Exhibit 10.1
FIRST AMENDMENT
TO
REVOLVING CREDIT AGREEMENT
AND
OTHER CREDIT FACILITY DOCUMENTS
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT AND OTHER CREDIT
FACILITY DOCUMENTS (this "Amendment") entered into as of the 15th day of July,
1997, among NATIONSBANK, N.A., acting in its capacity as administrative and
documentation agent for Co-Lenders (NationsBank, N.A., acting in its capacity as
administrative and documentation agent for Co-Lenders or any other entity which
is designated as administrative and documentation agent in accordance with the
provisions of the Co-Lenders Agreement being hereinafter referred to as
"Agent"); NATIONSBANK, N.A., ("NationsBank"), a national banking association
having an office at 8300 Greensboro Drive, McLean, Virginia, acting in its
individual capacity; SMITH BARNEY MORTGAGE CAPITAL GROUP, INC. ("Smith Barney"),
a Delaware corporation having an office at 390 Greenwich Street, New York, New
York; THE FIRST NATIONAL BANK OF CHICAGO ("First Chicago"), a national banking
association having an office at One First National Plaza, Chicago, Illinois;
MELLON BANK, N.A. ("Mellon"), a national banking association having an office at
1735 Market Street, Philadelphia, Pennsylvania; PNC BANK, NATIONAL ASSOCIATION
("PNC"), a national banking association having an office at 1600 Market Street,
Philadelphia, Pennsylvania; SIGNET BANK ("Signet"), a state banking association
organized under the laws of the Commonwealth of Virginia having an office at
7799
Leesburg Pike, 4th Floor, Falls Church, Virginia; and SUMMIT BANK, N.A.
("Summit"), a state banking association organized under the laws of the State of
New Jersey having an office at 1800 Chapel Avenue West, Cherry Hill, New Jersey
(NationsBank, Smith Barney, First Chicago, Mellon, PNC, Signet and Summit are
hereinafter collectively referred to as the "Co-Lenders"); BRANDYWINE REALTY
TRUST ("BRT"), a Maryland real estate investment trust having an office at
Newtown Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania; BRANDYWINE OPERATING PARTNERSHIP, L.P. ("BOP"), a Delaware limited
partnership having an office at Newtown Square Corporate Campus, 16 Campus
Boulevard, Suite 150, Newtown Square, Pennsylvania; BRANDYWINE - MAIN STREET,
LLC ("BMS"), a Delaware limited liability company having an office at Newtown
Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania; LC/N HORSHAM LIMITED PARTNERSHIP, a Pennsylvania limited
partnership; LC/N KEITH VALLEY LIMITED PARTNERSHIP I, a Pennsylvania limited
partnership; NICHOLS LANSDALE LIMITED PARTNERSHIP III, a Pennsylvania limited
partnership; NEWTECH III LIMITED PARTNERSHIP, a Pennsylvania limited
partnership; NEWTECH IV LIMITED PARTNERSHIP, a Pennsylvania limited partnership;
C/N OAKLANDS LIMITED PARTNERSHIP I, a Pennsylvania limited partnership; FIFTEEN
HORSHAM, L.P., a Pennsylvania limited partnership; C/N LEEDOM LIMITED
PARTNERSHIP II, a Pennsylvania limited partnership; C/N IRON RUN LIMITED
PARTNERSHIP III, a Pennsylvania limited partnership; all having offices c/o
Brandywine Realty Trust, Newtown Square Corporate Campus, 16 Campus Boulevard,
Suite 150, Newtown Square, Pennsylvania (collectively, the "BRT/BOP Limited
Partnerships"; BRT, BOP, BMS and the BRT/BOP Limited Partnerships are
hereinafter collectively referred to as "Borrowers"); WITMER OPERATING
PARTNERSHIP I, L.P. ("WOP"), a Delaware limited partnership having an office at
Newtown Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania; BRANDYWINE REALTY PARTNERS ("BRP"), a Pennsylvania general
partnership having an office at Newtown Square Corporate Campus, 16 Campus
Boulevard, Suite 150, Newtown Square, Pennsylvania; and BRANDYWINE REALTY
SERVICES CORPORATION ("BRSC"), a Pennsylvania corporation having an office at
Newtown Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania (WOP, BRP and BRSC are hereinafter collectively referred to as
"Guarantors").
PRELIMINARY STATEMENT
A. All capitalized terms used in this Amendment shall, unless
otherwise defined in the main body of this Amendment or in Exhibit A to this
Amendment, have the respective meanings given to such terms in the Credit
Agreement (hereinafter defined).
B. Co-Lenders have, on the terms, covenants and provisions set forth
in that certain Revolving Credit Agreement dated as of November 25, 1996 (the
"Credit Agreement") and the other Credit Facility Documents, extended to
Borrowers a revolving credit facility in the principal sum of up to, but not in
excess of, $80,000,000 (the "Existing Credit Facility").
C. The Existing Credit Facility is evidenced by the Existing Credit
Facility Notes and secured by, among other things, the Existing Mortgages and
the Existing Assignments of Leases and Rents encumbering the collateral
properties identified on Exhibit B hereto (the "Existing Collateral
Properties").
D. In connection with the Existing Credit Facility, (i) the
Guarantors have executed and delivered to Agent a certain Guaranty of Payment
dated as of November 25, 1996 (the "Guaranty of Payment") and (ii) the
Guarantors and Borrowers have executed and delivered to Agent a certain
Hazardous Material Guaranty and Indemnification Agreement dated as of November
25, 1996 (the "Hazardous Material Guaranty and Indemnification Agreement"; the
Guaranty of Payment and the Hazardous Material Guaranty and Indemnification
Agreement are collectively the "Guaranties").
E. Borrowers have requested that Agent and Co-Lenders increase the
maximum principal amount available for draw under the Existing Credit Facility
from up to $80,000,000 to up to $150,000,000 in accordance with the provisions
of this Amendment hereinafter set forth.
F. Agent and Co-Lenders are willing to increase the maximum
principal amount available for draw under the Existing Credit Facility from up
to $80,000,000 to up to $150,000,000 only if Borrowers and the Guarantors, as
applicable, agree to (i) modify, amend and restate the Existing Credit Facility
Notes, (ii) modify and amend the Existing Mortgages encumbering the
Existing Collateral Properties, (iii) execute and deliver mortgages and
assignments of leases and rents with respect to the properties identified on
Exhibit C attached hereto (the "New Collateral Properties"), and (iv) modify and
amend the Existing Assignments of Leases and Rents, the Guaranties and all other
documents and instruments executed and delivered in connection with the Credit
Facility in accordance with the provisions of this Amendment.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Agent, Co-Lenders, Borrowers and Guarantors hereby covenant and
agree as follows:
1. Increase in Credit Facility. Subject to the terms and conditions
of the Credit Agreement, as modified and amended pursuant to the terms and
provisions of this Amendment, the maximum amount available for draw under the
Existing Credit Facility shall be increased by up to $70,000,000 (the "Credit
Facility Increase") from up to $80,000,000 to up to $150,000,000 (the Existing
Credit Facility, as so increased by the Credit Facility Increase, is hereinafter
the "Credit Facility"). The Credit Facility Percentage Interest held by each
Co-Lender in the Credit Facility (inclusive of risk participations in any Letter
of Credit which is issued and is outstanding under the Credit Facility) on the
date hereof and after giving effect to the Credit Facility Increase is as
follows:
================================================================================
Amount Percentage Interest
------ -------------------
- --------------------------------------------------------------------------------
Smith Barney $27,500,000 18.3334%
- --------------------------------------------------------------------------------
NationsBank $27,500,000 18.3334%
- --------------------------------------------------------------------------------
First Chicago $20,000,000 13.3333%
- --------------------------------------------------------------------------------
Mellon $20,000,000 13.3333%
- --------------------------------------------------------------------------------
PNC $20,000,000 13.3333%
- --------------------------------------------------------------------------------
Summit $20,000,000 13.3333%
- --------------------------------------------------------------------------------
Signet $15,000,000 10.0000%
================================================================================
2. Modification, Amendment and Restatement of Existing Credit
Facility Notes. The terms, covenants and provisions of each of the Credit
Facility Notes are contemporaneously being modified, amended and restated in
accordance with the provisions of the Amended and Restated Credit Facility Notes
in the form of Exhibit D-1 through Exhibit D-7 hereto, respectively (the
"Restated Credit Facility Notes"), which Restated Credit Facility Notes have
been executed and delivered by Borrowers to Co-Lenders contemporaneously with
the execution and delivery of this Amendment. Co-Lenders shall return to
Borrowers any Credit Facility Note with respect to which Restated Credit
Facility Notes are executed by Borrowers in accordance with the preceding
provisions of this paragraph, which replaced Credit Facility Note shall, prior
to being returned to Borrowers, be marked "cancelled and replaced pursuant to
the First Amendment to Revolving Credit Agreement and Other Credit Facility
Documents".
3. Modification and Amendment of Existing Mortgages; Execution of
New Mortgages and New Assignments of Leases and Rents. (a) The terms, covenants
and provisions of each of the Existing Mortgages are contemporaneously being
modified and amended in accordance with the provisions of the Amendment of
Mortgage attached hereto as Exhibit E-1 (Pennsylvania),
Exhibit E-2 (New Jersey) and Exhibit E-3 (Delaware) (collectively, the "Mortgage
Modification Agreements"), which Mortgage Modification Agreements have been
executed and delivered by the applicable Borrowers to Agent contemporaneously
with the execution and delivery of this Amendment and are intended to be
promptly recorded in the appropriate recording office in each county in which
the Initial Collateral Properties are located.
(b) Contemporaneously with the execution and delivery of this
Amendment, BOP has executed and delivered (i) new mortgages in the form of
Exhibit F-1 (Pennsylvania) and Exhibit F-2 (New Jersey) attached hereto (the
"New Mortgages") with respect to each of the New Collateral Properties and (ii)
new assignments of leases and rents in the form of Exhibit G attached hereto
(the "New Assignments of Leases and Rents") with respect to each of the New
Collateral Properties, which New Mortgages and New Assignments of Leases and
Rents are intended to be promptly recorded in the appropriate recording office
in each county in which the New Collateral Properties are located.
4. Modification of Credit Agreement Provisions. The Credit Agreement
is hereby modified and amended in the following respects:
(a) The definition of "Borrowers" appearing in the preamble to
the Credit Agreement is modified to include a reference to "BMS".
(b) Due to a scrivener's error in the Credit Agreement, the
defined term "BRSC" appears as "BRC" in subparagraph 22(a); accordingly, the
reference to "BRC" shall be deemed to refer to "BRSC".
(c) The reference to "paragraph 11" contained in the
penultimate sentence of paragraph 8 of the Credit Agreement is hereby deleted
and replaced with a reference to "paragraph 12".
(d) The reference to "paragraph 15" contained in the first
sentence of subparagraph 23(n) of the Credit Agreement is hereby deleted and
replaced with a reference to "paragraph 16".
(e) Subparagraph 23(hh) of the Credit Agreement is hereby
deleted in its entirety and the following provision substituted therefor:
"(hh) From and after July 15, 1997, the aggregate Approved Value of
all Properties from time to time constituting part of the collateral
pool for the Credit Facility shall at all times be equal to or in
excess of $140,000,000."
(f) The definition of "Co-Lenders" appearing in Exhibit A of
the Credit Agreement is hereby deleted in its entirety and the following
definition substituted therefor:
"Co-Lenders: The term "Co-Lenders" as used in this Agreement shall
mean, collectively, (i) Smith Barney, (ii) NationsBank, (iii) First
Chicago, (iv) Mellon, (v) PNC, (vi) Summit, (vii) Signet, and (viii) all
other parties from time to time to whom direct interests in the Credit
Facility are sold, transferred and assigned and who are as a result
thereof designated as Co-Lenders, under and pursuant to the provisions of
this Agreement and the Co-Lenders Agreement."
(g) The definition of "Credit Facility Notes" appearing in
Exhibit A of the Credit Agreement is hereby deleted in its entirety and the
following definition substituted therefor:
"Credit Facility Notes: The term "Credit Facility Notes" as used in
this Agreement shall mean, collectively, the following: (i) that certain
Amended and Restated Note dated as of July 15, 1997 in the original
principal amount of $27,500,000.00 given by Borrowers to Smith Barney,
(ii) that certain Amended and Restated Note dated as of July 15, 1997 in
the original principal amount of $27,500,000.00 given by Borrowers to
NationsBank, (iii) that certain Amended and Restated Note dated as of July
15, 1997 in the original principal amount of $20,000,000.00 given by
Borrowers to First Chicago, (iv) that certain Amended and Restated Note
dated as of July 15, 1997 in the original principal amount of
$20,000,000.00 given by Borrowers to Mellon, (v) that certain Amended and
Restated Note dated as of July 15, 1997 in the original principal amount
of $20,000,000.00 given by Borrowers to PNC, (vi) that certain Amended and
Restated Note dated as of July 15, 1997 in the original principal amount
of $20,000,000.00 given by Borrowers to Summit, and (vii) that certain
Amended and Restated Note dated as of July 15, 1997 in the original
principal amount of $15,000,000.00 given by Borrowers to Signet, as such
Amended and Restated Notes may from time to time be amended, modified,
extended, supplemented, renewed, replaced or restated."
(h) The definition of "Unused Portion" appearing in Exhibit A
of the Credit Agreement is hereby deleted in its entirety and the following
definition substituted therefor:
"Unused Portion: The term "Unused Portion" as used in this Agreement
shall be calculated on a daily basis and shall mean, $150,000,000 less the
sum of (i) the daily weighted average of the outstanding principal balance
of the Credit Facility Notes and (ii) the daily weighted average of the
aggregate amount available for draw under all outstanding Letters of
Credit."
(i) The following additional definitions are inserted into
Exhibit A of the Credit Agreement in their appropriate alphabetical order:
"BMS: The term "BMS" as used in this Agreement shall mean Brandywine
- Main Street, LLC, a Delaware limited liability company."
"First Chicago: The term "First Chicago" as used in this Agreement
shall mean The First National Bank of Chicago, a national banking
association having an office at One First National Plaza, Chicago,
Illinois."
"Mellon: The term "Mellon" as used in this Agreement shall mean
Mellon Bank, N.A., a national banking association having an office at 1735
Market Street, Philadelphia, Pennsylvania."
"PNC: The term "PNC" as used in this Agreement shall mean PNC Bank,
National Association, a national banking association having an office at
1600 Market Street, Philadelphia, Pennsylvania."
"Signet: The term "Signet" as used in this Agreement shall mean
Signet Bank, a state banking association organized under the laws of the
Commonwealth of Virginia having an office at 7799 Leesburg Pike, 4th
Floor, Falls Church, Virginia."
"Summit: The term "Summit" as used in this Agreement shall mean
Summit Bank, N.A., a state banking association organized under the laws of
the State of New Jersey having an office at 1800 Chapel Avenue West,
Cherry Hill, New Jersey."
(j) The dollar amount of "$80,000,000" contained in the
Preliminary Statement of each of Exhibit G (Form of Mortgage), Exhibit H (Form
of Deed of Trust) and Exhibit I (Form of Assignment of Leases) to the Credit
Agreement is hereby amended in each instance to reflect the dollar amount of
"$150,000,000".
(k) The phrase "Eighty Million and 00/100 Dollars
($80,000,000.00)" appearing in Paragraph E of the Preliminary Statement of each
of Exhibit G (Form of Mortgage) and Exhibit H (Form of Deed of Trust) to
the Credit Agreement is hereby deleted in its entirety and replaced with the
phrase "One Hundred Fifty Million and 00/100 Dollars ($150,000,000.00)".
5. Modification of Existing Assignments of Leases and Rents
Provisions. Each of the Existing Assignments of Leases and Rents is hereby
modified and amended in the following respects:
(a) The following definition is hereby inserted in Exhibit A of each
of the Existing Assignments of Leases and Rents in its appropriate
alphabetical order:
"BMS: The term "BMS" as used in this Assignment shall mean
Brandywine-Main Street, LLC, a Delaware limited liability company."
(b) The definition of "Borrowers" appearing in Exhibit A of each of
the Existing Assignments of Leases and Rents is deleted in its entirety
and the following definition is substituted therefor:
"Borrowers: The term "Borrowers" as used in this Assignment shall
collectively mean BRT, BOP, BMS and the BRT/BOP Limited
Partnerships."
(c) The definition of "Co-Lenders" appearing in Exhibit A of each of
the Existing Assignments of Leases and Rents is deleted in its entirety
and the following definition is substituted therefor:
"Co-Lenders: The term "Co-Lenders" as used in this Assignment shall
mean, collectively, Smith Barney Mortgage Capital Group, Inc., a
Delaware corporation, NationsBank, N.A., a national banking
association, in its individual capacity, The First
National Bank of Chicago, a national banking association, Mellon
Bank, N.A., a national banking association, PNC Bank, National
Association, a national banking association, Signet Bank, a state
banking association organized under the laws of the Commonwealth of
Virginia, Summit Bank, a state banking association organized under
the laws of the State of New Jersey, and all other parties from time
to time to whom direct interests in the Credit Facility are sold,
transferred and assigned, and who are as a result thereof designated
as Co-Lenders, under and pursuant to the provisions of the Credit
Agreement and the Co-Lenders Agreement."
6. Modification of Guaranty of Payment Provisions. The Guaranty of
Payment is hereby modified and amended in the following respects:
(a) The following definition is inserted in Exhibit A to the
Guaranty of Payment:
"BMS: The term "BMS" as used in this Agreement shall mean Brandywine
- Main Street, LLC, a Delaware limited liability company. "
(b) The definition of "Borrowers" appearing in Exhibit A to
the Guaranty of Payment is modified to include a reference to "BMS".
(c) The definition of "Co-Lenders" appearing in Exhibit A to
the Guaranty of Payment is deleted in its entirety and the following definition
is substituted therefor:
"Co-Lenders: The term "Co-Lenders" as used in this Guaranty shall
mean NationsBank, N.A., a national banking association, in its individual
capacity, The First National Bank of Chicago, a national banking
association, Mellon Bank, N.A., a national banking association, PNC Bank,
National Association, a national banking association, Signet Bank, a state
banking association organized under the laws of the Commonwealth of
Virginia, Summit Bank, a state banking association organized under the
laws of the State of New Jersey, and all other parties from time to time
to whom direct interests in the Credit Facility are sold, transferred and
assigned, and who are as a result thereof designated as Co-Lenders, under
and pursuant to the provisions of the Credit Agreement and the Co-Lenders
Agreement."
7. Modification of Hazardous Material Guaranty and Indemnification
Agreement Provisions. The Hazardous Material Guaranty and Indemnification
Agreement is hereby modified and amended in the following respects:
(a) The following definition is inserted in Exhibit A to the
Hazardous Material Guaranty and Indemnification Agreement:
"BMS: The term "BMS" as used in this Guaranty and Indemnification
Agreement shall mean Brandywine - Main Street, LLC, a Delaware limited
liability company. "
(b) The definition of "Borrowers" appearing in Exhibit A to
the Hazardous Material Guaranty and Indemnification Agreement is modified to
include a reference to "BMS".
(c) The definition of "Co-Lenders" appearing in Exhibit A to
the Hazardous Material Guaranty and Indemnification Agreement is deleted in its
entirety and the following definition is substituted therefor:
"Co-Lenders: The term "Co-Lenders" as used in this Guaranty and
Indemnification Agreement shall mean NationsBank, N.A., a national banking
association, in its individual capacity, The First National Bank of
Chicago, a national banking association, Mellon Bank, N.A., a national
banking association, PNC Bank, National Association, a national banking
association, Signet Bank, a state banking association organized under the
laws of the Commonwealth of Virginia, Summit Bank, a state banking
association organized under the laws of the State of New Jersey, and all
other parties from time to time to whom direct interests in the Credit
Facility are sold, transferred and assigned, and who are as a result
thereof designated as Co-Lenders, under and pursuant to the provisions of
the Credit Agreement and the Co-Lenders Agreement."
8. Omnibus Modification of Other Credit Facility Documents. All
references in the Credit Facility Documents to the Existing Credit Facility
Notes shall be deemed to refer to the Existing Credit Facility Notes, as amended
and restated in accordance with the provisions of the Restated
Credit Facility Notes. All references in the Credit Facility Documents to the
Existing Mortgages shall be deemed to refer to the Existing Mortgages, as
modified and amended pursuant to the provisions of the Mortgage Modification
Agreements. All references in the Credit Facility Documents to the Credit
Agreement shall be deemed to refer to the Credit Agreement, as modified and
amended pursuant to the provisions of this Amendment. All references in the
Credit Facility Documents to the Existing Assignment of Leases and Rents shall
be deemed to refer to the Existing Assignment of Leases and Rents, as modified
and amended pursuant to the provisions of this Amendment. All references in the
Credit Facility Documents to the Guaranty of Payment shall be deemed to refer to
the Guaranty of Payment, as modified and amended pursuant to the provisions of
this Amendment. All references in the Credit Facility Documents to the Hazardous
Material Guaranty and Indemnification Agreement shall be deemed to refer to the
Hazardous Material Guaranty and Indemnification Agreement, as modified and
amended pursuant to the provisions of this Amendment.
9. Payment of Commitment Fee. Borrowers agree that in consideration
of the Credit Facility Increase, Borrowers shall pay to Agent a commitment fee
in an amount of $385,000, which commitment fee shall be deemed earned in full by
Co-Lenders upon payment, shall be paid in full by Borrowers simultaneously with
the execution and delivery of this Amendment and shall be promptly distributed
by Agent to the Co-Lenders.
10. Agreements of Guarantors. (a) The Guarantors consent to the
Credit Facility Increase and acknowledge the continuing validity and
effectiveness of their joint and several obligations under the Guaranties (each
as modified and amended by the provisions of this Amendment) notwithstanding the
Credit Facility Increase and the modification, amendment and/or restatement of
the Credit Facility Documents in the manner contemplated by this Amendment, and
each of the undersigned represents, warrants and confirms that there are no
offsets, defenses or counterclaims to its obligations under the Guaranties.
(b) The Guarantors reacknowledge and reaffirm and ratify and confirm all
of the terms and obligations contained in the Guaranties, each as modified and
amended by the provisions of this Amendment, and confirm that the Guaranties,
each as modified and amended by the provisions of this Amendment, shall remain
in full force and effect with respect to all of the obligations of Borrowers
under the Credit Facility Documents (as amended by this Amendment), and
acknowledge, agree, represent and warrant that no oral or other agreements,
understandings, representations or warranties exist with respect to the
Guaranties, each as modified and amended by the provisions of this Amendment, or
with respect to the obligations of the Guarantors thereunder (except as
expressly set forth in this Amendment).
(c) Each of the Guarantors represents, warrants and confirms that no
material adverse change has occurred in its financial status since the original
extension of the Credit Facility, that (i) there are no judgments
against it in any of the courts of the United States and (ii) there is no
litigation (whether active, pending or threatened) against it, which, in either
case, might materially and adversely affect the ability of the Guarantors to pay
when due any amounts which may become payable in respect of the Guaranties, each
as modified and amended by the provisions of this Amendment.
11. No Offsets, Defenses. Borrowers and Guarantors acknowledge and
agree that there are no offsets, defenses or counterclaims of any nature
whatsoever with respect (i) to the Credit Facility Documents, as modified and
amended pursuant to the terms and provisions of this Amendment or (ii) to the
payment of the indebtedness evidenced and secured by the Credit Facility
Documents, as modified and amended pursuant to the terms and provisions of this
Amendment.
12. Absolute and Unconditional Obligation. Borrowers and Guarantors
acknowledge that the Credit Facility Documents, as modified, amended and/or
restated pursuant to (or in the manner contemplated by) the provisions of this
Amendment, and Borrowers' and Guarantors' obligations under the Credit Facility
Documents, as modified, amended and/or restated pursuant to (or in the manner
contemplated by) the provisions of this Amendment, are and shall at all times
continue to be absolute and unconditional in all respects, and shall at all
times be valid and enforceable irrespective of any other agreements or
circumstances of any nature whatsoever which might otherwise constitute a
defense to the Credit Facility Documents, as modified,
amended and/or restated pursuant to (or in the manner contemplated by) the
provisions of this Amendment, or the obligations of Borrowers or Guarantors
thereunder to pay the Debt or the obligations of any other Person relating to
the Credit Facility Documents, as modified, amended and/or restated pursuant to
(or in the manner contemplated by) the provisions of this Amendment or the
obligations of Borrowers or Guarantors under the Credit Facility Documents, as
modified, amended and/or restated pursuant to (or in the manner contemplated by)
the provisions of this Amendment or otherwise with respect to the Credit
Facility, and Borrowers and Guarantors absolutely, unconditionally and
irrevocably waive any and all right to assert any defense, setoff, counterclaim
or crossclaim of any nature whatsoever with respect to the obligation of the
Borrowers and Guarantors to pay the Debt in accordance with the provisions of
the Credit Facility Documents, as modified, amended and/or restated pursuant to
the provisions of this Amendment, or the obligations of any other Person
relating to the Credit Facility Documents, as modified, amended and/or restated
pursuant to (or in the manner contemplated by) the provisions of this Amendment,
or the obligations of Borrowers and Guarantors under the Credit Facility
Documents, as modified, amended and/or restated pursuant to (or in the manner
contemplated by) the provisions of this Amendment, or the obligations of
Borrowers and Guarantors hereunder or otherwise with respect to the Credit
Facility in any action, case or proceeding brought by Agent to collect the Debt
or any portion thereof, or to enforce, foreclose and realize upon the liens and
security interests created by the Credit Facility Documents, as modified,
amended and/or restated pursuant to (or in the manner contemplated by) the
provisions of this
Amendment (provided, however, that the foregoing provisions of this sentence
shall not be deemed a waiver of the rights of Borrowers or Guarantors to assert
any compulsory counterclaim in any such action, case or proceeding brought by
Agent or Co-Lenders in any state court if such counterclaim is compelled under
local law or rule or procedure, or in any such action, case or proceeding
brought by Agent or Co-Lenders in a court of the United States, nor shall the
foregoing provisions of this sentence be deemed a waiver of the rights of
Borrowers or Guarantors to assert any claim which would otherwise constitute a
defense, setoff, counterclaim or crossclaim of any nature whatsoever against
Agent or Co-Lenders in any separate action, case or proceeding brought by any of
the Borrowers or Guarantors against Agent or Co-Lenders).
13. Governing Law, No Modifications, Successors and Assigns. This
Amendment shall be governed by the laws of the State of New York, shall not be
modified, cancelled or terminated except by an instrument in writing signed by
the parties hereto and shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
14. Counterparts. This Amendment may be executed in one or more
counterparts by some or all of the parties hereto, each of which counterparts
shall be an original and all of which together shall constitute a single
agreement.
15. Severability. If any term, covenant or provision of this
Amendment shall be held to be invalid, illegal or unenforceable in any
respect, this Amendment shall be construed without such term, covenant or
provision.
16. Full Force and Effect. Except as expressly modified and amended
by the provisions of this Amendment, all of the terms, covenants and provisions
of the Credit Agreement and the other Credit Facility Documents shall remain in
full force and effect.
17. Modification. EACH OF THE CREDIT AGREEMENT AND THE OTHER CREDIT
FACILITY DOCUMENTS, AS MODIFIED AND AMENDED BY THE EXPRESS PROVISIONS OF THIS
AMENDMENT, CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES HERETO WITH RESPECT
TO THE SUBJECT MATTER THEREOF AND THERE ARE NO ORAL OR OTHER AGREEMENTS AMONG
THE PARTIES WITH RESPECT TO THE CREDIT AGREEMENT AND THE OTHER CREDIT FACILITY
DOCUMENTS, AS SO MODIFIED AND AMENDED, OR WITH RESPECT TO THE SUBJECT MATTER
THEREOF. THIS AMENDMENT SHALL NOT BE MODIFIED, AMENDED OR TERMINATED, EXCEPT BY
AN AGREEMENT IN WRITING SIGNED BY THE PARTIES HERETO.
18. Due Execution. Each of the Co-Lenders, Agent, Borrowers and
Guarantors respectively represents for itself that this Amendment has been duly
executed and delivered by it and constitutes its binding and enforceable
obligation in accordance with its terms.
19. Exculpation. No recourse shall be had for any obligation of BRT
under this Amendment or any of the other Credit Facility Documents or for any
claim based thereon or otherwise in respect thereof, against any past, present
or future trustee, shareholder, officer or employee of BRT, 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
each other party to this Amendment and the other Credit Facility Documents. No
recourse shall be had for any obligation of BRP under this Amendment or any of
the other Credit Facility Documents or for any claim based thereon or otherwise
in respect thereof, against Brandywine Specified Property Investors Limited
Partnership, a Pennsylvania limited partnership and one of the general partners
of BRP, 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 each other party to and beneficiary of this Amendment and
by each of the other general partners of BRP.
IN WITNESS WHEREOF, Co-Lenders, Borrowers, Guarantors and Agent have
caused this Amendment to be duly executed as of the day and year first above
written.
SMITH BARNEY MORTGAGE CAPITAL GROUP, INC.
By: /s/ Clive Bull
------------------------------------
Name: Clive Bull
Title: Vice President
NATIONSBANK, N.A.
By: /s/ Cheryl D. Fitzgerald
------------------------------------
Name: Cheryl D. Fitzgerald
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Gregory A. Gilbert
------------------------------------
Name: Gregory A. Gilbert
Title: Vice President
MELLON BANK, N.A.
By: /s/ Frederick A. Felter
------------------------------------
Name: Frederick A. Felter
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Robert C. Ballard
------------------------------------
Name: Robert C. Ballard
Title: Vice President
SIGNET BANK
By: /s/ Barry E. Cooper
------------------------------------
Name: Barry E. Cooper
Title: Vice President
SUMMIT BANK, N.A.
