Guaranties in effect
as of the date of this Agreement and complete copies of all such Warranties and
Guaranties.
(11) Copies of all soil tests, structural engineering tests,
inspection reports, asbestos surveys, masonry tests, percolation tests, water,
oil, gas, mineral, radon, formaldehyde, PCB or other environmental tests, audits
or reports, market studies and site plans related to the Property in Brandywine
OP's possession or reasonably available to Brandywine OP, together with copies
of any and all correspondence, reports and other written documentation regarding
the environmental aspects of the property or any toxic substances or equipment
affecting or related to the Property.
(12) If in Brandywine OP's possession or reasonably available to
Brandywine OP, copies of complete sets of all architectural, mechanical,
structural and/or electrical plans and specifications used in connection with
the construction of or alterations or repairs to the Property.
(13) If in Brandywine OP's possession or reasonably available to
Brandywine OP, copies of as-built plans and specifications for the Property.
(14) Parking, structural, mechanical or other engineering
reports or studies related to the Property, if any, in Brandywine OP's
possession or reasonably available to Brandywine OP.
(15) To the extent in the possession of Brandywine OP or any
affiliate of Brandywine OP or BRSCO, copies of credit reports and financial
information on all tenants in possession of any of the Property and of any
guarantors of such tenants' obligations.
(16) Copies of all approvals from any owners associations having
jurisdiction over the Real Property and copies of all correspondence from any
such owners association.
(17) Copies of the Mass Mutual Loan Documents and copies of any
uncured notices of default or event of default from Mass Mutual.
(18) A copy of the tax return and financial statements for
Tysons Partnership for 1999 and 2000 to the extent reasonably available to
Brandywine OP.
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(19) A copy of the Original Tysons Partnership Agreement and the
limited partnership agreements and limited liability company agreement, as
applicable, for the Subsidiary Entities to the extent reasonably available to
Brandywine OP.
(20) Copies of all Insurance Policies in effect, together with
the name and telephone number of a contact person at each insurance company.
Any reference to a document or information being in the possession of
Brandywine OP or similar phrase shall be construed to include documents or
information currently in the possession of Tysons Partnership, BRSCO or any of
the Subsidiary Entities.
During the Study Period and thereafter until the Closing, Brandywine OP
shall make available to Xxxxxxxx, copies of all materials, correspondence,
books, records, financial statements, operating statements and any and all other
materials or information relating to the Property which come into Brandywine
OP's, Tysons Partnership's or either of the Subsidiary Entities' possession or
control or are otherwise reasonably available to Brandywine OP from and after
the date on which the Submission Matters were delivered to Xxxxxxxx.
Notwithstanding anything herein to the contrary, although Xxxxxxxx has not
received all of the deliveries described in this SECTION 2.4(b), Xxxxxxxx has
completed its feasibility study pursuant to SECTION 2.4(a) but reserves the
right to require, and Brandywine OP hereby agrees to deliver, to the extent
available to it, any item described in SECTION 2.4(b) not previously delivered
at any time during the period expiring six (6) months after the Closing Date,
which agreement shall survive the Closing Date for such six (6) month period.
(c) Xxxxxxxx shall indemnify and defend Brandywine OP against any
loss, damage or claim for personal injury or property damage (including
reasonable attorney's fees) arising from the entry upon the Property pursuant to
this SECTION 2.4 by Xxxxxxxx or any agents, contractors or employees of
Xxxxxxxx. Xxxxxxxx, at its own expense, shall restore any damage to the Property
caused by any of the tests or studies made by Xxxxxxxx. This provision shall
survive any termination of this Agreement and a closing of the transaction
contemplated hereby.
(d) On or before 5:00 p.m. Dallas, Texas time on the date that is
five (5) days after the date of this Agreement, Brandywine OP shall deliver to
Xxxxxxxx, at Brandywine OP's sole cost and expense, the most recent Surveys of
the Property, which are in the possession of Brandywine OP. Such Surveys shall
have been prepared by a Surveyor(s) licensed to practice in the Commonwealth of
Virginia. During the Study Period, Xxxxxxxx shall have the right to update such
Surveys, at Xxxxxxxx' sole cost. On or before the Closing Date, Xxxxxxxx shall
cause the Title Company to furnish to Xxxxxxxx, at Brandywine OP's sole cost and
expense, (i) a title insurance commitment bearing an effective date subsequent
to the date of this Agreement issued by the Title Company covering the Real
Property, binding the Title Company to issue a ALTA Form Owner's Policy of Title
Insurance, showing title to be held currently by the applicable Subsidiary
Entities in a good, indefeasible and insurable condition, together with
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legible copies of all documents identified in such title insurance commitment as
exceptions to title certified as true and complete by the Title Company
(collectively, the "TITLE COMMITMENT"), and (ii) reports of searches of the
Uniform Commercial Code records of both the county and State in which the
Property is located (collectively, the "UCC REPORTS") with respect to the state
of title to the Property and the Tysons Partnership Interest. Prior to the
expiration of the Study Period, Xxxxxxxx shall notify Brandywine OP of any
matters shown on the Survey or identified in the Title Commitment or the UCC
Reports that Xxxxxxxx is unwilling to accept (collectively, "XXXXXXXX'
OBJECTIONS"); however, Xxxxxxxx may not object to the Mass Mutual Loan
Documents. If any of Xxxxxxxx Objections consist of delinquent taxes, mortgages,
deeds of trust, security agreements, construction or mechanics' liens, tax liens
or other liens or charges in a fixed sum or capable of computation as a fixed
sum, then, to that extent, notwithstanding anything herein to the contrary,
Brandywine OP shall be obligated to cause Tysons Partnership and Subsidiary
Entities to pay and discharge (or bond against in a manner sufficient to cause
the Title Company to insure over such Xxxxxxxx Objections) any such Xxxxxxxx
Objections and Escrow Agent is authorized to pay and discharge at Closing such
Xxxxxxxx Objections to the extent not paid and discharged or bonded against at
Closing. Brandywine OP shall not be obligated to incur any expenses to cure any
Xxxxxxxx' Objections (including, without limitation, any lis pendens filed
against the Property) unless Brandywine OP agrees to cure such Xxxxxxxx'
Objections as hereinafter provided. Brandywine OP shall notify Xxxxxxxx on or
before the Closing Date whether Brandywine OP agrees to cure such Xxxxxxxx'
Objections. If Brandywine OP notifies Xxxxxxxx in writing on or before the
Closing Date that Brandywine OP agrees to cure such Xxxxxxxx' Objections,
Brandywine OP shall correct such Xxxxxxxx' Objections on or before the Closing
Date to the reasonable satisfaction of Xxxxxxxx. If Brandywine OP does not
notify Xxxxxxxx on or before the Closing Date of its agreement to cure such
Xxxxxxxx' Objections, Brandywine OP shall be deemed to have elected not to cure
such Xxxxxxxx' Objections, and Xxxxxxxx shall elect (1) to waive such Xxxxxxxx'
Objections or (2) to terminate this Agreement, in which case the Deposit shall
be promptly returned to Xxxxxxxx and the parties hereto shall be released from
all further obligations hereunder except those which expressly survive a
termination of this Agreement. Brandywine OP shall not, after the date of this
Agreement, subject the Property to or permit or suffer to exist any liens,
encumbrances, covenants, conditions, restrictions, easements or other title
matters or seek any zoning changes or take any other action which may affect or
modify the status of title without Xxxxxxxx' prior written consent. The Mass
Mutual Loan Documents and all title matters revealed by the Title Commitment,
UCC Reports and Survey and not objected to by Xxxxxxxx as provided above (other
than those rendering title defeasible and delinquent taxes, mortgages, deeds of
trust, security agreements and other liens and charges that are to be paid or
bonded against at Closing as provided above) shall be deemed Permitted Title
Exceptions. Notwithstanding the foregoing, Xxxxxxxx shall not be required to
accept contribution of the Tysons Partnership Interest if the Property is
subject to any matters which (i) may arise subsequent to the effective date of
the Title Commitment, UCC Reports and Survey examined by Xxxxxxxx during the
Study Period and (ii) impairs title to any portion of the Property and will not
be released or bonded against on or before the Closing Date. If a title
exception is disclosed by the Title Company which was not shown in the Title
Commitment or Survey and was not the result of Tysons Partnership's acts or
omission, then, unless Brandywine OP notifies Xxxxxxxx in writing by the Closing
Date that Brandywine OP
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agrees to take such action as may be necessary to release such title exception
on or before the Closing Date, Xxxxxxxx may (i) terminate this Agreement by
written notice to Brandywine OP, in which event the Deposit shall be promptly
returned to Xxxxxxxx and the parties hereto shall be released from all further
obligations hereunder except those which expressly survive a termination of this
Agreement, or (ii) waive its objections to such title exception and consummate
the transactions contemplated herein.
ARTICLE III
BRANDYWINE OP'S REPRESENTATIONS AND WARRANTIES
To induce Xxxxxxxx to enter into this Agreement and to accept the
contribution of the Tysons Partnership Interest, Brandywine OP makes the
following representations and warranties with respect to the Property, upon each
of which Brandywine OP acknowledges and agrees that Xxxxxxxx is entitled to rely
and has relied:
3.1. ORGANIZATION AND POWER. Brandywine OP is a limited partnership, duly
formed, validly existing and in good standing under the laws of the State of
Delaware. Tysons Partnership is a general partnership duly formed and validly
existing under the laws of the State of Delaware. The Subsidiary Entities are
duly formed, validly existing and in good standing under the laws of the State
of Delaware. Each of Brandywine OP, Tysons Partnership and the Subsidiary
Entities is duly qualified to transact business in the Commonwealth of Virginia
and State of Delaware, and has all requisite powers and all material
governmental licenses, authorizations, consents and approvals to carry on its
respective business as now conducted and, as to Brandywine OP, to enter into and
perform its obligations hereunder and under any document or instrument required
to be executed and delivered on behalf of Brandywine OP hereunder.
3.2. AUTHORIZATION, EXECUTION AND DISCLOSURE. This Agreement has been
duly authorized by all necessary action on the part of Brandywine OP, has been
duly executed and delivered by Brandywine OP, constitutes the valid and binding
agreement of Brandywine OP and is enforceable in accordance with its terms,
subject to the effect of applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar laws affecting the rights of creditors
generally. Other than Brandywine OP, there is no other person or entity who has
an ownership interest in the Tysons Partnership Interest and other than Tysons
Partnership there is no person or entity who has an ownership interest in the
Subsidiary Entities or whose consent is required in connection with Brandywine
OP's performance of its obligations hereunder which has not been obtained,
except for FFI and Mass Mutual. The person executing this Agreement on behalf of
Brandywine OP has the authority to do so. Brandywine OP has not and will not
intentionally conceal, or cause Tysons Partnership, BRSCO or the Subsidiary
Entities to conceal, any information regarding the Tysons Partnership Interest,
the Property, the Tysons Partnership or either of the Subsidiary Entities.
3.3. NON-CONTRAVENTION. The execution and delivery of, and the
performance by Brandywine OP of its obligations under, this Agreement do not and
will not (a) contravene, or
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constitute a default under, any provision of (i) Brandywine OP's Organizational
Documents, the Original Tysons Partnership Agreement or the agreements of
limited partnership or limited liability company agreement, as applicable, of
the Subsidiary Entities, (ii) applicable law or regulation or any agreement,
judgment, injunction, order, decree or other instrument binding upon Brandywine
OP, Tysons Partnership or the Subsidiary Entities or to which the Property is
subject (except for the Mass Mutual Loan Documents), the result of which could
have a material adverse effect on the value of the Property or Brandywine OP's
ability to contribute the Tysons Partnership Interests to Xxxxxxxx and/or
Brandywine OP's ability to perform its obligations under this Agreement, or
(iii) result in the creation of any lien or other encumbrance on any asset of
Brandywine OP, Tysons Partnership or the Subsidiary Entities. Except as set
forth in the KPMG Lease identified on the Rent Roll or in the Original Tysons
Partnership Agreement there are no outstanding agreements (written or oral)
pursuant to which Brandywine OP, either directly or through Tysons Partnership,
BRSCO or the Subsidiary Entities, has agreed to sell or has granted an option or
right of first refusal to purchase the Tysons Partnership Interest, the Property
or the Subsidiary Entities or any interest therein or any part thereof.
3.4. NO SPECIAL TAXES. Brandywine OP has no knowledge of, nor has it
received any notice of, any special taxes or assessments relating to the
Property or any part thereof or any planned public improvements that may result
in a special tax or assessment against the Property.
3.5. COMPLIANCE WITH EXISTING LAWS AND RESTRICTIVE COVENANTS. To
Brandywine OP's knowledge, Tysons Partnership possesses all Authorizations, each
of which is valid and in full force and effect, and no provision, condition or
limitation of any of the Authorizations has been breached or violated. Neither
Brandywine OP, nor to Brandywine OP's knowledge Tysons Partnership, BRSCO or any
of the Subsidiary Entities, has received any notice within the past three years,
of any existing or threatened violation of any provision of any (a) Applicable
Laws including, but not limited to, those of environmental agencies or insurance
boards of underwriters with respect to the ownership, operation, use,
maintenance or condition of the Property or any part thereof, or requiring any
repairs or alterations to the Property other than those that have been made
prior to the date hereof, and (b) restrictive covenants or deed restrictions
affecting the Property.
3.6. OPERATING AGREEMENTS. There are no management, service, supply,
maintenance, employment or other contracts in effect with respect to Tysons
Partnership, the Subsidiary Entities or the Property of any nature whatsoever,
written or oral, other than the Management Agreement and the other Operating
Agreements listed on SCHEDULE 3.6 hereof. To Brandywine OP's knowledge, Tysons
Partnership and the Subsidiary Entities have performed all of their respective
obligations under each of the Operating Agreements in all material respects and
no fact or circumstance has occurred which, by itself or with the passage of
time or the giving of notice or both, would constitute a default under any of
the Operating Agreements. To Brandywine OP's knowledge, all other parties to the
Operating Agreements have performed all of their obligations thereunder in all
material respects, and are not in default thereunder in any material respect.
Neither Brandywine OP, Tysons Partnership, BRSCO nor any of the
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Subsidiary Entities has received any notice of any intention by any of the
parties to any of the Operating Agreements to cancel the same, nor has
Brandywine OP caused Tysons Partnership to cancel any of same. Brandywine OP
shall cause Tysons Partnership or the applicable Subsidiary Entity to terminate
any Operating Agreements which are terminable without penalty to be terminated
as of the Closing Date.
3.7. CONDEMNATION PROCEEDINGS; ROADWAYS. Neither Brandywine OP, Tysons
Partnership nor any of the Subsidiary Entities has received any notice of any
condemnation or eminent domain proceeding pending or, to Brandywine OP's
knowledge, no such action is threatened, against the Property or any part
thereof. Brandywine OP has no knowledge of any change or proposed change in the
route, grade or width of, or otherwise affecting, any street, creek or road
adjacent to or serving the Property.
3.8. ACTIONS OR PROCEEDINGS. There is no action, suit or proceeding
pending or known to Brandywine OP to be threatened against or affecting
Brandywine OP, Tysons Partnership or any of the Subsidiary Entities in any
court, before any arbitrator or before or by any Governmental Authority which
(a) in any manner raises any question affecting the validity or enforceability
of this Agreement or any other agreement or instrument to which Brandywine OP,
Tysons Partnership or any of the Subsidiary Entities is a party or by which it
is bound and that is or is to be used in connection with, or is contemplated by,
this Agreement, (b) is reasonably likely to materially and adversely affect the
business, financial position or results of operations of Brandywine OP, Tysons
Partnership, the Subsidiary Entities or the Property, (c) is reasonably likely
to materially and adversely affect the ability of Brandywine OP to perform its
obligations hereunder, or under any document to be delivered pursuant hereto or
the ability of Tysons Partnership or any of the Subsidiary Entities to own and
operate the Property, (d) is reasonably likely to create a lien on the Tysons
Partnership Interest, or the Property, or a Subsidiary Entity, any part thereof
or any interest therein or (e) is reasonably likely to otherwise materially and
adversely affect the Tysons Partnership Interest, a Subsidiary Entity or the
Property, any part thereof or any interest therein or the use, operation,
condition or occupancy thereof.
3.9. BANKRUPTCY. No Act of Bankruptcy has occurred with respect to
Brandywine OP, Tysons Partnership or any of the Subsidiary Entities.
3.10. HAZARDOUS SUBSTANCES. To Brandywine OP's knowledge, neither Tysons
Partnership, BRSCO, any of the Subsidiary Entities nor any previous owner,
tenant, occupant or user of the Property, nor any other person, has engaged in
or permitted any operations or activities upon, or any use or occupancy of the
Property or any portion thereof, for the purpose of or in any way involving the
handling, manufacture, treatment, storage, use, generation, release, discharge,
refining, dumping or disposal of any Hazardous Materials on, under, in or about
the Property in violation of any Applicable Laws. To Brandywine OP's knowledge,
no Hazardous Materials have migrated from or to the Property upon, about, or
beneath other properties in violation of any Environmental Requirements. To
Brandywine OP's knowledge, neither the Property nor its existing or prior uses
fail or failed to materially comply with Environmental
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Requirements. Brandywine OP has no knowledge of any permits, licenses or other
authorizations which are required under any Environmental Requirements with
regard to the current uses of the Property which have not been obtained and
complied with. To Brandywine OP's knowledge, neither Brandywine OP, Tyson
Partnership, BRSCO, any of the Subsidiary Entities nor any prior owner, occupant
or user of the Property has received any written notice concerning any alleged
violation of Environmental Requirements in connection with the Property or any
liability for Environmental Damages in connection with the Property for which
Brandywine OP, Tysons Partnership or a Subsidiary Entity (or Xxxxxxxx after
Closing) may be liable. To Brandywine OP's knowledge, no Hazardous Materials are
constructed, deposited, stored or otherwise located on, under, in or about the
Property in violation of any Environmental Requirements. To Brandywine OP's
knowledge, there exists no writ, injunction, decree, order or judgment
outstanding, nor any lawsuit, claim, proceeding, citation, summons or
investigation, pending or threatened, relating to any alleged violation of
Environmental Requirements on the Property, or from the suspected presence of
Hazardous Materials thereon, or relating to any Environmental Damages. To
Brandywine OP's knowledge, there are no underground or above ground chemical
treatment or storage tanks, or gas or oil xxxxx are located on the Property. The
representations and warranties made by Brandywine OP in this SECTION 3.10 shall
be subject to the matters disclosed in the environmental reports delivered by
Brandywine OP to Xxxxxxxx pursuant to SECTION 2.4(b)(10) hereof.
3.11. PARTIES IN POSSESSION. There are no parties in possession of the
Property except for tenants under written leases, copies of which will be
delivered to Xxxxxxxx pursuant to the terms hereof.
3.12. LEASES. There are no leases, concessions or occupancy agreements in
effect with respect to the Real Property other than the Leases listed on the
Rent Roll attached as SCHEDULE 3.12; and SCHEDULE 3.12 attached hereto is a
complete and correct list of all Leases in effect on the date of this Agreement.
Neither Brandywine OP, Tysons Partnership, BRSCO nor any of the Subsidiary
Entities has sent out any written notice of any default to any tenant under any
Lease which has not been cured except as set forth on Schedule 3.12. To
Brandywine OP's knowledge, the lessor has performed all obligations required of
it under all of the Leases and there remain no unfulfilled obligations of lessor
under the Leases, the nonperformance of which could entitle a tenant to damages
under such Lease or could cause lessor to be in default under such Lease. Except
as shown on SCHEDULE 3.12, no tenant has given written notice to Brandywine OP,
Tysons Partnership, BRSCO or any of the Subsidiary Entities of its intention to
institute litigation with respect to any Lease that has not been dismissed, and
neither Brandywine OP, Tysons Partnership, BRSCO or any of the Subsidiary
Entities has been served with a citation notifying it of any litigation with
respect to any Lease that has not been dismissed. None of the Leases and none of
the rents or other amounts payable thereunder have been assigned, pledged or
encumbered except for any assignments, pledges or encumbrances which will be
fully released on or before the Closing Date and except pursuant to the Mass
Mutual Loan Documents. The Rent Roll is true, correct and complete in all
material respects as of the date shown in the Rent Roll and, to Brandywine OP's
knowledge, there has been no material adverse change with
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respect to any of the items shown on the Rent Roll during the period from the
date thereof to the date of this Agreement, except as shown thereon.
3.13. LEASED PROPERTY. To Brandywine OP's knowledge, all leases of the
Leased Property, if any, are in good standing and free from default.
3.14. PERSONAL PROPERTY. Except for the security interests and liens
securing the Mass Mutual Loans, all of the Personal Property owned by the Tysons
Partnership or a Subsidiary Entity is free and clear of all liens and
encumbrances except for those which will be discharged by Tysons Partnership or
a Subsidiary Entity at Closing, and each of Tysons Partnership and the
Subsidiary Entities (if and to the extent it owns Personal Property) has good
and merchantable title thereto.
3.15. ADDITIONAL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE TYSONS
PARTNERSHIP INTEREST AND TYSONS PARTNERSHIP.
(a) Each of the Original Tysons Partnership Agreement and the
limited partnership agreements and limited liability company agreement delivered
pursuant to SECTION 2.4(b)(19) is a true and correct copy of the partnership
agreement of Tysons Partnership, as amended through the date hereof. To
Brandywine OP's knowledge, the Original Tysons Partnership Agreement lists all
existing Partners (individually, a "Partner" and collectively, the "Partners")
of Tysons Partnership; and the Original Tysons Partnership Agreement accurately
describes the Tysons Partnership Interest. Brandywine OP is the sole owner of
the Tysons Partnership Interests, free and clear of all liens and encumbrances.
The Tysons Partnership Interests were not issued in violation of any federal or
state securities laws.
(b) Brandywine OP's tax basis in the Tysons Partnership as of
December 31, 2000 is $14,382,258. The remaining net Section 704(c) gain with
respect to the Tysons Partnership Interest as of December 31, 2000 is
$25,110,733.
(c) There are no equity, revenue, cash flow, profit or other
participations or similar rights which apply to Tysons Partnership or the
Subsidiary Entities except as set forth in the Original Tysons Partnership
Agreement or the agreements of limited partnership or limited liability company
agreement, as applicable, of the Subsidiary Entities.
(d) Except as provided in the Original Tysons Partnership Agreement,
there are no rights, subscriptions, options, rights of first refusal, conversion
rights or other agreements to purchase or to otherwise acquire any securities or
obligations of any kind convertible into any partnership interest or other
equity interests or participation interests in Tysons Partnerships or any of the
Subsidiary Entities.
(e) Neither Tysons Partnership nor any of the Subsidiary Entities
has engaged in any business other than the ownership, development, leasing and
management of the Property, has any subsidiaries other than the Subsidiary
Entities or has ever owned stock, shares or interests of any kind whatsoever in
any other entity.
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3.16. NO UNPAID CHARGES. There are no unpaid charges, debts, liabilities,
claims or obligations arising from the construction, occupancy, ownership, use
or operation of the Property which could give rise to any mechanic's or
materialmen's or other statutory lien against the Property, or any part thereof,
or for which Tysons Partnership or the Subsidiary Entities will be responsible
or which will be due upon the initial occupancy of vacant space (such as water
or sewer connection or tap-in fee). The financial statements and tax returns of
Tysons Partnership delivered pursuant to SECTION 2.4(b) were true, correct and
complete in all material respects as of the respective dates thereof.
3.17. CONDITION OF IMPROVEMENTS. Neither Brandywine OP, Tysons
Partnership, BRSCO nor any of the Subsidiary Entities, has received any written
notice, from any third party alleging that (a) any of the Improvements (i) are
defective in design or construction, (ii) are not in operating condition and a
satisfactory state of repair, or (iii) have roof leaks, (b) any mechanical
systems are not in reasonable working order and repair, or (c) Tysons
Partnership or any of the Subsidiary Entities has failed to operate the Property
in a commercially reasonable manner consistent with a modern office building;
provided, however, the foregoing representation and warranty as to notices
received shall not include any representation or warranty as to notices
concerning the aesthetic or other subjective quality of the design of the
Property or any system, element or component thereof and no representation or
warranty shall be deemed made as to any defect disclosed in any property
condition report obtained by Xxxxxxxx in connection with the Property.