By: /s/ Robert F. Follet
-----------------------------------
Name: Robert F. Follet
Title: Vice President
NATIONSBANK, N.A., as Agent
By: /s/ Cheryl D. Fitzgerald
-----------------------------------
Name: Cheryl D. Fitzgerald
Title: Vice President
BRANDYWINE REALTY TRUST, a Maryland real
estate investment trust
By: /s/ Gerard H. Sweeney
-----------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By: /s/ Gerard H. Sweeney
----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE - MAIN STREET, LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, a member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust
By: /s/ Gerard H. Sweeney
--------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
By: Brandywine Acquisitions, LLC, a
Delaware limited liability company,
a member
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership
By: Brandywine Realty Trust,
a Maryland real estate
investment trust
By: /s/ Gerard H. Sweeney
-----------------------
Name: Gerard H. Sweeney
Title: President and
Chief Executive
Officer
LC/N HORSHAM LIMITED PARTNERSHIP, a Pennsylvania
limited partnership
LC/N KEITH VALLEY LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
NICHOLS LANSDALE LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
NEWTECH III LIMITED PARTNERSHIP, a Pennsylvania
limited partnership
NEWTECH IV LIMITED PARTNERSHIP, a Pennsylvania
limited partnership
C/N OAKLANDS LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
FIFTEEN HORSHAM, L.P., a Pennsylvania limited
partnership
By: Witmer Operating Partnership I, L.P., a
Delaware limited partnership, its general
partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
--------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N LEEDOM LIMITED PARTNERSHIP II, a
Pennsylvania limited partnership
C/N IRON RUN LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general
partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By: /s/ Gerard H. Sweeney
----------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
WITMER OPERATING PARTNERSHIP I, L.P., a Delaware
limited partnership
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its general
partner
By: /s/ Gerard H. Sweeney
-------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE REALTY PARTNERS, a Pennsylvania
general partnership
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general
partner
By: /s/ Gerard H. Sweeney
-------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE REALTY SERVICES CORPORATION, a
Pennsylvania corporation
By: /s/ Gerard H. Sweeney
------------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
EXHIBIT A
Existing Mortgages: Collectively, the following:
Open - End Mortgage and Security Agreement dated as of November 25, 1996
given by LC/N Horsham Limited Partnership to Agent and recorded on January
8, 1997 in Mortgage Book 7878, Page 0460 in the Recorder's Office of
Montgomery County, Pennsylvania [Keith Valley 1]
Open - End Mortgage and Security Agreement dated as of November 25, 1996
given by LC/N Keith Valley Limited Partnership I to Agent and recorded on
January 8, 1997 in Mortgage Book 7878, Page 0442 in the Recorder's Office
of Montgomery County, Pennsylvania [Keith Valley 7]
Open - End Mortgage and Security Agreement dated as of November 25, 1996
given by Nichols Lansdale Limited Partnership III to Agent and recorded on
January 8, 1997 in Mortgage Book 7878, Page 0844 in the Recorder's Office
of Montgomery County, Pennsylvania [Lansdale]
Open - End Mortgage and Security Agreement dated as of November 25, 1996
given by Newtech III Limited Partnership to Agent and recorded on January
6, 1997 in Volume 1548, Page 0269 in the Office of the Recorder of Deeds
of Delaware County, Pennsylvania [Newtown 12]
Open - End Mortgage and Security Agreement dated as of November 25, 1996
given by Newtech IV Limited Partnership to Agent and recorded on January
6, 1997 in Volume 1548, Page 0234 in the Office of the Recorder of Deeds
of Delaware County, Pennsylvania [Newtown 11]
Open - End Mortgage and Security Agreement dated as of November 25, 1996
given by C/N Oaklands Limited Partnership I to Agent and recorded on
January 7, 1997 in Book 4127, Page 0325 in the Office of the Recorder of
Deeds of Chester County, Pennsylvania [Oaklands 5]
Open - End Mortgage and Security Agreement dated as of November 25, 1996
given by Fifteen Horsham, L.P. to Agent and recorded on January 8, 1997 in
Mortgage Book 7878, Page 0423 in the Recorder's Office of Montgomery
County, Pennsylvania [Horsham 15]
Open - End Mortgage and Security Agreement dated as of November 25, 1996
given by C/N Iron Run Limited Partnership III to Agent and recorded on
January 6, 1997 in Mortgage Volume 2070, Page 1046 in the Office of the
Recorder of Deeds of Lehigh County, Pennsylvania [Iron Run 3]
Open - End Mortgage and Security Agreement dated as of November 25, 1996
given by BOP to Agent and recorded on January 13, 1997 in Mortgage Book
7880, Page 0790 in the Recorder's Office of Montgomery County,
Pennsylvania [700/800 Horsham]
Mortgage dated as of November 25, 1996 given by BOP to Agent and recorded
on January 6, 1997 in Book 4452, Page 0093 in the Office of the Recorder
of Deeds of New Castle County, Delaware [Delaware Corporate Center]
Mortgage dated as of November 25, 1996 given by BOP to Agent and recorded
on January 2, 1997 in Mortgage Book 6593, Page 0309 in the Clerk's Office
of Burlington County, New Jersey [8000 Lincoln Drive]
Open-End Mortgage and Security Agreement dated as of November 25, 1996
given by BOP to Agent and recorded on January 17, 1997 in Book 1344, Page
0929 in the Office of the Recorder of Deeds of Bucks County, Pennsylvania
[Bucks County Business Park]
Open-End Mortgage and Security Agreement dated as of November 25, 1996
given by BOP to Agent and recorded on January 7, 1997 in Book 1338, Page
2364 in the Office of the Recorder of Deeds of Bucks County, Pennsylvania
[1, 2, 3 Greenwood Square]
Open - End Mortgage and Security Agreement dated as of November 25, 1996
given by BOP to Agent and recorded on January 13, 1997 in Mortgage Book
7880, Page 0894 in the Recorder's Office of Montgomery County,
Pennsylvania [500 N. Gulph Rd.]
Mortgage dated as of May 21, 1997 given by BOP to Agent and recorded on
June 11, 1997 in Mortgage Book 6799, Page 55 in the Clerk's Office of
Burlington County, New Jersey [Marlton Executive Court]
Open - End Mortgage and Security Agreement dated as of May 21, 1997 given
by BOP to Agent and recorded on June 25, 1997 in Mortgage Book 7959, Page
96 in the Recorder's Office of Montgomery County, Pennsylvania [King
Manor]
Open - End Mortgage and Security Agreement dated as of May 21, 1997 given
by BOP to Agent and recorded on June 26, 1997 in Record Book 4194, Page
921 in the Office of the Recorder of Deeds of Chester County, Pennsylvania
[Goshen]
Mortgage dated as of May 29, 1997 given by BMS to Agent and recorded on
____________, 1997 in Mortgage Book ____, Page __ the office of the
__________________ of Camden County, New Jersey [Main Street]
Existing Assignments of Leases and Rents: Collectively, the following:
Assignment of Leases and Rents dated as of November 25, 1996 given by LC/N
Horsham Limited Partnership to Agent and recorded on January 8,
1997 in Deed Book 5173, Page 1741 in the Recorder's Office of Montgomery
County, Pennsylvania [Keith Valley 1]
Assignment of Leases and Rents dated as of November 25, 1996 given by LC/N
Keith Valley Limited Partnership I to Agent and recorded on January 8,
1997 in Deed Book 5173, Page 1730 in the Recorder's Office of Montgomery
County, Pennsylvania [Keith Valley 7]
Assignment of Leases and Rents as of November 25, 1996 given by Nichols
Lansdale Limited Partnership III to Agent and recorded on January 8, 1997
in Deed Book 5173, Page 1771 in the Recorder's Office of Montgomery
County, Pennsylvania [Lansdale]
Assignment of Leases and Rents dated as of November 25, 1996 given by
Newtech III Limited Partnership to Agent and recorded on January 6, 1997
in Volume 1548, Page 0287 in the Office of the Recorder of Deeds of
Delaware County, Pennsylvania [Newtown 12]
Assignment of Leases and Rents dated as of November 25, 1996 given by
Newtech IV Limited Partnership to Agent and recorded on January 6, 1997 in
Volume 1548, Page 0256 in the Office of the Recorder of Deeds of Delaware
County, Pennsylvania [Newtown 11]
Assignment of Leases and Rents dated as of November 25, 1996 given by C/N
Oaklands Limited Partnership I to Agent and recorded on January 7, 1997 in
Book 4127, Page 0344 in the Office of the Recorder of Deeds of Chester
County, Pennsylvania [Oaklands 5]
Assignment of Leases and Rents dated as of November 25, 1996 given by
Fifteen Horsham, L.P. to Agent and recorded on January 8, 1997 in Deed
Book 5173, Page 1718 in the Recorder's Office of Montgomery County,
Pennsylvania [Horsham 15]
Assignment of Leases and Rents dated as of November 25, 1996 given by C/N
Iron Run Limited Partnership III to Agent and recorded on January 6, 1997
in Volume 0838, Page 1027 in the Office of the Recorder of Deeds of Lehigh
County, Pennsylvania [Iron Run 3]
Assignment of Leases and Rents dated as of November 25, 1996 given by BOP
to Agent and recorded on January 13, 1997 in Deed Book 5174, Page 0451 in
the Recorder's Office of Montgomery County, Pennsylvania [700/800 Horsham]
Assignment of Leases and Rents dated as of November 25, 1996 given by BOP
to Agent and recorded on January 6, 1997 in Book 2220, Page 0001 in the
Office of the Recorder of Deeds of New Castle County, Delaware [Delaware
Corporate Center]
Assignment of Leases and Rents dated as of November 25, 1996 given by BOP
to Agent and recorded on January 2, 1997 in Deed Book 5272, Page 177
in the Clerk's Office of Burlington County, New Jersey [8000 Lincoln
Drive]
Assignment of Leases and Rents dated as of November 25, 1996 given by BOP
to Agent and recorded on January 17, 1997 in Book 1344, Page 0951 in the
Office of the Recorder of Deeds of Bucks County, Pennsylvania [Bucks
County Business Park]
Assignment of Leases and Rents dated as of November 25, 1996 given by BOP
to Agent and recorded on January 7, 1997 in Book 1338, Page 2365 in the
Office of the Recorder of Deeds of Bucks County, Pennsylvania [1, 2, 3
Greenwood Square]
Assignment of Leases and Rents dated as of November 25, 1996 given by BOP
to Agent and recorded on January 13, 1997 in Deed Book 5174, Page 0484 in
the Recorder's Office of Montgomery County, Pennsylvania [500 N. Gulph
Rd.]
Assignment of Leases and Rents dated as of May 21, 1997 given by BOP to
Agent and recorded on June 11, 1997 in Deed Book 5369, Page 313 in the
Clerk's Office of Burlington County, New Jersey [Marlton Executive Court]
Assignment of Leases and Rents dated as of May 21, 1997 given by BOP to
Agent and recorded on June 25, 1997 in Deed Book 5190, Page 82 in the
Recorder's Office of Montgomery County, Pennsylvania [King Manor]
Assignment of Leases and Rents dated as of May 21, 1997 given by BOP to
Agent and recorded on June 26 1997 in Record Book 4194, Page 992 in the
Office of the Recorder of Deeds of Chester County, Pennsylvania [Goshen]
Assignment of Leases and Rents dated as of May 29, 1997 given by BMS to
Agent and recorded on ____________, 1997 in Book ____, Page ____ in the
office of the __________________ of Camden County, New Jersey [Main
Street]
Existing Credit Facility Notes: Collectively, the following:
Note dated as of April 4, 1997 in the principal sum of $10,000,000 made
payable to PNC given by BRT, BOP and the BRT/BOP Limited Partnerships and
subsequently joined in by BMS pursuant to the terms of that certain
Joinder and Assumption Agreement dated as of May 29, 1997.
Note dated as of April 4, 1997 in the principal sum of $10,000,000 made
payable to Signet given by BRT, BOP and the BRT/BOP Limited Partnerships
and subsequently joined in by BMS pursuant to the terms of that certain
Joinder and Assumption Agreement dated as of May 29, 1997.
Note dated as of April 4, 1997 in the principal sum of $10,000,000 made
payable to Summit given by BRT, BOP and the BRT/BOP Limited Partnerships
and subsequently joined in by BMS pursuant to the terms of that certain
Joinder and Assumption Agreement dated as of May 29, 1997.
Note dated as of April 4, 1997 in the principal sum of $10,000,000 made
payable to Mellon given by BRT, BOP and the BRT/BOP Limited Partnerships
and subsequently joined in by BMS pursuant to the terms of that certain
Joinder and Assumption Agreement dated as of May 29, 1997.
Note dated as of April 9, 1997 in the principal sum of $15,000,000 made
payable to NationsBank given by BRT, BOP and the BRT/BOP Limited
Partnerships and subsequently joined in by BMS pursuant to the terms of
that certain Joinder and Assumption Agreement dated as of May 29, 1997.
Note dated as of April 9, 1997 in the principal sum of $15,000,000 made
payable to Smith Barney given by BRT, BOP and the BRT/BOP Limited
Partnerships and subsequently joined in by BMS pursuant to the terms of
that certain Joinder and Assumption Agreement dated as of May 29, 1997.
Note dated as of April 9, 1997 in the principal sum of $10,000,000 made
payable to First Chicago given by BRT, BOP and the BRT/BOP Limited
Partnerships and subsequently joined in by BMS pursuant to the terms of
that certain Joinder and Assumption Agreement dated as of May 29, 1997.
Exhibit B
(Existing Collateral Properties)
Name Address Owner
- ------------------------------- --------------------------------- --------------------------
Keith Valley 1 One Progress Avenue, LC/N Horsham
Montgomery County, PA Limited Partnership
Keith Valley 7 500 Enterprise Road, LC/N Keith Valley
Montgomery County, PA Limited Partnership I
Lansdale 150 1510 Gehman Road, Nichols Lansdale
Montgomery County, PA Limited Partnership III
Newtown 12 16 Campus Boulevard, Newtech III
Delaware County, PA Limited Partnership
Newtown 11 18 Campus Boulevard, Newtech IV
Delaware County, PA Limited Partnership
Oaklands 5 456 Creamery Way, Chester C/N Oaklands
County, PA Limited Partnership I
Horsham 15 1155 Business Center Drive, Fifteen Horsham, L.P.
Montgomery County, PA
Iron Run 3 7248 Tilghman, Lehigh C/N Iron Run
County, PA Limited Partnership III
700 & 800 Horsham 700 & 800 Horsham Business BOP
Business Center (2 Center, Montgomery County,
buildings) PA
Delaware Corp. Center 1 Delaware Corp. Center 1, BOP
New Castle County, DE
8000 Lincoln Drive 8000 Lincoln Drive, BOP
Burlington County, NJ
Bucks County Business 2200, 2250, 2260/2270 and BOP
Park 3000 Cabot Boulevard, Bucks
County, PA
One/Two/Three Greenwood 33 Street Road, Bucks BOP
Square (3 buildings) County, PA
500 N. Gulph Road 500 N. Gulph Road, BOP
Montgomery County, PA
Executive Court 2, 4A and 4B Eves Drive, BOP
(3 buildings) Evesham Corporate Center,
Evesham Township,
Burlington County, NJ
King Manor Drive 201 and 221 King Manor BOP
(2 buildings) Drive,
King of Prussia, Upper
Merion Township, Montgomery
County, PA
Goshen 1336 Enterprise Drive BOP
East Goshen Township
Chester County, PA
Main Street Main Street, BMS
Voorhees Township
Camden County, NJ
Exhibit C
(New Collateral Properties)
Name Address Owner
- ---------------------------- ---------------------------------- -------------
Greentree 1000, 2000, 3001, 3002, BOP
Executive Campus 3003, 4000 and 5000
Greentree Executive Campus,
Evesham, Burlington County,
NJ
Five Eves Drive 5 Eves Drive, Evesham BOP
Corporate Center, Marlton,
Burlington County, NJ
Sproul Road 1974 Sproul Road, Marple BOP
Township, Delaware County,
PA
Oxford 2000-2010 Cabot Boulevard, BOP
Langhorne, Bucks County, PA
Springhouse 321-323 Norristown Road, BOP
Lower Gwynedd Township,
Montgomery County, PA
Greentree Commons 9001-9004 Lincoln Drive BOP
West, Marlton, Burlington
County, NJ
Highlands Highlands Business Center, BOP
Westampton, Burlington
County, NJ
2,000-4,000 2000-4000 Midlantic Drive, BOP
Midlantic Drive Mt. Laurel, Burlington County,
NJ
9,000 Midlantic 9000 Midlantic Drive, Mt. BOP
Drive Laurel, Burlington County, NJ
10,000 Midlantic 10000 Midlantic Drive, Mt. BOP
Drive Laurel, Burlington County,
NJ
15,000 Midlantic 15000 Midlantic Drive, Mt. BOP
Drive Laurel, Burlington County,
NJ
7,000 Geerdes 7000 Geerdes Boulevard, BOP
Boulevard Upper Merion Township,
Montgomery County, PA
Springdale 748 and 855 Springdale BOP
Drive,
Whiteland Township, Chester
County, PA
Exhibit D-1 - D-7
(Forms of Restated Credit Facility Notes)
Exhibit D-1
AMENDED AND RESTATED NOTE
(Revolving Credit Facility)
$27,500,000.00 New York, New York
As of July 15, 1997
FOR VALUE RECEIVED, Brandywine Realty Trust, a Maryland real estate
investment trust, Brandywine Operating Partnership, L.P., a Delaware limited
partnership, LC/N Horsham Limited Partnership, a Pennsylvania limited
partnership; LC/N Keith Valley Limited Partnership I, a Pennsylvania limited
partnership; Nichols Lansdale Limited Partnership III, a Pennsylvania limited
partnership; Newtech III Limited Partnership, a Pennsylvania limited
partnership; Newtech IV Limited Partnership, a Pennsylvania limited partnership;
C/N Oaklands Limited Partnership I, a Pennsylvania limited partnership; Fifteen
Horsham, L.P., a Pennsylvania limited partnership; C/N Leedom Limited
Partnership II, a Pennsylvania limited partnership; C/N Iron Run Limited
Partnership III, a Pennsylvania limited partnership; Brandywine-Main Street,
LLC, a Delaware limited liability company, each having an office at Newtown
Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania (hereinafter collectively referred to as "Maker"), promise to pay
NationsBank, N.A., a national banking association having an office at 8300
Greensboro Drive, McLean, Virginia (hereinafter referred to as "Payee") or
order, at such place as may be designated from time to time in writing by Payee,
the principal sum of Twenty-Seven Million Five Hundred Thousand and 00/100
Dollars ($27,500,000.00) in lawful money of the United States of America, or so
much thereof as may be advanced and readvanced by Payee to Maker and be
outstanding from time to time in accordance with the provisions of the Credit
Agreement, with interest thereon from and including the date of this Note to,
but not including, the date this Note is paid in full, calculated in the manner
hereinafter set forth, as follows:
20. interest on the Principal Balance calculated in the manner
set forth in the Credit Agreement shall be due and payable in Federal
funds or other immediately available funds on each Re-Set Date during the
term of this Note and otherwise in accordance with the provisions of the
Credit Agreement; and
21. the entire Principal Balance, together with all interest
accrued and unpaid thereon calculated in the manner set forth in the
Credit Agreement and all other sums due under this Note, shall be due and
payable on the Maturity Date and otherwise in accordance with the
provisions of the Credit Agreement.
II. The term "Credit Agreement" as used in this Note means a certain
Revolving Credit Agreement dated as of November 25, 1996 entered into among
Smith Barney Mortgage Capital Group, Inc., NationsBank, N.A., in its individual
capacity, Maker and NationsBank, N.A., acting in its capacity as administrative
and documentation agent for the Credit Facility, as the same may be modified or
amended from time to time, and pursuant to the provisions of which the Credit
Facility has been extended by Co-Lenders to Maker. This Note constitutes one of
the Credit Facility Notes which have been executed and delivered by Maker to
Co-Lenders in accordance with the Credit Agreement and which together evidence
the Credit Facility. All other capitalized terms used in this Note shall, unless
otherwise defined in this Note, have the meaning given to such term in the
Credit Agreement.
III. It is hereby expressly agreed that the entire Debt shall become
immediately due and payable at the option of Co-Lenders on the happening of any
Event of Default.
IV. All of the terms, covenants and provisions contained in the
Credit Agreement and the other Credit Facility Documents which are to be kept
and performed by Maker are hereby made part of this Note to the same extent and
with the same force and effect as if they were fully set forth herein. Maker
agrees to perform and comply with each of the terms, covenants and provisions
contained in this Note, the Credit Agreement and the other Credit Facility
Documents on the part of Maker to be observed and performed.
V. If any installment of interest payable under this Note is not
paid when due, Maker shall pay to Agent upon demand an amount equal to four
percent (4%) of such unpaid installment as a late payment charge.
VI. In addition to any late payment charge which may be due under
this Note, if the Debt is declared immediately due and payable pursuant to the
provisions of the Credit Facility Documents, or if the Debt is not paid in full
on the Maturity Date, Maker shall thereafter pay interest on the then entire
outstanding Principal Balance from the date of such declaration or the Maturity
Date, as the case may be, until the date the Principal Balance is paid in full,
at the Default Rate. In addition, if an Event of Default shall occur, the
Principal Balance shall, from and including the date upon which such Event of
Default has occurred and for so long as such Event of Default continues and
without further act or instrument and without the necessity of any further or
prior notice by Payee or Agent to Maker, bear interest at the Default Rate
irrespective of whether the Debt shall have been declared to be immediately due
and payable as the result of the occurrence of such Event of Default.
VII. Maker hereby waives presentment and demand for payment, notice
of dishonor, protest and notice of protest of this Note. If any payment under
this Note is not made when due, Maker agrees to pay all costs of collection when
incurred, including reasonable attorneys' fees (which costs shall be added to
the amount due under this Note and shall be receivable therewith). No release of
any security for the payment of this Note or extension of time for payment of
this Note, or any installment hereof, and no alteration, amendment or waiver of
any provision of this Note or any of the
other Credit Facility Documents made by agreement between or among Co-Lenders,
Agent and/or Payee and any other person or party shall release, discharge,
modify, change or affect the liability of Maker under this Note or any of the
other Credit Facility Documents.
VIII. This Note is subject to the express condition that at no time
shall Maker be obligated or required to pay interest on the Principal Balance at
a rate which could subject Payee to either civil or criminal liability as a
result of being in excess of the maximum rate which Maker is permitted by law to
contract or agree to pay. If by the terms of this Note Maker is at any time
required or obligated to pay interest on the Principal Balance at a rate in
excess of such maximum rate, the rate of interest under this Note shall be
deemed to be immediately reduced to such maximum rate and interest payable
hereunder shall be computed at such maximum rate and the portion of all prior
interest payments in excess of such maximum rate shall be applied and shall be
deemed to have been payments in reduction of the Principal Balance.
IX. If Maker consists of more than one person or party, the
obligations and liabilities of each such person or party hereunder shall be
joint and several.
X. Except as otherwise specifically provided to the contrary in the
Credit Facility Documents, this Note is secured on a pari passu basis with the
other Credit Facility Notes by the Mortgages and the other Credit Facility
Documents.
XI. The terms of this Note shall be governed by and construed under
the laws of the State of New York.
XII. This Note may only be modified, amended, changed or terminated
by an agreement in writing signed by Payee, Agent and Maker. No waiver of any
term, covenant or provision of this Note shall be effective unless given in
writing by Payee and Agent and if so given by Payee and Agent shall only be
effective in the specific instance in which given.
XIII. Maker acknowledges that this Note and Maker's obligations
under this Note are and shall at all times continue to be absolute and
unconditional in all respects, and shall at all times be valid and enforceable
irrespective of any other agreements or circumstances of any nature whatsoever
which might otherwise constitute a defense (other than a defense of payment) to
this Note and the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility. Maker absolutely,
unconditionally and irrevocably waives any and all right to assert any defense,
setoff, counterclaim (other than a compulsory counterclaim in a court of
competent jurisdiction) or crossclaim of any nature whatsoever with respect to
this Note or the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility in any action, case
or proceeding brought by Payee or Agent to collect the Debt, or any portion
thereof, or to enforce, foreclose and realize upon the liens and security
interests created by the Mortgages and the other Credit Facility Documents
(provided, however, that the foregoing provisions of this sentence shall not be
deemed a waiver of the right of Maker to assert any compulsory counterclaim in
any such action, case or proceeding brought by Payee or Agent in any state court
if such counterclaim is compelled under local law or rule or procedure, or in
any such action, case or proceeding brought by Payee or Agent in a court of the
United States, nor shall the foregoing provisions of this sentence be deemed a
waiver of the right of Maker to assert any claim which would otherwise
constitute a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against Payee or Agent in any separate action, case or proceeding
brought by Maker against Payee or Agent). MAKER ACKNOWLEDGES THAT NO ORAL OR
OTHER AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES EXIST WITH
RESPECT TO THIS NOTE OR WITH RESPECT TO THE OBLIGATIONS OF MAKER UNDER THIS
NOTE, EXCEPT THOSE SPECIFICALLY SET FORTH IN THIS NOTE AND THE OTHER CREDIT
FACILITY DOCUMENTS, AND THAT THIS NOTE AND THE OTHER CREDIT FACILITY DOCUMENTS
SET FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING OF PAYEE, AGENT, CO-LENDERS AND
MAKER.
XIV. No delay on the part of Payee, Agent or Co-Lenders in
exercising any right or remedy under this Note or the other Credit Facility
Documents or failure to exercise the same shall operate as a waiver in whole or
in part of any such right or remedy. No notice to or demand on Maker shall be
deemed to be a waiver of the obligation of Maker or of the right of Payee, Agent
or Co-Lender to take further action without further notice or demand as provided
in this Note and the other Credit Facility Documents.
XV. Maker agrees to submit to personal jurisdiction in the State of
New York in any action, case or proceeding arising out of this Note and, in
furtherance of such agreement, Maker hereby agrees and consents that without
limiting other methods of obtaining jurisdiction, personal jurisdiction over
Maker in any such action, case or proceeding may be obtained within or without
the jurisdiction of any court located in New York and that any process or notice
of motion or other application to any such court in connection with any such
action, case or proceeding may be served upon Maker by registered or certified
mail to or by personal service at the last known address of Maker, whether such
address be within or without the jurisdiction of any such court. Maker also
agrees that the venue of any litigation arising in connection with the Debt or
in respect of any of the obligations of Maker under this Note shall, to the
extent permitted by law, be in New York County.
XVI. Maker (and the undersigned representative of Maker, if any)
represents that Maker has full power, authority and legal right to execute and
deliver this Note and that this Note constitutes a valid and binding obligation
of Maker.
XVII. MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND PAYEE
BY ITS ACCEPTANCE OF THIS NOTE IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CASE, PROCEEDING, SUIT OR COUNTERCLAIM
ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THE CREDIT FACILITY,
THIS NOTE, OR THE OTHER CREDIT FACILITY DOCUMENTS.
XVIII. Whenever used, the singular number shall include the plural,
the plural the singular, and the words "Payee", "Agent", "Co-Lenders", and
"Maker" shall include their respective successors and assigns, provided,
however, that Maker shall in no event or under any circumstance have the right
without obtaining the prior written consent of Co-Lenders to assign or transfer
its obligations under this Note or the other Credit Facility Documents, in whole
or in part, to any other person, party or entity.
XIX. No recourse shall be had for any obligation of BRT under this
Note or any of the other Credit Facility Documents or for any claim based
thereon or otherwise in respect thereof, against any past, present or future
trustee, shareholder, officer or employee of BRT, 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 Payee and
each other party to this Note and the other Credit Facility Documents.
XX. Maker acknowledges and agrees that without limiting, modifying
or otherwise affecting in any respect the provisions of paragraph 25 of the
Credit Agreement, that (i) Payee shall have the sole obligation and
responsibility to fund its Credit Facility Percentage Interest (as set forth on
the Co-Lenders Certificate (the "Co-Lenders Certificate") being delivered to
Maker contemporaneously with the execution and delivery of this Note) in each
advance of the Credit Facility which is made, or required to be made, by
Co-Lenders in accordance with the provisions of the Credit Agreement and (ii)
Maker shall not have the right under any fact or circumstance to look to any
party other than Payee, including without limitation, Initial Co-Lenders or any
other Co-Lender, for the funding of the portion of the Credit Facility required
to be funded by Payee in accordance with the Credit Agreement and as set forth
in the Co-Lenders Certificate, if Payee shall default in doing so, all risk of
such loss being directly assumed in all respects by Maker.
XXI. This Note is being executed and delivered in connection with an
increase in the Credit Facility from up to $80,000,000 to up to $150,000,000 and
this Note amends and restates in its entirety that certain Note dated as of
April 9, 1997 from Maker to Payee (the "Existing Note") but is not in payment,
satisfaction or cancellation of the outstanding indebtedness evidenced by the
Existing Note. Neither this Note nor any of the other Credit Facility Notes
dated the date hereof nor anything contained herein or therein shall be
construed as a substitution or novation of the indebtedness of Maker by the
Existing Note, which indebtedness (as so increased) shall remain in full force
and effect and is now evidenced by this Note and the other Credit Facility
Notes.
IN WITNESS WHEREOF, Maker has duly executed this Note the day and
year first above written.
BRANDYWINE REALTY TRUST
By: /s/ Gerard H. Sweeney
------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N HORSHAM LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N KEITH VALLEY LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NICHOLS LANSDALE LIMITED PARTNERSHIP III,
a Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH III LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH IV LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N OAKLANDS LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
FIFTEEN HORSHAM, L.P., a Pennsylvania
limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N LEEDOM LIMITED PARTNERSHIP II, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner
By: /s/ Gerard H. Sweeney
--------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N IRON RUN LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its
general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By: /s/ Gerard H. Sweeney
--------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE - MAIN STREET, LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, a member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By: /s/ Gerard H. Sweeney
------------------------------
Name: Gerard H. Sweeney
Title: President and
Chief Executive
By: Brandywine Acquisitions, LLC, a Delaware
limited liability company, a member
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, a member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its general
partner
By: /s/ Gerard H. Sweeney
-------------------------
Name: Gerard H. Sweeney
Title: President
Exhibit D-2
AMENDED AND RESTATED NOTE
(Revolving Credit Facility)
$27,500,000.00 New York, New York
As of July 15, 1997
FOR VALUE RECEIVED, Brandywine Realty Trust, a Maryland real estate
investment trust, Brandywine Operating Partnership, L.P., a Delaware limited
partnership, LC/N Horsham Limited Partnership, a Pennsylvania limited
partnership; LC/N Keith Valley Limited Partnership I, a Pennsylvania limited
partnership; Nichols Lansdale Limited Partnership III, a Pennsylvania limited
partnership; Newtech III Limited Partnership, a Pennsylvania limited
partnership; Newtech IV Limited Partnership, a Pennsylvania limited partnership;
C/N Oaklands Limited Partnership I, a Pennsylvania limited partnership; Fifteen
Horsham, L.P., a Pennsylvania limited partnership; C/N Leedom Limited
Partnership II, a Pennsylvania limited partnership; C/N Iron Run Limited
Partnership III, a Pennsylvania limited partnership; Brandywine-Main Street,
LLC, a Delaware limited liability company, each having an office at Newtown
Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania (hereinafter collectively referred to as "Maker"), promise to pay
Smith Barney Mortgage Capital Group, Inc., a Delaware corporation having an
office at 390 Greenwich Street, New York, New York (hereinafter referred to as
"Payee") or order, at such place as may be designated from time to time in
writing by Payee, the principal sum of Twenty-Seven Million Five Hundred
Thousand and 00/100 Dollars ($27,500,000.00) in lawful money of the United
States of America, or so much thereof as may be advanced and readvanced by Payee
to Maker and be outstanding from time to time in accordance with the provisions
of the Credit Agreement, with interest thereon from and including the date of
this Note to, but not including, the date this Note is paid in full, calculated
in the manner hereinafter set forth, as follows:
1. interest on the Principal Balance calculated in the manner
set forth in the Credit Agreement shall be due and payable in Federal
funds or other immediately available funds on each Re-Set Date during the
term of this Note and otherwise in accordance with the provisions of the
Credit Agreement; and
2. the entire Principal Balance, together with all interest
accrued and unpaid thereon calculated in the manner set forth in the
Credit Agreement and all other sums due under this Note, shall be due and
payable on the Maturity Date and otherwise in accordance with the
provisions of the Credit Agreement.
XXII. The term "Credit Agreement" as used in this Note means a
certain Revolving Credit Agreement dated as of November 25, 1996 entered into
among Smith Barney Mortgage Capital Group, Inc., NationsBank, N.A., in its
individual capacity, Maker and NationsBank, N.A., acting in its capacity as
administrative and documentation agent for the Credit Facility, as the same may
be modified or amended from time to time, and pursuant to the provisions of
which the Credit Facility has been extended by Co-Lenders to Maker. This Note
constitutes one of the Credit Facility Notes which have been executed and
delivered by Maker to Co-Lenders in accordance with the Credit Agreement and
which together evidence the Credit Facility. All other capitalized terms used in
this Note shall, unless otherwise defined in this Note, have the meaning given
to such term in the Credit Agreement.
XXIII. It is hereby expressly agreed that the entire Debt shall
become immediately due and payable at the option of Co-Lenders on the happening
of any Event of Default.
XXIV. All of the terms, covenants and provisions contained in the
Credit Agreement and the other Credit Facility Documents which are to be kept
and performed by Maker are hereby made part of this Note to the same extent and
with the same force and effect as if they were fully set forth herein. Maker
agrees to perform and comply with each of the terms, covenants and provisions
contained in this Note, the Credit Agreement and the other Credit Facility
Documents on the part of Maker to be observed and performed.
XXV. If any installment of interest payable under this Note is not
paid when due, Maker shall pay to Agent upon demand an amount equal to four
percent (4%) of such unpaid installment as a late payment charge.
XXVI. In addition to any late payment charge which may be due under
this Note, if the Debt is declared immediately due and payable pursuant to the
provisions of the Credit Facility Documents, or if the Debt is not paid in full
on the Maturity Date, Maker shall thereafter pay interest on the then entire
outstanding Principal Balance from the date of such declaration or the Maturity
Date, as the case may be, until the date the Principal Balance is paid in full,
at the Default Rate. In addition, if an Event of Default shall occur, the
Principal Balance shall, from and including the date upon which such Event of
Default has occurred and for so long as such Event of Default continues and
without further act or instrument and without the necessity of any further or
prior notice by Payee or Agent to Maker, bear interest at the Default Rate
irrespective of whether the Debt shall have been declared to be immediately due
and payable as the result of the occurrence of such Event of Default.
XXVII. Maker hereby waives presentment and demand for payment,
notice of dishonor, protest and notice of protest of this Note. If any payment
under this Note is not made when due, Maker agrees to pay all costs of
collection when incurred, including reasonable attorneys' fees (which costs
shall be added to the amount due under this Note and shall be receivable
therewith). No release of any security for the payment of this Note or extension
of time for payment of this Note, or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note or any of the
other Credit Facility Documents made by agreement between or among Co-Lenders,
Agent and/or Payee and any other person or party shall release, discharge,
modify, change or affect the liability of Maker under this Note or any of the
other Credit Facility Documents.
XXVIII. This Note is subject to the express condition that at no
time shall Maker be obligated or required to pay interest on the Principal
Balance at a rate which could subject Payee to either civil or criminal
liability as a result of being in excess of the maximum rate which Maker is
permitted by law to contract or agree to pay. If by the terms of this Note Maker
is at any time required or obligated to pay interest on the Principal Balance at
a rate in excess of such maximum rate, the rate of interest under this Note
shall be deemed to be immediately reduced to such maximum rate and interest
payable hereunder shall be computed at such maximum rate and the portion of all
prior interest payments in excess of such maximum rate shall be applied and
shall be deemed to have been payments in reduction of the Principal Balance.
XXIX. If Maker consists of more than one person or party, the
obligations and liabilities of each such person or party hereunder shall be
joint and several.
XXX. Except as otherwise specifically provided to the contrary in
the Credit Facility Documents, this Note is secured on a pari passu basis with
the other Credit Facility Notes by the Mortgages and the other Credit Facility
Documents.
XXXI. The terms of this Note shall be governed by and construed
under the laws of the State of New York.
XXXII. This Note may only be modified, amended, changed or
terminated by an agreement in writing signed by Payee, Agent and Maker. No
waiver of any term, covenant or provision of this Note shall be effective unless
given in writing by Payee and Agent and if so given by Payee and Agent shall
only be effective in the specific instance in which given.
XXXIII. Maker acknowledges that this Note and Maker's obligations
under this Note are and shall at all times continue to be absolute and
unconditional in all respects, and shall at all times be valid and enforceable
irrespective of any other agreements or circumstances of any nature whatsoever
which might otherwise constitute a defense (other than a defense of payment) to
this Note and the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility. Maker absolutely,
unconditionally and irrevocably waives any and all right to assert any defense,
setoff, counterclaim (other than a compulsory counterclaim in a court of
competent jurisdiction) or crossclaim of any nature whatsoever with respect to
this Note or the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility in any action, case
or proceeding brought by Payee or Agent to collect the Debt, or any portion
thereof, or to enforce, foreclose and realize upon the liens and security
interests created by the Mortgages and the other Credit Facility Documents
(provided, however, that the foregoing provisions of this sentence shall not be
deemed a waiver of the right of Maker to assert any compulsory counterclaim in
any such action, case or proceeding brought by Payee or Agent in any state court
if such counterclaim is compelled under local law or rule or procedure, or in
any such action, case or proceeding brought by Payee or Agent in a court of the
United States, nor shall the foregoing provisions of this sentence be deemed a
waiver of the right of Maker to assert any claim which would otherwise
constitute a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against Payee or Agent in any separate action, case or proceeding
brought by Maker against Payee or Agent). MAKER ACKNOWLEDGES THAT NO ORAL OR
OTHER AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES EXIST WITH
RESPECT TO THIS NOTE OR WITH RESPECT TO THE OBLIGATIONS OF MAKER UNDER THIS
NOTE, EXCEPT THOSE SPECIFICALLY SET FORTH IN THIS NOTE AND THE OTHER CREDIT
FACILITY DOCUMENTS, AND THAT THIS NOTE AND THE OTHER CREDIT FACILITY DOCUMENTS
SET FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING OF PAYEE, AGENT, CO-LENDERS AND
MAKER.
XXXIV. No delay on the part of Payee, Agent or Co-Lenders in
exercising any right or remedy under this Note or the other Credit Facility
Documents or failure to exercise the same shall operate as a waiver in whole or
in part of any such right or remedy. No notice to or demand on Maker shall be
deemed to be a waiver of the obligation of Maker or of the right of Payee, Agent
or Co-Lender to take further action without further notice or demand as provided
in this Note and the other Credit Facility Documents.
XXXV. Maker agrees to submit to personal jurisdiction in the State
of New York in any action, case or proceeding arising out of this Note and, in
furtherance of such agreement, Maker hereby agrees and consents that without
limiting other methods of obtaining jurisdiction, personal jurisdiction over
Maker in any such action, case or proceeding may be obtained within or without
the jurisdiction of any court located in New York and that any process or notice
of motion or other application to any such court in connection with any such
action, case or proceeding may be served upon Maker by registered or certified
mail to or by personal service at the last known address of Maker, whether such
address be within or without the jurisdiction of any such court. Maker also
agrees that the venue of any litigation arising in connection with the Debt or
in respect of any of the obligations of Maker under this Note shall, to the
extent permitted by law, be in New York County.
XXXVI. Maker (and the undersigned representative of Maker, if any)
represents that Maker has full power, authority and legal right to execute and
deliver this Note and that this Note constitutes a valid and binding obligation
of Maker.
XXXVII. MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND
PAYEE BY ITS ACCEPTANCE OF THIS NOTE IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CASE, PROCEEDING, SUIT OR
COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THE
CREDIT FACILITY, THIS NOTE, OR THE OTHER CREDIT FACILITY DOCUMENTS.
XXXVIII. Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Payee", "Agent", "Co-Lenders",
and "Maker" shall include their respective successors and assigns, provided,
however, that Maker shall in no event or under any circumstance have the right
without obtaining the prior written consent of Co-Lenders to assign or transfer
its obligations under this Note or the other Credit Facility Documents, in whole
or in part, to any other person, party or entity.
XXXIX. No recourse shall be had for any obligation of BRT under this
Note or any of the other Credit Facility Documents or for any claim based
thereon or otherwise in respect thereof, against any past, present or future
trustee, shareholder, officer or employee of BRT, 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 Payee and
each other party to this Note and the other Credit Facility Documents.
XL. Maker acknowledges and agrees that without limiting, modifying
or otherwise affecting in any respect the provisions of paragraph 25 of the
Credit Agreement, that (i) Payee shall have the sole obligation and
responsibility to fund its Credit Facility Percentage Interest (as set forth on
the Co-Lenders Certificate (the "Co-Lenders Certificate") being delivered to
Maker contemporaneously with the execution and delivery of this Note) in each
advance of the Credit Facility which is made, or required to be made, by
Co-Lenders in accordance with the provisions of the Credit Agreement and (ii)
Maker shall not have the right under any fact or circumstance to look to any
party other than Payee, including without limitation, Initial Co-Lenders or any
other Co-Lender, for the funding of the portion of the Credit Facility required
to be funded by Payee in accordance with the Credit Agreement and as set forth
in the Co-Lenders Certificate, if Payee shall default in doing so, all risk of
such loss being directly assumed in all respects by Maker.
XLI. This Note is being executed and delivered in connection with an
increase in the Credit Facility from up to $80,000,000 to up to $150,000,000 and
this Note amends and restates in its entirety that certain Note dated as of
April 9, 1997 from Maker to Payee (the "Existing Note") but is not in payment,
satisfaction or cancellation of the outstanding indebtedness evidenced by the
Existing Note. Neither this Note nor any of the other Credit Facility Notes
dated the date hereof nor anything contained herein or therein shall be
construed as a substitution or novation of the indebtedness of Maker by the
Existing Note, which indebtedness (as so increased) shall remain in full force
and effect and is now evidenced by this Note and the other Credit Facility
Notes.
IN WITNESS WHEREOF, Maker has duly executed this Note the day and
year first above written.
BRANDYWINE REALTY TRUST
By: /s/ Gerard H. Sweeney
--------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N HORSHAM LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N KEITH VALLEY LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NICHOLS LANSDALE LIMITED PARTNERSHIP III,
a Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH III LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH IV LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N OAKLANDS LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
FIFTEEN HORSHAM, L.P., a Pennsylvania
limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N LEEDOM LIMITED PARTNERSHIP II, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N IRON RUN LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE - MAIN STREET, LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
a member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
By: Brandywine Acquisitions, LLC, a
Delaware limited liability company,
a member
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, a member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------
Name: Gerard H. Sweeney
Title: President and
Chief Executive
Officer
Exhibit D-3
AMENDED AND RESTATED NOTE
(Revolving Credit Facility)
$20,000,000.00 New York, New York
As of July 15, 1997
FOR VALUE RECEIVED, Brandywine Realty Trust, a Maryland real estate
investment trust, Brandywine Operating Partnership, L.P., a Delaware limited
partnership, LC/N Horsham Limited Partnership, a Pennsylvania limited
partnership; LC/N Keith Valley Limited Partnership I, a Pennsylvania limited
partnership; Nichols Lansdale Limited Partnership III, a Pennsylvania limited
partnership; Newtech III Limited Partnership, a Pennsylvania limited
partnership; Newtech IV Limited Partnership, a Pennsylvania limited partnership;
C/N Oaklands Limited Partnership I, a Pennsylvania limited partnership; Fifteen
Horsham, L.P., a Pennsylvania limited partnership; C/N Leedom Limited
Partnership II, a Pennsylvania limited partnership; C/N Iron Run Limited
Partnership III, a Pennsylvania limited partnership; Brandywine-Main Street,
LLC, a Delaware limited liability company, each having an office at Newtown
Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania (hereinafter collectively referred to as "Maker"), promise to pay
The First National Bank of Chicago, a national banking association having an
office at One First National Plaza, Chicago, Illinois (hereinafter referred to
as "Payee") or order, at such place as may be designated from time to time in
writing by Payee, the principal sum of Twenty Million and 00/100 Dollars
($20,000,000.00) in lawful money of the United States of America, or so much
thereof as may be advanced and readvanced by Payee to Maker and be outstanding
from time to time in accordance with the provisions of the Credit Agreement,
with interest thereon from and including the date of this Note to, but not
including, the date this Note is paid in full, calculated in the manner
hereinafter set forth, as follows:
1. interest on the Principal Balance calculated in the manner
set forth in the Credit Agreement shall be due and payable in Federal
funds or other immediately available funds on each Re-Set Date during the
term of this Note and otherwise in accordance with the provisions of the
Credit Agreement; and
2. the entire Principal Balance, together with all interest
accrued and unpaid thereon calculated in the manner set forth in the
Credit Agreement and all other sums due under this Note, shall be due and
payable on the Maturity Date and otherwise in accordance with the
provisions of the Credit Agreement.
XLII. The term "Credit Agreement" as used in this Note means a
certain Revolving Credit Agreement dated as of November 25, 1996 entered into
among Smith Barney Mortgage Capital Group, Inc., NationsBank, N.A., in its
individual capacity, Maker and NationsBank, N.A., acting in its capacity as
administrative and documentation agent for the Credit Facility, as the same may
be modified or amended from time to time, and pursuant to the provisions of
which the Credit Facility has been extended by Co-Lenders to Maker. This Note
constitutes one of the Credit Facility Notes which have been executed and
delivered by Maker to Co-Lenders in accordance with the Credit Agreement and
which together evidence the Credit Facility. All other capitalized terms used in
this Note shall, unless otherwise defined in this Note, have the meaning given
to such term in the Credit Agreement.
XLIII. It is hereby expressly agreed that the entire Debt shall
become immediately due and payable at the option of Co-Lenders on the happening
of any Event of Default.
XLIV. All of the terms, covenants and provisions contained in the
Credit Agreement and the other Credit Facility Documents which are to be kept
and performed by Maker are hereby made part of this Note to the same extent and
with the same force and effect as if they were fully set forth herein. Maker
agrees to perform and comply with each of the terms, covenants and provisions
contained in this Note, the Credit Agreement and the other Credit Facility
Documents on the part of Maker to be observed and performed.
XLV. If any installment of interest payable under this Note is not
paid when due, Maker shall pay to Agent upon demand an amount equal to four
percent (4%) of such unpaid installment as a late payment charge.
XLVI. In addition to any late payment charge which may be due under
this Note, if the Debt is declared immediately due and payable pursuant to the
provisions of the Credit Facility Documents, or if the Debt is not paid in full
on the Maturity Date, Maker shall thereafter pay interest on the then entire
outstanding Principal Balance from the date of such declaration or the Maturity
Date, as the case may be, until the date the Principal Balance is paid in full,
at the Default Rate. In addition, if an Event of Default shall occur, the
Principal Balance shall, from and including the date upon which such Event of
Default has occurred and for so long as such Event of Default continues and
without further act or instrument and without the necessity of any further or
prior notice by Payee or Agent to Maker, bear interest at the Default Rate
irrespective of whether the Debt shall have been declared to be immediately due
and payable as the result of the occurrence of such Event of Default.
XLVII. Maker hereby waives presentment and demand for payment,
notice of dishonor, protest and notice of protest of this Note. If any payment
under this Note is not made when due, Maker agrees to pay all costs of
collection when incurred, including reasonable attorneys' fees (which costs
shall be added to the amount due under this Note and shall be receivable
therewith). No release of any security for the payment of this Note or extension
of time for payment of this Note, or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note or any of the
other Credit Facility Documents made by agreement between or among Co-Lenders,
Agent and/or Payee and any other person or party shall release, discharge,
modify, change or affect the liability of Maker under this Note or any of the
other Credit Facility Documents.
XLVIII. This Note is subject to the express condition that at no
time shall Maker be obligated or required to pay interest on the Principal
Balance at a rate which could subject Payee to either civil or criminal
liability as a result of being in excess of the maximum rate which Maker is
permitted by law to contract or agree to pay. If by the terms of this Note Maker
is at any time required or obligated to pay interest on the Principal Balance at
a rate in excess of such maximum rate, the rate of interest under this Note
shall be deemed to be immediately reduced to such maximum rate and interest
payable hereunder shall be computed at such maximum rate and the portion of all
prior interest payments in excess of such maximum rate shall be applied and
shall be deemed to have been payments in reduction of the Principal Balance.
XLIX. If Maker consists of more than one person or party, the
obligations and liabilities of each such person or party hereunder shall be
joint and several.
L. Except as otherwise specifically provided to the contrary in the
Credit Facility Documents, this Note is secured on a pari passu basis with the
other Credit Facility Notes by the Mortgages and the other Credit Facility
Documents.
LI. The terms of this Note shall be governed by and construed under
the laws of the State of New York.
LII. This Note may only be modified, amended, changed or terminated
by an agreement in writing signed by Payee, Agent and Maker. No waiver of any
term, covenant or provision of this Note shall be effective unless given in
writing by Payee and Agent and if so given by Payee and Agent shall only be
effective in the specific instance in which given.
LIII. Maker acknowledges that this Note and Maker's obligations
under this Note are and shall at all times continue to be absolute and
unconditional in all respects, and shall at all times be valid and enforceable
irrespective of any other agreements or circumstances of any nature whatsoever
which might otherwise constitute a defense (other than a defense of payment) to
this Note and the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility. Maker absolutely,
unconditionally and irrevocably waives any and all right to assert any defense,
setoff, counterclaim (other than a compulsory counterclaim in a court of
competent jurisdiction) or crossclaim of any nature whatsoever with respect to
this Note or the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility in any action, case
or proceeding brought by Payee or Agent to collect the Debt, or any portion
thereof, or to enforce, foreclose and realize upon the liens and security
interests created by the Mortgages and the other Credit Facility Documents
(provided, however, that the foregoing provisions of this sentence shall not be
deemed a waiver of the right of Maker to assert any compulsory counterclaim in
any such action, case or proceeding brought by Payee or Agent in any state court
if such counterclaim is compelled under local law or rule or procedure, or in
any such action, case or proceeding brought by Payee or Agent in a court of the
United States, nor shall the foregoing provisions of this sentence be deemed a
waiver of the right of Maker to assert any claim which would otherwise
constitute a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against Payee or Agent in any separate action, case or proceeding
brought by Maker against Payee or Agent). MAKER ACKNOWLEDGES THAT NO ORAL OR
OTHER AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES EXIST WITH
RESPECT TO THIS NOTE OR WITH RESPECT TO THE OBLIGATIONS OF MAKER UNDER THIS
NOTE, EXCEPT THOSE SPECIFICALLY SET FORTH IN THIS NOTE AND THE OTHER CREDIT
FACILITY DOCUMENTS, AND THAT THIS NOTE AND THE OTHER CREDIT FACILITY DOCUMENTS
SET FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING OF PAYEE, AGENT, CO-LENDERS AND
MAKER.
LIV. No delay on the part of Payee, Agent or Co-Lenders in
exercising any right or remedy under this Note or the other Credit Facility
Documents or failure to exercise the same shall operate as a waiver in whole or
in part of any such right or remedy. No notice to or demand on Maker shall be
deemed to be a waiver of the obligation of Maker or of the right of Payee, Agent
or Co-Lender to take further action without further notice or demand as provided
in this Note and the other Credit Facility Documents.
LV. Maker agrees to submit to personal jurisdiction in the State of
New York in any action, case or proceeding arising out of this Note and, in
furtherance of such agreement, Maker hereby agrees and consents that without
limiting other methods of obtaining jurisdiction, personal jurisdiction over
Maker in any such action, case or proceeding may be obtained within or without
the jurisdiction of any court located in New York and that any process or notice
of motion or other application to any such court in connection with any such
action, case or proceeding may be served upon Maker by registered or certified
mail to or by personal service at the last known address of Maker, whether such
address be within or without the jurisdiction of any such court. Maker also
agrees that the venue of any litigation arising in connection with the Debt or
in respect of any of the obligations of Maker under this Note shall, to the
extent permitted by law, be in New York County.
LVI. Maker (and the undersigned representative of Maker, if any)
represents that Maker has full power, authority and legal right to execute and
deliver this Note and that this Note constitutes a valid and binding obligation
of Maker.
LVII. MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND PAYEE
BY ITS ACCEPTANCE OF THIS NOTE IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CASE, PROCEEDING, SUIT OR COUNTERCLAIM
ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THE CREDIT FACILITY,
THIS NOTE, OR THE OTHER CREDIT FACILITY DOCUMENTS.
LVIII. Whenever used, the singular number shall include the plural,
the plural the singular, and the words "Payee", "Agent", "Co-Lenders", and
"Maker" shall include their respective successors and assigns, provided,
however, that Maker shall in no event or under any circumstance have the right
without obtaining the prior written consent of Co-Lenders to assign or transfer
its obligations under this Note or the other Credit Facility Documents, in whole
or in part, to any other person, party or entity.
LIX. No recourse shall be had for any obligation of BRT under this
Note or any of the other Credit Facility Documents or for any claim based
thereon or otherwise in respect thereof, against any past, present or future
trustee, shareholder, officer or employee of BRT, 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 Payee and
each other party to this Note and the other Credit Facility Documents.
LX. Maker acknowledges and agrees that without limiting, modifying
or otherwise affecting in any respect the provisions of paragraph 25 of the
Credit Agreement, that (i) Payee shall have the sole obligation and
responsibility to fund its Credit Facility Percentage Interest (as set forth on
the Co-Lenders Certificate (the "Co-Lenders Certificate") being delivered to
Maker contemporaneously with the execution and delivery of this Note) in each
advance of the Credit Facility which is made, or required to be made, by
Co-Lenders in accordance with the provisions of the Credit Agreement and (ii)
Maker shall not have the right under any fact or circumstance to look to any
party other than Payee, including without limitation, Initial Co-Lenders or any
other Co-Lender, for the funding of the portion of the Credit Facility required
to be funded by Payee in accordance with the Credit Agreement and as set forth
in the Co-Lenders Certificate, if Payee shall default in doing so, all risk of
such loss being directly assumed in all respects by Maker.
LXI. This Note is being executed and delivered in connection with an
increase in the Credit Facility from up to $80,000,000 to up to $150,000,000 and
this Note amends and restates in its entirety that certain Note dated as of
April 9, 1997 from Maker to Payee (the "Existing Note") but is not in payment,
satisfaction or cancellation of the outstanding indebtedness evidenced by the
Existing Note. Neither this Note nor any of the other Credit Facility Notes
dated the date hereof nor anything contained herein or therein shall be
construed as a substitution or novation of the indebtedness of Maker by the
Existing Note, which indebtedness (as so increased) shall remain in full force
and effect and is now evidenced by this Note and the other Credit Facility
Notes.
IN WITNESS WHEREOF, Maker has duly executed this Note the day and
year first above written.
BRANDYWINE REALTY TRUST
By: /s/ Gerard H. Sweeney
--------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N HORSHAM LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N KEITH VALLEY LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NICHOLS LANSDALE LIMITED PARTNERSHIP III,
a Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH III LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH IV LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N OAKLANDS LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
FIFTEEN HORSHAM, L.P., a Pennsylvania
limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N LEEDOM LIMITED PARTNERSHIP II, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N IRON RUN LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE - MAIN STREET, LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
a member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
By: Brandywine Acquisitions, LLC, a
Delaware limited liability company,
a member
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, a member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------
Name: Gerard H. Sweeney
Title: President and
Chief Executive
Officer
Exhibit D-4
AMENDED AND RESTATED NOTE
(Revolving Credit Facility)
$20,000,000.00 New York, New York
As of July 15, 1997
FOR VALUE RECEIVED, Brandywine Realty Trust, a Maryland real estate
investment trust, Brandywine Operating Partnership, L.P., a Delaware limited
partnership, LC/N Horsham Limited Partnership, a Pennsylvania limited
partnership; LC/N Keith Valley Limited Partnership I, a Pennsylvania limited
partnership; Nichols Lansdale Limited Partnership III, a Pennsylvania limited
partnership; Newtech III Limited Partnership, a Pennsylvania limited
partnership; Newtech IV Limited Partnership, a Pennsylvania limited partnership;
C/N Oaklands Limited Partnership I, a Pennsylvania limited partnership; Fifteen
Horsham, L.P., a Pennsylvania limited partnership; C/N Leedom Limited
Partnership II, a Pennsylvania limited partnership; C/N Iron Run Limited
Partnership III, a Pennsylvania limited partnership; Brandywine-Main Street,
LLC, a Delaware limited liability company, each having an office at Newtown
Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania (hereinafter collectively referred to as "Maker"), promise to pay
Mellon Bank, N.A. a national banking association having an office at 1735 Market
Street, Philadelphia, Pennsylvania (hereinafter referred to as "Payee") or
order, at such place as may be designated from time to time in writing by Payee,
the principal sum of Twenty Million and 00/100 Dollars ($20,000,000.00) in
lawful money of the United States of America, or so much thereof as may be
advanced and readvanced by Payee to Maker and be outstanding from time to time
in accordance with the provisions of the Credit Agreement, with interest thereon
from and including the date of this Note to, but not including, the date this
Note is paid in full, calculated in the manner hereinafter set forth, as
follows:
1. interest on the Principal Balance calculated in the manner
set forth in the Credit Agreement shall be due and payable in Federal
funds or other immediately available funds on each Re-Set Date during the
term of this Note and otherwise in accordance with the provisions of the
Credit Agreement; and
2. the entire Principal Balance, together with all interest
accrued and unpaid thereon calculated in the manner set forth in the
Credit Agreement and all other sums due under this Note, shall be due and
payable on the Maturity Date and otherwise in accordance with the
provisions of the Credit Agreement.
LXII. The term "Credit Agreement" as used in this Note means a
certain Revolving Credit Agreement dated as of November 25, 1996 entered into
among Smith Barney Mortgage Capital Group, Inc., NationsBank, N.A., in its
individual capacity, Maker and NationsBank, N.A., acting in its capacity as
administrative and documentation agent for the Credit Facility, as the same may
be modified or amended from time to time, and pursuant to the provisions of
which the Credit Facility has been extended by Co-Lenders to Maker. This Note
constitutes one of the Credit Facility Notes which have been executed and
delivered by Maker to Co-Lenders in accordance with the Credit Agreement and
which together evidence the Credit Facility. All other capitalized terms used in
this Note shall, unless otherwise defined in this Note, have the meaning given
to such term in the Credit Agreement.
LXIII. It is hereby expressly agreed that the entire Debt shall
become immediately due and payable at the option of Co-Lenders on the happening
of any Event of Default.
LXIV. All of the terms, covenants and provisions contained in the
Credit Agreement and the other Credit Facility Documents which are to be kept
and performed by Maker are hereby made part of this Note to the same extent and
with the same force and effect as if they were fully set forth herein. Maker
agrees to perform and comply with each of the terms, covenants and provisions
contained in this Note, the Credit Agreement and the other Credit Facility
Documents on the part of Maker to be observed and performed.
LXV. If any installment of interest payable under this Note is not
paid when due, Maker shall pay to Agent upon demand an amount equal to four
percent (4%) of such unpaid installment as a late payment charge.
LXVI. In addition to any late payment charge which may be due under
this Note, if the Debt is declared immediately due and payable pursuant to the
provisions of the Credit Facility Documents, or if the Debt is not paid in full
on the Maturity Date, Maker shall thereafter pay interest on the then entire
outstanding Principal Balance from the date of such declaration or the Maturity
Date, as the case may be, until the date the Principal Balance is paid in full,
at the Default Rate. In addition, if an Event of Default shall occur, the
Principal Balance shall, from and including the date upon which such Event of
Default has occurred and for so long as such Event of Default continues and
without further act or instrument and without the necessity of any further or
prior notice by Payee or Agent to Maker, bear interest at the Default Rate
irrespective of whether the Debt shall have been declared to be immediately due
and payable as the result of the occurrence of such Event of Default.
LXVII. Maker hereby waives presentment and demand for payment,
notice of dishonor, protest and notice of protest of this Note. If any payment
under this Note is not made when due, Maker agrees to pay all costs of
collection when incurred, including reasonable attorneys' fees (which costs
shall be added to the amount due under this Note and shall be receivable
therewith). No release of any security for the payment of this Note or extension
of time for payment of this Note, or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note or any of the
other Credit Facility Documents made by agreement between or among Co-Lenders,
Agent and/or Payee and any other person or party shall release, discharge,
modify, change or affect the liability of Maker under this Note or any of the
other Credit Facility Documents.
LXVIII. This Note is subject to the express condition that at no
time shall Maker be obligated or required to pay interest on the Principal
Balance at a rate which could subject Payee to either civil or criminal
liability as a result of being in excess of the maximum rate which Maker is
permitted by law to contract or agree to pay. If by the terms of this Note Maker
is at any time required or obligated to pay interest on the Principal Balance at
a rate in excess of such maximum rate, the rate of interest under this Note
shall be deemed to be immediately reduced to such maximum rate and interest
payable hereunder shall be computed at such maximum rate and the portion of all
prior interest payments in excess of such maximum rate shall be applied and
shall be deemed to have been payments in reduction of the Principal Balance.
LXIX. If Maker consists of more than one person or party, the
obligations and liabilities of each such person or party hereunder shall be
joint and several.
LXX. Except as otherwise specifically provided to the contrary in
the Credit Facility Documents, this Note is secured on a pari passu basis with
the other Credit Facility Notes by the Mortgages and the other Credit Facility
Documents.
LXXI. The terms of this Note shall be governed by and construed
under the laws of the State of New York.
LXXII. This Note may only be modified, amended, changed or
terminated by an agreement in writing signed by Payee, Agent and Maker. No
waiver of any term, covenant or provision of this Note shall be effective unless
given in writing by Payee and Agent and if so given by Payee and Agent shall
only be effective in the specific instance in which given.
LXXIII. Maker acknowledges that this Note and Maker's obligations
under this Note are and shall at all times continue to be absolute and
unconditional in all respects, and shall at all times be valid and enforceable
irrespective of any other agreements or circumstances of any nature whatsoever
which might otherwise constitute a defense (other than a defense of payment) to
this Note and the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility. Maker absolutely,
unconditionally and irrevocably waives any and all right to assert any defense,
setoff, counterclaim (other than a compulsory counterclaim in a court of
competent jurisdiction) or crossclaim of any nature whatsoever with respect to
this Note or the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility in any action, case
or proceeding brought by Payee or Agent to collect the Debt, or any portion
thereof, or to enforce, foreclose and realize upon the liens and security
interests created by the Mortgages and the other Credit Facility Documents
(provided, however, that the foregoing provisions of this sentence shall not be
deemed a waiver of the right of Maker to assert any compulsory counterclaim in
any such action, case or proceeding brought by Payee or Agent in any state court
if such counterclaim is compelled under local law or rule or procedure, or in
any such action, case or proceeding brought by Payee or Agent in a court of the
United States, nor shall the foregoing provisions of this sentence be deemed a
waiver of the right of Maker to assert any claim which would otherwise
constitute a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against Payee or Agent in any separate action, case or proceeding
brought by Maker against Payee or Agent). MAKER ACKNOWLEDGES THAT NO ORAL OR
OTHER AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES EXIST WITH
RESPECT TO THIS NOTE OR WITH RESPECT TO THE OBLIGATIONS OF MAKER UNDER THIS
NOTE, EXCEPT THOSE SPECIFICALLY SET FORTH IN THIS NOTE AND THE OTHER CREDIT
FACILITY DOCUMENTS, AND THAT THIS NOTE AND THE OTHER CREDIT FACILITY DOCUMENTS
SET FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING OF PAYEE, AGENT, CO-LENDERS AND
MAKER.
LXXIV. No delay on the part of Payee, Agent or Co-Lenders in
exercising any right or remedy under this Note or the other Credit Facility
Documents or failure to exercise the same shall operate as a waiver in whole or
in part of any such right or remedy. No notice to or demand on Maker shall be
deemed to be a waiver of the obligation of Maker or of the right of Payee, Agent
or Co-Lender to take further action without further notice or demand as provided
in this Note and the other Credit Facility Documents.