3.18. ACCESS. Neither Brandywine OP, Tysons Partnership, BRSCO nor any of
the Subsidiary Entities, has any knowledge of any pending or threatened
governmental proceeding or any other fact or condition which would limit or
result in the termination of the Property's existing access to and from public
streets or roads.
3.19. NO COMMITMENTS. No commitments have been made to any Governmental
Authority, utility company, school board, church or other religious body, or any
homeowners' association or any other organization, group or individual, relating
to the Property which would impose an obligation upon Tysons Partnership or any
of the Subsidiary Entities to make any contribution or dedication of money or
land or to construct, install or maintain any improvements of a public or
private nature on or off the Property. Without limiting the generality of the
foregoing, neither Brandywine OP, Tysons Partnership, BRSCO nor any of the
Subsidiary Entities, is a party to any paving agreements or undertakings,
payback agreements, revenue bonds, utility debt service expenses or other
charges or expenses upon or relating to any of the Property or applicable
thereto.
3.20. NOT A "FOREIGN PERSON". Neither Brandywine OP, Tysons Partnership
nor any of the Subsidiary Entities is a "FOREIGN PERSON" within the meaning of
Section 1445 of the Internal Revenue Code, as amended (i.e., none of them is a
foreign corporation, foreign partnership, foreign trust, foreign estate or
foreign person as those terms are defined in the Internal Revenue Code and
regulations promulgated thereunder).
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3.21. LEASING COMMISSIONS. No brokerage or leasing commissions or other
fees or compensation are due or payable, or will become due and payable as a
result of agreements in place, to any person, firm, corporation or other entity
with respect to or on account of any of the Leases or any extension or renewals
thereof, except as set forth on the SCHEDULE 3.21 hereof or SCHEDULED 6.4(g).
3.22. OTHER AGREEMENTS. Except as set forth in the Original Tysons
Partnership Agreement and the Original Exchange Agreement, there are no options,
contracts or other obligations outstanding for the sale, exchange or transfer of
the Tysons Partnership Interest or any interest therein which would be superior
to the rights of Xxxxxxxx under this Agreement or which would survive Closing.
3.23. EXISTING SECURED INDEBTEDNESS. There is no debt secured by liens on
the Property, or any portion thereof, which will not be released and discharged
as of the Closing, other than the Mass Mutual Loans. None of the borrowing
parties is in default under the Mass Mutual Loan Documents, to Brandywine OP's
knowledge, no event has occurred which, with the passage of time or the giving
of notice, or both, would constitute a default thereunder, and EXHIBIT D-2 is
true, accurate and complete in all material respects.
3.24. EMPLOYMENT ON "AT-WILL" BASIS. All persons and entities presently
employed in connection with the operation and maintenance of the Property are
employed on an "AT WILL" basis, are dischargeable upon not more than thirty (30)
days' notice and, unless otherwise directed by Xxxxxxxx, shall be terminated by
Brandywine OP as of Closing. There are no labor disputes pending, nor to the
best of Brandywine OP's knowledge, contemplated pertaining to the operation or
maintenance of the Property, or any part thereof. Neither Brandywine OP, Tysons
Partnership nor any of the Subsidiary Entities has any employment agreements,
either written or oral, with any person which would require Xxxxxxxx, Tysons
Partnership or any of the Subsidiary Entities to employ any person after the
date hereof or the Closing Date.
3.25. ADDITIONAL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE
ISSUANCE OF COMMON UNITS AND PREFERRED UNITS.
(a) ACCREDITED INVESTOR. Brandywine OP acknowledges and understands
that the issuance of the Common Units and the Special Units is intended to be
exempt from registration under the Securities Act, by virtue of Section 4(2)
and/or 4(6) of the Securities Act and Regulation D promulgated thereunder
("Regulation D"), and, in accordance therewith and in furtherance thereof,
represents and warrants for the benefit of the Trust that it is an "accredited
investor" as that term is defined pursuant to Rule 501 of Regulation D.
Brandywine OP has no reason to expect that there will be any material adverse
change in its financial condition that would result in it no longer being an
accredited investor and will advise Xxxxxxxx of any such change occurring prior
to the issuance to Brandywine OP of the Common Units and the Special Units or
the Common Shares that may be issued upon redemption of the Common Units.
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(b) INVESTMENT EXPERIENCE. Brandywine OP has such knowledge and
experience in financial and business matters as is required for evaluating the
merits and risks of its acquisition of Common Units and Special Units, and
Brandywine OP or its representative has received such information requested by
it concerning the business, management and financial affairs of the Trust in
order to evaluate the merits and risks of making such acquisition.
(c) ACQUISITION ENTIRELY FOR OWN ACCOUNT. Brandywine OP is acquiring
the Common Units and Special Units for its own account and for investment
purposes only and not with a present view to the resale or other distribution of
the Common Units or Special Units. Brandywine OP has no agreement or
understanding with any other person to grant a participation or interest, of
whatever nature, kind or description, in such Common Units and Special Units.
(d) BEAR RISK OF INVESTMENT. Brandywine OP is able to bear the
substantial economic risks of an investment in the Common Units and Special
Units for an indefinite period of time, has no need for liquidity in such
investment, and can afford to lose its entire investment in the Option and the
Common Shares.
(e) RESTRICTIONS ON TRANSFER. Notwithstanding anything herein to the
contrary, the Common Units and Special Units may not be resold in the absence of
registration of such Common Units and Special Units under the Securities Act or
an opinion of counsel reasonably satisfactory to the Trust that such
registration is not required. Any certificates representing the Common Units,
Special Units or Common Shares issuable upon redemption of the Common Units
shall bear a restricted stock legend indicating the foregoing restrictions on
transfer.
3.26. LIMITATIONS ON REPRESENTATIONS AND WARRANTIES. XXXXXXXX HEREBY
AGREES AND ACKNOWLEDGES THAT, EXCEPT AS SET FORTH IN THIS ARTICLE III, OR AS
OTHERWISE EXPRESSLY STATED HEREIN OR IN ANY DOCUMENTS TO BE EXECUTED IN
CONNECTION HEREWITH, NEITHER BRANDYWINE OP NOR ANY AGENT, ATTORNEY, EMPLOYEE OR
REPRESENTATIVE OF BRANDYWINE OP HAS MADE ANY REPRESENTATION WHATSOEVER REGARDING
THE SUBJECT MATTER OF THIS AGREEMENT, OR ANY PART THEREOF, INCLUDING (WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING) REPRESENTATIONS OR WARRANTIES AS TO
THE PHYSICAL NATURE OR CONDITION OF THE PROPERTY OR THE CAPABILITIES THEREOF,
AND THAT XXXXXXXX, IN EXECUTING, DELIVERING AND/OR PERFORMING THIS AGREEMENT,
DOES NOT RELY UPON ANY STATEMENT AND/OR INFORMATION TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, BY ANY INDIVIDUAL, FIRM OR
CORPORATION EXCEPT THOSE EXPRESSLY CONTAINED HEREIN OR DELIVERED PURSUANT
THERETO OR IN ANY DOCUMENTS EXECUTED IN CONNECTION HEREWITH. EXCEPT AS OTHERWISE
PROVIDED HEREIN, XXXXXXXX AGREES TO TAKE THE TYSONS PARTNERSHIP INTEREST AND ITS
INDIRECT INTEREST IN THE PROPERTY "AS IS," AS OF THE DATE HEREOF,
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REASONABLE WEAR AND TEAR EXCEPTED. IN ADDITION, EXCEPT AS SET FORTH HEREIN,
BRANDYWINE OP MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE COMPLIANCE
WITH ANY ENVIRONMENTAL REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE
PROPERTY OF HAZARDOUS MATERIALS. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE
THE CLOSING OR ANY TERMINATION HEREOF.
Each of the representations and warranties contained in this ARTICLE III
and its various subparagraphs are intended for the benefit of Xxxxxxxx and may
be waived in whole or in part by Xxxxxxxx. All rights and remedies arising in
connection with the untruth or inaccuracy of any such representations and
warranties shall survive the Closing of the transaction contemplated hereby as
provided in SECTION 10.11 hereof, except to the extent that Brandywine OP gives
Xxxxxxxx written notice prior to Closing of the untruth or inaccuracy of any
representation or warranty, Xxxxxxxx otherwise obtains actual knowledge prior to
Closing of the untruth or inaccuracy of any representation or warranty, and
Xxxxxxxx nevertheless elects to close this transaction. Xxxxxxxx shall be deemed
to have actual knowledge of the untruth or inaccuracy of any representation or
warranty only if (i) Xxxxxxxx receives written notice from Brandywine OP
satisfying the foregoing requirements, or (ii) Xxxxxx X. August, Xxxxxx X.
Xxxxxx, Xxxxxxx Xxxxxx or J. Xxxxx Xxxxxxx has actual knowledge of any such
untruth or inaccuracy. Except to the extent otherwise expressly provided in the
immediately preceding sentence, no investigation, audit, inspection, review or
the like conducted by or on behalf of Xxxxxxxx shall be deemed to terminate the
effect of any such representations, warranties and covenants, it being
understood that Xxxxxxxx has the right to rely thereon and that each such
representation and warranty constitutes a material inducement to Xxxxxxxx to
execute this Agreement and to close the transaction contemplated hereby and to
pay the Purchase Price to Brandywine OP.
If any of Brandywine OP's representations and warranties made hereunder are
found by Xxxxxxxx to be incorrect prior to Closing to the extent they affect the
Tysons Partnership Interest, any of the Subsidiary Entities or the Property or
its operation in any material respect, Xxxxxxxx shall inform Brandywine OP in
writing and Xxxxxxxx' sole remedy, except as otherwise expressly provided in
CLAUSE (a)(ii) of the first sentence of SECTION 9.3 hereof or the last sentence
of SECTION 9.3 hereof, shall be termination of this Agreement on account thereof
and refund of the Deposit. If Xxxxxxxx elects not to so terminate this
Agreement, any remedy of Xxxxxxxx for breach of such warranties and
representations made prior to the Closing shall be deemed to be irrevocably
waived. Notwithstanding anything to the contrary contained in this Article, if
Brandywine OP breaches any representation or warranty made by Brandywine OP and
if prior to Closing Xxxxxxxx notifies Brandywine OP that it elects to terminate
this Agreement on account of such breach, Brandywine OP may by written notice to
Xxxxxxxx given or before the Closing Date agree to cure the breach (which breach
must be cured on or before the Closing Date), and Xxxxxxxx shall thereupon be
obligated to close the transaction and accept such cure as Xxxxxxxx' sole remedy
for such breach.
The term "TO BRANDYWINE OP'S KNOWLEDGE" or similar phrase shall mean the
knowledge of Brandywine OP's chief executive officer, general counsel, chief
financial officer
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and the current building engineer, property manager and leasing agent
(collectively, "BRANDYWINE OP'S PERSONNEL WITH KNOWLEDGE") for the Property and
such inquiry shall include the direction by Brandywine OP to such persons to
review all files in their possession relating to the operation, ownership,
maintenance and management of the Property. Brandywine OP covenants that if
prior to Closing Brandywine OP obtains actual knowledge that any of the facts
represented and warranted by Brandywine OP under this Agreement are or become
untrue or inaccurate in any material respect, it will promptly inform Xxxxxxxx
in writing of its discovery.
Brandywine OP's Personnel with Knowledge shall not have any personal
liability under this Agreement in their respective capacities as officers and/or
directors of Brandywine OP.
ARTICLE IV
XXXXXXXX' REPRESENTATIONS AND WARRANTIES
To induce Brandywine OP to enter into this Agreement and to contribute the
Tysons Partnership Interest and to accept the Common Units and the Special
Units, Xxxxxxxx hereby makes the following representations and warranties, upon
each of which Xxxxxxxx acknowledges and agrees that Brandywine OP is entitled to
rely and has relied:
4.1. ORGANIZATION AND POWER. Xxxxxxxx is a limited partnership, duly
formed, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite partnership powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
businesses as now conducted and to enter into and perform its obligations under
this Agreement, including the issuance of the Common Units and Special Units,
and any document or instrument required to be executed and delivered on behalf
of Xxxxxxxx hereunder. Xxxxxxxx has the financial capability to acquire the
Tysons Partnership Interest pursuant to this Agreement.
4.2. NON-CONTRAVENTION. The execution and delivery of this Agreement and
the performance by Xxxxxxxx of its obligations hereunder, including the issuance
of the Common Units and Special Units, do not and will not contravene, or
constitute a default under, any provisions of Xxxxxxxx' Organizational Documents
or applicable law or regulation, or any agreement, judgment, injunction, order,
decree or other instrument binding upon Xxxxxxxx.
4.3. LITIGATION. There is no action, suit or proceeding, pending or known
to be threatened, against or affecting Xxxxxxxx or Xxxxxxxx in any court or
before any arbitrator or before any Governmental Authority which (a) in any
manner raises any question affecting the validity or enforceability of this
Agreement or any other agreement or instrument to which Xxxxxxxx is a party or
by which it is bound and that is to be used in connection with, or is
contemplated by, this Agreement, including the issuance of the Common Units and
Special Units, (b) could materially and adversely affect the business, financial
position or results of operations of Xxxxxxxx, or (c) could materially and
adversely affect the ability of Xxxxxxxx to perform its obligations hereunder,
or under any document to be delivered pursuant hereto.
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4.4. BANKRUPTCY. No Act of Bankruptcy has occurred with respect to
Xxxxxxxx.
4.5. AUTHORIZATION, EXECUTION AND DISCLOSURE. This Agreement and the
performance of Xxxxxxxx of its obligations hereunder, including the issuance of
the Common Units and the Special Units, have been duly authorized by all
necessary action on the part of Xxxxxxxx, and this Agreement has been duly
executed and delivered by Xxxxxxxx, constitutes the valid and binding agreement
of Xxxxxxxx and is enforceable in accordance with its terms, subject to the
effect of applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting the rights of creditors generally.
4.6. THE COMMON UNITS.
(a) The Common Units, when issued by Xxxxxxxx on the Closing Date,
will be redeemable, subject to the terms and conditions set forth in the
Xxxxxxxx Partnership Agreement, including the Fourteenth Amendment thereto, for
an equal number of Common Shares. Each Common Unit will be entitled to receive a
distribution from the Trust at such time and in such amount as the holder of a
Common Share is entitled to receive a distribution on such Common Share from the
Trust, pro rated pursuant to SECTION 2.1(a)(ii). Any Common Shares issuable upon
redemption of the Common Units, upon issuance: (i) will be duly and validly
issued, fully-paid and non-assessable and (ii) will be approved for listing with
the NYSE under the Securities Act. Xxxxxxxx will cause the Trust to file with
the Securities and Exchange Commission a registration statement covering the
resale of any such Common Shares and to use its best efforts to have such
registration statement declared effective under the Securities Act, all in
accordance with and as provided in SECTION 8.06 of the Xxxxxxxx Partnership
Agreement and to maintain the effectiveness of such registration statement until
the earlier of six months from the date of redemption and the date such Common
Shares are resold.
(b) The Trust meets the requirements for qualification as a real
estate investment trust under Sections 856 through 860 of the Internal Revenue
Code and the rules and regulations thereunder as currently in effect.
4.7. ALLOCATION METHODOLOGY. Xxxxxxxx represents and warrants that
throughout Brandywine OP's ownership of the Special Units, and notwithstanding
anything to the contrary in any amendments to the Xxxxxxxx Partnership
Agreement, Brandywine OP will receive annually an allocation of net income of
Xxxxxxxx and not an allocation of gross income of Xxxxxxxx. For purposes of this
SECTION 4.7, net income amounts are defined under Section 703 of the Internal
Revenue Code of 1986, as amended. Additionally, for purposes of this SECTION
4.7, gross income amounts are defined as an item of Xxxxxxxx' xxxxx receipts.
ARTICLE V
CONDITIONS PRECEDENT
5.1. AS TO XXXXXXXX' OBLIGATIONS. Xxxxxxxx' obligations hereunder are
subject to the satisfaction of the following conditions precedent:
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(a) BRANDYWINE OP'S DELIVERIES. Brandywine OP shall have delivered
to or for the benefit of Xxxxxxxx, on or before the Closing Date, all of the
documents and other information required of Brandywine OP pursuant to SECTIONS
7.2 and 7.4 hereof.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS; OBLIGATIONS OF
BRANDYWINE OP; CERTIFICATE. All of Brandywine OP's representations and
warranties made in this Agreement shall be true and correct in all material
respects as of the date hereof and as of the date of Closing as if then made;
Brandywine OP shall have performed in all material respects all of its covenants
and other obligations under this Agreement; and Brandywine OP shall have
executed and delivered to Xxxxxxxx at Closing a certificate to the foregoing
effect.
(c) TITLE INSURANCE. Good and indefeasible fee simple title to the
Property by the applicable Subsidiary Entity shall be insurable as such by the
Title Company, subject only to Permitted Title Exceptions as determined in
accordance with section 2.4 hereof and including, without limitation, all
applicable deletions of standard exceptions and endorsements permitted under
applicable state law which are customarily required by institutional investors
purchasing property comparable to the Property, including a non-imputation
endorsement.
(d) CONDITION OF IMPROVEMENTS. The Improvements (including but not
limited to the mechanical systems, plumbing, electrical, wiring, fixtures,
heating, air conditioning and ventilating equipment, elevators, boilers,
equipment, roofs, structural members and furnaces) shall be in the same
condition at Closing as they are as of the date hereof, reasonable wear and tear
excepted. Brandywine OP shall not have removed or caused or permitted to be
removed any part or portion of the Property without Xxxxxxxx' prior written
consent unless the same is replaced, prior to Closing, with a similar item of at
least equal suitability, quality and value, free and clear of any lien or
security interest.
(e) UTILITIES. All of the Utilities shall be installed in and
operating at the Property, and service shall be available for the removal of
garbage and other waste from the Property.
(f) DUE DILIGENCE MATERIALS. All rent rolls, lists, schedules and
other documents furnished by Brandywine OP to Xxxxxxxx under this Agreement
shall be true and correct in all material respects, except for inaccuracies as
to which Xxxxxxxx was given written notice by Brandywine OP or otherwise had
actual knowledge prior to the end of the Study Period.
(g) NO ADDITIONAL PROCEEDINGS; TENANT DEFAULTS. Except for matters
as to which Xxxxxxxx was given written notice by Brandywine OP or otherwise had
actual knowledge prior to the end of the Study Period, on the Closing Date,
there shall be no (a) litigation pending or threatened, seeking (i) to enjoin
the consummation of the transactions contemplated hereunder, (ii) to recover
title to the Property, or any part thereof or any interest therein, (iii) to
increase substantially ad valorem taxes theretofore assessed against any of the
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Property, (iv) to enjoin the violation of any law, rule, regulation, restrictive
covenant or zoning ordinance that may be applicable to the Property, or (v)
claiming defaults or other liability of lessor under Leases by tenants leasing
five percent (5%) or more of the rentable square feet of the Improvements, in
the aggregate or (b) monetary default in excess of thirty (30) days for which a
written notice of default has been given to a tenant and which constitutes an
event of default under, and as defined in, the applicable Lease, other material
default or any threatened or reasonably anticipated material default by tenants
leasing five percent (5%) or more of the rentable square feet of the
Improvements, in the aggregate.
(h) ESTOPPEL LETTERS. The estoppel letters to be delivered at
Closing pursuant to SECTION 7.2(g) hereof shall have been obtained and delivered
and shall reflect no facts at material variance with the facts disclosed on the
Rent Roll and records provided to Xxxxxxxx during the Study Period.
(i) MASS MUTUAL CONSENT. Mass Mutual shall have executed and
delivered the Mass Mutual Consent in substantially the form of EXHIBIT D-1
hereto. In the event that Mass Mutual shall charge any fees or expenses in
connection with giving its consent, Brandywine OP shall be responsible for the
payment of such fees and expenses.
(j) FFI CONSENT. FFI shall have executed and delivered the FFI
Consent in substantially the form of EXHIBIT B hereto.
(k) TERMINATION AGREEMENT. FFI shall have executed and delivered the
Termination Agreement in substantially the form of EXHIBIT I hereto.
(l) REPLACEMENT TRUE UP. FFI shall have terminated the Original True
Up and shall have executed the Replacement True Up.
Each of the conditions contained in this SECTION 5.1 are intended for the
benefit of Xxxxxxxx and may be waived in whole or in part, by Xxxxxxxx, but only
by an instrument in writing signed by Xxxxxxxx.
5.2. AS TO BRANDYWINE OP'S OBLIGATIONS. Brandywine OP's obligations
hereunder are subject to the satisfaction of the following conditions precedent:
(a) XXXXXXXX' DELIVERIES. Xxxxxxxx shall have delivered to or for
the benefit of Brandywine OP, on or before the Closing Date, all of the
documents and payments required of Xxxxxxxx pursuant to SECTIONS 7.3 and 7.4
hereof.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS; OBLIGATIONS OF
XXXXXXXX. All of Xxxxxxxx' representations and warranties made in this Agreement
shall be true and correct in all material respects as of the date hereof and as
of the date of Closing as if then made and Xxxxxxxx shall have performed in all
material respects all of its covenants and other obligations under this
Agreement.
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(c) MASS MUTUAL CONSENT. Mass Mutual shall have executed and
delivered the Mass Mutual Consent in substantially the form of EXHIBIT D-1
hereto.
(d) FFI CONSENT. FFI shall have executed and delivered the FFI
Consent in substantially the form of EXHIBIT B hereto.
(e) TERMINATION AGREEMENT. FFI shall have executed and delivered the
Termination Agreement in substantially the form of EXHIBIT I hereto.
(f) REPLACEMENT TRUE UP. FFI shall have terminated the Original True
Up and Xxxxxxxx and FFI shall have executed the Replacement True Up.
Each of the conditions contained in this Section is intended for the benefit of
Brandywine OP and may be waived in whole or in part, by Brandywine OP, but only
by an instrument in writing signed by Brandywine OP.
ARTICLE VI
COVENANTS OF BRANDYWINE OP
To induce Xxxxxxxx to enter into this Agreement and to accept the
contribution of the Tysons Partnership Interest, and to issue the Common Units
and Special Units, Brandywine OP covenants and agrees to the following:
6.1. OPERATING AGREEMENTS. Brandywine OP shall not permit, prior to the
Closing, Tysons Partnership or any of the Subsidiary Entities to enter into any
new management agreement, maintenance or repair contract, supply contract, lease
in which it is lessee or other agreements with respect to the Property which
cannot be terminated on or before the Closing Date, nor shall Brandywine OP,
Tysons Partnership, BRSCO or any of the Subsidiary Entities enter into any
agreements modifying the Operating Agreements in any material respect, unless
(a) any such agreement or modification will not bind Xxxxxxxx, Tysons
Partnership or any of the Subsidiary Entities or the Property after the date of
Closing or (b) Brandywine OP has obtained Xxxxxxxx' prior written consent to
such agreement or modification. Brandywine OP agrees to cause to be cancelled
and terminated effective as of the Closing Date any Operating Agreements (except
for the Management Agreement, which is to be assigned to Manager) which are
either with an affiliate of Brandywine OP or terminable without substantial
penalty.
6.2. WARRANTIES AND GUARANTIES. Brandywine OP shall not, prior to the
Closing, permit Tysons Partnership, BRSCO or any of the Subsidiary Entities to
release or modify any Warranties and Guaranties, if any, except with the prior
written consent of Xxxxxxxx.
6.3. INSURANCE. Prior to the Closing Date, Brandywine OP shall cause Tysons
Partnership or the Subsidiary Entities to pay all premiums on, and neither
Tysons Partnership nor the Subsidiary Entities shall cancel or voluntarily allow
to expire, any of the Insurance Policies unless such policy is replaced, without
any lapse of coverage, by another policy or policies providing coverage at least
as extensive as the policy or policies being replaced. Brandywine OP
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hereby indemnifies and holds Xxxxxxxx harmless from and against all losses,
costs, damages and expenses resulting from actions involving bodily or personal
injury or property damage in or about any of the Property that occurred prior to
the Closing Date, regardless of when the claim was made, but only to the extent
coverage under the applicable Insurance Policy or Policies is not sufficient and
paid, and this indemnity shall survive the Closing Date.