LXXV. Maker agrees to submit to personal jurisdiction in the State
of New York in any action, case or proceeding arising out of this Note and, in
furtherance of such agreement, Maker hereby agrees and consents that without
limiting other methods of obtaining jurisdiction, personal jurisdiction over
Maker in any such action, case or proceeding may be obtained within or without
the jurisdiction of any court located in New York and that any process or notice
of motion or other application to any such court in connection with any such
action, case or proceeding may be served upon Maker by registered or certified
mail to or by personal service at the last known address of Maker, whether such
address be within or without the jurisdiction of any such court. Maker also
agrees that the venue of any litigation arising in connection with the Debt or
in respect of any of the obligations of Maker under this Note shall, to the
extent permitted by law, be in New York County.
LXXVI. Maker (and the undersigned representative of Maker, if any)
represents that Maker has full power, authority and legal right to execute and
deliver this Note and that this Note constitutes a valid and binding obligation
of Maker.
LXXVII. MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND
PAYEE BY ITS ACCEPTANCE OF THIS NOTE IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CASE, PROCEEDING, SUIT OR
COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THE
CREDIT FACILITY, THIS NOTE, OR THE OTHER CREDIT FACILITY DOCUMENTS.
LXXVIII. Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Payee", "Agent", "Co-Lenders",
and "Maker" shall include their respective successors and assigns, provided,
however, that Maker shall in no event or under any circumstance have the right
without obtaining the prior written consent of Co-Lenders to assign or transfer
its obligations under this Note or the other Credit Facility Documents, in whole
or in part, to any other person, party or entity.
LXXIX. No recourse shall be had for any obligation of BRT under this
Note or any of the other Credit Facility Documents or for any claim based
thereon or otherwise in respect thereof, against any past, present or future
trustee, shareholder, officer or employee of BRT, 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 Payee and
each other party to this Note and the other Credit Facility Documents.
LXXX. Maker acknowledges and agrees that without limiting, modifying
or otherwise affecting in any respect the provisions of paragraph 25 of the
Credit Agreement, that (i) Payee shall have the sole obligation and
responsibility to fund its Credit Facility Percentage Interest (as set forth on
the Co-Lenders Certificate (the "Co-Lenders Certificate") being delivered to
Maker contemporaneously with the execution and delivery of this Note) in each
advance of the Credit Facility which is made, or required to be made, by
Co-Lenders in accordance with the provisions of the Credit Agreement and (ii)
Maker shall not have the right under any fact or circumstance to look to any
party other than Payee, including without limitation, Initial Co-Lenders or any
other Co-Lender, for the funding of the portion of the Credit Facility required
to be funded by Payee in accordance with the Credit Agreement and as set forth
in the Co-Lenders Certificate, if Payee shall default in doing so, all risk of
such loss being directly assumed in all respects by Maker.
LXXXI. This Note is being executed and delivered in connection with
an increase in the Credit Facility from up to $80,000,000 to up to $150,000,000
and this Note amends and restates in its entirety that certain Note dated as of
April 4, 1997 from Maker to Payee (the "Existing Note") but is not in payment,
satisfaction or cancellation of the outstanding indebtedness evidenced by the
Existing Note. Neither this Note nor any of the other Credit Facility Notes
dated the date hereof nor anything contained herein or therein shall be
construed as a substitution or novation of the indebtedness of Maker by the
Existing Note, which indebtedness (as so increased) shall remain in full force
and effect and is now evidenced by this Note and the other Credit Facility
Notes.
IN WITNESS WHEREOF, Maker has duly executed this Note the day and
year first above written.
BRANDYWINE REALTY TRUST
By: /s/ Gerard H. Sweeney
--------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N HORSHAM LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N KEITH VALLEY LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NICHOLS LANSDALE LIMITED PARTNERSHIP III,
a Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH III LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH IV LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N OAKLANDS LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
FIFTEEN HORSHAM, L.P., a Pennsylvania
limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N LEEDOM LIMITED PARTNERSHIP II, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N IRON RUN LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE - MAIN STREET, LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
a member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
By: Brandywine Acquisitions, LLC, a
Delaware limited liability company,
a member
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, a member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------
Name: Gerard H. Sweeney
Title: President and
Chief Executive
Officer
Exhibit D-5
AMENDED AND RESTATED NOTE
(Revolving Credit Facility)
$20,000,000.00 New York, New York
As of July 15, 1997
FOR VALUE RECEIVED, Brandywine Realty Trust, a Maryland real estate
investment trust, Brandywine Operating Partnership, L.P., a Delaware limited
partnership, LC/N Horsham Limited Partnership, a Pennsylvania limited
partnership; LC/N Keith Valley Limited Partnership I, a Pennsylvania limited
partnership; Nichols Lansdale Limited Partnership III, a Pennsylvania limited
partnership; Newtech III Limited Partnership, a Pennsylvania limited
partnership; Newtech IV Limited Partnership, a Pennsylvania limited partnership;
C/N Oaklands Limited Partnership I, a Pennsylvania limited partnership; Fifteen
Horsham, L.P., a Pennsylvania limited partnership; C/N Leedom Limited
Partnership II, a Pennsylvania limited partnership; C/N Iron Run Limited
Partnership III, a Pennsylvania limited partnership; Brandywine-Main Street,
LLC, a Delaware limited liability company, each having an office at Newtown
Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania (hereinafter collectively referred to as "Maker"), promise to pay
PNC Bank, National Association, a national banking association having an office
at 1600 Market Street, Philadelphia, Pennsylvania (hereinafter referred to as
"Payee") or order, at such place as may be designated from time to time in
writing by Payee, the principal sum of Twenty Million and 00/100 Dollars
($20,000,000.00) in lawful money of the United States of America, or so much
thereof as may be advanced and readvanced by Payee to Maker and be outstanding
from time to time in accordance with the provisions of the Credit Agreement,
with interest thereon from and including the date of this Note to, but not
including, the date this Note is paid in full, calculated in the manner
hereinafter set forth, as follows:
1. interest on the Principal Balance calculated in the manner
set forth in the Credit Agreement shall be due and payable in Federal
funds or other immediately available funds on each Re-Set Date during the
term of this Note and otherwise in accordance with the provisions of the
Credit Agreement; and
2. the entire Principal Balance, together with all interest
accrued and unpaid thereon calculated in the manner set forth in the
Credit Agreement and all other sums due under this Note, shall be due and
payable on the Maturity Date and otherwise in accordance with the
provisions of the Credit Agreement.
LXXXII. The term "Credit Agreement" as used in this Note means a
certain Revolving Credit Agreement dated as of November 25, 1996 entered into
among Smith Barney Mortgage Capital Group, Inc., NationsBank, N.A., in its
individual capacity, Maker and NationsBank, N.A., acting in its capacity as
administrative and documentation agent for the Credit Facility, as the same may
be modified or amended from time to time, and pursuant to the provisions of
which the Credit Facility has been extended by Co-Lenders to Maker. This Note
constitutes one of the Credit Facility Notes which have been executed and
delivered by Maker to Co-Lenders in accordance with the Credit Agreement and
which together evidence the Credit Facility. All other capitalized terms used in
this Note shall, unless otherwise defined in this Note, have the meaning given
to such term in the Credit Agreement.
LXXXIII. It is hereby expressly agreed that the entire Debt shall
become immediately due and payable at the option of Co-Lenders on the happening
of any Event of Default.
LXXXIV. All of the terms, covenants and provisions contained in the
Credit Agreement and the other Credit Facility Documents which are to be kept
and performed by Maker are hereby made part of this Note to the same extent and
with the same force and effect as if they were fully set forth herein. Maker
agrees to perform and comply with each of the terms, covenants and provisions
contained in this Note, the Credit Agreement and the other Credit Facility
Documents on the part of Maker to be observed and performed.
LXXXV. If any installment of interest payable under this Note is not
paid when due, Maker shall pay to Agent upon demand an amount equal to four
percent (4%) of such unpaid installment as a late payment charge.
LXXXVI. In addition to any late payment charge which may be due
under this Note, if the Debt is declared immediately due and payable pursuant to
the provisions of the Credit Facility Documents, or if the Debt is not paid in
full on the Maturity Date, Maker shall thereafter pay interest on the then
entire outstanding Principal Balance from the date of such declaration or the
Maturity Date, as the case may be, until the date the Principal Balance is paid
in full, at the Default Rate. In addition, if an Event of Default shall occur,
the Principal Balance shall, from and including the date upon which such Event
of Default has occurred and for so long as such Event of Default continues and
without further act or instrument and without the necessity of any further or
prior notice by Payee or Agent to Maker, bear interest at the Default Rate
irrespective of whether the Debt shall have been declared to be immediately due
and payable as the result of the occurrence of such Event of Default.
LXXXVII. Maker hereby waives presentment and demand for payment,
notice of dishonor, protest and notice of protest of this Note. If any payment
under this Note is not made when due, Maker agrees to pay all costs of
collection when incurred, including reasonable attorneys' fees (which costs
shall be added to the amount due under this Note and shall be receivable
therewith). No release of any security for the payment of this Note or extension
of time for payment of this Note, or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note or any of the other Credit
Facility Documents made by agreement between or among Co-Lenders,
Agent and/or Payee and any other person or party shall release, discharge,
modify, change or affect the liability of Maker under this Note or any of the
other Credit Facility Documents.
LXXXVIII. This Note is subject to the express condition that at no
time shall Maker be obligated or required to pay interest on the Principal
Balance at a rate which could subject Payee to either civil or criminal
liability as a result of being in excess of the maximum rate which Maker is
permitted by law to contract or agree to pay. If by the terms of this Note Maker
is at any time required or obligated to pay interest on the Principal Balance at
a rate in excess of such maximum rate, the rate of interest under this Note
shall be deemed to be immediately reduced to such maximum rate and interest
payable hereunder shall be computed at such maximum rate and the portion of all
prior interest payments in excess of such maximum rate shall be applied and
shall be deemed to have been payments in reduction of the Principal Balance.
LXXXIX. If Maker consists of more than one person or party, the
obligations and liabilities of each such person or party hereunder shall be
joint and several.
XC. Except as otherwise specifically provided to the contrary in the
Credit Facility Documents, this Note is secured on a pari passu basis with the
other Credit Facility Notes by the Mortgages and the other Credit Facility
Documents.
XCI. The terms of this Note shall be governed by and construed under
the laws of the State of New York.
XCII. This Note may only be modified, amended, changed or terminated
by an agreement in writing signed by Payee, Agent and Maker. No waiver of any
term, covenant or provision of this Note shall be effective unless given in
writing by Payee and Agent and if so given by Payee and Agent shall only be
effective in the specific instance in which given.
XCIII. Maker acknowledges that this Note and Maker's obligations
under this Note are and shall at all times continue to be absolute and
unconditional in all respects, and shall at all times be valid and enforceable
irrespective of any other agreements or circumstances of any nature whatsoever
which might otherwise constitute a defense (other than a defense of payment) to
this Note and the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility. Maker absolutely,
unconditionally and irrevocably waives any and all right to assert any defense,
setoff, counterclaim (other than a compulsory counterclaim in a court of
competent jurisdiction) or crossclaim of any nature whatsoever with respect to
this Note or the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility in any action, case
or proceeding brought by Payee or Agent to collect the Debt, or any portion
thereof, or to enforce, foreclose and realize upon the liens and security
interests created by the Mortgages and the other Credit Facility Documents
(provided, however, that the foregoing provisions of this sentence shall not be
deemed a waiver of the right of Maker to assert any compulsory counterclaim in
any such action, case or proceeding brought by Payee or Agent in any state court
if such counterclaim is compelled under local law or rule or procedure, or in
any such action, case or proceeding brought by Payee or Agent in a court of the
United States, nor shall the foregoing provisions of this sentence be deemed a
waiver of the right of Maker to assert any claim which would otherwise
constitute a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against Payee or Agent in any separate action, case or proceeding
brought by Maker against Payee or Agent). MAKER ACKNOWLEDGES THAT NO ORAL OR
OTHER AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES EXIST WITH
RESPECT TO THIS NOTE OR WITH RESPECT TO THE OBLIGATIONS OF MAKER UNDER THIS
NOTE, EXCEPT THOSE SPECIFICALLY SET FORTH IN THIS NOTE AND THE OTHER CREDIT
FACILITY DOCUMENTS, AND THAT THIS NOTE AND THE OTHER CREDIT FACILITY DOCUMENTS
SET FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING OF PAYEE, AGENT, CO-LENDERS AND
MAKER.
XCIV. No delay on the part of Payee, Agent or Co-Lenders in
exercising any right or remedy under this Note or the other Credit Facility
Documents or failure to exercise the same shall operate as a waiver in whole or
in part of any such right or remedy. No notice to or demand on Maker shall be
deemed to be a waiver of the obligation of Maker or of the right of Payee, Agent
or Co-Lender to take further action without further notice or demand as provided
in this Note and the other Credit Facility Documents.
XCV. Maker agrees to submit to personal jurisdiction in the State of
New York in any action, case or proceeding arising out of this Note and, in
furtherance of such agreement, Maker hereby agrees and consents that without
limiting other methods of obtaining jurisdiction, personal jurisdiction over
Maker in any such action, case or proceeding may be obtained within or without
the jurisdiction of any court located in New York and that any process or notice
of motion or other application to any such court in connection with any such
action, case or proceeding may be served upon Maker by registered or certified
mail to or by personal service at the last known address of Maker, whether such
address be within or without the jurisdiction of any such court. Maker also
agrees that the venue of any litigation arising in connection with the Debt or
in respect of any of the obligations of Maker under this Note shall, to the
extent permitted by law, be in New York County.
XCVI. Maker (and the undersigned representative of Maker, if any)
represents that Maker has full power, authority and legal right to execute and
deliver this Note and that this Note constitutes a valid and binding obligation
of Maker.
XCVII. MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND
PAYEE BY ITS ACCEPTANCE OF THIS NOTE IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CASE, PROCEEDING, SUIT OR
COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THE
CREDIT FACILITY, THIS NOTE, OR THE OTHER CREDIT FACILITY DOCUMENTS.
XCVIII. Whenever used, the singular number shall include the plural,
the plural the singular, and the words "Payee", "Agent", "Co-Lenders", and
"Maker" shall include their respective successors and assigns, provided,
however, that Maker shall in no event or under any circumstance have the right
without obtaining the prior written consent of Co-Lenders to assign or transfer
its obligations under this Note or the other Credit Facility Documents, in whole
or in part, to any other person, party or entity.
XCIX. No recourse shall be had for any obligation of BRT under this
Note or any of the other Credit Facility Documents or for any claim based
thereon or otherwise in respect thereof, against any past, present or future
trustee, shareholder, officer or employee of BRT, 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 Payee and
each other party to this Note and the other Credit Facility Documents.
C. Maker acknowledges and agrees that without limiting, modifying or
otherwise affecting in any respect the provisions of paragraph 25 of the Credit
Agreement, that (i) Payee shall have the sole obligation and responsibility to
fund its Credit Facility Percentage Interest (as set forth on the Co-Lenders
Certificate (the "Co-Lenders Certificate") being delivered to Maker
contemporaneously with the execution and delivery of this Note) in each advance
of the Credit Facility which is made, or required to be made, by Co-Lenders in
accordance with the provisions of the Credit Agreement and (ii) Maker shall not
have the right under any fact or circumstance to look to any party other than
Payee, including without limitation, Initial Co-Lenders or any other Co-Lender,
for the funding of the portion of the Credit Facility required to be funded by
Payee in accordance with the Credit Agreement and as set forth in the Co-Lenders
Certificate, if Payee shall default in doing so, all risk of such loss being
directly assumed in all respects by Maker.
CI. This Note is being executed and delivered in connection with an
increase in the Credit Facility from up to $80,000,000 to up to $150,000,000 and
this Note amends and restates in its entirety that certain Note dated as of
April 4, 1997 from Maker to Payee (the "Existing Note") but is not in payment,
satisfaction or cancellation of the outstanding indebtedness evidenced by the
Existing Note. Neither this Note nor any of the other Credit Facility Notes
dated the date hereof nor anything contained herein or therein shall be
construed as a substitution or novation of the indebtedness of Maker by the
Existing Note, which indebtedness (as so increased) shall remain in full force
and effect and is now evidenced by this Note and the other Credit Facility
Notes.
IN WITNESS WHEREOF, Maker has duly executed this Note the day and
year first above written.
BRANDYWINE REALTY TRUST
By: /s/ Gerard H. Sweeney
--------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N HORSHAM LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N KEITH VALLEY LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NICHOLS LANSDALE LIMITED PARTNERSHIP III,
a Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH III LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH IV LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N OAKLANDS LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
FIFTEEN HORSHAM, L.P., a Pennsylvania
limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N LEEDOM LIMITED PARTNERSHIP II, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N IRON RUN LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE - MAIN STREET, LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
a member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
By: Brandywine Acquisitions, LLC, a
Delaware limited liability company,
a member
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, a member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------
Name: Gerard H. Sweeney
Title: President and
Chief Executive
Officer
Exhibit D-6
AMENDED AND RESTATED NOTE
(Revolving Credit Facility)
$15,000,000.00 New York, New York
As of July 15, 1997
FOR VALUE RECEIVED, Brandywine Realty Trust, a Maryland real estate
investment trust, Brandywine Operating Partnership, L.P., a Delaware limited
partnership, LC/N Horsham Limited Partnership, a Pennsylvania limited
partnership; LC/N Keith Valley Limited Partnership I, a Pennsylvania limited
partnership; Nichols Lansdale Limited Partnership III, a Pennsylvania limited
partnership; Newtech III Limited Partnership, a Pennsylvania limited
partnership; Newtech IV Limited Partnership, a Pennsylvania limited partnership;
C/N Oaklands Limited Partnership I, a Pennsylvania limited partnership; Fifteen
Horsham, L.P., a Pennsylvania limited partnership; C/N Leedom Limited
Partnership II, a Pennsylvania limited partnership; C/N Iron Run Limited
Partnership III, a Pennsylvania limited partnership; Brandywine-Main Street,
LLC, a Delaware limited liability company, each having an office at Newtown
Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania (hereinafter collectively referred to as "Maker"), promise to pay
Signet Bank, a state banking association organized under the laws of the
Commonwealth of Virginia having an office at 7779 Leesburg Pike, 4th Floor,
Falls Church, Virginia (hereinafter referred to as "Payee") or order, at such
place as may be designated from time to time in writing by Payee, the principal
sum of Fifteen Million and 00/100 Dollars ($15,000,000.00) in lawful money of
the United States of America, or so much thereof as may be advanced and
readvanced by Payee to Maker and be outstanding from time to time in accordance
with the provisions of the Credit Agreement, with interest thereon from and
including the date of this Note to, but not including, the date this Note is
paid in full, calculated in the manner hereinafter set forth, as follows:
1. interest on the Principal Balance calculated in the manner
set forth in the Credit Agreement shall be due and payable in Federal
funds or other immediately available funds on each Re-Set Date during the
term of this Note and otherwise in accordance with the provisions of the
Credit Agreement; and
2. the entire Principal Balance, together with all interest
accrued and unpaid thereon calculated in the manner set forth in the
Credit Agreement and all other sums due under this Note, shall be due and
payable on the Maturity Date and otherwise in accordance with the
provisions of the Credit Agreement.
CII. The term "Credit Agreement" as used in this Note means a
certain Revolving Credit Agreement dated as of November 25, 1996 entered into
among Smith Barney Mortgage Capital Group, Inc., NationsBank, N.A., in its
individual capacity, Maker and NationsBank, N.A., acting in its capacity as
administrative and documentation agent for the Credit Facility, as the same may
be modified or amended from time to time, and pursuant to the provisions of
which the Credit Facility has been extended by Co-Lenders to Maker. This Note
constitutes one of the Credit Facility Notes which have been executed and
delivered by Maker to Co-Lenders in accordance with the Credit Agreement and
which together evidence the Credit Facility. All other capitalized terms used in
this Note shall, unless otherwise defined in this Note, have the meaning given
to such term in the Credit Agreement.
CIII. It is hereby expressly agreed that the entire Debt shall
become immediately due and payable at the option of Co-Lenders on the happening
of any Event of Default.
CIV. All of the terms, covenants and provisions contained in the
Credit Agreement and the other Credit Facility Documents which are to be kept
and performed by Maker are hereby made part of this Note to the same extent and
with the same force and effect as if they were fully set forth herein. Maker
agrees to perform and comply with each of the terms, covenants and provisions
contained in this Note, the Credit Agreement and the other Credit Facility
Documents on the part of Maker to be observed and performed.
CV. If any installment of interest payable under this Note is not
paid when due, Maker shall pay to Agent upon demand an amount equal to four
percent (4%) of such unpaid installment as a late payment charge.
CVI. In addition to any late payment charge which may be due under
this Note, if the Debt is declared immediately due and payable pursuant to the
provisions of the Credit Facility Documents, or if the Debt is not paid in full
on the Maturity Date, Maker shall thereafter pay interest on the then entire
outstanding Principal Balance from the date of such declaration or the Maturity
Date, as the case may be, until the date the Principal Balance is paid in full,
at the Default Rate. In addition, if an Event of Default shall occur, the
Principal Balance shall, from and including the date upon which such Event of
Default has occurred and for so long as such Event of Default continues and
without further act or instrument and without the necessity of any further or
prior notice by Payee or Agent to Maker, bear interest at the Default Rate
irrespective of whether the Debt shall have been declared to be immediately due
and payable as the result of the occurrence of such Event of Default.
CVII. Maker hereby waives presentment and demand for payment, notice
of dishonor, protest and notice of protest of this Note. If any payment under
this Note is not made when due, Maker agrees to pay all costs of collection when
incurred, including reasonable attorneys' fees (which costs shall be added to
the amount due under this Note and shall be receivable therewith). No release of
any security for the payment of this Note or extension of time for payment of
this Note, or any installment hereof, and no
alteration, amendment or waiver of any provision of this Note or any of the
other Credit Facility Documents made by agreement between or among Co-Lenders,
Agent and/or Payee and any other person or party shall release, discharge,
modify, change or affect the liability of Maker under this Note or any of the
other Credit Facility Documents.
CVIII. This Note is subject to the express condition that at no time
shall Maker be obligated or required to pay interest on the Principal Balance at
a rate which could subject Payee to either civil or criminal liability as a
result of being in excess of the maximum rate which Maker is permitted by law to
contract or agree to pay. If by the terms of this Note Maker is at any time
required or obligated to pay interest on the Principal Balance at a rate in
excess of such maximum rate, the rate of interest under this Note shall be
deemed to be immediately reduced to such maximum rate and interest payable
hereunder shall be computed at such maximum rate and the portion of all prior
interest payments in excess of such maximum rate shall be applied and shall be
deemed to have been payments in reduction of the Principal Balance.
CIX. If Maker consists of more than one person or party, the
obligations and liabilities of each such person or party hereunder shall be
joint and several.
CX. Except as otherwise specifically provided to the contrary in the
Credit Facility Documents, this Note is secured on a pari passu basis with the
other Credit Facility Notes by the Mortgages and the other Credit Facility
Documents.
CXI. The terms of this Note shall be governed by and construed under
the laws of the State of New York.
CXII. This Note may only be modified, amended, changed or terminated
by an agreement in writing signed by Payee, Agent and Maker. No waiver of any
term, covenant or provision of this Note shall be effective unless given in
writing by Payee and Agent and if so given by Payee and Agent shall only be
effective in the specific instance in which given.
CXIII. Maker acknowledges that this Note and Maker's obligations
under this Note are and shall at all times continue to be absolute and
unconditional in all respects, and shall at all times be valid and enforceable
irrespective of any other agreements or circumstances of any nature whatsoever
which might otherwise constitute a defense (other than a defense of payment) to
this Note and the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility. Maker absolutely,
unconditionally and irrevocably waives any and all right to assert any defense,
setoff, counterclaim (other than a compulsory counterclaim in a court of
competent jurisdiction) or crossclaim of any nature whatsoever with respect to
this Note or the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility in any action, case
or proceeding brought by Payee or Agent to collect the Debt, or any portion
thereof, or to enforce, foreclose and realize upon the liens and security
interests created by the Mortgages and the other Credit Facility Documents
(provided, however, that the foregoing provisions of this sentence shall not be
deemed a waiver of the right of Maker to assert any compulsory counterclaim in
any such action, case
or proceeding brought by Payee or Agent in any state court if such counterclaim
is compelled under local law or rule or procedure, or in any such action, case
or proceeding brought by Payee or Agent in a court of the United States, nor
shall the foregoing provisions of this sentence be deemed a waiver of the right
of Maker to assert any claim which would otherwise constitute a defense, setoff,
counterclaim or crossclaim of any nature whatsoever against Payee or Agent in
any separate action, case or proceeding brought by Maker against Payee or
Agent). MAKER ACKNOWLEDGES THAT NO ORAL OR OTHER AGREEMENTS, UNDERSTANDINGS,
REPRESENTATIONS OR WARRANTIES EXIST WITH RESPECT TO THIS NOTE OR WITH RESPECT TO
THE OBLIGATIONS OF MAKER UNDER THIS NOTE, EXCEPT THOSE SPECIFICALLY SET FORTH IN
THIS NOTE AND THE OTHER CREDIT FACILITY DOCUMENTS, AND THAT THIS NOTE AND THE
OTHER CREDIT FACILITY DOCUMENTS SET FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING
OF PAYEE, AGENT, CO-LENDERS AND MAKER.
CXIV. No delay on the part of Payee, Agent or Co-Lenders in
exercising any right or remedy under this Note or the other Credit Facility
Documents or failure to exercise the same shall operate as a waiver in whole or
in part of any such right or remedy. No notice to or demand on Maker shall be
deemed to be a waiver of the obligation of Maker or of the right of Payee, Agent
or Co-Lender to take further action without further notice or demand as provided
in this Note and the other Credit Facility Documents.
CXV. Maker agrees to submit to personal jurisdiction in the State of
New York in any action, case or proceeding arising out of this Note and, in
furtherance of such agreement, Maker hereby agrees and consents that without
limiting other methods of obtaining jurisdiction, personal jurisdiction over
Maker in any such action, case or proceeding may be obtained within or without
the jurisdiction of any court located in New York and that any process or notice
of motion or other application to any such court in connection with any such
action, case or proceeding may be served upon Maker by registered or certified
mail to or by personal service at the last known address of Maker, whether such
address be within or without the jurisdiction of any such court. Maker also
agrees that the venue of any litigation arising in connection with the Debt or
in respect of any of the obligations of Maker under this Note shall, to the
extent permitted by law, be in New York County.
CXVI. Maker (and the undersigned representative of Maker, if any)
represents that Maker has full power, authority and legal right to execute and
deliver this Note and that this Note constitutes a valid and binding obligation
of Maker.
CXVII. MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND
PAYEE BY ITS ACCEPTANCE OF THIS NOTE IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CASE, PROCEEDING, SUIT OR
COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THE
CREDIT FACILITY, THIS NOTE, OR THE OTHER CREDIT FACILITY DOCUMENTS.
CXVIII. Whenever used, the singular number shall include the plural,
the plural the singular, and the words "Payee", "Agent", "Co-Lenders", and
"Maker" shall include their respective successors and assigns, provided,
however, that Maker shall in no event or under any circumstance have the right
without obtaining the prior written consent of Co-Lenders to assign or transfer
its obligations under this Note or the other Credit Facility Documents, in whole
or in part, to any other person, party or entity.
CXIX. No recourse shall be had for any obligation of BRT under this
Note or any of the other Credit Facility Documents or for any claim based
thereon or otherwise in respect thereof, against any past, present or future
trustee, shareholder, officer or employee of BRT, 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 Payee and
each other party to this Note and the other Credit Facility Documents.
CXX. Maker acknowledges and agrees that without limiting, modifying
or otherwise affecting in any respect the provisions of paragraph 25 of the
Credit Agreement, that (i) Payee shall have the sole obligation and
responsibility to fund its Credit Facility Percentage Interest (as set forth on
the Co-Lenders Certificate (the "Co-Lenders Certificate") being delivered to
Maker contemporaneously with the execution and delivery of this Note) in each
advance of the Credit Facility which is made, or required to be made, by
Co-Lenders in accordance with the provisions of the Credit Agreement and (ii)
Maker shall not have the right under any fact or circumstance to look to any
party other than Payee, including without limitation, Initial Co-Lenders or any
other Co-Lender, for the funding of the portion of the Credit Facility required
to be funded by Payee in accordance with the Credit Agreement and as set forth
in the Co-Lenders Certificate, if Payee shall default in doing so, all risk of
such loss being directly assumed in all respects by Maker.
CXXI. This Note is being executed and delivered in connection with
an increase in the Credit Facility from up to $80,000,000 to up to $150,000,000
and this Note amends and restates in its entirety that certain Note dated as of
April 4, 1997 from Maker to Payee (the "Existing Note") but is not in payment,
satisfaction or cancellation of the outstanding indebtedness evidenced by the
Existing Note. Neither this Note nor any of the other Credit Facility Notes
dated the date hereof nor anything contained herein or therein shall be
construed as a substitution or novation of the indebtedness of Maker by the
Existing Note, which indebtedness (as so increased) shall remain in full force
and effect and is now evidenced by this Note and the other Credit Facility
Notes.
IN WITNESS WHEREOF, Maker has duly executed this Note the day and
year first above written.
BRANDYWINE REALTY TRUST
By: /s/ Gerard H. Sweeney
--------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N HORSHAM LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N KEITH VALLEY LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NICHOLS LANSDALE LIMITED PARTNERSHIP III,
a Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH III LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH IV LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N OAKLANDS LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
FIFTEEN HORSHAM, L.P., a Pennsylvania
limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N LEEDOM LIMITED PARTNERSHIP II, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N IRON RUN LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE - MAIN STREET, LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
a member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
By: Brandywine Acquisitions, LLC, a
Delaware limited liability company,
a member
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, a member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------
Name: Gerard H. Sweeney
Title: President
Exhibit D-7
AMENDED AND RESTATED NOTE
(Revolving Credit Facility)
$20,000,000.00 New York, New York
As of July 15, 1997
FOR VALUE RECEIVED, Brandywine Realty Trust, a Maryland real estate
investment trust, Brandywine Operating Partnership, L.P., a Delaware limited
partnership, LC/N Horsham Limited Partnership, a Pennsylvania limited
partnership; LC/N Keith Valley Limited Partnership I, a Pennsylvania limited
partnership; Nichols Lansdale Limited Partnership III, a Pennsylvania limited
partnership; Newtech III Limited Partnership, a Pennsylvania limited
partnership; Newtech IV Limited Partnership, a Pennsylvania limited partnership;
C/N Oaklands Limited Partnership I, a Pennsylvania limited partnership; Fifteen
Horsham, L.P., a Pennsylvania limited partnership; C/N Leedom Limited
Partnership II, a Pennsylvania limited partnership; C/N Iron Run Limited
Partnership III, a Pennsylvania limited partnership; Brandywine-Main Street,
LLC, a Delaware limited liability company, each having an office at Newtown
Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania (hereinafter collectively referred to as "Maker"), promise to pay
Summit Bank, a state banking association organized under the laws of the State
of New Jersey having an office at 1800 Chapel Avenue West, Cherry Hill, New
Jersey (hereinafter referred to as "Payee") or order, at such place as may be
designated from time to time in writing by Payee, the principal sum of Twenty
Million and 00/100 Dollars ($20,000,000.00) in lawful money of the United States
of America, or so much thereof as may be advanced and readvanced by Payee to
Maker and be outstanding from time to time in accordance with the provisions of
the Credit Agreement, with interest thereon from and including the date of this
Note to, but not including, the date this Note is paid in full, calculated in
the manner hereinafter set forth, as follows:
1. interest on the Principal Balance calculated in the manner
set forth in the Credit Agreement shall be due and payable in Federal
funds or other immediately available funds on each Re-Set Date during the
term of this Note and otherwise in accordance with the provisions of the
Credit Agreement; and
2. the entire Principal Balance, together with all interest
accrued and unpaid thereon calculated in the manner set forth in the
Credit Agreement and all other sums due under this Note, shall be due and
payable on the Maturity Date and otherwise in accordance with the
provisions of the Credit Agreement.