6.4. OPERATION OF PROPERTY PRIOR TO CLOSING. Brandywine OP and Xxxxxxxx
represent, warrant, covenant and agree with Xxxxxxxx that, between the date of
this Agreement and the date of Closing (but in any event subject to Brandywine
OP's obligations to comply with its fiduciary duties under the Original Tysons
Partnership Agreement):
(a) Subject to the restrictions contained herein, Brandywine OP
shall cause Tysons Partnership and the Subsidiary Entities to operate the
Property in the same manner in which Tysons Partnership and the Subsidiary
Entities operated the Property prior to the execution of this Agreement, so as
to keep the Property in good condition, reasonable wear and tear excepted.
(b) Brandywine OP shall maintain the books of account and records of
Tysons Partnership and the Subsidiary Entities in the usual, regular and
ordinary manner, in accordance with sound accounting principles applied on a
basis consistent with the basis used in keeping such books in prior years.
(c) Brandywine OP shall cause Tysons Partnership and the Subsidiary
Entities to maintain in full force and effect all Insurance Policies.
(d) Brandywine OP shall cause Tysons Partnership and the Subsidiary
Entities to punctually perform and discharge all obligations and undertakings of
Tysons Partnership and the Subsidiary Entities under the Leases and shall not
permit a default by lessor to occur thereunder.
(e) Brandywine OP shall cause Tysons Partnership and the Subsidiary
Entities to use and operate the Property in compliance with Applicable Laws and
the requirements of the Mass Mutual Loan Documents and any Lease, Operating
Agreement and Insurance Policy affecting the Property.
(f) Brandywine OP shall cause Tysons Partnership and the Subsidiary
Entities to pay prior to delinquency all ad valorem and other taxes due and
payable with respect to the Property or its operation.
(g) Without the express prior written consent of Xxxxxxxx (which
consent shall not be unreasonably withheld and shall be deemed to have been
given if Xxxxxxxx fails to respond to a written request from Brandywine OP for
such consent within two (2) business days following Xxxxxxxx' receipt of any
such request), Brandywine OP shall not permit Tysons Partnership and/or the
Subsidiary Entities to: (i) enter into new Leases of any kind or nature
affecting the Property; or (ii) grant a renewal or extension of any existing
Lease, or
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consent to any assignment, sublease or expansion of any existing lease or
portion thereof which, by the terms of any such Lease, requires lessor's prior
consent as a condition to any such renewal, extension, assignment, sublease or
expansion. Brandywine OP shall not, without the express written consent of
Xxxxxxxx, in any manner permit Tysons Partnership and the Subsidiary Entities to
change, modify, extend, renew or terminate any Lease except as required by the
terms thereof, or waive in any material respect any of the tenant's obligations
under any Lease; provided, Leases with Brandywine OP's management company may be
terminated on or before the Closing Date without the prior consent of Xxxxxxxx.
Neither Brandywine OP, Tysons Partnership nor any of the Subsidiary Entities
shall apply all or any part of the security or damage deposit of a tenant under
any Lease to obligations of such tenant, unless such tenant has vacated its
portion of the Property as of the Closing Date. Notwithstanding the foregoing,
Xxxxxxxx hereby approves the new Leases which have been entered into by Tysons
Partnership and the Subsidiary Entities and costs associated therewith, as more
particularly described in SCHEDULE 6.4(g) hereto.
(h) Brandywine OP shall cause all debts and liabilities for labor,
materials, services and equipment incurred in the construction, operation and
development of the Property, including leasehold improvements, to be promptly
paid by Tysons Partnership and the Subsidiary Entities.
(i) Neither Brandywine OP, Tysons Partnership, BRSCO nor any of the
Subsidiary Entities shall (1) make any agreements which shall be binding upon
Xxxxxxxx, Tysons Partnership or any of the Subsidiary Entities with respect to
the Property, or (2) reduce, or cause to be reduced any rents or any other
revenues over which Tysons Partnership or BRSCO has operational control.
(j) Brandywine OP shall promptly deliver to Xxxxxxxx upon Xxxxxxxx'
request such reports showing the revenue and expenses of the Property, Tysons
Partnership and the Subsidiary Entities as Brandywine OP customarily keeps or
receives internally for its own use.
(k) Except as required by the terms thereof or hereof, Brandywine OP
shall not in any manner permit Tysons Partnership, BRSCO or any of the
Subsidiary Entities to change, modify, extend, renew or terminate any Operating
Agreement which would be binding on Xxxxxxxx, Tysons Partnership or either
Subsidiary Entity or the Property without the express written consent of
Xxxxxxxx.
(l) Brandywine OP shall promptly advise Xxxxxxxx of any litigation,
arbitration or administrative hearing concerning or affecting the Property,
Tysons Partnership or the Subsidiary Entities of which Brandywine OP obtains
actual knowledge.
(m) Brandywine OP shall cause Tysons Partnership and the Subsidiary
Entities to keep the Mass Mutual Loans current, to comply with the terms and
provisions of the Mass Mutual Loan Documents and to immediately send Xxxxxxxx
copies of all correspondence
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received from Mass Mutual. Neither Brandywine OP, Tysons Partnership nor the
Subsidiary Entities shall modify any provisions of the Mass Mutual Loan
Documents except for their joinder in the Mass Mutual Consent.
6.5. NO MARKETING. Brandywine OP shall not cause Tysons Partnership or
any of the Subsidiary Entities to market the Property for sale or enter into
discussions or negotiations with potential purchasers of the Property unless
this Agreement has been terminated pursuant to its terms.
The foregoing covenants of Brandywine OP are for the benefit of Xxxxxxxx or
its assignee of its rights under this Agreement.
ARTICLE VII
CLOSING
7.1. CLOSING. The Closing shall occur within five (5) days after the
conditions precedent set forth in SECTIONS 5.1 and 5.2 have been satisfied. As
more particularly described below, at the Closing the parties hereto will meet
to (i) execute all of the documents required to be delivered in connection with
the transactions contemplated hereby (the "CLOSING DOCUMENTS"), (ii) deliver the
same to Escrow Agent, and (iii) take all other action required to be taken in
respect of the transactions contemplated hereby. The Closing will occur at the
offices of the Escrow Agent. At the Closing, the Title Company shall update the
title to the Property and, provided there has been no change in the status of
title as reflected in the Title Commitment and Survey which has not been waived
by Xxxxxxxx pursuant to SECTION 2.4(c) hereof, and Escrow Agent shall record,
release and date, where appropriate, the Closing Documents in accordance with
the joint instructions of Brandywine OP and Xxxxxxxx and shall send, by wire
transfer, all sums, if any, owing to Brandywine OP or Xxxxxxxx hereunder to
Brandywine OP or Xxxxxxxx, as applicable. As provided herein, the parties hereto
will agree upon adjustments and prorations to certain items which cannot be
exactly determined at the Closing and will make the appropriate adjustments with
respect thereto. Possession of the Property (as the new Managing Partner of
Tysons Partnership) shall be delivered to Xxxxxxxx on the Closing Date, subject
only to Permitted Title Exceptions and the rights of tenants under the Leases.
Notwithstanding anything herein to the contrary, if the Closing Date does not
occur by April 30, 2001, and the provisions of SECTION 9.3 or 9.5 are not
applicable, then either party may terminate this Agreement by notice to the
other party hereto, in which event neither party shall have any further
obligation to the other except for the indemnities and other provisions of this
Agreement which expressly survive a termination of this Agreement, and the
Deposit, less the Independent Consideration, shall be promptly refunded to
Xxxxxxxx.
7.2. BRANDYWINE OP'S DELIVERIES. At the Closing, Brandywine OP shall
deliver to Escrow Agent all of the following instruments, each of which shall
have been duly executed and shall be dated as of the Closing Date:
(a) The certificate required by SECTION 5.1(b) hereof.
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(b) The Partnership Assignment and Assumption Agreement.
(c) The Management Agreement Assignment and Assumption Agreement
(executed by BRSCO).
(d) The Termination Agreement executed by Brandywine OP and Baita.
(e) The Mass Mutual Consent.
(f) The Amended and Restated Tysons Partnership Agreement executed
by Baita, together with an amended name change certificate.
(g) An updated certified Rent Roll dated as of the date preceding
the Closing Date.
(h) Either (i) an estoppel letter in the form of EXHIBIT K hereto
dated not more than thirty (30) days prior to the Closing Date (a) from each of
the tenants under the Leases covering 7,500 square feet or more, and (b) from
tenants leasing, in the aggregate, at least seventy-five percent (75%) of the
remainder of the Improvements, or (ii) an estoppel letter executed by Brandywine
OP certifying to the matters specified in EXHIBIT K hereto for any tenant which
does not execute an estoppel letter. Any estoppel letter provided by Brandywine
OP for a Lease pursuant to CLAUSE (ii) above shall state that Brandywine OP
shall have no liability thereunder if Brandywine OP subsequently provides to
Xxxxxxxx an estoppel letter in the form of EXHIBIT K from the tenant under such
Lease.
(i) Such agreements, affidavits or other documents as may be
required by the Title Company to issue the Owner's Title Policy (and a lender's
policy for the benefit of Mass Mutual) subject only to Permitted Title
Exceptions and to issue a non-imputation endorsement and the endorsements
thereto which are customarily required by institutional investors assuming notes
and mortgages encumbering property comparable to the Property.
(j) An updated Title Commitment issued by the Title Company, dated
as of the date and time of Closing, subject only to the Permitted Title
Exceptions.
(k) All original Warranties and Guaranties in Brandywine OP's
possession or reasonably available to Brandywine OP.
(l) To the extent in Brandywine OP's possession or reasonably
available to Brandywine OP, a valid, final and unconditional certificate of
occupancy for the Real Property and Improvements, issued by the appropriate
Governmental Authority and, if required by Applicable Laws, transferred to
Xxxxxxxx.
(m) The originals of any Operating Agreements which are to remain in
place.
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(n) Executed originals of all Leases, leases of Leased Property,
permits and, to the extent in Brandywine OP's possession or control,
Authorizations as required hereunder and any other documents or instruments
affecting the Property or the ownership and operation thereof.
(o) All current real estate and personal property tax bills in
Brandywine OP's possession or under its control.
(p) All books, records, operating reports, appraisal reports, files
and other materials in Brandywine OP's possession or control which are necessary
in Xxxxxxxx' reasonable discretion to maintain continuity of operation of the
Property. Xxxxxxxx covenants to permit Brandywine OP to photocopy any of the
matters described in this SUBPARAGRAPH 7.2(p) for a period of three (3) years
following the Closing Date, which covenant of Xxxxxxxx shall survive for such
three (3) year period.
(q) Written notice executed by Brandywine OP notifying all
interested parties, including, without limitation, all tenants under any Leases,
that Xxxxxxxx has replaced Brandywine OP as the Managing Partner of the Tysons
Partnership and Manager as the manager or the Property and directing that all
payments, inquiries and the like to Tysons Partnership be forwarded to Manager
at the address to be provided by Xxxxxxxx (or as otherwise directed by
Xxxxxxxx).
(r) A current UCC Report showing no financing statements by
Brandywine OP as Debtor covering the Tysons Partnership Interest.
(s) All keys to all locks on the Property in the possession of
Brandywine OP, together with an accounting for such keys in the possession of
others.
(t) Possession of the Property (as Managing Partner of Tysons
Partnership) subject only to the Permitted Encumbrances.
(u) Certified copies of a incumbency certificate and resolutions
authorizing the execution by Brandywine OP of this Agreement and all documents
to be executed by Brandywine OP on the Closing Date.
(v) Estoppel letters from each owners association created pursuant
to restrictive covenants or deed restrictions affecting the Property certifying
that (i) the Property complies with such restrictive covenants or deed
restrictions, and (ii) no assessments are due and owing with respect to the
Property.
(w) The FIRPTA Certificate.
(x) Certificates of Subsistence for each of the Subsidiary Entities.
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(y) Estoppel letters from each owners association created pursuant
to restrictive covenants or deed restrictions affecting the Real Property
certifying that (i) the Real Property complies with such restrictive covenants
or deed restrictions, and (ii) no assessments are due and owing with respect to
the Real Property, and estoppel letters from adjoining property owners who are
parties to adjoining landowner agreements binding on any portion of the Real
Property; provided, Brandywine OP may execute an estoppel letter certifying to
the foregoing matters for an owners association or property owner that does not
execute any such estoppel letter, which estoppel letter shall continue in effect
unless and until the applicable estoppel letter is subsequently provided from
any such owners association or property owner.
(z) Any other document or instrument reasonably requested by
Xxxxxxxx in connection with the transactions contemplated hereby.
(aa) Brandywine OP confirms that it shall retain and remove all
Leased Property from the Property and that Xxxxxxxx shall not be responsible
after Closing for any costs or lease obligations related to such Leased
Property.
7.3. XXXXXXXX' DELIVERIES. At the Closing Xxxxxxxx shall deliver to the
Escrow Agent all of the following instruments, each of which shall have been
duly executed and shall be dated as of the Closing Date.
(a) The Partnership Assignment and Assumption Agreement.
(b) The Management Agreement Assignment and Assumption Agreement.
(c) The executed Fourteenth Amendment.
(d) A certificate representing the Special Units.
(e) The Amended and Restated Tysons Partnership Agreement, together
with an amended name change certificate.
(f) The Replacement Exchange Agreement.
(g) The Replacement Registration Rights Agreement.
(h) The Substitute Non-Recourse Guaranty.
(i) The Mass Mutual Consent.
(j) Any other document or instrument reasonably requested by
Brandywine OP in connection with the transactions contemplated hereby.
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7.4. MUTUAL DELIVERIES. At the Closing, Xxxxxxxx and Brandywine OP shall
mutually execute and deliver each to the other:
(a) A final closing statement reflecting the adjustments and
prorations required hereunder and the allocation of income and expenses required
hereby.
(b) Such other and further documents, papers and instruments as may
be reasonably required by the parties hereto in connection with the transactions
contemplated hereby or their respective counsel.
(c) A Statement of Partnership Authority (or similar document) to be
filed with the State Corporation Commission of the Commonwealth of Virginia
showing Xxxxxxxx as a general partner in Tysons Partnership and the withdrawal
of Brandywine OP as a general partner in Tysons Partnership.
7.5. CLOSING COSTS. Except as is explicitly provided in this Agreement,
each party hereto shall pay its own legal fees and expenses. Brandywine OP shall
pay for the costs associated with obtaining the FFI Consent and Mass Mutual
Consent. Brandywine OP shall pay all costs for title searches, tax certificates
and all premiums for the issuance of the Title Policy described in Section
7.2(i); all costs of providing the matters described in SECTIONS 2.4(b) and (d)
to Xxxxxxxx; and one-half (1/2) of any escrow fees or similar charges of the
Escrow Agent. Xxxxxxxx shall pay one-half (1/2) of any escrow fees or similar
charges of the Escrow Agent. Brandywine OP shall pay all debt transfer and
similar fees associated with the Mass Mutual Loans. Transfer taxes and
documentary transfer stamps, if any, shall be paid in accordance with the local
customs in the States in which the Property is located. All other expenses
incurred by Brandywine OP or Xxxxxxxx with respect to the Closing shall be borne
and paid for exclusively by the party incurring same, without reimbursement,
except to the extent otherwise specifically provided herein.
7.6. MISCELLANEOUS PAYMENTS AND REVENUE AND EXPENSE ALLOCATIONS.
(a) Pursuant to the Partnership Assignment and Assumption Agreement,
at the Closing, Brandywine OP shall assign to Xxxxxxxx, as part of its
contribution of the Tysons Partnership Interest, all of its right, title and
interest in and to the Additional Special Distribution. In addition, at or prior
to the Closing, Brandywine OP shall request Tysons Partnership to repay to FFI
the entire accrued but unpaid Priority Return (as defined in the Original Tysons
Partnership Agreement) as of December 31, 2000 (i) by applying on account
thereof $500,000 in the "Cash Shortfall Account" maintained by Tysons
Partnership with First Union National Bank ("First Union") and (ii) by applying
on account of the balance thereof a portion of the cash held in the "Equity
Retainer Buy-Out Account" maintained by Tysons Partnership with First Union
(with the result that the Additional Special Distribution thereafter payable by
Tysons Partnership to Xxxxxxxx shall be reduced by the dollar amount so applied
pursuant to the preceding clause (ii)).
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(b) Brandywine OP agrees that Tysons Partnership will use the
balance that remains in the Cash Shortfall Account after application of $500,000
therein to fund the distribution to FFI referred to in SECTION 7.6(a) above to
pay costs of the current lobby renovation at 8260 Greensboro.
(c) Brandywine OP agrees to make quarterly payments to Xxxxxxxx on
each April 15, July 15, October 15 and January 15, commencing July 15, 2001 in
an amount, not to exceed $200,000 per quarter, equal to the excess of (i) the
accrued but unpaid Subordinated Priority Return (as defined in the Original
Tysons Partnership Agreement and being an annual amount equal to $1,120,000 for
each of calendar years 2001 through 2004 and $1,200,000 for calendar years
thereafter) accruing from and after the Closing Date over (ii) the cumulative
distributions made by Tysons Partnership to Xxxxxxxx from and after the Closing
Date; provided that Brandywine's aggregate payment obligations under this
SECTION 7.6(c) shall, in no event, exceed $2,400,000 and shall not relate to any
calendar year after 2010 (that is, the agreement to make payments on account of
any such excess shall terminate entirely on January 15, 2011). For purposes of
computing the quarterly payment obligation, if any, of Brandywine OP (i) the
Subordinated Priority Return shall be deemed due and payable by Tysons
Partnership on the fifteenth day of each April, July, October and January, (ii)
any Net Cash Flow which, in the reasonable good faith judgment of Xxxxxxxx, is
available for distribution to it on account of the Subordinated Priority Return
but which is not in fact distributed to it shall be deemed to have been
distributed to it and (iii) any accrued but unpaid Subordinated Priority Return
shall not accrue interest.
(d) Brandywine OP shall deposit with Escrow Agent the sum of
$150,000 (the "Netplex Escrow") at Closing, such sum to be used for the specific
purpose set forth in this SECTION 7.6 (d). Until such time as Xxxxxxxx has
leased to a tenant and such tenant under such lease is required to pay rent for
all or a material portion of that certain suite of approximately 10,350 square
feet currently occupied by Netplex at 0000 Xxxxxxxxxx, Xxxxxxxx shall be
permitted to draw an amount not to exceed $25,000 per month from the Netplex
Escrow on the 30th day of each month. Once a tenant is required to pay rent
under the lease for the aforesaid space, Xxxxxxxx' right to draw funds under the
Netplex Escrow shall cease and all remaining funds, if any, in such escrow shall
be wire transferred to Brandywine OP. Xxxxxxxx covenants and agrees: (i) to use
its commercially reasonable efforts to lease such space and (ii) not to permit
any lease for the aforesaid space to include a "free rent" or "rental abatement"
provision which relates to the first six months (or any portion thereof) of the
term.
(e) Xxxxxxxx agrees that in connection with the assignment of the
Management Agreement by BRSCO to Manager at Closing, BRSCO shall be entitled to:
(i) all Management Fees accrued under Section 14 of the Management Agreement
based on Gross Receipts (as defined in the Management Agreement) attributable to
the Property and accrued to the Closing Date; (ii) all leasing commissions
payable under Section 15 of the Management Agreement for leases executed for
space at the Property prior to the Closing Date; (iii) the construction
management fee payable under Section 16 of the Management Agreement for
additions or capital improvements committed to be made by Tysons Partnership, a
Subsidiary
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Entity or Brandywine OP, on behalf of Tysons Partnership or a Subsidiary Entity,
prior to the Closing Date; and (iv) reimbursement on account of payroll expenses
associated with management of the Property to the Closing Date.
(f) Xxxxxxxx agrees that Brandywine OP shall be entitled to accrued
interest through the Closing Date on the unused capital attributable to the
Additional Special Distribution which, but for the contribution by Brandywine OP
to Xxxxxxxx of the Tysons Partnership Interest, would be payable to Brandywine
OP under the last paragraph of SECTION 11.1 of the Original Tysons Partnership
Agreement (such unused capital being held in an escrow account with First Union
National Bank). Brandywine OP confirms that the accrued interest will be paid to
it by the Tysons Partnership at or prior to Closing.
(g) Xxxxxxxx agrees that at such time as it has received payment in
full of the Subordinated Priority Return from Net Cash Flow (as defined in the
Original Tysons Partnership Agreement) then, to the extent it thereafter
receives a distribution from Tysons Partnership of Net Cash Flow, Xxxxxxxx shall
remit to Brandywine OP up to $345,726, of such Net Cash Flow, but in no event
shall Xxxxxxxx make any such payment prior to January 5, 2004. For clarity,
payments by Brandywine OP under SECTION 7.6(c) shall not be deemed to be
payments that reduce the Subordinated Priority Return.
(h) SCHEDULE 6.4(g) identifies refurbishment allowances, tenants
improvement costs and leasing commissions (collectively, "Leasing Costs") with
respect to the Leases executed with Xxxxxxxx' consent after January 1, 2001 and
all historic leases which have accrued but unpaid Leasing Costs as of the date
hereof. Brandywine OP shall be responsible for payment of those Leasing Costs
for which it is designated as the responsible party on such schedule, and Tysons
Partnership or the applicable Subsidiary Entity shall be responsible for payment
of those Leasing Costs for which it is designated as the responsible party on
such schedule. Brandywine OP shall not be responsible for any Leasing Costs that
arise by virtue of the renewal or extension of the term or expansion of the
space exercised after the Closing Date covered by any Lease for which it is
designated as the responsible party on such schedule.
ARTICLE VIII
GENERAL PROVISIONS
8.1. CONDEMNATION. In the event of any actual or threatened taking,
pursuant to the power of eminent domain, of all or any portion of the Property,
or any proposed sale in lieu thereof, Brandywine OP shall give written notice
thereof to Xxxxxxxx promptly after Brandywine OP learns or receives notice
thereof. If all or any part of the Property is, or is to be, so condemned or
sold, Xxxxxxxx shall have the right to terminate this Agreement pursuant to
SECTION 9.3 hereof. If Xxxxxxxx elects not to terminate this Agreement, all
proceeds, awards and other payments arising out of such condemnation and sale
(actual or threatened) shall be retained by Tysons Partnership or the applicable
Subsidiary Entity, as the case may be, and there shall be no reduction in the
Special Units or Common Units issuable to Brandywine OP hereunder. If Xxxxxxxx
elects to terminate this Agreement by giving Brandywine OP written notice
thereof prior
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to the Closing, the Deposit shall be promptly returned to Xxxxxxxx and all
rights and obligations of Brandywine OP and Xxxxxxxx hereunder (except those set
forth herein which expressly survive a termination of this Agreement) shall
terminate immediately.
8.2. RISK OF LOSS. The risk of any loss or damage to the Property prior
to the recordation of the Deed shall remain upon Brandywine OP and Tysons
Partnership. If any such loss or damage occurs prior to Closing which exceeds
$200,000, Xxxxxxxx shall have the right to terminate this Agreement pursuant to
SECTION 9.3 hereof. If Xxxxxxxx elects not to terminate this Agreement pursuant
to the immediately preceding sentence or a loss or damage occurs prior to
Closing which does not exceed $200,000, all insurance proceeds and rights to
proceeds arising out of such loss or damage, less the reasonable expenses
incurred in securing the Property following a casualty, shall be retained by
Tysons Partnership at Closing, and Xxxxxxxx shall receive as a credit against
the number of Special Units and Common Units otherwise issuable by it at Closing
(as elected by Brandywine OP) in the amount of any deductibles under the
policies of insurance covering such loss or damage (with each Special Unit
valued at $50.00 and each Common Unit valued at the Applicable Share Price) and
there shall be no further reduction in the number of Special Units or Common
Units otherwise issuable by Xxxxxxxx at Closing. If Xxxxxxxx elects to terminate
this Agreement pursuant to this SECTION 8.2 by giving Brandywine OP written
notice thereof prior to the Closing, the Deposit shall be promptly returned to
Xxxxxxxx and all rights and obligations of Brandywine OP and Xxxxxxxx hereunder
(except those set forth herein which expressly survive a termination of this
Agreement) shall terminate immediately.