CXXII. The term "Credit Agreement" as used in this Note means a
certain Revolving Credit Agreement dated as of November 25, 1996 entered into
among Smith Barney Mortgage Capital Group, Inc., NationsBank, N.A., in its
individual capacity, Maker and NationsBank, N.A., acting in its capacity as
administrative and documentation agent for the Credit Facility, as the same may
be modified or amended from time to time, and pursuant to the provisions of
which the Credit Facility has been extended by Co-Lenders to Maker. This Note
constitutes one of the Credit Facility Notes which have been executed and
delivered by Maker to Co-Lenders in accordance with the Credit Agreement and
which together evidence the Credit Facility. All other capitalized terms used in
this Note shall, unless otherwise defined in this Note, have the meaning given
to such term in the Credit Agreement.
CXXIII. It is hereby expressly agreed that the entire Debt shall
become immediately due and payable at the option of Co-Lenders on the happening
of any Event of Default.
CXXIV. All of the terms, covenants and provisions contained in the
Credit Agreement and the other Credit Facility Documents which are to be kept
and performed by Maker are hereby made part of this Note to the same extent and
with the same force and effect as if they were fully set forth herein. Maker
agrees to perform and comply with each of the terms, covenants and provisions
contained in this Note, the Credit Agreement and the other Credit Facility
Documents on the part of Maker to be observed and performed.
CXXV. If any installment of interest payable under this Note is not
paid when due, Maker shall pay to Agent upon demand an amount equal to four
percent (4%) of such unpaid installment as a late payment charge.
CXXVI. In addition to any late payment charge which may be due under
this Note, if the Debt is declared immediately due and payable pursuant to the
provisions of the Credit Facility Documents, or if the Debt is not paid in full
on the Maturity Date, Maker shall thereafter pay interest on the then entire
outstanding Principal Balance from the date of such declaration or the Maturity
Date, as the case may be, until the date the Principal Balance is paid in full,
at the Default Rate. In addition, if an Event of Default shall occur, the
Principal Balance shall, from and including the date upon which such Event of
Default has occurred and for so long as such Event of Default continues and
without further act or instrument and without the necessity of any further or
prior notice by Payee or Agent to Maker, bear interest at the Default Rate
irrespective of whether the Debt shall have been declared to be immediately due
and payable as the result of the occurrence of such Event of Default.
CXXVII. Maker hereby waives presentment and demand for payment,
notice of dishonor, protest and notice of protest of this Note. If any payment
under this Note is not made when due, Maker agrees to pay all costs of
collection when incurred, including reasonable attorneys' fees (which costs
shall be added to the amount due under this Note and shall be receivable
therewith). No release of any security for the payment of this Note or extension
of time for payment of this Note, or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note or any of the other Credit
Facility Documents made by agreement between or among Co-Lenders,
Agent and/or Payee and any other person or party shall release, discharge,
modify, change or affect the liability of Maker under this Note or any of the
other Credit Facility Documents.
CXXVIII. This Note is subject to the express condition that at no
time shall Maker be obligated or required to pay interest on the Principal
Balance at a rate which could subject Payee to either civil or criminal
liability as a result of being in excess of the maximum rate which Maker is
permitted by law to contract or agree to pay. If by the terms of this Note Maker
is at any time required or obligated to pay interest on the Principal Balance at
a rate in excess of such maximum rate, the rate of interest under this Note
shall be deemed to be immediately reduced to such maximum rate and interest
payable hereunder shall be computed at such maximum rate and the portion of all
prior interest payments in excess of such maximum rate shall be applied and
shall be deemed to have been payments in reduction of the Principal Balance.
CXXIX. If Maker consists of more than one person or party, the
obligations and liabilities of each such person or party hereunder shall be
joint and several.
CXXX. Except as otherwise specifically provided to the contrary in
the Credit Facility Documents, this Note is secured on a pari passu basis with
the other Credit Facility Notes by the Mortgages and the other Credit Facility
Documents.
CXXXI. The terms of this Note shall be governed by and construed
under the laws of the State of New York.
CXXXII. This Note may only be modified, amended, changed or
terminated by an agreement in writing signed by Payee, Agent and Maker. No
waiver of any term, covenant or provision of this Note shall be effective unless
given in writing by Payee and Agent and if so given by Payee and Agent shall
only be effective in the specific instance in which given.
CXXXIII. Maker acknowledges that this Note and Maker's obligations
under this Note are and shall at all times continue to be absolute and
unconditional in all respects, and shall at all times be valid and enforceable
irrespective of any other agreements or circumstances of any nature whatsoever
which might otherwise constitute a defense (other than a defense of payment) to
this Note and the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility. Maker absolutely,
unconditionally and irrevocably waives any and all right to assert any defense,
setoff, counterclaim (other than a compulsory counterclaim in a court of
competent jurisdiction) or crossclaim of any nature whatsoever with respect to
this Note or the obligations of Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of Maker
hereunder or otherwise with respect to the Credit Facility in any action, case
or proceeding brought by Payee or Agent to collect the Debt, or any portion
thereof, or to enforce, foreclose and realize upon the liens and security
interests created by the Mortgages and the other
Credit Facility Documents (provided, however, that the foregoing provisions of
this sentence shall not be deemed a waiver of the right of Maker to assert any
compulsory counterclaim in any such action, case or proceeding brought by Payee
or Agent in any state court if such counterclaim is compelled under local law or
rule or procedure, or in any such action, case or proceeding brought by Payee or
Agent in a court of the United States, nor shall the foregoing provisions of
this sentence be deemed a waiver of the right of Maker to assert any claim which
would otherwise constitute a defense, setoff, counterclaim or crossclaim of any
nature whatsoever against Payee or Agent in any separate action, case or
proceeding brought by Maker against Payee or Agent). MAKER ACKNOWLEDGES THAT NO
ORAL OR OTHER AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES EXIST
WITH RESPECT TO THIS NOTE OR WITH RESPECT TO THE OBLIGATIONS OF MAKER UNDER THIS
NOTE, EXCEPT THOSE SPECIFICALLY SET FORTH IN THIS NOTE AND THE OTHER CREDIT
FACILITY DOCUMENTS, AND THAT THIS NOTE AND THE OTHER CREDIT FACILITY DOCUMENTS
SET FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING OF PAYEE, AGENT, CO-LENDERS AND
MAKER.
CXXXIV. No delay on the part of Payee, Agent or Co-Lenders in
exercising any right or remedy under this Note or the other Credit Facility
Documents or failure to exercise the same shall operate as a waiver in whole or
in part of any such right or remedy. No notice to or demand on Maker shall be
deemed to be a waiver of the obligation of Maker or of the right of Payee, Agent
or Co-Lender to take further action without further notice or demand as provided
in this Note and the other Credit Facility Documents.
CXXXV. Maker agrees to submit to personal jurisdiction in the State
of New York in any action, case or proceeding arising out of this Note and, in
furtherance of such agreement, Maker hereby agrees and consents that without
limiting other methods of obtaining jurisdiction, personal jurisdiction over
Maker in any such action, case or proceeding may be obtained within or without
the jurisdiction of any court located in New York and that any process or notice
of motion or other application to any such court in connection with any such
action, case or proceeding may be served upon Maker by registered or certified
mail to or by personal service at the last known address of Maker, whether such
address be within or without the jurisdiction of any such court. Maker also
agrees that the venue of any litigation arising in connection with the Debt or
in respect of any of the obligations of Maker under this Note shall, to the
extent permitted by law, be in New York County.
CXXXVI. Maker (and the undersigned representative of Maker, if any)
represents that Maker has full power, authority and legal right to execute and
deliver this Note and that this Note constitutes a valid and binding obligation
of Maker.
CXXXVII. MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND
PAYEE BY ITS ACCEPTANCE OF THIS NOTE IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CASE, PROCEEDING, SUIT OR
COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THE
CREDIT FACILITY, THIS NOTE, OR THE OTHER CREDIT FACILITY DOCUMENTS.
CXXXVIII. Whenever used, the singular number shall include the
plural, the plural the singular, and the words "Payee", "Agent", "Co-Lenders",
and "Maker" shall include their respective successors and assigns, provided,
however, that Maker shall in no event or under any circumstance have the right
without obtaining the prior written consent of Co-Lenders to assign or transfer
its obligations under this Note or the other Credit Facility Documents, in whole
or in part, to any other person, party or entity.
CXXXIX. No recourse shall be had for any obligation of BRT under
this Note or any of the other Credit Facility Documents or for any claim based
thereon or otherwise in respect thereof, against any past, present or future
trustee, shareholder, officer or employee of BRT, 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 Payee and
each other party to this Note and the other Credit Facility Documents.
CXL. Maker acknowledges and agrees that without limiting, modifying
or otherwise affecting in any respect the provisions of paragraph 25 of the
Credit Agreement, that (i) Payee shall have the sole obligation and
responsibility to fund its Credit Facility Percentage Interest (as set forth on
the Co-Lenders Certificate (the "Co-Lenders Certificate") being delivered to
Maker contemporaneously with the execution and delivery of this Note) in each
advance of the Credit Facility which is made, or required to be made, by
Co-Lenders in accordance with the provisions of the Credit Agreement and (ii)
Maker shall not have the right under any fact or circumstance to look to any
party other than Payee, including without limitation, Initial Co-Lenders or any
other Co-Lender, for the funding of the portion of the Credit Facility required
to be funded by Payee in accordance with the Credit Agreement and as set forth
in the Co-Lenders Certificate, if Payee shall default in doing so, all risk of
such loss being directly assumed in all respects by Maker.
CXLI. This Note is being executed and delivered in connection with
an increase in the Credit Facility from up to $80,000,000 to up to $150,000,000
and this Note amends and restates in its entirety that certain Note dated as of
April 4, 1997 from Maker to Payee (the "Existing Note") but is not in payment,
satisfaction or cancellation of the outstanding indebtedness evidenced by the
Existing Note. Neither this Note nor any of the other Credit Facility Notes
dated the date hereof nor anything contained herein or therein shall be
construed as a substitution or novation of the indebtedness of Maker by the
Existing Note, which indebtedness (as so increased) shall remain in full force
and effect and is now evidenced by this Note and the other Credit Facility
Notes.
IN WITNESS WHEREOF, Maker has duly executed this Note the day and
year first above written.
BRANDYWINE REALTY TRUST
By: /s/ Gerard H. Sweeney
--------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N HORSHAM LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
LC/N KEITH VALLEY LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NICHOLS LANSDALE LIMITED PARTNERSHIP III,
a Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH III LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NEWTECH IV LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N OAKLANDS LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
FIFTEEN HORSHAM, L.P., a Pennsylvania
limited partnership
By: Witmer Operating Partnership I,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Holdings I, Inc., a
Pennsylvania corporation, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N LEEDOM LIMITED PARTNERSHIP II, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
C/N IRON RUN LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
BRANDYWINE - MAIN STREET, LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
a member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: /s/ Gerard H. Sweeney
-----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
By: Brandywine Acquisitions, LLC, a
Delaware limited liability company,
a member
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, a member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust, its
general partner
By: /s/ Gerard H. Sweeney
-----------------------
Name: Gerard H. Sweeney
Title: President
Exhibit E-1
AMENDMENT TO
OPEN-END MORTGAGE AND SECURITY AGREEMENT
(This is an Amendment to a Mortgage which Secures Future Advances)
This Amendment entered into as of the 15th day of July, 1997,
between ***[Brandywine Operating Partnership, L.P., a Delaware]*** limited
partnership having an office c/o Brandywine Realty Trust, Newtown Square
Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania (hereinafter referred to as "Mortgagor"); and NationsBank,
N.A., a national banking association having an office at 8300 Greensboro
Drive, McLean, Virginia, not individually, but acting in its capacity as
administrative and documentation agent for the equal and ratable benefit
of Co-Lenders, pursuant to and in accordance with the terms and provisions
of the Credit Agreement (NationsBank, N.A., acting in such capacity as
administrative and documentation agent being hereinafter referred to as
"Mortgagee").
PRELIMINARY STATEMENT
A. All capitalized terms as used in this Amendment shall, unless
otherwise defined in this Amendment, have the meanings given to such terms in
the Mortgage (as described on Exhibit A attached hereto).
B. Mortgagor is the owner of a fee estate in the premises described
in Exhibit B attached hereto (hereinafter referred to as the "Premises").
C. Co-Lenders have, pursuant to the terms of the Credit Agreement,
previously extended to Borrowers a revolving credit facility in the principal
sum of up to, but not in excess of, $80,000,000 (hereinafter referred to as the
"Existing Credit Facility").
D. In connection with the Existing Credit Facility, and as partial
security therefor, Mortgagor has previously executed and delivered the Mortgage
to Mortgagee and Mortgagee is the owner and holder of the Mortgage covering the
fee estate of Mortgagor in the Premises.
E. At the request of Borrowers, Co-Lenders and Mortgagee have agreed
to increase the Existing Credit Facility from up to $80,000,000 to up to
$150,000,000 (hereinafter referred to as the "Credit Facility Increase"; the
Existing Credit Facility, as so increased, is hereinafter referred to as the
"Credit Facility").
F. The Co-Lenders and Mortgagee were willing to agree to the Credit
Facility Increase only if (i) Borrowers and certain other parties enter
into a certain First Amendment of Credit Agreement and Other Credit Facility
Documents dated the date hereof (the "First Amendment"), (ii) Mortgagor and the
other Borrowers execute and deliver the other amendments to the Credit Facility
Documents as contemplated by the First Amendment and (iii) Mortgagor executes
and delivers this Amendment.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, and in
order to induce Co-Lenders and Mortgagee to agree to the Credit Facility
Increase, Mortgagor covenants and agrees with and represents and warrants to
Mortgagee as follows:
CXLII. Amendments. From and after the date of this Amendment, the
Mortgage is hereby modified and amended in the following respects:
a. The "NOW, THEREFORE" clause contained in Paragraph E of the
Preliminary Statement of the Mortgage is deleted in its entirety and the
following clause is substituted therefor:
"E. NOW, THEREFORE, to secure the payment of an indebtedness
in the principal sum of up to, but not in excess of, One Hundred
Fifty Million and 00/100 Dollars ($150,000,000.00), lawful money of
the United States of America, or so much thereof as may be advanced
and readvanced and be outstanding from time to time in accordance
with the provisions of the Credit Agreement, to be paid with
interest in accordance with the provisions of the Credit Facility
Notes and the Credit Agreement (said indebtedness, interest and any
and all sums which may or shall become due in accordance with the
provisions of the Credit Facility Documents being hereinafter
collectively referred to as the "Debt"), Mortgagor has mortgaged,
created a security interest in, given, granted, bargained, sold,
aliened, enfeoffed, conveyed, confirmed and assigned, and by these
presents does mortgage, create a security interest in, give, grant,
bargain, sell, alien, enfeoff, convey, confirm and assign unto
Mortgagee forever all right, title and interest of Mortgagor now
owned, or hereafter acquired, in and to the following property,
rights and interests (such property, rights and interests being
hereinafter collectively referred to as the "Mortgaged Property"):"
b. The following definition is hereby inserted in Exhibit A of the
Mortgage in its appropriate alphabetical order:
"BMS: The term "BMS" as used in this Mortgage shall mean
Brandywine-Main Street, LLC, a Delaware limited liability company."
c. The definition of "Borrowers" appearing in Exhibit A of the
Mortgage is deleted in its entirety and the following definition is
substituted therefor:
"Borrowers: The term "Borrowers" as used in this Mortgage shall
collectively mean BRT, BOP, BMS and the BRT/BOP Limited
Partnerships."
d. The definition of "Co-Lenders" appearing in Exhibit A of the
Mortgage is deleted in its entirety and the following definition is
substituted therefor:
"Co-Lenders: The term "Co-Lenders" as used in this Mortgage shall
mean, collectively, Smith Barney, NB, The First National Bank of
Chicago, a national banking association, Mellon Bank, N.A., a
national banking association, PNC Bank, National Association, a
national banking association, Signet Bank, a state banking
association organized under the laws of the Commonwealth of
Virginia, Summit Bank, a state banking association organized under
the laws of the State of New Jersey, and all other parties from time
to time to whom direct interests in the Credit Facility are sold,
transferred and assigned, and who are as a result thereof designated
as Co-Lenders, under and pursuant to the provisions of the Credit
Agreement and the Co-Lenders Agreement."
CXLIII. Confirmation and Reaffirmation of Mortgagor. Mortgagor
confirms and reaffirms that the Mortgage, as modified and amended pursuant to
the provisions of this Amendment, and the lien thereof encumbers all of the
right, title and interest of Mortgagor, now owned, or hereafter acquired, in and
to the Mortgaged Property (as hereinafter defined). In furtherance of the
foregoing but without limitation of the terms of the granting clause of the
Mortgage, Mortgagor confirms and reaffirms that pursuant to the terms of the
Mortgage, as modified by this Amendment, Mortgagor does mortgage, create a
security interest in, give, grant, bargain, sell, alien, enfeoff, convey,
confirm and assign unto Mortgagee forever all right, title and interest of
Mortgagor now owned, or hereafter acquired, in and to the following property,
rights and interests (such property, rights and interests being hereinafter
collectively referred to as the "Mortgaged Property"):
(a) the Premises;
(b) all buildings and improvements now or hereafter located on
the Premises;
(c) all of the estate, right, title, claim or demand of any
nature whatsoever of Mortgagor, either in law or in equity, in
possession or expectancy, in and to the Mortgaged Property or any
part thereof;
(d) all easements, rights-of-way, gores of land, streets,
ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments, and appurtenances
of any nature whatsoever, in any way belonging, relating or
pertaining to the Mortgaged Property (including, without limitation,
any and all development rights, air rights or similar or comparable
rights of any nature whatsoever now or hereafter appurtenant to the
Premises or now or hereafter transferred to the Premises) and all
land lying in the bed of any street, road or avenue, opened or
proposed, in front of or adjoining the Premises to the center line
thereof;
(e) all FF&E and the right, title and interest of Mortgagor in
and to any of the FF&E which may be subject to any security
agreements (as defined in the Uniform Commercial Code) superior in
lien to the lien of the Mortgage;
(f) all awards or payments, including interest thereon, if
any, and the right to receive the same, which may be made with
respect to the Mortgaged Property, whether from the exercise of the
right of eminent domain (including any transfer made in lieu of the
exercise of said right), or for any other injury to or decrease in
the value of the Mortgaged Property;
(g) all leases, licenses and other agreements affecting or
relating to the use or occupancy of the Mortgaged Property now or
hereafter entered into and the right to receive and apply the rents,
income, revenues, receipts, accounts, accounts receivable, issues
and profits of or derived from or relating to the Mortgaged Property
to the payment of the Debt;
(h) all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property, including, without
limitation, the right (subject to the provisions of the Credit
Agreement) to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the
Mortgaged Property; and
(i) the right to appear in and defend any action, case or
proceeding brought with respect to the Mortgaged Property and to
commence any action, case or proceeding to protect the interest of
Mortgagee in the Mortgaged Property.
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property unto and to the proper use and benefit of Mortgagee, and the successors
and assigns of Mortgagee, forever;
PROVIDED, HOWEVER, that if Mortgagor shall pay, perform and
discharge the obligations secured by the Mortgage, as modified by this
Amendment, in full, then the Mortgage, as modified by this Amendment and the
estate thereby and hereby granted shall cease, terminate and become void.
CXLIV. Amendment to Open-End Mortgage. This Amendment is an
amendment to an open-end mortgage securing future advances pursuant to 42 Pa.
C.S.A. ss.8143. Without limiting the foregoing or any other provision of the
Mortgage, as modified by this Amendment, the Mortgage (as modified by this
Amendment) secures, inter alia, present and future advances of the Credit
Facility made by Co-Lenders or Mortgagee pursuant to the Credit Agreement and/or
the other Credit Facility Documents; advances made by Mortgagee or Co-Lenders
with respect to the Mortgaged Property for the payment of taxes, assessments,
maintenance charges, insurance premiums or costs incurred for the protection of
the Mortgaged Property or the lien of this Amendment; and expenses incurred by
Mortgagee or Co-Lenders by reason of the occurrence of an Event of Default. The
priority of such future advances and expenses shall relate back to the date of
the Mortgage, or to such later date as required by applicable law, regardless of
the date upon which such advances are made or such expenses are incurred. If the
Credit Facility Documents provide that any advances of the Credit Facility shall
be made by Co-Lenders upon completion by Mortgagor of certain performance
obligations under the Credit Agreement and/or the other Credit Facility
Documents (including, without limitation, compliance with the terms of the
Credit Agreement and/or the other Credit Facility Documents such that no default
or Event of Default shall have occurred), such advances of the Credit Facility
shall be deemed "obligatory advances" solely for the purpose of the application
of the obligatory advance doctrine to confirm the lien priority of such advances
of the Credit Facility actually made by Co-Lenders, whether such advances of the
Credit Facility are initially either (1) advanced by Co-Lenders or Mortgagee
into an escrow subject to Mortgagee's or Co-Lenders' control or (2) retained by
Co-Lenders or Mortgagee.
CXLV. Incorporation of First Amendment. All references in the
Mortgage to (i) the Credit Facility Notes shall be deemed to refer to the
Restated Credit Facility Notes and (ii) the Credit Agreement, the Credit
Facility Documents and the Credit Facility shall be deemed to refer to the
Credit Agreement and the Credit Facility Documents, as modified and amended by
the execution and delivery of the First Amendment, and to the Credit Facility,
as increased in the manner contemplated by the First Amendment.
CXLVI. Prompt Recordation; Payment of Certain Fees and Expenses.
Mortgagor shall promptly cause this Amendment to be filed, registered or
recorded in such manner and in such places as may be required by any present or
future law in order to publish notice of and fully to protect the lien of the
Mortgage, as modified and amended pursuant to the provisions
of this Amendment, upon, and the interest of Mortgagee, in the Mortgaged
Property. Mortgagor will pay all filing, registration and recording fees, and
all expenses incident to the preparation, execution, acknowledgment and
enforcement of this Amendment, and all Federal, state, county and municipal
taxes, documentary stamps, intangible taxes, duties, imposts, assessments and
charges arising out of or in connection with the filing, registration,
recording, execution and delivery of this Amendment, and Mortgagor shall hold
harmless and indemnify Mortgagee against any liability incurred by reason of the
imposition of any tax on the issuance making, filing, registration or recording
of this Amendment.
CXLVII. Not a Novation. This Amendment constitutes a modification of
the Credit Facility Documents, and is not intended to and shall not terminate or
extinguish any of the indebtedness or obligations under the Credit Facility
Notes, the Mortgage and the other Credit Facility Documents and shall not
constitute a novation of the original indebtedness or obligations under the
Credit Facility Notes, the Mortgage and the other Credit Facility Documents nor
shall this Amendment affect or impair in any manner whatsoever the attachment,
perfection and/or priority of any liens created thereby, it being the intention
of the parties hereto to carry forward all liens and security interests securing
payment of the Credit Facility Notes, which liens and interest are acknowledged
by Mortgagor to be valid and subsisting against the Mortgaged Property.
CXLVIII. Exculpation. No recourse shall be had for any obligation of
BRT under the Mortgage, as modified by this Amendment, or any of the other
Credit Facility Documents or for any claim based thereon or otherwise in respect
thereof, against any past, present or future trustee, shareholder, officer or
employee of BRT, 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 each other party to this Amendment and the
other Credit Facility Documents.
CXLIX. No Offsets, etc. Mortgagor represents, warrants and covenants
that there are no offsets, counterclaims or defenses against the Debt, the
Credit Facility Notes, the Credit Agreement, the Mortgage or the Other Credit
Facility Documents.
CL. Authorization. Mortgagor represents, warrants and covenants that
Mortgagor (and the undersigned representative of Mortgagor, if any) has full
power, authority and legal right to execute this Amendment and to keep and
observe all of the terms of this Amendment on Mortgagor's part to be observed
and performed.
CLI. Counterparts. This Amendment may be executed in any number of
duplicate originals and each such duplicate original shall be deemed to
constitute but one and the same instrument.
CLII. Savings Clause. If any term, covenant or condition of this
Amendment shall be held to be invalid, illegal or unenforceable in any respect,
this Amendment shall be construed without such provision.
CLIII. Full Force and Effect. All of the terms, covenants and
conditions of the Mortgage shall, except as expressly modified and amended
pursuant to the provisions of this Amendment, remain in full force and effect.
CLIV. No Oral Modifications, etc. This Amendment may not be
modified, amended or terminated, except by an agreement in writing signed by the
parties hereto.
CLV. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
CLVI. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the state in which the Premises are
located.
IN WITNESS WHEREOF, Mortgagor and Mortgagee have duly executed this
Amendment as of the day and year first above written.
BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership
By: Brandywine Realty Trust, a Maryland
real estate investment trust
By: /s/ Gerard H. Sweeney
----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NATIONSBANK, N.A., not individually but
acting in its capacity as administrative
and documentation agent for the equal and
ratable benefit of Co-Lenders
By: /s/ Cheryl D. Fitzgerald
--------------------------------
Name: Cheryl D. Fitzgerald
Title: Vice President
Certificate of Residence of the Mortgagee
The business address of the Mortgagee herein is 8300 Greensboro
Drive, McLean, Virginia 22102-3604.
----------------------------
Agent/Attorney for Mortgagee
STATE OF )
) ss.:
COUNTY OF )
On this, the ____ day of July, 1997, before me, a Notary Public, the
undersigned officer, personally appeared Cheryl D. Fitzgerald, a Vice President
of NationsBank, N.A., a national banking association, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument, and acknowledged that he/she executed the same on behalf of the
association in the capacity therein stated and for the purposes therein
contained.
-------------------------------
Notary Public
[SEAL]
My Commission Expires:
ACKNOWLEDGEMENTS
(To be attached)
EXHIBIT A
(Description of the Mortgage)
Mortgage: Open-End Mortgage and Security Agreement dated as of ***[November 25,
1996 OR May 21, 1997]*** given by Mortgagor to Mortgagee and recorded on
_______, 1997 in _______, page _______ in the office of the __________ of
__________ County, Pennsylvania.
*EXHIBIT B
(Description of Premises)
- ----------
* Legal description of premises should include insurable description of any
easements which are appurtenant to the Premises.
================================================================================
***[Brandywine Operating Partnership, L.P.,
a Delaware]*** limited partnership, as Mortgagor
and
NationsBank, N.A., not individually
but acting in its capacity as administrative
and documentation agent for the equal and
ratable benefit of the co-lenders
described herein, as Mortgagee
--------------------------
AMENDMENT TO
OPEN-END MORTGAGE AND SECURITY AGREEMENT
(This is an Amendment to a Mortgage which Secures Future Advances)
--------------------------
Dated: As of July 15, 1997
Location: ___________________
________ County, Pennsylvania
RECORD AND RETURN TO:
Battle Fowler LLP
Park Avenue Tower
75 East 55th Street
New York, New York 10022
Attention: Dean A. Stiffle, Esq.
Uniform Parcel Identifier: _______
================================================================================
Exhibit E-2
New Jersey
AMENDMENT TO
MORTGAGE
This Amendment entered into as of the 15th day of July, 1997,
between ***[Brandywine Operating Partnership, L.P., a Delaware limited
partnership]*** having an office c/o Brandywine Realty Trust, Newtown
Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania (hereinafter referred to as "Mortgagor"); and NationsBank,
N.A., a national banking association having an office at 8300 Greensboro
Drive, McLean, Virginia, not individually, but acting in its capacity as
administrative and documentation agent for the equal and ratable benefit
of Co-Lenders, pursuant to and in accordance with the terms and provisions
of the Credit Agreement (NationsBank, N.A., acting in such capacity as
administrative and documentation agent being hereinafter referred to as
"Mortgagee").
PRELIMINARY STATEMENT
A. All capitalized terms as used in this Amendment shall, unless
otherwise defined in this Amendment, have the meanings given to such terms in
the Mortgage (as described on Exhibit A attached hereto).
B. Mortgagor is the owner of a fee estate in the premises described
in Exhibit B attached hereto (hereinafter referred to as the "Premises").
C. Co-Lenders have, pursuant to the terms of the Credit Agreement,
previously extended to Borrowers a revolving credit facility in the principal
sum of up to, but not in excess of, $80,000,000 (hereinafter referred to as the
"Existing Credit Facility").
D. In connection with the Existing Credit Facility, and as partial
security therefor, Mortgagor has previously executed and delivered the Mortgage
to Mortgagee and Mortgagee is the owner and holder of the Mortgage covering the
fee estate of Mortgagor in the Premises.
E. At the request of Borrowers, Co-Lenders and Mortgagee have agreed
to increase the Existing Credit Facility from up to $80,000,000 to up to
$150,000,000 (hereinafter referred to as the "Credit Facility Increase"; the
Existing Credit Facility, as so increased, is hereinafter referred to as the
"Credit Facility").
F. The Co-Lenders and Mortgagee were willing to agree to the Credit
Facility Increase only if (i) Borrowers and certain other parties enter into a
certain First Amendment of Credit Agreement and Other Credit Facility Documents
dated the date hereof (the "First Amendment"), (ii) Mortgagor and the other
Borrowers execute and deliver the other amendments to the Credit Facility
Documents as contemplated by the First Amendment and (iii) Mortgagor executes
and delivers this Amendment.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, and in
order to induce Co-Lenders and Mortgagee to agree to the Credit Facility
Increase, Mortgagor covenants and agrees with and represents and warrants to
Mortgagee as follows:
CLVII. Amendments. From and after the date of this Amendment, the
Mortgage is hereby modified and amended in the following respects:
a. The "NOW, THEREFORE" clause contained in Paragraph E of the
Preliminary Statement of the Mortgage is deleted in its entirety and the
following clause is substituted therefor:
"E. NOW, THEREFORE, to secure the payment of an indebtedness
in the principal sum of up to, but not in excess of, One Hundred
Fifty Million and 00/100 Dollars ($150,000,000.00), lawful money of
the United States of America, or so much thereof as may be advanced
and readvanced and be outstanding from time to time in accordance
with the provisions of the Credit Agreement, to be paid with
interest in accordance with the provisions of the Credit Facility
Notes and the Credit Agreement (said indebtedness, interest and any
and all sums which may or shall become due in accordance with the
provisions of the Credit Facility Documents being hereinafter
collectively referred to as the "Debt"), Mortgagor has mortgaged,
created a security interest in, given, granted, bargained, sold,
aliened, enfeoffed, conveyed, confirmed and assigned, and by these
presents does mortgage, create a security interest in, give, grant,
bargain, sell, alien, enfeoff, convey, confirm and assign unto
Mortgagee forever all right, title and interest of Mortgagor now
owned, or hereafter acquired, in and to the following property,
rights and interests (such property, rights and interests being
hereinafter collectively referred to as the "Mortgaged Property"):"
b. The following definition is hereby inserted in Exhibit A of the
Mortgage in its appropriate alphabetical order:
"BMS: The term "BMS" as used in this Mortgage shall mean
Brandywine-Main Street, LLC, a Delaware limited liability company."
c. The definition of "Borrowers" appearing in Exhibit A of the
Mortgage is deleted in its entirety and the following definition is
substituted therefor:
"Borrowers: The term "Borrowers" as used in this Mortgage shall
collectively mean BRT, BOP, BMS and the BRT/BOP Limited
Partnerships."
d. The definition of "Co-Lenders" appearing in Exhibit A of the
Mortgage is deleted in its entirety and the following definition is
substituted therefor:
"Co-Lenders: The term "Co-Lenders" as used in this Mortgage shall
mean, collectively, Smith Barney, NB, The First National Bank of
Chicago, a national banking association, Mellon Bank, N.A., a
national banking association, PNC Bank, National Association, a
national banking association, Signet Bank, a state banking
association organized under the laws of the Commonwealth of
Virginia, Summit Bank, a state banking association organized under
the laws of the State of New Jersey, and all other parties from time
to time to whom direct interests in the Credit Facility are sold,
transferred and assigned, and who are as a result thereof designated
as Co-Lenders, under and pursuant to the provisions of the Credit
Agreement and the Co-Lenders Agreement."