8.3. BROKER. There is no real estate broker involved in this transaction.
Xxxxxxxx warrants and represents to Brandywine OP that Xxxxxxxx has not dealt
with any real estate broker in connection with this transaction, nor has
Xxxxxxxx been introduced to the Property or to Brandywine OP by any real estate
broker, and Xxxxxxxx shall indemnify Brandywine OP and hold Brandywine OP
harmless from and against any claims, suits, demands or liabilities of any kind
or nature whatsoever arising on account of the claim of any other person, firm
or corporation to a real estate brokerage commission or a finder's fee or a
financial advisory fee as a result of having dealt with Xxxxxxxx, or as a result
of having introduced Xxxxxxxx to Brandywine OP or to the Property. In like
manner, Brandywine OP warrants and represents to Xxxxxxxx that Brandywine OP has
not dealt with any real estate broker in connection with this transaction, nor
has Brandywine OP been introduced to Xxxxxxxx by any real estate broker, and
Brandywine OP shall indemnify Xxxxxxxx and save and hold Xxxxxxxx harmless from
and against any claims, suits, demands or liabilities of any kind or nature
whatsoever arising on account of the claim of any person, firm or corporation to
a real estate brokerage commission or a finder's fee or a financial advisory fee
as a result of having dealt with Brandywine OP in connection with this
transaction. This provision shall survive any termination of this Agreement and
a closing of the transaction contemplated hereby.
8.4. 8260 GREENSBORO. Xxxxxxxx covenants that: (i) as Managing Partner of
Tysons Partnership, it will not cause or permit Tysons Partnership or Brandywine
Xxxxx, X.X. directly or indirectly to sell 8260 Greensboro or the Tyson
Partnership Interest prior to January 5, 2004 without the prior consent of
Brandywine OP unless the (a) transaction complies with the
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requirements of Section 1031 of the Internal Revenue Code of 1986, as amended,
and (b) Xxxxxxxx provides for the "bottom guaranty" by Brandywine OP, on terms
reasonably acceptable to Brandywine OP, of at least $16.2 million of
non-recourse debt on terms substantially similar to the terms of the existing
"bottom guaranty" by Brandywine OP in favor of Mass Mutual through January 5,
2004; (ii) Xxxxxxxx shall not refinance or repay the debt secured by 0000
Xxxxxxxxxx Xxxxx prior to January 5, 2004 without Brandywine OP's consent
unless, prior to such refinancing or repayment, Xxxxxxxx shall provide for the
"bottom guaranty" by Brandywine OP on terms reasonably acceptable to Brandywine
OP of at least $16.2 million of non-recourse debt on terms substantially similar
to the terms of the existing guaranty by Brandywine OP in favor of Mass Mutual;
(iii) Xxxxxxxx shall not at any time prior to January 5, 2006 either transfer
the Tysons Partnership Interest or cause Tysons Partnership or Brandywine Xxxxx,
X.X. to directly or indirectly convey 8260 Greensboro to a party which is a
Related Party to Xxxxxxxx without the consent of Brandywine OP; and (iv) after
January 5, 2006 Xxxxxxxx shall notify Brandywine OP not less than forty-five
(45) days prior to its consummation of any transaction covered by clause (iii).
The term "Related Party" shall have the meaning set forth in each of Section
1239(b), Section 1239(c), Section 267(b) and Section 267(c) of the Code.
Notwithstanding anything herein to the contrary, at such time as the Common
Units and the Special Units have been redeemed or exchanged in full pursuant to
the Xxxxxxxx Partnership Agreement, then the provisions of this SECTION 8.4
shall be of no further force or effect.
ARTICLE IX
LIABILITY OF XXXXXXXX; INDEMNIFICATION BY BRANDYWINE OP;
DEFAULT; TERMINATION RIGHTS
9.1. LIABILITY OF XXXXXXXX. Except for obligations expressly assumed or
agreed to be assumed by Xxxxxxxx hereunder, Xxxxxxxx is not assuming any
obligations of Brandywine OP, Tysons Partnership, or any of the Subsidiary
Entities or any liability for claims arising out of any act, omission or
occurrence which occurs, accrues or arises prior to the Closing Date (except to
the extent such assumption occurs as a matter of law), and Brandywine OP hereby
indemnifies and holds Xxxxxxxx harmless from and against any and all claims,
costs, penalties, damages, losses, liabilities and expenses (including
reasonable attorneys' fees) that may at any time be incurred by Xxxxxxxx as a
result of (a) obligations of Brandywine OP (i) not expressly assumed or agreed
to be assumed by Xxxxxxxx hereunder or (ii) which Xxxxxxxx is assuming as a
matter of law, but not otherwise expressly assuming hereunder or under any
document to be executed on the Closing Date that relate, in the case of clauses
(i) and (ii), solely to any act, omission or occurrence which occurs, accrues or
arises prior to the Closing Date, or (b) acts, omissions or occurrences which
occur, accrue or arise prior to the Closing Date (excluding, in any event, in
the case of clauses (a) and (b), ordinary course accruals). Xxxxxxxx hereby
indemnifies and holds Brandywine OP harmless from and against any and all
claims, costs, penalties, damages, losses, liabilities and expenses (including
reasonable attorneys' fees) that may at any time be incurred by Brandywine OP as
a result of acts, omissions or occurrences relating to the Property arising and
accruing from and after the Closing Date. The provisions of this Section shall
survive the Closing of the transaction contemplated hereby.
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9.2. INDEMNIFICATION BY BRANDYWINE OP. Brandywine OP hereby indemnifies
and holds Xxxxxxxx and Xxxxxxxx' officers, partners, directors, shareholders,
agents and employees (collectively, the "INDEMNIFIED PARTIES") harmless from and
against any and all claims, costs, penalties, damages, losses, liabilities and
expenses (including reasonable attorneys' fees) that may at any time be incurred
by Xxxxxxxx, whether incurred before or after Closing, as a result of any
inaccuracy or breach by Brandywine OP of any of its representations, warranties,
covenants or obligations set forth herein or in any other document delivered by
Brandywine OP pursuant hereto except for any breach or inaccuracy of any
representation or warranty as to which Brandywine OP has given Xxxxxxxx written
notice prior to Closing of the untruth or inaccuracy or of which Xxxxxxxx
otherwise had actual knowledge prior to the Closing and nevertheless elected to
consummate the Closing; provided, however, the foregoing knowledge limitation on
Brandywine OP's indemnity shall not limit Xxxxxxxx' remedy described in SECTION
9.3(a)(ii) hereof or in the last sentence of SECTION 9.3 hereof. The provisions
of this Section shall survive the Closing of the transaction contemplated hereby
as provided in SECTION 10.11 hereof, and shall, following any assignment of this
Agreement by Xxxxxxxx, continue in favor of the Indemnified Parties of the
original Xxxxxxxx hereunder as well the Indemnified Parties of any assignee
during said survival period.
9.3. DEFAULT BY BRANDYWINE OP/FAILURE OF CONDITIONS PRECEDENT. If any
condition set forth herein for the benefit of Xxxxxxxx cannot or will not be
satisfied prior to Closing, or upon the occurrence of any other event that would
entitle Xxxxxxxx to terminate this Agreement and its obligations hereunder, and
if Brandywine OP fails to cure any such matter or satisfy that condition within
ten (10) business days after notice thereof from Xxxxxxxx (or such other time
period as may be explicitly provided for herein), Xxxxxxxx, at its option, may
elect (a) to terminate this Agreement, in which event (i) the Deposit, less the
Independent Consideration, shall be promptly returned to Xxxxxxxx, (ii) if the
condition which has not been satisfied is a breach of a representation, warranty
or covenant known by Brandywine OP to have been inaccurate or misleading when
made, then Brandywine OP shall be obligated upon demand to reimburse Xxxxxxxx
for Xxxxxxxx' actual out-of-pocket inspection, financing and other costs related
to Xxxxxxxx' entering into this Agreement, inspecting the Property and preparing
for a Closing of the transaction contemplated hereby, including, without
limitation, Xxxxxxxx' attorneys' fees incurred in connection with the
preparation, negotiation and execution of this Agreement and in connection with
Xxxxxxxx' due diligence review, audits and preparation for a Closing up to an
aggregate amount equal to $100,000.00; provided, the foregoing shall not limit
or include the sums which may be payable by Brandywine OP pursuant to SECTION
9.6 below, and (iii) all other rights and obligations of Brandywine OP and
Xxxxxxxx hereunder (except those set forth herein which expressly survive a
termination of this Agreement) shall terminate immediately; (b) elect to proceed
to Closing; or (c) seek to enforce Brandywine OP's obligations hereunder by
specific performance. If Xxxxxxxx elects to proceed to Closing and there is
either a misrepresentation or breach of a warranty by Brandywine OP (other than
a breach of a representation or warranty of which Xxxxxxxx had actual knowledge
prior to the Closing and nevertheless elected to consummate the Closing) or the
breach of a covenant by Brandywine OP or a failure by Brandywine OP to perform
its obligations hereunder first discovered by Xxxxxxxx after the Closing Date,
Xxxxxxxx shall retain all remedies accruing as a result thereof, including,
but not limited to, the remedy of specific performance of Brandywine OP's
covenants and obligations and the remedy of the recovery of all reasonable
damages resulting from Brandywine OP's breach of warranty or covenant.
Notwithstanding the foregoing, if the condition which has not been satisfied is
a breach of one or more representations and warranties by Brandywine OP or
Brandywine Grande B, L.P. in this agreement and/or in any of the other documents
executed of even date herewith between Xxxxxxxx and Brandywine OP or any of
their respective affiliates (the "Other Documents"), Xxxxxxxx has elected to
proceed to Closing, and Xxxxxxxx can reasonably quantify the damage resulting
from such breach of representations and warranties with reasonable support for
such calculation of damages, then (i) if the aggregate damage is no greater than
$150,000.00 (the "FIRST THRESHOLD LEVEL"), then Brandywine OP shall have no
obligation to either cure such breaches of representations and warranties or pay
Xxxxxxxx at Closing in the event Xxxxxxxx elects to close the transaction
described in this Agreement and the Other Documents; (ii) if such aggregate
damage is greater than the First Threshold Level but less than $1,500,000.00,
then Brandywine OP must prior to the Closing Date either cure such breaches of
representations and warranties to the reasonable satisfaction of Xxxxxxxx or
Brandywine OP shall pay Xxxxxxxx at the Closing an amount equal to the actual
damages as reasonably determined by Xxxxxxxx as aforesaid, less the First
Threshold Level; and (iii) in the event the aggregate damages resulting from
such breaches of representations and warranties would exceed $1,500,000.00, then
Xxxxxxxx may either (A) terminate this Agreement and the Other Documents, in
which event the Deposit (less the Independent Consideration) shall be promptly
refunded, or (B) Xxxxxxxx may close the transaction as described in this
Agreement and the other Transaction Documents and Xxxxxxxx shall be paid by
Brandywine OP and Brandywine Grande B, L.P. the amount of $1,350,000.00, which
amount shall be the maximum aggregate amount payable by Grande B, L.P. and
Brandywine OP under the last sentence of SECTION 9.3 of this Agreement and all
of the Other Documents.
9.4. INDEMNIFICATION BY XXXXXXXX. Xxxxxxxx hereby indemnifies and holds
Brandywine OP harmless from and against any and all claims, costs, penalties,
damages, losses, liabilities and expenses (including reasonable attorneys' fees)
that may at any time be incurred by Brandywine OP, whether incurred before or
after Closing, as a result of any inaccuracy or breach by Xxxxxxxx of any of its
representations, warranties, covenants or obligations set forth herein or in any
other document delivered by Xxxxxxxx pursuant hereto except for any breach or
inaccuracy of any representation or warranty as to which Xxxxxxxx has given
Brandywine OP written notice prior to Closing of the untruth or inaccuracy or of
which Brandywine OP otherwise had actual knowledge prior to the Closing and
nevertheless elected to consummate the Closing. The provisions of this Section
shall survive the Closing of the transaction contemplated hereby for the period
provided in SECTION 10.11.
9.5. DEFAULT BY XXXXXXXX/FAILURE OF CONDITIONS PRECEDENT. If any
condition set forth herein for the benefit of Brandywine OP (other than a
default by Xxxxxxxx) cannot or will not be satisfied prior to Closing, and if
Xxxxxxxx fails to satisfy that condition within ten (10) business days after
notice thereof from Brandywine OP (or such other time period as may be
explicitly provided for herein), Brandywine OP may, at its option, elect either
(a) to terminate this Agreement in which event the Deposit shall be promptly
returned to Xxxxxxxx and the parties
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hereto shall be released from all further obligations hereunder except those
which expressly survive a termination of this Agreement, or (b) to waive its
right to terminate, and instead, to proceed to Closing. If, prior to Closing,
Xxxxxxxx defaults in performing any of its obligations under this Agreement
(including its obligation to purchase the Property), and Xxxxxxxx fails to cure
any such default within ten (10) business days after notice thereof from
Brandywine OP, then Brandywine OP' sole remedy for such default shall be either
(i) to terminate this Agreement and retain the Deposit or (ii) to pursue the
remedy of specific performance compelling Xxxxxxxx to accept the contribution of
the Tysons Partnership Interest and issue the Common Units and Special Units
pursuant to the provisions of this Agreement.