CLVIII. Confirmation and Reaffirmation of Mortgagor. Mortgagor
confirms and reaffirms that the Mortgage, as modified and amended pursuant to
the provisions of this Amendment, and the lien thereof encumbers all of the
right, title and interest of Mortgagor, now owned, or hereafter acquired, in and
to the Mortgaged Property (as hereinafter defined). In furtherance of the
foregoing but without limitation of the terms of the granting clause of the
Mortgage, Mortgagor confirms and reaffirms that pursuant to the terms of the
Mortgage, as modified by this Amendment, Mortgagor does mortgage, create a
security interest in, give, grant, bargain, sell, alien, enfeoff, convey,
confirm and assign unto Mortgagee forever all right, title and interest of
Mortgagor now owned, or hereafter acquired, in and to the following property,
rights and
interests (such property, rights and interests being hereinafter collectively
referred to as the "Mortgaged Property"):
(a) the Premises;
(b) all buildings and improvements now or hereafter located on
the Premises;
(c) all of the estate, right, title, claim or demand of any
nature whatsoever of Mortgagor, either in law or in equity, in
possession or expectancy, in and to the Mortgaged Property or any
part thereof;
(d) all easements, rights-of-way, gores of land, streets,
ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments, and appurtenances
of any nature whatsoever, in any way belonging, relating or
pertaining to the Mortgaged Property (including, without limitation,
any and all development rights, air rights or similar or comparable
rights of any nature whatsoever now or hereafter appurtenant to the
Premises or now or hereafter transferred to the Premises) and all
land lying in the bed of any street, road or avenue, opened or
proposed, in front of or adjoining the Premises to the center line
thereof;
(e) all FF&E and the right, title and interest of Mortgagor in
and to any of the FF&E which may be subject to any security
agreements (as defined in the Uniform Commercial Code) superior in
lien to the lien of the Mortgage;
(f) all awards or payments, including interest thereon, if
any, and the right to receive the same, which may be made with
respect to the Mortgaged Property, whether from the exercise of the
right of eminent domain (including any transfer made in lieu of the
exercise of said right), or for any other injury to or decrease in
the value of the Mortgaged Property;
(g) all leases, licenses and other agreements affecting or
relating to the use or occupancy of the Mortgaged Property now or
hereafter entered into and the right to receive and apply the rents,
income, revenues, receipts, accounts, accounts receivable, issues
and profits of or derived from or relating to the Mortgaged Property
to the payment of the Debt;
(h) all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property, including, without
limitation, the right (subject to the provisions of the Credit
Agreement) to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the
Mortgaged Property; and
(i) the right to appear in and defend any action, case or
proceeding brought with respect to the Mortgaged Property and to
commence any action, case or proceeding to protect the interest of
Mortgagee in the Mortgaged Property.
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property unto and to the proper use and benefit of Mortgagee, and the successors
and assigns of Mortgagee, forever;
PROVIDED, HOWEVER, that if Mortgagor shall pay, perform and
discharge the obligations secured by the Mortgage, as modified by this
Amendment, in full, then the Mortgage, as modified by this Amendment and the
estate thereby and hereby granted shall cease, terminate and become void.
CLIX. Incorporation of First Amendment. All references in the
Mortgage to (i) the Credit Facility Notes shall be deemed to refer to the
Restated Credit Facility Notes and (ii) the Credit Agreement, the Credit
Facility Documents and the Credit Facility shall be deemed to refer to the
Credit Agreement and the Credit Facility Documents, as modified and amended by
the execution and delivery of the First Amendment, and to the Credit Facility,
as increased in the manner contemplated by the First Amendment.
CLX. Prompt Recordation; Payment of Certain Fees and Expenses.
Mortgagor shall promptly cause this Amendment to be filed, registered or
recorded in such manner and in such places as may be required by any present or
future law in order to publish notice of and fully to protect the lien of the
Mortgage, as modified and amended pursuant to the provisions of this Amendment,
upon, and the interest of Mortgagee, in the Mortgaged Property. Mortgagor will
pay all filing, registration and recording fees, and all expenses incident to
the preparation, execution, acknowledgment and enforcement of this Amendment,
and all Federal, state, county and municipal taxes, documentary stamps,
intangible taxes, duties, imposts, assessments and charges arising out of or in
connection with the filing, registration, recording, execution and delivery of
this Amendment, and Mortgagor shall hold harmless and indemnify Mortgagee
against any liability incurred by reason of the imposition of any tax on the
issuance making, filing, registration or recording of this Amendment.
CLXI. Not a Novation. This Amendment constitutes a modification of
the Credit Facility Documents, and is not intended to and shall not terminate or
extinguish any of the indebtedness or obligations under the Credit Facility
Notes, the Mortgage and the other Credit Facility Documents and shall not
constitute a novation of the original indebtedness or obligations under the
Credit Facility Notes, the Mortgage and the other Credit Facility Documents nor
shall this Amendment affect or impair in any manner whatsoever the attachment,
perfection and/or priority of any liens created thereby, it being the intention
of the parties hereto to carry forward all liens and security interests securing
payment of the Credit Facility Notes, which liens and interest are acknowledged
by Mortgagor to be valid and subsisting against the Mortgaged Property.
CLXII. Exculpation. No recourse shall be had for any obligation of
BRT under the Mortgage, as modified by this Amendment, or any of the other
Credit Facility Documents or for any claim based thereon or otherwise in respect
thereof, against any past, present or future trustee, shareholder, officer or
employee of BRT, 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 each other party to this Amendment and the
other Credit Facility Documents.
CLXIII. No Offsets, etc. Mortgagor represents, warrants and
covenants that there are no offsets, counterclaims or defenses against the Debt,
the Credit Facility Notes, the Credit Agreement, the Mortgage or the Other
Credit Facility Documents.
CLXIV. Authorization. Mortgagor represents, warrants and covenants
that Mortgagor (and the undersigned representative of Mortgagor, if any) has
full power, authority and legal right to execute this Amendment and to keep and
observe all of the terms of this Amendment on Mortgagor's part to be observed
and performed.
CLXV. Counterparts. This Amendment may be executed in any number of
duplicate originals and each such duplicate original shall be deemed to
constitute but one and the same instrument.
CLXVI. Savings Clause. If any term, covenant or condition of this
Amendment shall be held to be invalid, illegal or unenforceable in any respect,
this Amendment shall be construed without such provision.
CLXVII. Full Force and Effect. All of the terms, covenants and
conditions of the Mortgage shall, except as expressly modified and amended
pursuant to the provisions of this Amendment, remain in full force and effect.
CLXVIII. No Oral Modifications, etc. This Amendment may not be
modified, amended or terminated, except by an agreement in writing signed by the
parties hereto.
CLXIX. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
CLXX. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the state in which the Premises are
located.
IN WITNESS WHEREOF, Mortgagor and Mortgagee have duly executed this
Amendment as of the day and year first above written.
***[BRANDYWINE OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership]***
By: Brandywine Realty Trust, a Maryland
real estate investment trust
By: /s/ Gerard H. Sweeney
--------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NATIONSBANK, N.A., not individually but
acting in its capacity as administrative
and documentation agent for the equal and
ratable benefit of Co-Lenders
By: /s/ Cheryl D. Fitzgerald
-------------------------------
Name: Cheryl D. Fitzgerald
Title: Vice President
STATE OF )
) ss.:
COUNTY OF )
I certify, that on July ____, 1997, Cheryl D. Fitzgerald personally
came before me and this person acknowledged under oath, to my satisfaction,
that:
(a) this person signed, sealed and delivered the attached document
as Vice President of NationsBank, N.A., a national banking
association, the banking association named in this document; and
(b) this document was signed and made by the banking association as
its voluntary act and deed by virtue of authority from its board of
directors.
-------------------------------
Notary Public
My Commission Expires:
ACKNOWLEDGEMENTS
(To be attached)
EXHIBIT A
(Description of the Mortgage)
Mortgage: Mortgage dated as of ***[November 25, 1996 OR May 21, 1997]*** given
by Mortgagor to Mortgagee and recorded on _______, 1997 in _______, page _______
in the office of the __________ of __________ County, New Jersey.
*EXHIBIT B
(Description of Premises)
- ----------
* Legal description of premises should include insurable description of any
easements which are appurtenant to the Premises.
================================================================================
***[Brandywine Operating Partnership, L.P.,
a Delaware]*** limited partnership, as Mortgagor
and
NationsBank, N.A., not individually
but acting in its capacity as administrative
and documentation agent for the equal and
ratable benefit of the co-lenders
described herein, as Mortgagee
--------------------------
AMENDMENT TO
MORTGAGE
--------------------------
Dated: As of July __, 1997
Location: ___________________
________ County, New Jersey
RECORD AND RETURN TO:
Battle Fowler LLP
Park Avenue Tower
75 East 55th Street
New York, New York 10022
Attention: Dean A. Stiffle, Esq.
================================================================================
Master New Jersey Amendment to Mortgage
THIS AMENDMENT TO MORTGAGE
WAS PREPARED BY:
- ---------------------------
Attorney at Law
Exhibit E-3
AMENDMENT TO
MORTGAGE
This Amendment entered into as of the 15th day of July, 1997,
between Brandywine Operating Partnership, L.P., a Delaware limited
partnership having an office c/o Brandywine Realty Trust, Newtown Square
Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania (hereinafter referred to as "Mortgagor"); and NationsBank,
N.A., a national banking association having an office at 8300 Greensboro
Drive, McLean, Virginia, not individually, but acting in its capacity as
administrative and documentation agent for the equal and ratable benefit
of Co-Lenders, pursuant to and in accordance with the terms and provisions
of the Credit Agreement (NationsBank, N.A., acting in such capacity as
administrative and documentation agent being hereinafter referred to as
"Mortgagee").
PRELIMINARY STATEMENT
A. All capitalized terms as used in this Amendment shall, unless
otherwise defined in this Amendment, have the meanings given to such terms in
the Mortgage (as described on Exhibit A attached hereto).
B. Mortgagor is the owner of a leasehold estate in the premises
described in Exhibit B attached hereto (hereinafter referred to as the
"Premises") under and pursuant to the provisions of the lease described in
Exhibit B-1 attached hereto (hereinafter referred to as the "Ground Lease").
C. Co-Lenders have, pursuant to the terms of the Credit Agreement,
previously extended to Borrowers a revolving credit facility in the principal
sum of up to, but not in excess of, $80,000,000 (hereinafter referred to as the
"Existing Credit Facility").
D. In connection with the Existing Credit Facility, and as partial
security therefor, Mortgagor has previously executed and delivered the Mortgage
to Mortgagee and Mortgagee is the owner and holder of the Mortgage covering the
fee estate of Mortgagor in the Premises.
E. At the request of Borrowers, Co-Lenders and Mortgagee have agreed
to increase the Existing Credit Facility from up to $80,000,000 to up to
$150,000,000 (hereinafter referred to as the "Credit Facility Increase"; the
Existing Credit Facility, as so increased, is hereinafter referred to as the
"Credit Facility").
F. The Co-Lenders and Mortgagee were willing to agree to the Credit
Facility Increase only if (i) Borrowers and certain other parties enter into a
certain First Amendment of Credit Agreement and Other Credit Facility Documents
dated the date hereof (the "First Amendment"), (ii) Mortgagor and
the other Borrowers execute and deliver the other amendments to the Credit
Facility Documents as contemplated by the First Amendment and (iii) Mortgagor
executes and delivers this Amendment.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, and in
order to induce Co-Lenders and Mortgagee to agree to the Credit Facility
Increase, Mortgagor covenants and agrees with and represents and warrants to
Mortgagee as follows:
CLXXI. Amendments. From and after the date of this Amendment, the
Mortgage is hereby modified and amended in the following respects:
a. The "NOW, THEREFORE" clause contained in Paragraph E of the
Preliminary Statement of the Mortgage is deleted in its entirety and the
following clause is substituted therefor:
"E. NOW, THEREFORE, to secure the payment of an indebtedness
in the principal sum of up to, but not in excess of, One Hundred
Fifty Million and 00/100 Dollars ($150,000,000.00), lawful money of
the United States of America, or so much thereof as may be advanced
and readvanced and be outstanding from time to time in accordance
with the provisions of the Credit Agreement, to be paid with
interest in accordance with the provisions of the Credit Facility
Notes and the Credit Agreement (said indebtedness, interest and any
and all sums which may or shall become due in accordance with the
provisions of the Credit Facility Documents being hereinafter
collectively referred to as the "Debt"), Mortgagor has mortgaged,
created a security interest in, given, granted, bargained, sold,
aliened, enfeoffed, conveyed, confirmed and assigned, and by these
presents does mortgage, create a security interest in, give, grant,
bargain, sell, alien, enfeoff, convey, confirm and assign unto
Mortgagee forever all right, title and interest of Mortgagor now
owned, or hereafter acquired, in and to the following property,
rights and interests (such property, rights and interests being
hereinafter collectively referred to as the "Mortgaged Property"):"
b. The following definition is hereby inserted in Exhibit A of the
Mortgage in its appropriate alphabetical order:
"BMS: The term "BMS" as used in this Mortgage shall mean
Brandywine-Main Street, LLC, a Delaware limited liability company."
c. The definition of "Borrowers" appearing in Exhibit A of the
Mortgage is deleted in its entirety and the following definition is
substituted therefor:
"Borrowers: The term "Borrowers" as used in this Mortgage shall
collectively mean BRT, BOP, BMS and the BRT/BOP Limited
Partnerships."
d. The definition of "Co-Lenders" appearing in Exhibit A of the
Mortgage is deleted in its entirety and the following definition is
substituted therefor:
"Co-Lenders: The term "Co-Lenders" as used in this Mortgage shall
mean, collectively, Smith Barney, NB, The First National Bank of
Chicago, a national banking association, Mellon Bank, N.A., a
national banking association, PNC Bank, National Association, a
national banking association, Signet Bank, a state banking
association organized under the laws of the Commonwealth of
Virginia, Summit Bank, a state banking association organized under
the laws of the State of New Jersey, and all other parties from time
to time to whom direct interests in the Credit Facility are sold,
transferred and assigned, and who are as a result thereof designated
as Co-Lenders, under and pursuant to the provisions of the Credit
Agreement and the Co-Lenders Agreement."
CLXXII. Confirmation and Reaffirmation of Mortgagor. Mortgagor
confirms and reaffirms that the Mortgage, as modified and amended pursuant to
the provisions of this Amendment, and the lien thereof encumbers all of the
right, title and interest of Mortgagor, now owned, or hereafter acquired, in and
to the Mortgaged Property (as hereinafter defined). In furtherance of the
foregoing but without limitation of the terms of the granting clause of the
Mortgage, Mortgagor confirms and reaffirms that pursuant to the terms of the
Mortgage, as modified by this Amendment, Mortgagor does mortgage, create a
security interest in, give, grant, bargain, sell, alien, enfeoff, convey,
confirm and assign unto Mortgagee forever all right, title and interest of
Mortgagor now owned, or hereafter acquired, in and to the following property,
rights and interests (such property, rights and interests being hereinafter
collectively referred to as the "Mortgaged Property"):
(a) the Premises;
(b) all buildings and improvements now or hereafter located on
the Premises;
(b)(1) the Ground Lease and the leasehold estate created
thereunder;
(b)(2) all modifications, extensions and renewals of the
Ground Lease and all credits, deposits, options, purchase options,
privileges and rights of Mortgagor under and in accordance with the
provisions of the Ground Lease, including, but not limited to, the
right, if any, to renew or extend the Ground Lease for a succeeding
term or terms or to acquire fee title to or other interest in all or
any portion of the Premises or the Improvements;
(c) all of the estate, right, title, claim or demand of any
nature whatsoever of Mortgagor, either in law or in equity, in
possession or expectancy, in and to the Mortgaged Property or any
part thereof;
(d) all easements, rights-of-way, gores of land, streets,
ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments, and appurtenances
of any nature whatsoever, in any way belonging, relating or
pertaining to the Mortgaged Property (including, without limitation,
any and all development rights, air rights or similar or comparable
rights of any nature whatsoever now or hereafter appurtenant to the
Premises or now or hereafter transferred to the Premises) and all
land lying in the bed of any street, road or avenue, opened or
proposed, in front of or adjoining the Premises to the center line
thereof;
(e) all FF&E and the right, title and interest of Mortgagor in
and to any of the FF&E which may be subject to any security
agreements (as defined in the Uniform Commercial Code) superior in
lien to the lien of the Mortgage;
(f) all awards or payments, including interest thereon, if
any, and the right to receive the same, which may be made with
respect to the Mortgaged Property, whether from the exercise of the
right of eminent domain (including any transfer made in lieu of the
exercise of said right), or for any other injury to or decrease in
the value of the Mortgaged Property;
(g) all leases, licenses and other agreements (other than the
Ground Lease) affecting or relating to the use or occupancy of the
Mortgaged Property now or hereafter entered into and the right to
receive and apply the rents, income, revenues, receipts, accounts,
accounts receivable, issues and profits of or derived from or
relating to the Mortgaged Property to the payment of the Debt;
(h) all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property, including, without
limitation, the right (subject to the provisions of the Credit
Agreement) to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the
Mortgaged Property; and
(i) the right to appear in and defend any action, case or
proceeding brought with respect to the Mortgaged Property and to
commence any action, case or proceeding to protect the interest of
Mortgagee in the Mortgaged Property.
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property unto and to the proper use and benefit of Mortgagee, and the successors
and assigns of Mortgagee, forever;
PROVIDED, HOWEVER, that if Mortgagor shall pay, perform and
discharge the obligations secured by the Mortgage, as modified by this
Amendment, in full, then the Mortgage, as modified by this Amendment and the
estate thereby and hereby granted shall cease, terminate and become void.
CLXXIII. Incorporation of First Amendment. All references in the
Mortgage to (i) the Credit Facility Notes shall be deemed to refer to the
Restated Credit Facility Notes and (ii) the Credit Agreement, the Credit
Facility Documents and the Credit Facility shall be deemed to refer to the
Credit Agreement and the Credit Facility Documents, as modified and amended by
the execution and delivery of the First Amendment, and to the Credit Facility,
as increased in the manner contemplated by the First Amendment.
CLXXIV. Prompt Recordation; Payment of Certain Fees and Expenses.
Mortgagor shall promptly cause this Amendment to be filed, registered or
recorded in such manner and in such places as may be required by any present or
future law in order to publish notice of and fully to protect the lien of the
Mortgage, as modified and amended pursuant to the provisions of this Amendment,
upon, and the interest of Mortgagee, in the Mortgaged Property. Mortgagor will
pay all filing, registration and recording fees, and all expenses incident to
the preparation, execution, acknowledgment and enforcement of this Amendment,
and all Federal, state, county and municipal taxes, documentary stamps,
intangible taxes, duties, imposts, assessments and charges arising out of or in
connection with the filing, registration, recording, execution and delivery of
this Amendment, and Mortgagor shall hold harmless and indemnify Mortgagee
against any liability incurred by reason of the imposition of any tax on the
issuance making, filing, registration or recording of this Amendment.
CLXXV. Not a Novation. This Amendment constitutes a modification of
the Credit Facility Documents, and is not intended to and shall not terminate or
extinguish any of the indebtedness or obligations under the Credit Facility
Notes, the Mortgage and the other Credit Facility Documents and shall not
constitute a novation of the original indebtedness or obligations under the
Credit Facility Notes, the Mortgage and the other Credit Facility Documents nor
shall this Amendment affect or impair in any manner whatsoever the attachment,
perfection and/or priority of any liens created thereby, it being the intention
of the parties hereto to carry forward all liens and security interests securing
payment of the Credit Facility Notes, which liens and interest are acknowledged
by Mortgagor to be valid and subsisting against the Mortgaged Property.
CLXXVI. Exculpation. No recourse shall be had for any obligation of
BRT under the Mortgage, as modified by this Amendment, or any of the other
Credit Facility Documents or for any claim based thereon or otherwise in respect
thereof, against any past, present or future trustee, shareholder, officer or
employee of BRT, 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 each other party to this Amendment and the
other Credit Facility Documents.
CLXXVII. No Offsets, etc. Mortgagor represents, warrants and
covenants that there are no offsets, counterclaims or defenses against the Debt,
the Credit Facility Notes, the Credit Agreement, the Mortgage or the Other
Credit Facility Documents.
CLXXVIII. Authorization. Mortgagor represents, warrants and
covenants that Mortgagor (and the undersigned representative of Mortgagor, if
any) has full power, authority and legal right to execute this Amendment and to
keep and observe all of the terms of this Amendment on Mortgagor's part to be
observed and performed.
CLXXIX. Counterparts. This Amendment may be executed in any number
of duplicate originals and each such duplicate original shall be deemed to
constitute but one and the same instrument.
CLXXX. Savings Clause. If any term, covenant or condition of this
Amendment shall be held to be invalid, illegal or unenforceable in any respect,
this Amendment shall be construed without such provision.
CLXXXI. Full Force and Effect. All of the terms, covenants and
conditions of the Mortgage shall, except as expressly modified and amended
pursuant to the provisions of this Amendment, remain in full force and effect.
CLXXXII. No Oral Modifications, etc. This Amendment may not be
modified, amended or terminated, except by an agreement in writing signed by the
parties hereto.
CLXXXIII. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
CLXXXIV. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the state in which the Premises are
located.
IN WITNESS WHEREOF, Mortgagor and Mortgagee have duly executed this
Amendment as of the day and year first above written.
BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership
By: Brandywine Realty Trust, a Maryland
real estate investment trust
By: /s/ Gerard H. Sweeney
----------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
NATIONSBANK, N.A., not individually but
acting in its capacity as administrative
and documentation agent for the equal and
ratable benefit of Co-Lenders
By: /s/ Cheryl D. Fitzgerald
---------------------------------
Name: Cheryl D. Fitzgerald
Title: Vice President
STATE OF _________)
) ss.:
COUNTY OF ________)
This instrument was acknowledged before me on July __, 1997, by
Gerard H. Sweeney, as the President and Chief Executive Officer of Brandywine
Realty Trust, a Maryland real estate investment trust, as the general partner of
Brandywine Operating Partnership, L.P., a Delaware limited partnership.
-----------------------------------
Notary Public
My Commission Expires:
STATE OF _________)
) ss.:
COUNTY OF ________)
This instrument was acknowledged before me on July __, 1997, by
Cheryl D. Fitzgerald, as a Vice President of NationsBank, N.A., a national
banking association.
---------------------------------
Notary Public
My Commission Expires:
EXHIBIT A
(Description of the Mortgage)
Mortgage: Mortgage dated as of November 25, 1996 given by Mortgagor to Mortgagee
and recorded on January 6, 1997 in Book 4452, page 0093 in the office of the
Recorder of Deeds of New Castle County, Delaware.
*EXHIBIT B
(Description of Premises)
- ----------
* Legal description of premises should include insurable description of any
easements which are appurtenant to the Premises.
EXHIBIT B-1
(Description of Ground Lease)
Ground Lease: The term "Ground Lease" as used in this Amendment shall mean,
collectively, the following:
That certain Ground Lease dated as of May 31, 1988 by and between
Woodlawn Trustees, Incorporated, a Delaware corporation, as ground lessor, and
Donahoe Wilmington Associates One Limited Partnership, a Delaware limited
partnership, as ground lessee, and recorded on June 3, 1988 in the Office of the
Recorder of Deeds for New Castle County, Delaware in Deed Book 711, Page 34.
The ground lessee's interest in the foregoing was assigned by that
certain Deed of Michael P. Walsh, Sheriff of New Castle County, Delaware, as
assignor, dated March 15, 1995 and given to New York Life Insurance and Annuity
Corporation, a Delaware corporation, as assignee, and recorded in the Office of
the Recorder of Deeds for New Castle County, Delaware in Deed Book 1895, Page
253.
The ground lessee's interest in the foregoing was further assigned
by that certain Assignment and Assumption Agreement dated as of June 29, 1995 by
and between New York Life Insurance and Annuity Corporation, a Delaware
corporation, as assignor, and KB Fund II, a Delaware general partnership, as
assignee, and recorded on July 14, 1995 in the Office of the Recorder of Deeds
for New Castle County, Delaware in Deed Book 1949, Page 301.
The ground lessee's interest in the foregoing was further assigned
by that certain Assignment and Assumption of Ground Lease dated December 2, 1996
by and between KB Fund II, a Delaware general partnership, as assignor, and
Mortgagor, as assignee and recorded on January 6, 1997 in the Office of the
Recorder of Deeds for New Castle County, Delaware in Deed Book 2219, Page 265.
Tax Parcel No. 06-040.00-007
PREPARED BY AND RETURN TO:
Dean A. Stiffle, Esq.
Battle Fowler LLP
Park Avenue Tower
75 East 55th Street
New York, New York 10022
================================================================================
Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, as Mortgagor
and
NationsBank, N.A., not individually
but acting in its capacity as administrative
and documentation agent for the equal and
ratable benefit of the co-lenders
described herein, as Mortgagee
--------------------------
AMENDMENT TO
MORTGAGE
--------------------------
Dated: As of July 15, 1997
Location: Delaware Corporate Center 1
New Castle County
Delaware
================================================================================
Exhibit F-1
Uniform Parcel Identifier: _______
OPEN-END MORTGAGE AND SECURITY AGREEMENT
(This Mortgage Secures Future Advances)
This Mortgage entered into as of the ___ day of July, 1997,
between Brandywine Operating Partnership, L.P., a Delaware limited
partnership having an office c/o Brandywine Realty Trust, Newtown
Square Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown
Square, Pennsylvania (hereinafter referred to as "Mortgagor"); and
NationsBank, N.A., a national banking association having an office
at 8300 Greensboro Drive, McLean, Virginia, not individually, but
acting in its capacity as administrative and documentation agent for
the equal and ratable benefit of Co-Lenders, pursuant to and in
accordance with the terms and provisions of the Credit Agreement
(NationsBank, N.A., acting in such capacity as administrative and
documentation agent being hereinafter referred to as "Mortgagee").
PRELIMINARY STATEMENT
A. All capitalized terms as used in this Mortgage shall, unless
otherwise defined in this Mortgage, have the meanings given to such terms in
Exhibit A attached hereto.
B. Mortgagor is the owner of a fee estate in the premises described
in Exhibit B attached hereto (hereinafter referred to as the "Premises").
C. Co-Lenders have on the terms, covenants and provisions set forth
in the Credit Agreement extended to Borrowers a revolving credit facility in the
principal sum of up to, but not in excess of, $150,000,000 (hereinafter referred
to as the "Credit Facility"), which Credit Facility is evidenced by, and payable
together with interest thereon in accordance with the provisions of, the Credit
Facility Notes.
D. Co-Lenders have approved the inclusion of the Premises and the
Improvements as part of the collateral pool for the Credit Facility in
accordance with the provisions of the Credit Agreement, and in connection
therewith, and as consideration therefor, Mortgagor has agreed to execute and
deliver this Mortgage to Mortgagee, as administrative and documentation agent
for the equal and ratable benefit of Co-Lenders, as security for the payment of
the Debt.
E. NOW, THEREFORE, to secure the payment of an indebtedness in the
principal sum of up to, but not in excess of, One Hundred Fifty Million and
00/100 Dollars ($150,000,000.00), lawful money of the United States of America,
or so much thereof as may be advanced and readvanced and be outstanding from
time to time in accordance with the provisions of the Credit Agreement, to be
paid with interest in accordance with the provisions of the Credit Facility
Notes and the Credit Agreement (said indebtedness, interest and any and all sums
which may or shall become due in accordance with the provisions of the Credit
Facility Documents being hereinafter collectively referred to as the "Debt"),
Mortgagor has mortgaged, created a security interest in, given, granted,
bargained, sold, aliened, enfeoffed, conveyed, confirmed and assigned, and by
these presents does mortgage, create a security interest in, give, grant,
bargain, sell, alien, enfeoff, convey, confirm and assign unto Mortgagee forever
all right, title and interest of Mortgagor now owned, or hereafter acquired, in
and to the following property, rights and interests (such property, rights and
interests being hereinafter collectively referred to as the "Mortgaged
Property"):
a. the Premises;
b. all buildings and improvements now or hereafter located on the
Premises (hereinafter referred collectively to as the "Improvements");
c. all of the estate, right, title, claim or demand of any nature
whatsoever of Mortgagor, either in law or in equity, in possession or
expectancy, in and to the Mortgaged Property or any part thereof;
d. all easements, rights-of-way, gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water rights and
powers, and all estates, rights, titles, interests, privileges, liberties,
tenements, hereditaments, and appurtenances of any nature whatsoever, in
any way belonging, relating or pertaining to the Mortgaged Property
(including, without limitation, any and all development rights, air rights
or similar or comparable rights of any nature whatsoever now or hereafter
appurtenant to the Premises or now or hereafter transferred to the
Premises) and all land lying in the bed of any street, road or avenue,
opened or proposed, in front of or adjoining the Premises to the center
line thereof;
e. all FF&E and the right, title and interest of Mortgagor in and to
any of the FF&E which may be subject to any security agreements (as
defined in the Uniform Commercial Code) superior in lien to the lien of
this Mortgage;
f. all awards or payments, including interest thereon, if any, and
the right to receive the same, which may be made with respect to the
Mortgaged Property, whether from the exercise of the right of eminent
domain (including any transfer made in lieu of the exercise of said
right), or for any other injury to or decrease in the value of the
Mortgaged Property;
g. all leases, licenses and other agreements affecting or relating
to the use or occupancy of the Mortgaged Property now or hereafter entered
into (such leases, licenses and other agreements are hereinafter
collectively referred to as the "Leases") and the right to receive and
apply the rents, income, revenues, receipts, accounts, accounts
receivable, issues and profits of or derived from or relating to the
Mortgaged Property (hereinafter collectively referred to as the "Rents")
to the payment of the Debt;
h. all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property, including, without limitation,
the right (subject to the provisions of the Credit Agreement) to receive
and apply the proceeds of any insurance, judgments, or settlements made in
lieu thereof, for damage to the Mortgaged Property; and
i. the right to appear in and defend any action, case or proceeding
brought with respect to the Mortgaged Property and to commence any action,
case or proceeding to protect the interest of Mortgagee in the Mortgaged
Property;
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property unto and to the proper use and benefit of Mortgagee, and the successors
and assigns of Mortgagee, forever;
PROVIDED, HOWEVER, that if Mortgagor shall pay, perform and
discharge the obligations secured hereby in full, then this Mortgage and the
estate hereby granted shall cease, terminate and become void.
AND Mortgagor covenants and agrees with and represents and warrants
to Mortgagee as follows:
CLXXXV. Payment of Debt. Mortgagor will pay the Debt at the time and
in the manner provided for its payment in the Credit Facility Documents.
CLXXXVI. Warranty of Title. Subject only to those exceptions to
title specifically set forth in the title policy issued or to be issued by the
Title Company to Mortgagee and insuring the lien of this Mortgage, Mortgagor
warrants the title to the Premises, the Improvements, the FF&E and the balance
of the Mortgaged Property.
CLXXXVII. Leases and Rents. Subject to the terms of this paragraph,
Mortgagee waives the right to enter the Mortgaged Property for the purpose of
collecting the Rents, and grants Mortgagor the right to collect the Rents.
Mortgagor shall collect and hold the Rents, or an amount sufficient to discharge
all current sums due on the Debt, in trust for use in payment of the Debt. The
right of Mortgagor to collect the Rents may be revoked by Mortgagee upon the
occurrence of any Event of Default by giving notice of such revocation to
Mortgagor. Following such notice and as long as such Event of Default is
continuing (it being understood that the decision whether or not to accept the
cure of an Event of Default shall be in the sole and absolute discretion of
Mortgagee), Mortgagee may retain and apply the Rents toward payment of the Debt
in such order, priority and proportions as Mortgagee, in
its discretion, shall deem proper, or to the operation, maintenance and repair
of the Mortgaged Property, and irrespective of whether Mortgagee shall have
commenced a foreclosure of this Mortgage or shall have applied or arranged for
the appointment of a receiver. In addition, Mortgagee shall have the absolute
and unconditional right following the occurrence and during the continuance of
an Event of Default to notify the tenants under the Leases that all Rents should
be paid directly to Mortgagee. In addition to the rights which Mortgagee may
have herein, if an Event of Default shall occur and shall be continuing
Mortgagee, at its option, may require Mortgagor to pay monthly in advance to
Mortgagee, or any receiver appointed to collect the Rents, the fair and
reasonable rental value for the use and occupation of such part of the Mortgaged
Property as may be in possession of Mortgagor. Upon default in any such payment,
Mortgagor will vacate and surrender possession of the Mortgaged Property to
Mortgagee, or to such receiver and, in default thereof, Mortgagor may be evicted
by summary proceedings or otherwise. Nothing contained in this paragraph shall
be construed as imposing on Mortgagee any of the obligations of the landlord
under the Leases.
CLXXXVIII. Notice. Any notice, request, demand, statement,
authorization, approval or consent made hereunder shall be in writing and shall
be sent by Federal Express, or other reputable national courier service, or by
postage pre-paid registered or certified mail, return receipt requested, and
shall be deemed given (i) when received at the following addresses if sent by
Federal Express, or other reputable national courier service, and (ii) three (3)
business days after being postmarked and addressed as follows if sent by
registered or certified mail, return receipt requested:
If to Mortgagor:
c/o Brandywine Realty Trust
Newtown Square Corporate Campus
16 Campus Boulevard, Suite 150
Newtown Square, Pennsylvania 19073
Attention: Gerard H. Sweeney
President and Chief Executive Officer
With a copy to:
Pepper, Hamilton & Scheetz
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, Pennsylvania 19103-2799
Attention: Michael H. Friedman, Esq.
If to Mortgagee:
NationsBank, N.A.
Real Estate Banking
8300 Greensboro Drive
McLean, Virginia 22102-3604
Attention: Cheryl D. Fitzgerald
Vice President
With copies to:
Cadwalader, Wickersham & Taft
201 South College Street - Suite 1510
Charlotte, North Carolina 28244
Attention: James P. Carroll, Esq.
and
Battle Fowler LLP
Park Avenue Tower
75 East 55th Street
New York, New York 10022
Attention: Dean A. Stiffle, Esq.
Each party may designate a change of address by notice to the other party, given
at least fifteen (15) days before such change of address is to become effective.
CLXXXIX. Sale of Mortgaged Property. If this Mortgage is foreclosed,
the Mortgaged Property, or any interest therein, may, at the discretion of
Mortgagee, be sold in one or more parcels or in several interests or portions
and in any order or manner.
CXC. Changes in Laws Regarding Taxation. In the event of the passage
after the date of this Mortgage of any law of the State in which the
Premises are located deducting from the value of real property for the purpose
of taxation any lien or encumbrance thereon or changing in any way the laws for
the taxation of mortgages or debts secured by mortgages for state or local
purposes or the manner of the collection of any such taxes, and imposing a tax,
either directly or indirectly, on this Mortgage, the Credit Facility Notes or
the Debt, Mortgagor shall, if permitted by law, pay any tax imposed as a result
of any such law within the statutory period or within thirty (30) days after
demand by Mortgagee, whichever is less, provided, however, that if, in the
opinion of the attorneys for Mortgagee, Mortgagor is not permitted by law to pay
such taxes, Mortgagee shall have the right, at its option, to declare the Debt
due and payable on a date specified in a prior notice to Mortgagor of not less
than sixty (60) days.
CXCI. No Credits on Account of the Debt. Mortgagor will not claim or
demand or be entitled to any credit or credits on account of the Debt for any
part of the Taxes assessed against the Mortgaged Property or any part thereof
and no deduction shall otherwise be made or claimed from the taxable value of
the Mortgaged Property, or any part thereof, by reason of this Mortgage or the
Debt.
CXCII. Documentary Stamps. If at any time the United States of
America, any state thereof, or any governmental subdivision of any such state,
shall require revenue or other stamps to be affixed to the Credit Facility Notes
(or any of them), this Mortgage or any of the other Credit Facility Documents,
Mortgagor will, to the extent permitted by law, pay for the same, with interest
and penalties thereon, if any.
CXCIII. Events of Default. The Debt shall become due at the option
of Mortgagee upon the occurrence of any one or more of the Events of Default.
CXCIV. Certain Remedies. Following the occurrence of any Event of
Default, Mortgagee shall have all rights and remedies provided pursuant to the
Credit Facility Documents, at law and in equity.
A. Without limiting the generality of the foregoing, Mortgagee may:
1. Entry. Enter and take possession of Mortgaged Property or
any part thereof, exclude Mortgagee and/or any lessee of any portion
of the Mortgaged Property and all persons claiming under them wholly
or partly therefrom, and operate, use, manage and control the same,
or cause the same to be operated by a person selected by Mortgagee,
either in the name of Mortgagor or otherwise, and upon such entry,
from time to time, at the expense of Mortgagor, make all such
repairs, replacements, alterations, additions or improvements
thereto as Mortgagee may deem proper, and collect and receive the
income therefrom and apply the same to the payment of all expenses
which Mortgagee may be authorized to incur under the provisions of
this Mortgage and the other Credit Facility Documents and applicable
law, the remainder to be applied to the payment, performance and
discharge of the obligations
secured hereby in such order, priority and proportion as Mortgagee
may determine in the exercise of its sole and absolute discretion
until the same have been paid in full.
2. Foreclosure. Institute an action for the foreclosure of
this Mortgage and the sale of the Mortgaged Property pursuant to the
judgment or decree of a court of competent jurisdiction.
3. Sale. Sell the Mortgaged Property at foreclosure to the
highest bidder or bidders at public auction at sales held at such
places and times and upon such notice and otherwise in such manner
as may be required by law, or in the absence of any such
requirement, as Mortgagee may deem appropriate, and from time to
time adjourn such sale by announcement at the time and place
specified for such sale or for such adjourned sale without further
notice.
4. Specific Performance. Take all steps to protect and enforce
the rights of Mortgagee under this Mortgage by suit for specific
performance of any covenant herein contained, or in aid of the
execution of any power herein granted or for the enforcement of any
other rights.
B. If Mortgagor fails or refuses to surrender possession of the
Mortgaged Property after any sale thereof, Mortgagor shall be deemed a
tenant at sufferance, subject to eviction by means of forcible entry and
detainer proceedings, provided that this remedy is not exclusive or in
derogation of any other right or remedy available to Mortgagee or any
purchaser of the Mortgaged Property under any provision of this Mortgage
or pursuant to any judgment or decree of court.
C. FOR THE PURPOSES OF THE REMEDIES AFFORDED MORTGAGEE IN THIS
MORTGAGE, MORTGAGOR HEREBY AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD
TO APPEAR FOR IT TO SIGN AN AGREEMENT FOR ENTERING AN AMICABLE ACTION OF
EJECTMENT FOR POSSESSION OF ANY OF THE MORTGAGED PROPERTY AND TO CONFESS
JUDGMENT THEREON AGAINST MORTGAGOR IN FAVOR OF MORTGAGEE, WHEREUPON A WRIT
MAY FORTHWITH ISSUE FOR THE IMMEDIATE POSSESSION OF ANY OF THE MORTGAGED
PROPERTY, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER; AND FOR SO
DOING, THIS MORTGAGE OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE A
SUFFICIENT WARRANT.
D. Mortgagor hereby waives and releases all procedural errors,
defects and imperfections in any proceedings instituted by Mortgagee under
this Mortgage except for required notices under this Mortgage.
CXCV. Appointment of Receiver. Mortgagee, in any action to foreclose
this Mortgage or upon the actual or threatened waste to any part of the
Mortgaged Property or upon the occurrence of any Event of Default, shall be at
liberty, without notice, to apply for the appointment of a receiver of the
Rents, and shall be entitled to the appointment of such receiver as a matter of
right, without regard to the value of the Mortgaged Property as
security for the Debt, or the solvency or insolvency of any person then liable
for the payment of the Debt.
CXCVI. Non-Waiver. The failure of Mortgagee to insist upon strict
performance of any term of this Mortgage shall not be deemed to be a waiver of
any term of this Mortgage. Mortgagor shall not be relieved of Mortgagor's
obligation to pay the Debt at the time and in the manner provided for its
payment in the Credit Facility Documents by reason of (i) failure of Mortgagee
to comply with any request of Mortgagor to take any action to foreclose this
Mortgage or any other mortgage or deed of trust securing the Debt or any portion
thereof or otherwise enforce any of the provisions of this Mortgage or any of
the other Credit Facility Documents, (ii) the release, regardless of
consideration, of the whole or any part of the Mortgaged Property or any other
security for the Debt, or (iii) any agreement or stipulation between Mortgagee
and any subsequent owner or owners of the Mortgaged Property or other person
extending the time of payment or otherwise modifying or supplementing the terms
of the Credit Facility Documents without first having obtained the consent of
Mortgagor, and in the latter event, Mortgagor shall continue to be obligated to
pay the Debt at the times and in the manner provided in the Credit Facility
Documents, as so extended, modified and supplemented, unless expressly released
and discharged from such obligation by Mortgagee in writing. Regardless of
consideration, and without the necessity for any notice to or consent by the
holder of any subordinate lien, encumbrance, right, title or interest in or to
the Mortgaged Property, Mortgagee may release any person at any time liable for
the payment of the Debt or any portion thereof or any part of the security held
for the Debt and may extend the time of payment of the Debt or otherwise modify
the terms of the Credit Facility Documents, including, without limitation, a
modification of the interest rate payable on the Principal Balance of the Credit
Facility Notes, without in any manner impairing or affecting this Mortgage or
the lien thereof or the priority of this Mortgage, as so extended and modified,
as security for the Debt over any such subordinate lien, encumbrance, right,
title or interest. Mortgagee may resort for the payment of the Debt to any other
security held by Mortgagee in such order and manner as Mortgagee, in its
discretion, may elect. Mortgagee may take action to recover the Debt, or any
portion thereof, or to enforce any covenant hereof without prejudice to the
right of Mortgagee thereafter to foreclose this Mortgage. Mortgagee shall not be
limited exclusively to the rights and remedies herein stated but shall be
entitled to every additional right and remedy set forth in the Credit Facility
Documents or now or hereafter afforded by law. The rights of Mortgagee under
this Mortgage and the other Credit Facility Documents shall be separate,
distinct and cumulative and none shall be given effect to the exclusion of the
others. No act of Mortgagee shall be construed as an election to proceed under
any one provision of this Mortgage or of the other Credit Facility Documents to
the exclusion of any other provision set forth in this Mortgage or the other
Credit Facility Documents.
CXCVII. Construction. The terms of this Mortgage shall be construed
in accordance with the laws of the State in which the Premises are located.
CXCVIII. Security Agreement. This Mortgage constitutes both a real
property mortgage and a "security agreement", within the meaning of the Uniform
Commercial Code, and the Mortgaged Property includes both real and personal
property and all other rights and interest, whether tangible or intangible in
nature, of Mortgagor in the Mortgaged Property. This Mortgage secures, and the
obligations secured hereby include, future advances. All advances and
indebtedness arising and accruing from time to time under the Credit Facility
shall be secured hereby to the same extent as though the Credit Agreement and
the other Credit Facility Documents were fully incorporated in this Mortgage.
Under the Credit Agreement and the other Credit Facility Documents advances may
be made and indebtedness may be incurred from time to time hereafter, but each
such advance or indebtedness shall be secured hereby as if made on the date
hereof. Mortgagor by executing and delivering this Mortgage has granted to
Mortgagee, as security for the Debt, a security interest in the Mortgaged
Property, including, without limitation, FF&E. This Mortgage constitutes and is
effective as a fixture filing as provided in Section 402 of Division 9 of the
Uniform Commercial Code, as to those portions of the Mortgaged Property are or
are to become fixtures as defined in the Uniform Commercial Code. If an Event of
Default shall occur, Mortgagee, in addition to any other rights and remedies
which it may have, shall have and may exercise immediately and without demand
any and all rights and remedies granted to a secured party upon default under
the Uniform Commercial Code, including, without limiting the generality of the
foregoing, the right to take possession of the FF&E or any part thereof, and to
take such other measures as Mortgagee may deem necessary for the care,
protection and preservation of the FF&E. Mortgagor shall pay to Mortgagee on
demand any and all expenses (including reasonable attorneys' fees) actually
incurred or paid by Mortgagee in protecting its interest in the FF&E and in
enforcing its rights hereunder with respect to the FF&E. Any notice of sale,
disposition or other intended action by Mortgagee with respect to the FF&E sent
to Mortgagor in accordance with the provisions of this Mortgage at least seven
(7) business days prior to the date of any such sale, disposition or other
action, shall constitute reasonable notice to Mortgagor (except in the case of
FF&E which is perishable or is of a type customarily sold on a recognized
market, in which case such seven (7) business days' notice shall not be
required), and the method of sale or disposition or other intended action set
forth or specified in such notice shall conclusively be deemed to be
commercially reasonable within the meaning of the Uniform Commercial Code unless
objected to in writing by Mortgagor within five (5) days after receipt by
Mortgagor of such notice. The proceeds of any sale or disposition of the FF&E,
or any part thereof, may be applied by Mortgagee to the payment of the Debt in
such order, priority and proportions as Mortgagee in its discretion shall deem
proper.
CXCIX. Further Acts, etc. Mortgagor will, at the cost of Mortgagor,
and without expense to Mortgagee, do, execute, acknowledge and deliver all and
every such further acts, deeds, conveyances, mortgages, assignments, notices of
assignments, transfers and assurances as Mortgagee shall, from time to time,
require for the better assuring, conveying, assigning, transferring and
confirming unto Mortgagee the property and rights hereby mortgaged or intended
now or hereafter so to be, or which Mortgagor may be or may hereafter become
bound to convey or assign to Mortgagee, or for
carrying out the intention or facilitating the performance of the terms of this
Mortgage or for filing, registering or recording this Mortgage and, on demand,
will execute and deliver and hereby authorizes Mortgagee to execute in the name
of Mortgagor to the extent Mortgagee may lawfully do so, one or more financing
statements, chattel mortgages or comparable security instruments, to evidence
more effectively the lien hereof upon the Mortgaged Property.
CC. Headings, etc. The headings, titles and captions of various
paragraphs of this Mortgage are for convenience of reference only and are not to
be construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
CCI. Filing of Mortgage, etc. Mortgagor forthwith upon the execution
and delivery of this Mortgage and thereafter, from time to time, will cause this
Mortgage, and any security instrument creating a lien or evidencing the lien
hereof upon the Mortgaged Property and each instrument of further assurance to
be filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect, preserve and perfect the lien hereof upon, and the interest of
Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing,
registration and recording fees, and all expenses incident to the preparation,
execution and acknowledgement of this Mortgage, any mortgage supplemental
hereto, any security instrument with respect to the Mortgaged Property, and any
instrument of further assurance, and all Federal, state, county and municipal
taxes, duties, imposts, assessments and charges arising out of or in connection
with the execution and delivery of this Mortgage, any mortgage supplemental
hereto, any security instrument with respect to the Mortgaged Property or any
instrument of further assurance. Mortgagor shall hold harmless and indemnify
Mortgagee, its successors and assigns, against any liability incurred by reason
of the imposition of any tax on the making and recording of this Mortgage.
CCII. Recovery of Sums Required To Be Paid. Mortgagee shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Mortgagee thereafter to bring an action of foreclosure, or any other action,
for a default or defaults by Mortgagor existing at the time such earlier action
was commenced.
CCIII. Actions, Cases and Proceedings. Mortgagee shall have the
right to appear in and defend any action, case or proceeding brought with
respect to the Mortgaged Property and to bring any action, case or proceeding,
which Mortgagee, in its discretion, feels should be brought to protect its
interest in the Mortgaged Property.
CCIV. Inapplicable Provisions. If any term, covenant or condition of
this Mortgage shall be held to be invalid, illegal or unenforceable in any
respect, this Mortgage shall be construed without such provision.
CCV. Duplicate Originals. This Mortgage may be executed in any
number of duplicate originals and each such duplicate original shall be deemed
to constitute but one and the same instrument.
CCVI. Certain Usage. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Mortgage shall be used interchangeably in singular or plural form. Whenever the
context may require, any pronouns used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular forms of nouns and
pronouns shall include the plural and vice versa.
CCVII. Waiver of Notice. Mortgagor shall not be entitled to any
notices of any nature whatsoever from Mortgagee except with respect to matters
for which this Mortgage specifically and expressly provides for the giving of
notice by Mortgagee to Mortgagor, and Mortgagor (to the full extent it may
lawfully do so) hereby expressly waives the right to receive any notice from
Mortgagee with respect to any matter for which this Mortgage does not
specifically and expressly provide for the giving of notice by Mortgagee to
Mortgagor.
CCVIII. No Oral Change. This Mortgage may only be modified, amended
or changed by an agreement in writing signed by Mortgagor and Mortgagee, and may
only be released, discharged or satisfied of record by an agreement in writing
signed by Mortgagee. No waiver of any term, covenant or provision of this
Mortgage shall be effective unless given in writing by Mortgagee and if so given
by Mortgagee shall only be effective in the specific instance in which given.
CCIX. Waiver of Statutory Rights. Mortgagor shall not and will not
apply for or avail itself of any appraisement, valuation, stay, extension or
exemption laws, or any so-called "Moratorium Laws", now existing or hereafter
enacted, in order to prevent or hinder the enforcement or foreclosure of this
Mortgage, but hereby waives the benefit of such laws to the full extent that
Mortgagor may do so under applicable law. Mortgagor for itself and all who may
claim through or under it waives any and all right to have the property and
estates comprising the Mortgaged Property marshalled upon any foreclosure of the
lien of this Mortgage and agrees that any court having jurisdiction to foreclose
such lien may order the Mortgaged Property sold as an entirety. Mortgagor hereby
waives for itself and all who may claim through or under it, and to the full
extent Mortgagor may do so under applicable law, any and all rights of
redemption from sale under any order or decree of foreclosure of this Mortgage
or granted under any statute now existing or hereafter enacted.
CCX. Credit Agreement. This Mortgage is subject to all of the terms,
covenants and conditions of the Credit Agreement, which Credit Agreement and all
of the terms, covenants and conditions thereof are by this reference
incorporated herein with the same force and effect as if fully set forth herein.
The proceeds of the Credit Facility secured hereby are to be advanced and
readvanced by Mortgagee to Mortgagor in accordance with the provisions of the
Credit Agreement. Mortgagor shall observe and perform all of the terms,
covenants and conditions of the Credit Agreement on Mortgagor's
part to be observed or performed. All advances (including future advances) made
and all indebtedness arising and accruing under the Credit Agreement from time
to time shall constitute part of the Debt and shall be secured hereby as if made
on the date hereof.
CCXI. Revolving Credit Facility. The Credit Facility is intended to
be a revolving credit facility. Mortgagor shall have the right upon compliance
with the conditions of the Credit Agreement and the other Credit Facility
Documents which pertain to the making of advances under the Credit Facility
(including, without limitation, the requirement that all advances be evidenced
and secured by the Credit Facility Documents and insured under acceptable title
insurance policies) to obtain readvances of amounts from time to time applied
(whether on a mandatory or voluntary basis) in reduction of the outstanding
Principal Balance of the Credit Facility pursuant to the provisions of the
Credit Agreement, or otherwise permitted to be made in accordance with the
provisions of the Credit Agreement or the other Credit Facility Documents
(including, without limitation, any portion of the outstanding Principal Balance
of the Credit Facility which is prepaid in accordance with the provisions of the
Credit Facility Notes and the Credit Agreement).
CCXII. Binding Effect. The terms, covenants and provisions of this
Mortgage shall be binding on and shall inure to the benefit of Mortgagor,
Mortgagee, and their respective successors and assigns.
CCXIII. Exculpation. No recourse shall be had for any obligation of
BRT under this Mortgage or any of the other Credit Facility Documents or for any
claim based thereon or otherwise in respect thereof, against any past, present
or future trustee, shareholder, officer or employee of BRT, 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 each
other party to this Mortgage and the other Credit Facility Documents.
CCXIV. Open-End Mortgage. This Mortgage is an open-end mortgage
securing future advances pursuant to 42 Pa. C.S.A. ss.8143. Without limiting the
foregoing or any other provision of this Mortgage, this Mortgage secures, inter
alia, present and future advances of the Credit Facility made by Co-Lenders or
Mortgagee pursuant to the Credit Agreement and/or the other Credit Facility
Documents; advances made by Mortgagee or Co-Lenders with respect to the
Mortgaged Premises for the payment of taxes, assessments, maintenance charges,
insurance premiums or costs incurred for the protection of the Mortgaged
Premises or the lien of this Mortgage; and expenses incurred by Mortgagee or
Co-Lenders by reason of the occurrence of an Event of Default. The priority of
such future advances and expenses shall relate back to the date of this
Mortgage, or to such later date as required by applicable law, regardless of the
date upon which such advances are made or such expenses are incurred. If the
Credit Facility Documents provide that any advances of the Credit Facility shall
be made by Co-Lenders upon completion by Mortgagor of certain performance
obligations under the Credit Agreement and/or the other Credit Facility
Documents (including, without limitation, compliance with the terms of the
Credit Agreement and/or the other Credit Facility Documents such
that no default or Event of Default shall have occurred), such advances of the
Credit Facility shall be and be deemed "obligatory advances" solely for the
purpose of the application of the obligatory advance doctrine to confirm the
lien priority of such advances of the Credit Facility actually made by
Co-Lenders, whether such advances of the Credit Facility are initially either
(1) advanced by Co-Lenders or Mortgagee into an escrow subject to Mortgagee's or
Co-Lenders' control or (2) retained by Co-Lenders or Mortgagee.
IN WITNESS WHEREOF, Mortgagor has duly executed and delivered this
Mortgage as of the day and year first above written.
BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership
By: Brandywine Realty Trust, a Maryland
real estate investment trust
By: /s/ Gerard H. Sweeney
----------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
Certificate of Residence of the Mortgagee
The business address of the Mortgagee herein is 8300 Greensboro
Drive, McLean, Virginia 22102-3604.
----------------------------
Agent/Attorney for Mortgagee
STATE OF _________)
) ss:
COUNTY OF ________)
On this, the ____ day of July, 1997, before me, a Notary Public, the
undersigned officer, personally appeared Gerard H. Sweeney, the President and
Chief Executive Officer of Brandywine Realty Trust, a Maryland real estate
investment trust, as general partner of Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument, and acknowledged that
he executed the same on behalf of the trust as general partner of the limited
partnership in the capacity therein stated and for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and Notarial seal.
-------------------------
Notary Public
[SEAL]
My Commission Expires:
EXHIBIT A
(Definitions)
BMS: The term "BMS" as used in this Mortgage shall mean Brandywine-Main
Street, LLC, a Delaware limited liability company.
BOP: The term "BOP" as used in this Mortgage shall mean Brandywine Operating
Partnership, L.P., a Delaware limited partnership.
Borrowers: The term "Borrowers" as used in this Mortgage shall collectively
mean BRT, BOP, BMS and the BRT/BOP Limited Partnerships.
BRT: The term "BRT" as used in this Mortgage shall mean Brandywine Realty
Trust, a Maryland real estate investment trust.
BRT/BOP Limited Partnerships: The term "BRT/BOP Limited Partnerships" as used in
this Mortgage shall collectively mean LC/N Horsham Limited Partnership, a
Pennsylvania limited partnership; LC/N Keith Valley Limited Partnership I, a
Pennsylvania limited partnership; Nichols Lansdale Limited Partnership III, a
Pennsylvania limited partnership; Newtech III Limited Partnership, a
Pennsylvania limited partnership; Newtech IV Limited Partnership, a Pennsylvania
limited partnership; C/N Oaklands Limited Partnership I, a Pennsylvania limited
partnership; Fifteen Horsham, L.P., a Pennsylvania limited partnership; C/N
Leedom Limited Partnership II, a Pennsylvania limited partnership; C/N Iron Run
Limited Partnership III, a Pennsylvania limited partnership.
Co-Lenders: The term "Co-Lenders" as used in this Mortgage shall mean,
collectively, Smith Barney, NB The First National Bank of Chicago, a national
banking association, Mellon Bank, N.A., a national banking association, PNC
Bank, National Association, a national banking association, Signet Bank, a
____________________, Summit Bank, a ___________________ state banking
association, and all other parties from time to time to whom direct interests in
the Credit Facility are sold, transferred and assigned, and who are as a result
thereof designated as Co-Lenders, under and pursuant to the provisions of the
Credit Agreement and the Co-Lenders Agreement.
Co-Lenders Agreement: The term "Co-Lenders Agreement" as used in this Mortgage
shall mean that certain Co-Lender and Servicing Agreement dated as of November
25, 1996 between Smith Barney and NB, in its individual capacity and in its
capacity as administrative and documentation agent for the Credit Facility, as
the same may be modified, amended or supplemented from time to time.
Credit Agreement: The term "Credit Agreement" as used in this Mortgage shall
mean that certain Revolving Credit Agreement dated as of November 25, 1996 among
Smith Barney, NationsBank, N.A., in its individual capacity, Borrowers and NB,
acting in its capacity as administrative and documentation agent for the Credit
Facility, as the same may be amended from time to time, and
pursuant to the provisions of which the Credit Facility is being extended by
Co-Lenders to Mortgagor.
Credit Facility: The term "Credit Facility" as used in this Mortgage shall have
the meaning given to such term in paragraph C of the Preliminary Statement of
this Mortgage.
Credit Facility Documents: The term "Credit Facility Documents" as used in this
Mortgage shall have the meaning given to such term in the Credit Agreement.
Credit Facility Notes: The term "Credit Facility Notes" as used in this Mortgage
shall have the meaning given to such term in the Credit Agreement.
Debt: The term "Debt" as used in this Mortgage shall have the meaning given to
such term in paragraph E of the Preliminary Statement of this Mortgage.
Default Rate: The term "Default Rate" as used in this Mortgage shall have
the meaning given to such term in the Credit Agreement.
Events of Default: The term "Events of Default" as used in this Mortgage shall
have the meaning given to such term in the Credit Agreement.
FF&E: The term "FF&E" as used in this Mortgage shall mean, collectively, all
goods (as such term is defined in the Uniform Commercial Code), now owned or
hereafter acquired by Mortgagor, located at or used in connection with the
Improvements and the operation of the Improvements, including, without
limitation, (i) all furniture and furnishings and all other items of personal
property (including inventory now owned or hereafter acquired by Mortgagor) now
and hereafter located on, or used in connection with the operation of the
Improvements, together with all replacements, modifications, alterations and
additions thereto; and (ii) all equipment, fixtures, machinery and other items
of property required or incidental to the use of the Improvements, including all
components thereof, now and hereafter permanently affixed to or incorporated
into the Improvements, including, without limitation, all furnaces, boilers,
heaters, electrical equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste, disposal,
air-cooling and air conditioning systems and apparatus, sprinkler systems and
fire and theft protection equipment, together with all replacements,
modifications, alterations and additions thereto.
Improvements: The term "Improvements" as used in this Mortgage shall have
the meaning given to such term in the granting clause of this Mortgage.
Leases: The terms "Leases" as used in this Mortgage shall have the meaning
given to such term in the granting clause of this Mortgage.
Principal Balance: The term "Principal Balance" as used in this Mortgage
shall have the meaning given to such term in the Credit Agreement.
Mortgaged Property: The term "Mortgaged Property" as used in this Mortgage shall
have the meaning given to such term in the granting clause of this Mortgage.
Mortgagee: The term "Mortgagee" as used in this Mortgage shall have the
meaning given to such term in the preamble to this Mortgage.
Mortgagor: The term "Mortgagor" as used in this Mortgage shall have the
meaning given to such term in the preamble to this Mortgage.
NB: The term "NB" as used in this Mortgage shall mean NationsBank, N.A., a
national banking association.
Premises: The term "Premises" as used in this Mortgage shall have the meaning
given to such term in paragraph B of the Preliminary Statement of this Mortgage.
Rents: The term "Rents" as used in this Mortgage shall have the meaning
given to such term in the granting clause of this Mortgage.
Smith Barney: The term "Smith Barney" as used in this Mortgage shall mean
Smith Barney Mortgage Capital Group, Inc., a Delaware corporation.
Taxes: The term "Taxes" as used in this Mortgage shall have the meaning
given to such term in the Credit Agreement.
Title Company: The term "Title Company" as used in this Mortgage shall have
the meaning given to such term in the Credit Agreement.
Uniform Commercial Code: The term "Uniform Commercial Code" as used in this
Mortgage shall mean the Uniform Commercial Code of the State in which the
Premises are located.
*EXHIBIT B
(Description of Premises)
- --------------
* Legal description of premises should include insurable description of
any easements which are appurtenant to the Premises.
================================================================================
Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, as Mortgagor
to
NationsBank, N.A., not individually
but acting in its capacity as administrative
and documentation agent for the equal and
ratable benefit of the co-lenders
described herein, as Mortgagee
--------------------------
OPEN-END MORTGAGE AND SECURITY AGREEMENT
(This Mortgage Secures Future Advances)
--------------------------
Dated: As of July __, 1997
Location: __________________
__________________
__________________
RECORD AND RETURN TO:
Battle Fowler LLP
Park Avenue Tower
75 East 55th Street
New York, New York 10022
Attention: Dean A. Stiffle, Esq.