9.6. COSTS AND ATTORNEYS' FEES. In the event of any litigation or dispute
between the parties arising out of or in any way connected with this Agreement,
resulting in any litigation, then the prevailing party in such litigation shall
be entitled to recover its costs of prosecuting and/or defending same,
including, without limitation, reasonable attorneys' fees at trial and all
appellate levels. The provisions of this Section shall survive the Closing of
the transaction contemplated hereby.
9.7. LIMITATION OF LIABILITY. Notwithstanding anything herein to the
contrary, except in the case of fraud by either party, the liability of each
party hereto resulting from the breach or default by either party shall be
limited to actual damages incurred by the injured party and except in the case
of fraud by either party, the parties hereto hereby waive their rights to
recover from the other party consequential, punitive, exemplary, and speculative
damages. The provisions of this SECTION 9.7 shall survive the Closing of the
transaction contemplated hereby.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. COMPLETENESS; MODIFICATION. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior discussions, understandings,
agreements and negotiations between the parties hereto. This Agreement may be
modified only by a written instrument duly executed by the parties hereto. Any
waiver of rights under this Agreement shall be effective only if in writing and
duly executed and delivered by the party against whom such waiver is asserted.
10.2. ASSIGNMENTS. Xxxxxxxx may assign its rights hereunder without the
consent of Brandywine OP to any affiliate of Xxxxxxxx, in which event, except as
otherwise specified herein, such assignee shall be the "XXXXXXXX" hereunder;
however, any such assignment shall not relieve the original Xxxxxxxx of its
obligations under this Agreement, including specifically the obligation to close
the purchase of the Property in accordance with this Agreement as though there
were no assignment.
10.3. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns.
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10.4. DAYS. If any action is required to be performed, or if any notice,
consent or other communication is given, on a day that is a Saturday or Sunday
or a legal holiday in the jurisdiction in which the action is required to be
performed or in which is located the intended recipient of such notice, consent
or other communication, such performance shall be deemed to be required, and
such notice, consent or other communication shall be deemed to be given, on the
first business day following such Saturday, Sunday or legal holiday. Unless
otherwise specified herein, all references herein to a "DAY" or "DAYS" shall
refer to calendar days and not business days.
10.5. GOVERNING LAW. This Agreement and all documents referred to herein
shall be governed by and construed and interpreted in accordance with the laws
of the State of Delaware.
10.6. COUNTERPARTS. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signature on behalf of both parties hereto appear on each counterpart
hereof. All counterparts hereof shall collectively constitute a single
agreement.
10.7. SEVERABILITY. If any term, covenant or condition of this Agreement,
or the application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term, covenant or condition to other persons or circumstances, shall not be
affected thereby, and each term, covenant or condition of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
10.8. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered by hand, transmitted by
facsimile transmission, sent prepaid by Federal Express (or a comparable
overnight delivery service) or sent by the United States mail, certified,
postage prepaid, return receipt requested, at the addresses and with such copies
as designated below. Any notice, request, demand or other communication
delivered or sent in the manner aforesaid shall be deemed given or made (as the
case may be) when actually delivered to the intended recipient.
If to Brandywine OP: Brandywine Realty Trust
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxxx, General Counsel
Fax No.: (000) 000-0000
If to Xxxxxxxx: Xxxxxxxx Properties Acquisition Partners, L.P.
0000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn.: J. Xxxxx Xxxxxxx, General Counsel
Fax No.: (000) 000-0000
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With a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attn.: Xxxxxxx X. Xxxxxx, P.C.
Fax No.: (000) 000-0000
If to Escrow Agent: Chicago Title Insurance Company
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn.: Xxxxx Xxxxxx
Fax No.: (000) 000-0000
or to such other address as the intended recipient may have specified in a
notice to the other party. Any party hereto may change its address or designate
different or other persons or entities to receive copies by notifying the other
party and Escrow Agent in a manner described in this Section.
10.9. ESCROW AGENT. Escrow Agent referred to in the definition thereof
contained in SECTION 1.1 hereof has agreed to act as such for the convenience of
the parties without fee or other charges for such services as Escrow Agent.
Escrow Agent shall not be liable: (a) to any of the parties for any act or
omission to act except for its own willful misconduct; (b) for any legal effect,
insufficiency, or undesirability of any instrument deposited with or delivered
by Escrow Agent or exchanged by the parties hereunder, whether or not Escrow
Agent prepared such instrument; (c) for any loss or impairment of funds that
have been deposited in escrow while those funds are in the course of collection,
or while those funds are on deposit in a financial institution, if such loss or
impairment results from the failure, insolvency or suspension of a financial
institution; (d) for the expiration of any time limit or other consequence of
delay, unless a properly executed written instruction, accepted by Escrow Agent,
has instructed Escrow Agent to comply with said time limit; or (e) for the
default, error, action or omission of either party to the escrow. Escrow Agent,
in its capacity as escrow agent, shall be entitled to rely on any document or
paper received by it, believed by such Escrow Agent, in good faith, to be bona
fide and genuine. In the event of any dispute as to the disposition of the
Deposit or any other monies held in escrow, or of any documents held in escrow,
Escrow Agent may, if such Escrow Agent so elects, interplead the matter by
filing an interpleader action in a court of general jurisdiction in the county
or circuit where the Property is located (to the jurisdiction of which both
parties do hereby consent), and pay into the registry of the court the Deposit,
or deposit any such documents with respect to which there is a dispute in the
Registry of such court, whereupon such Escrow Agent shall be relieved and
released from any further liability as Escrow Agent hereunder. Escrow Agent
shall not be liable for Escrow Agent's compliance with any legal process,
subpoena, writ, order, judgment and decree of any court, whether issued with or
without jurisdiction, and whether or not subsequently vacated, modified, set
aside or reversed.
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10.10. INCORPORATION BY REFERENCE. All of the exhibits attached hereto are
by this reference incorporated herein and made a part hereof.
10.11. SURVIVAL. All of the representations, warranties, covenants and
agreements of Brandywine OP and Xxxxxxxx made in, or pursuant to, this Agreement
shall survive Closing through the period ending twelve (12) months thereafter
and shall not merge into the Deed or any other document or instrument executed
and delivered in connection herewith; provided, however, the covenants in
SECTIONS 2.4(b), 6.6, 7.6 and 8.4 shall survive for the time periods described
in such Sections, and the indemnities in this Agreement and the covenants in
SECTION 7.7 and the representation in SECTION 4.6 shall have an unlimited
survival. In the event a claim for indemnity is asserted in good faith prior to
expiration of the applicable survival period, the claim may be asserted and the
indemnity shall continue notwithstanding expiration of the survival period.
10.12. FURTHER ASSURANCES. Brandywine OP and Xxxxxxxx each covenant and
agree to sign, execute and deliver, or cause to be signed, executed and
delivered, and to do or make, or cause to be done or made, upon the written
request of the other party, any and all agreements, instruments, papers, deeds,
acts or things, supplemental, confirmatory or otherwise, as may be reasonably
required by either party hereto for the purpose of or in connection with
consummating the transactions described herein. Brandywine OP agrees to promptly
correct any defect, error or omission which may be discovered in the contents of
this Agreement or in any of the Exhibits or Schedules hereto.
10.13. NO PARTNERSHIP. This Agreement does not and shall not be construed
to create a partnership, joint venture or any other relationship between the
parties hereto except the relationship of Brandywine OP and Xxxxxxxx
specifically established hereby.
10.14. TIME OF ESSENCE. Time is of the essence with respect to every
provision hereof.
10.15. SIGNATORY EXCULPATION. The signatory(ies) for Brandywine OP and
Xxxxxxxx are executing this Agreement in his/their capacity as representative of
Brandywine OP and Xxxxxxxx, respectively, and not individually and, therefore,
shall have no personal or individual liability of any kind in connection with
this Agreement and the transactions contemplated by it. No recourse shall be had
for any obligation of Brandywine OP or Xxxxxxxx under this Agreement or under
any document executed in connection herewith or pursuant hereto, or for any
claim based thereon or otherwise in respect thereof, against any past, present
or future trustee, shareholder, officer, partner or employee of Brandywine
Realty Trust, Brandywine OP Properties Trust, Brandywine OP or Xxxxxxxx, whether
by virtue of any statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being expressly waived and released
by the parties hereto and all parties claiming by, through or under them.
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10.16. RULES OF CONSTRUCTION. The following rules shall apply to the
construction and interpretation of this Agreement:
(a) Singular words shall connote the plural number as well as the
singular and vice versa, and the masculine shall include the feminine and the
neuter.
(b) All references herein to particular articles, sections,
subsections, clauses or exhibits are references to articles, sections,
subsections, clauses or exhibits of this Agreement.
(c) The table of contents and headings contained herein are solely
for convenience of reference and shall not constitute a part of this Agreement
nor shall they affect its meaning, construction or effect.
(d) Each party hereto and its counsel have reviewed and revised (or
requested revisions of) this Agreement and have participated in the preparation
of this Agreement, and therefore any usual rules of construction requiring that
ambiguities are to be resolved against a particular party shall not be
applicable in the construction and interpretation of this Agreement or any
exhibits hereto.
(e) As used herein, the term or phrases "EFFECTIVE DATE," "DATE OF
THIS AGREEMENT" or "DATE HEREOF" shall mean the first date Escrow Agent is in
receipt of this Agreement executed by Brandywine OP and Xxxxxxxx.
10.17. SEC REPORTING (8-K) REQUIREMENTS. For the period of time commencing
on the date hereof and continuing through the second anniversary of the Closing
Date, and without limitation of other document production otherwise required of
Brandywine OP hereunder, Brandywine OP shall, from time to time, upon reasonable
advance written notice from Xxxxxxxx, provide Xxxxxxxx and its representatives,
with access to all financial and other information pertaining to the period of
Tysons Partnership's ownership and operation of the Property, which information
is relevant and reasonably necessary, in the opinion of outside, third party
accountants (the "ACCOUNTANTS") for Xxxxxxxx, to enable Xxxxxxxx and its
Accountants to prepare financial statements in compliance with any or all of (a)
Rule 3-05 or 3-14 of Regulation S-X of the Securities and Exchange Commission
(the "COMMISSION"), as applicable; (b) any other rule issued by the Commission
and applicable to Xxxxxxxx or the Trust; and (c) any registration statement,
report or disclosure statement filed with the Commission by Brandywine; and a
representation letter, signed by the individual(s) responsible for Brandywine
OP's financial reporting, as prescribed by generally accepted auditing standards
promulgated by the Auditing Standards Division of the American Institute of
Certified Public Accountants, which representation letter may be required by the
Accountants in order to render an opinion concerning Xxxxxxxx' or the Trust's
financial statements.
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IN WITNESS WHEREOF, Xxxxxxxx and Brandywine OP have caused this Agreement
to be executed in their names by their respective duly authorized
representatives.
BRANDYWINE OP:
BRANDYWINE OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
By: /s/ XXXXXX X. XXXXXXX
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
Date of Execution: March 14, 2001
XXXXXXXX:
XXXXXXXX PROPERTIES ACQUISITION
PARTNERS, L.P., a Delaware limited partnership
By: Xxxxxxxx Properties I, Inc., a Delaware
corporation, its general partner
By: /s/ Xxxxxx X. August
---------------------
Name: Xxxxxx X. August
Title President & CEO
Date of Execution: March 14, 2001
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RECEIPT OF ESCROW AGENT
Chicago Title Insurance Company, as Escrow Agent, acknowledges receipt of
the sum of $300,050.00 by check or by wire transfer, from Brandywine OP as
described in Section 2.3 of the foregoing Agreement of Purchase and Sale, said
check or wire transfer to be held pursuant to the terms and provisions of said
Agreement.
DATED this _____ day of __________, 2001.
CHICAGO TITLE INSURANCE COMPANY
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
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