Uniform Parcel Identifier: _______
================================================================================
Master Pennsylvania Mortgage
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Page
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1. Payment of Debt........................................................ 3
2. Warranty of Title...................................................... 3
3. Leases and Rents....................................................... 3
4. Notice................................................................. 4
5. Sale of Mortgaged Property............................................. 5
6. Changes in Laws Regarding Taxation..................................... 5
7. No Credits on Account of the Debt...................................... 5
8. Documentary Stamps..................................................... 5
9. Events of Default...................................................... 7
10. Certain Remedies....................................................... 7
11. Appointment of Receiver............................................... 8
12. Non-Waiver............................................................ 8
13. Construction.......................................................... 9
14. Security Agreement.................................................... 9
15. Further Acts, etc..................................................... 9
16. Headings, etc......................................................... 10
17. Filing of Mortgage, etc............................................... 10
18. Recovery of Sums Required To Be Paid.................................. 10
19. Actions, Cases and Proceedings........................................ 10
20. Inapplicable Provisions............................................... 10
21. Duplicate Originals................................................... 10
22. Certain Usage......................................................... 10
23. Waiver of Notice...................................................... 10
24. No Oral Change........................................................ 11
25. Waiver of Statutory Rights............................................ 11
26. Credit Agreement...................................................... 11
27. Revolving Credit Facility............................................. 11
28. Binding Effect........................................................ 11
29. Exculpation........................................................... 11
30. Open-End Mortgage..................................................... 12
ACKNOWLEDGEMNT
EXHIBIT A - (Definitions)
EXHIBIT
Exhibit F-2
MORTGAGE
This Mortgage entered into as of the ___ day of July, 1997,
between Brandywine Operating Partnership, L.P., a Delaware limited
partnership having an office c/o Brandywine Realty Trust, Newtown Square
Corporate Campus, 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania (hereinafter referred to as "Mortgagor"); and NationsBank,
N.A., a national banking association having an office at 8300 Greensboro
Drive, McLean, Virginia, not individually, but acting in its capacity as
administrative and documentation agent for the equal and ratable benefit
of Co-Lenders, pursuant to and in accordance with the terms and provisions
of the Credit Agreement (NationsBank, N.A., acting in such capacity as
administrative and documentation agent being hereinafter referred to as
"Mortgagee").
PRELIMINARY STATEMENT
A. All capitalized terms as used in this Mortgage shall, unless
otherwise defined in this Mortgage, have the meanings given to such terms in
Exhibit A attached hereto.
B. Mortgagor is the owner of a fee estate in the premises described
in Exhibit B attached hereto (hereinafter referred to as the "Premises").
C. Co-Lenders have on the terms, covenants and provisions set forth
in the Credit Agreement extended to Borrowers a revolving credit facility in the
principal sum of up to, but not in excess of, $150,000,000 (hereinafter referred
to as the "Credit Facility"), which Credit Facility is evidenced by, and payable
together with interest thereon in accordance with the provisions of, the Credit
Facility Notes.
D. Co-Lenders have approved the inclusion of the Premises and the
Improvements as part of the collateral pool for the Credit Facility in
accordance with the provisions of the Credit Agreement, and in connection
therewith, and as consideration therefor, Mortgagor has agreed to execute and
deliver this Mortgage to Mortgagee, as administrative and documentation agent
for the equal and ratable benefit of Co-Lenders, as security for the payment of
the Debt.
E. NOW, THEREFORE, to secure the payment of an indebtedness in the
principal sum of up to, but not in excess of, One Hundred Fifty Million and
00/100 Dollars ($150,000,000.00), lawful money of the United States of America,
or so much thereof as may be advanced and readvanced and be outstanding from
time to time in accordance with the provisions of the Credit Agreement, to be
paid with interest in accordance with the provisions of the Credit Facility
Notes and the Credit Agreement (said indebtedness, interest and any and all sums
which may or shall become due in accordance with the provisions of the Credit
Facility Documents being hereinafter collectively referred to as the "Debt"),
Mortgagor has mortgaged, given, granted, bargained, sold, aliened, enfeoffed,
conveyed, confirmed and assigned, and by these presents does mortgage, give,
grant, bargain, sell, alien, enfeoff, convey, confirm and assign unto Mortgagee
forever all right, title and interest of Mortgagor now owned, or hereafter
acquired, in and to the following property, rights and interests (such property,
rights and interests being hereinafter collectively referred to as the
"Mortgaged Property"):
(i) the Premises;
(ii) all buildings and improvements now or hereafter located on the
Premises (hereinafter referred collectively to as the "Improvements");
(iii) all of the estate, right, title, claim or demand of any nature
whatsoever of Mortgagor, either in law or in equity, in possession or
expectancy, in and to the Mortgaged Property or any part thereof;
(iv) all easements, rights-of-way, gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water rights and
powers, and all estates, rights, titles, interests, privileges, liberties,
tenements, hereditaments, and appurtenances of any nature whatsoever, in
any way belonging, relating or pertaining to the Mortgaged Property
(including, without limitation, any and all development rights, air rights
or similar or comparable rights of any nature whatsoever now or hereafter
appurtenant to the Premises or now or hereafter transferred to the
Premises) and all land lying in the bed of any street, road or avenue,
opened or proposed, in front of or adjoining the Premises to the center
line thereof;
(v) all FF&E and the right, title and interest of Mortgagor in and
to any of the FF&E which may be subject to any security agreements (as
defined in the Uniform Commercial Code) superior in lien to the lien of
this Mortgage;
(vi) all awards or payments, including interest thereon, if any, and
the right to receive the same, which may be made with respect to the
Mortgaged Property, whether from the exercise of the right of eminent
domain (including any transfer made in lieu of the exercise of said
right), or for any other injury to or decrease in the value of the
Mortgaged Property;
(vii) all leases, licenses and other agreements affecting or
relating to the use or occupancy of the Mortgaged Property now or
hereafter entered into (such leases, licenses and other agreements are
hereinafter collectively referred to as the "Leases") and the right to
receive and apply the rents, income, revenues, receipts, accounts,
accounts receivable, issues and profits of or derived from or relating to
the Mortgaged Property (hereinafter collectively referred to as the
"Rents") to the payment of the Debt;
(viii) all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property, including, without limitation,
the right (subject to the provisions of the Credit Agreement) to receive
and apply the proceeds of any insurance, judgments, or settlements made in
lieu thereof, for damage to the Mortgaged Property; and
(ix) the right to appear in and defend any action, case or
proceeding brought with respect to the Mortgaged Property and to commence
any action, case or proceeding to protect the interest of Mortgagee in the
Mortgaged Property;
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property unto and to the proper use and benefit of Mortgagee, and the successors
and assigns of Mortgagee, forever;
AND Mortgagor covenants and agrees with and represents and warrants
to Mortgagee as follows:
CCXV. Payment of Debt. Mortgagor will pay the Debt at the time and
in the manner provided for its payment in the Credit Facility Documents.
CCXVI. Warranty of Title. Subject only to those exceptions to title
specifically set forth in the title policy issued or to be issued by the Title
Company to Mortgagee and insuring the lien of this Mortgage, Mortgagor warrants
the title to the Premises, the Improvements, the FF&E and the balance of the
Mortgaged Property.
CCXVII. Leases and Rents. Subject to the terms of this paragraph,
Mortgagee waives the right to enter the Mortgaged Property for the purpose of
collecting the Rents, and grants Mortgagor the right to collect the Rents.
Mortgagor shall collect and hold the Rents, or an amount sufficient to discharge
all current sums due on the Debt, in trust for use in payment of the Debt. The
right of Mortgagor to collect the Rents may be revoked by Mortgagee upon the
occurrence of any Event of Default by giving notice of such revocation to
Mortgagor. Following such notice and as long as such Event of
Default is continuing (it being understood that the decision whether or not to
accept the cure of an Event of Default shall be in the sole and absolute
discretion of Mortgagee), Mortgagee may retain and apply the Rents toward
payment of the Debt in such order, priority and proportions as Mortgagee, in its
discretion, shall deem proper, or to the operation, maintenance and repair of
the Mortgaged Property, and irrespective of whether Mortgagee shall have
commenced a foreclosure of this Mortgage or shall have applied or arranged for
the appointment of a receiver. In addition, Mortgagee shall have the absolute
and unconditional right following the occurrence and during the continuance of
an Event of Default to notify the tenants under the Leases that all Rents should
be paid directly to Mortgagee. In addition to the rights which Mortgagee may
have herein, if an Event of Default shall occur and shall be continuing
Mortgagee, at its option, may require Mortgagor to pay monthly in advance to
Mortgagee, or any receiver appointed to collect the Rents, the fair and
reasonable rental value for the use and occupation of such part of the Mortgaged
Property as may be in possession of Mortgagor. Upon default in any such payment,
Mortgagor will vacate and surrender possession of the Mortgaged Property to
Mortgagee, or to such receiver and, in default thereof, Mortgagor may be evicted
by summary proceedings or otherwise. Nothing contained in this paragraph shall
be construed as imposing on Mortgagee any of the obligations of the landlord
under the Leases.
CCXVIII. Notice. Any notice, request, demand, statement,
authorization, approval or consent made hereunder shall be in writing and shall
be sent by Federal Express, or other reputable national courier service, or by
postage pre-paid registered or certified mail, return receipt requested, and
shall be deemed given (i) when received at the following addresses if sent by
Federal Express, or other reputable national courier service, and (ii) three (3)
business days after being postmarked and addressed as follows if sent by
registered or certified mail, return receipt requested:
If to Mortgagor:
c/o Brandywine Realty Trust
Newtown Square Corporate Campus
16 Campus Boulevard, Suite 150
Newtown Square, Pennsylvania 19073
Attention: Gerard H. Sweeney
President and Chief Executive Officer
With a copy to:
Pepper, Hamilton & Scheetz
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, Pennsylvania 19103-2799
Attention: Michael H. Friedman, Esq.
If to Mortgagee:
NationsBank, N.A.
Real Estate Banking
8300 Greensboro Drive
McLean, Virginia 22102-3604
Attention: Cheryl D. Fitzgerald
Vice President
With copies to:
Cadwalader, Wickersham & Taft
201 South College Street - Suite 1510
Charlotte, North Carolina 28244
Attention: James P. Carroll, Esq.
and
Battle Fowler LLP
Park Avenue Tower
75 East 55th Street
New York, New York 10022
Attention: Dean A. Stiffle, Esq.
Each party may designate a change of address by notice to the other party, given
at least fifteen (15) days before such change of address is to become effective.
CCXIX. Sale of Mortgaged Property. If this Mortgage is foreclosed,
the Mortgaged Property, or any interest therein, may, at the
discretion of Mortgagee, be sold in one or more parcels or in several interests
or portions and in any order or manner.
CCXX. Changes in Laws Regarding Taxation. In the event of the
passage after the date of this Mortgage of any law of the State in which the
Premises are located deducting from the value of real property for the purpose
of taxation any lien or encumbrance thereon or changing in any way the laws for
the taxation of mortgages or debts secured by mortgages for state or local
purposes or the manner of the collection of any such taxes, and imposing a tax,
either directly or indirectly, on this Mortgage, the Credit Facility Notes or
the Debt, Mortgagor shall, if permitted by law, pay any tax imposed as a result
of any such law within the statutory period or within thirty (30) days after
demand by Mortgagee, whichever is less, provided, however, that if, in the
opinion of the attorneys for Mortgagee, Mortgagor is not permitted by law to pay
such taxes, Mortgagee shall have the right, at its option, to declare the Debt
due and payable on a date specified in a prior notice to Mortgagor of not less
than sixty (60) days.
CCXXI. No Credits on Account of the Debt. Mortgagor will not claim
or demand or be entitled to any credit or credits on account of the Debt for any
part of the Taxes assessed against the Mortgaged Property or any part thereof
and no deduction shall otherwise be made or claimed from the taxable value of
the Mortgaged Property, or any part thereof, by reason of this Mortgage or the
Debt.
CCXXII. Documentary Stamps. If at any time the United States of
America, any state thereof, or any governmental subdivision of any such state,
shall require revenue or other stamps to be affixed to the Credit Facility Notes
(or any of them), this Mortgage or any of the other Credit Facility Documents,
Mortgagor will, to the extent permitted by law, pay for the same, with interest
and penalties thereon, if any.
CCXXIII. Events of Default. The Debt shall become due at the option
of Mortgagee upon the occurrence of any one or more of the Events of Default.
CCXXIV. Appointment of Receiver. Mortgagee, in any action to
foreclose this Mortgage or upon the actual or threatened waste to any part of
the Mortgaged Property or upon the occurrence of any Event of Default, shall be
at liberty, without notice, to apply for the appointment of a receiver of the
Rents, and shall be entitled to the appointment of such receiver as a matter of
right, without regard to the value of the Mortgaged Property as security for the
Debt, or the solvency or insolvency of any person then liable for the payment of
the Debt.
CCXXV. Non-Waiver. The failure of Mortgagee to insist upon strict
performance of any term of this Mortgage shall not be deemed to be a waiver of
any term of this Mortgage. Mortgagor shall not be relieved of
Mortgagor's obligation to pay the Debt at the time and in the manner provided
for its payment in the Credit Facility Documents by reason of (i) failure of
Mortgagee to comply with any request of Mortgagor to take any action to
foreclose this Mortgage or any other mortgage or deed of trust securing the Debt
or any portion thereof or otherwise enforce any of the provisions of this
Mortgage or any of the other Credit Facility Documents, (ii) the release,
regardless of consideration, of the whole or any part of the Mortgaged Property
or any other security for the Debt, or (iii) any agreement or stipulation
between Mortgagee and any subsequent owner or owners of the Mortgaged Property
or other person extending the time of payment or otherwise modifying or
supplementing the terms of the Credit Facility Documents without first having
obtained the consent of Mortgagor, and in the latter event, Mortgagor shall
continue to be obligated to pay the Debt at the times and in the manner provided
in the Credit Facility Documents, as so extended, modified and supplemented,
unless expressly released and discharged from such obligation by Mortgagee in
writing. Regardless of consideration, and without the necessity for any notice
to or consent by the holder of any subordinate lien, encumbrance, right, title
or interest in or to the Mortgaged Property, Mortgagee may release any person at
any time liable for the payment of the Debt or any portion thereof or any part
of the security held for the Debt and may extend the time of payment of the Debt
or otherwise modify the terms of the Credit Facility Documents, including,
without limitation, a modification of the interest rate payable on the Principal
Balance of the Credit Facility Notes, without in any manner impairing or
affecting this Mortgage or the lien thereof or the priority of this Mortgage, as
so extended and modified, as security for the Debt over any such subordinate
lien, encumbrance, right, title or interest. Mortgagee may resort for the
payment of the Debt to any other security held by Mortgagee in such order and
manner as Mortgagee, in its discretion, may elect. Mortgagee may take action to
recover the Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of Mortgagee thereafter to foreclose this
Mortgage. Mortgagee shall not be limited exclusively to the rights and remedies
herein stated but shall be entitled to every additional right and remedy set
forth in the Credit Facility Documents or now or hereafter afforded by law. The
rights of Mortgagee under this Mortgage and the other Credit Facility Documents
shall be separate, distinct and cumulative and none shall be given effect to the
exclusion of the others. No act of Mortgagee shall be construed as an election
to proceed under any one provision of this Mortgage or of the other Credit
Facility Documents to the exclusion of any other provision set forth in this
Mortgage or the other Credit Facility Documents.
CCXXVI. Construction. The terms of this Mortgage shall be construed
in accordance with the laws of the State in which the Premises are located.
CCXXVII. Security Agreement. This Mortgage constitutes both a real
property mortgage and a "security agreement", within the meaning of the Uniform
Commercial Code, and the Mortgaged Property includes both real and
personal property and all other rights and interest, whether tangible or
intangible in nature, of Mortgagor in the Mortgaged Property. Mortgagor by
executing and delivering this Mortgage has granted to Mortgagee, as security for
the Debt, a security interest in the Mortgaged Property, including, without
limitation, FF&E. If an Event of Default shall occur, Mortgagee, in addition to
any other rights and remedies which it may have, shall have and may exercise
immediately and without demand any and all rights and remedies granted to a
secured party upon default under the Uniform Commercial Code, including, without
limiting the generality of the foregoing, the right to take possession of the
FF&E or any part thereof, and to take such other measures as Mortgagee may deem
necessary for the care, protection and preservation of the FF&E. Mortgagor shall
pay to Mortgagee on demand any and all expenses (including reasonable attorneys'
fees) actually incurred or paid by Mortgagee in protecting its interest in the
FF&E and in enforcing its rights hereunder with respect to the FF&E. Any notice
of sale, disposition or other intended action by Mortgagee with respect to the
FF&E sent to Mortgagor in accordance with the provisions of this Mortgage at
least seven (7) business days prior to the date of any such sale, disposition or
other action, shall constitute reasonable notice to Mortgagor (except in the
case of FF&E which is perishable or is of a type customarily sold on a
recognized market, in which case such seven (7) business days' notice shall not
be required), and the method of sale or disposition or other intended action set
forth or specified in such notice shall conclusively be deemed to be
commercially reasonable within the meaning of the Uniform Commercial Code unless
objected to in writing by Mortgagor within five (5) days after receipt by
Mortgagor of such notice. The proceeds of any sale or disposition of the FF&E,
or any part thereof, may be applied by Mortgagee to the payment of the Debt in
such order, priority and proportions as Mortgagee in its discretion shall deem
proper.
CCXXVIII. Further Acts, etc. Mortgagor will, at the cost of
Mortgagor, and without expense to Mortgagee, do, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances, mortgages,
assignments, notices of assignments, transfers and assurances as Mortgagee
shall, from time to time, require for the better assuring, conveying, assigning,
transferring and confirming unto Mortgagee the property and rights hereby
mortgaged or intended now or hereafter so to be, or which Mortgagor may be or
may hereafter become bound to convey or assign to Mortgagee, or for carrying out
the intention or facilitating the performance of the terms of this Mortgage or
for filing, registering or recording this Mortgage and, on demand, will execute
and deliver and hereby authorizes Mortgagee to execute in the name of Mortgagor
to the extent Mortgagee may lawfully do so, one or more financing statements,
chattel mortgages or comparable security instruments, to evidence more
effectively the lien hereof upon the Mortgaged Property.
CCXXIX. Headings, etc. The headings, titles and captions of various
paragraphs of this Mortgage are for convenience of reference only and are not to
be construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
CCXXX. Filing of Mortgage, etc. Mortgagor forthwith upon the
execution and delivery of this Mortgage and thereafter, from time to time, will
cause this Mortgage, and any security instrument creating a lien or evidencing
the lien hereof upon the Mortgaged Property and each instrument of further
assurance to be filed, registered or recorded in such manner and in such places
as may be required by any present or future law in order to publish notice of
and fully to protect, preserve and perfect the lien hereof upon, and the
interest of Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing,
registration and recording fees, and all expenses incident to the preparation,
execution and acknowledgement of this Mortgage, any mortgage supplemental
hereto, any security instrument with respect to the Mortgaged Property, and any
instrument of further assurance, and all Federal, state, county and municipal
taxes, duties, imposts, assessments and charges arising out of or in connection
with the execution and delivery of this Mortgage, any mortgage supplemental
hereto, any security instrument with respect to the Mortgaged Property or any
instrument of further assurance. Mortgagor shall hold harmless and indemnify
Mortgagee, its successors and assigns, against any liability incurred by reason
of the imposition of any tax on the making and recording of this Mortgage.
CCXXXI. Recovery of Sums Required To Be Paid. Mortgagee shall have
the right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Mortgagee thereafter to bring an action of foreclosure, or any other action,
for a default or defaults by Mortgagor existing at the time such earlier action
was commenced.
CCXXXII. Actions, Cases and Proceedings. Mortgagee shall have the
right to appear in and defend any action, case or proceeding brought with
respect to the Mortgaged Property and to bring any action, case or proceeding,
which Mortgagee, in its discretion, feels should be brought to protect its
interest in the Mortgaged Property.
CCXXXIII. Inapplicable Provisions. If any term, covenant or
condition of this Mortgage shall be held to be invalid, illegal or unenforceable
in any respect, this Mortgage shall be construed without such provision.
CCXXXIV. Duplicate Originals. This Mortgage may be executed in any
number of duplicate originals and each such duplicate original shall be deemed
to constitute but one and the same instrument.
CCXXXV. Certain Usage. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Mortgage shall be used interchangeably in singular or plural form. Whenever
the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular forms of
nouns and pronouns shall include the plural and vice versa.
CCXXXVI. Waiver of Notice. Mortgagor shall not be entitled to any
notices of any nature whatsoever from Mortgagee except with respect to matters
for which this Mortgage specifically and expressly provides for the giving of
notice by Mortgagee to Mortgagor, and Mortgagor (to the full extent it may
lawfully do so) hereby expressly waives the right to receive any notice from
Mortgagee with respect to any matter for which this Mortgage does not
specifically and expressly provide for the giving of notice by Mortgagee to
Mortgagor.
CCXXXVII. No Oral Change. This Mortgage may only be modified,
amended or changed by an agreement in writing signed by Mortgagor and Mortgagee,
and may only be released, discharged or satisfied of record by an agreement in
writing signed by Mortgagee. No waiver of any term, covenant or provision of
this Mortgage shall be effective unless given in writing by Mortgagee and if so
given by Mortgagee shall only be effective in the specific instance in which
given.
CCXXXVIII. Waiver of Statutory Rights. Mortgagor shall not and will
not apply for or avail itself of any appraisement, valuation, stay, extension or
exemption laws, or any so-called "Moratorium Laws", now existing or hereafter
enacted, in order to prevent or hinder the enforcement or foreclosure of this
Mortgage, but hereby waives the benefit of such laws to the full extent that
Mortgagor may do so under applicable law. Mortgagor for itself and all who may
claim through or under it waives any and all right to have the property and
estates comprising the Mortgaged Property marshalled upon any foreclosure of the
lien of this Mortgage and agrees that any court having jurisdiction to foreclose
such lien may order the Mortgaged Property sold as an entirety. Mortgagor hereby
waives for itself and all who may claim through or under it, and to the full
extent Mortgagor may do so under applicable law, any and all rights of
redemption from sale under any order or decree of foreclosure of this Mortgage
or granted under any statute now existing or hereafter enacted.
CCXXXIX. Credit Agreement. This Mortgage is subject to all of the
terms, covenants and conditions of the Credit Agreement, which Credit Agreement
and all of the terms, covenants and conditions thereof are by this reference
incorporated herein with the same force and effect as if fully set forth herein.
The proceeds of the Credit Facility secured hereby are to be advanced and
readvanced by Mortgagee to Mortgagor in accordance with the provisions of the
Credit Agreement. Mortgagor shall observe and perform all of the terms,
covenants and conditions of the Credit Agreement on Mortgagor's part to be
observed or performed. All advances made and all indebtedness arising and
accruing under the Credit Agreement from time to time shall constitute part of
the Debt and shall be secured hereby.
CCXL. Revolving Credit Facility. The Credit Facility is intended to
be a revolving credit facility. Mortgagor shall have the right upon compliance
with the conditions of the Credit Agreement and the other Credit Facility
Documents which pertain to the making of advances under the Credit Facility
(including, without limitation, the requirement that all advances be evidenced
and secured by the Credit Facility Documents and insured under acceptable title
insurance policies) to obtain readvances of amounts from time to time applied
(whether on a mandatory or voluntary basis) in reduction of the outstanding
Principal Balance of the Credit Facility pursuant to the provisions of the
Credit Agreement, or otherwise permitted to be made in accordance with the
provisions of the Credit Agreement or the other Credit Facility Documents
(including, without limitation, any portion of the outstanding Principal Balance
of the Credit Facility which is prepaid in accordance with the provisions of the
Credit Facility Notes and the Credit Agreement).
CCXLI. Binding Effect. The terms, covenants and provisions of this
Mortgage shall be binding on and shall inure to the benefit of Mortgagor,
Mortgagee, and their respective successors and assigns.
CCXLII. Exculpation. No recourse shall be had for any obligation of
BRT under this Mortgage or any of the other Credit Facility Documents or for any
claim based thereon or otherwise in respect thereof, against any past, present
or future trustee, shareholder, officer or employee of BRT, 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 each
other party to this Mortgage and the other Credit Facility Documents.
IN WITNESS WHEREOF, Mortgagor has duly executed and delivered this
Mortgage as of the day and year first above written.
BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership
By: Brandywine Realty Trust, a Maryland
real estate investment trust
By: /s/ Gerard H. Sweeney
----------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
STATE OF _________)
) ss.
COUNTY OF ________)
I CERTIFY, that on July __, 1997, Gerard H. Sweeney, personally came
before me and this person acknowledged under oath, to my satisfaction, that:
(a) this person signed, sealed and delivered the attached document
as President and Chief Executive Officer of Brandywine Realty Trust,
a Maryland real estate investment trust, and that Brandywine Realty
Trust is the General Partner of Brandywine Operating Partnership,
L.P., a Delaware limited partnership, the partnership named in this
document;
(b) this document was signed and made by the real estate investment
trust as its voluntary act and deed by virtue of authority from its
Board of Trustees, as general partner of and on behalf of the
aforementioned limited partnership.
-----------------------
Notary Public
My Commission Expires:
EXHIBIT A
(Definitions)
BMS: The term "BMS" as used in this Mortgage shall mean Brandywine - Main
Street, LLC, a Delaware limited liability company.
BOP: The term "BOP" as used in this Mortgage shall mean Brandywine Operating
Partnership, L.P., a Delaware limited partnership.
Borrowers: The term "Borrowers" as used in this Mortgage shall collectively
mean BRT, BOP, BMS and the BRT/BOP Limited Partnerships.
BRT: The term "BRT" as used in this Mortgage shall mean Brandywine Realty
Trust, a Maryland real estate investment trust.
BRT/BOP Limited Partnerships: The term "BRT/BOP Limited Partnerships" as used in
this Mortgage shall collectively mean LC/N Horsham Limited Partnership, a
Pennsylvania limited partnership; LC/N Keith Valley Limited Partnership I, a
Pennsylvania limited partnership; Nichols Lansdale Limited Partnership III, a
Pennsylvania limited partnership; Newtech III Limited Partnership, a
Pennsylvania limited partnership; Newtech IV Limited Partnership, a Pennsylvania
limited partnership; C/N Oaklands Limited Partnership I, a Pennsylvania limited
partnership; Fifteen Horsham, L.P., a Pennsylvania limited partnership; C/N
Leedom Limited Partnership II, a Pennsylvania limited partnership; C/N Iron Run
Limited Partnership III, a Pennsylvania limited partnership.
Co-Lenders: The term "Co-Lenders" as used in this Mortgage shall mean,
collectively, Smith Barney, NB, The First National Bank of Chicago, a national
banking association, Mellon Bank, N.A., a national banking association, PNC
Bank, National Association, a national banking association, Signet Bank, a
_______________ and Summit Bank, a ______________ banking association and all
other parties from time to time to whom direct interests in the Credit Facility
are sold, transferred and assigned, and who are as a result thereof designated
as Co-Lenders, under and pursuant to the provisions of the Credit Agreement and
the Co-Lenders Agreement.
Co-Lenders Agreement: The term "Co-Lenders Agreement" as used in this Mortgage
shall mean that certain Co-Lender and Servicing Agreement dated as of November
25, 1996 between Smith Barney and NB, in its individual capacity and in its
capacity as administrative and documentation agent for the Credit Facility, as
the same may be modified, amended or supplemented from time to time.
Credit Agreement: The term "Credit Agreement" as used in this Mortgage shall
mean that certain Revolving Credit Agreement dated as of November 25, 1996 among
Smith Barney, NationsBank, N.A., in its individual capacity, Borrowers
and NB, acting in its capacity as administrative and documentation agent for the
Credit Facility, as the same may be amended from time to time, and pursuant to
the provisions of which the Credit Facility is being extended by Co-Lenders to
Mortgagor.
Credit Facility: The term "Credit Facility" as used in this Mortgage shall have
the meaning given to such term in paragraph C of the Preliminary Statement of
this Mortgage.
Credit Facility Documents: The term "Credit Facility Documents" as used in this
Mortgage shall have the meaning given to such term in the Credit Agreement.
Credit Facility Notes: The term "Credit Facility Notes" as used in this Mortgage
shall have the meaning given to such term in the Credit Agreement.
Debt: The term "Debt" as used in this Mortgage shall have the meaning given to
such term in paragraph E of the Preliminary Statement of this Mortgage.
Default Rate: The term "Default Rate" as used in this Mortgage shall have
the meaning given to such term in the Credit Agreement.
Events of Default: The term "Events of Default" as used in this Mortgage shall
have the meaning given to such term in the Credit Agreement.
FF&E: The term "FF&E" as used in this Mortgage shall mean, collectively, all
goods (as such term is defined in the Uniform Commercial Code), now owned or
hereafter acquired by Mortgagor, located at or used in connection with the
Improvements and the operation of the Improvements, including, without
limitation, (i) all furniture and furnishings and all other items of personal
property (including inventory now owned or hereafter acquired by Mortgagor) now
and hereafter located on, or used in connection with the operation of the
Improvements, together with all replacements, modifications, alterations and
additions thereto; and (ii) all equipment, fixtures, machinery and other items
of property required or incidental to the use of the Improvements, including all
components thereof, now and hereafter permanently affixed to or incorporated
into the Improvements, including, without limitation, all furnaces, boilers,
heaters, electrical equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste, disposal,
air-cooling and air conditioning systems and apparatus, sprinkler systems and
fire and theft protection equipment, together with all replacements,
modifications, alterations and additions thereto.
Improvements: The term "Improvements" as used in this Mortgage shall have
the meaning given to such term in the granting clause of this Mortgage.
Leases: The terms "Leases" as used in this Mortgage shall have the meaning
given to such term in the granting clause of this Mortgage.
Principal Balance: The term "Principal Balance" as used in this Mortgage
shall have the meaning given to such term in the Credit Agreement.
Mortgaged Property: The term "Mortgaged Property" as used in this Mortgage shall
have the meaning given to such term in the granting clause of this Mortgage.
Mortgagee: The term "Mortgagee" as used in this Mortgage shall have the
meaning given to such term in the preamble to this Mortgage.
Mortgagor: The term "Mortgagor" as used in this Mortgage shall have the
meaning given to such term in the preamble to this Mortgage.
NB: The term "NB" as used in this Mortgage shall mean NationsBank, N.A., a
national banking association.
Premises: The term "Premises" as used in this Mortgage shall have the meaning
given to such term in paragraph B of the Preliminary Statement of this Mortgage.
Rents: The term "Rents" as used in this Mortgage shall have the meaning
given to such term in the granting clause of this Mortgage.
Smith Barney: The term "Smith Barney" as used in this Mortgage shall mean
Smith Barney Mortgage Capital Group, Inc., a Delaware corporation.
Taxes: The term "Taxes" as used in this Mortgage shall have the meaning
given to such term in the Credit Agreement.
Title Company: The term "Title Company" as used in this Mortgage shall have
the meaning given to such term in the Credit Agreement.
Uniform Commercial Code: The term "Uniform Commercial Code" as used in this
Mortgage shall mean the Uniform Commercial Code of the State in which the
Premises are located.
*EXHIBIT B
(Description of Premises)
- --------------
* Legal description of premises should include insurable description of
any easements which are appurtenant to the Premises.
================================================================================
Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, as Mortgagor
to
NationsBank, N.A., not individually
but acting in its capacity as administrative
and documentation agent for the equal and
ratable benefit of the co-lenders
described herein, as Mortgagee
--------------------------
MORTGAGE
--------------------------
Dated: As of July __, 1997
Location: __________________
_______ County, New Jersey
RECORD AND RETURN TO:
Battle Fowler LLP
Park Avenue Tower
75 East 55th Street
New York, New York 10022
Attention: Dean A. Stiffle, Esq.
THIS MORTGAGE WAS PREPARED BY:
- ------------------------------
Attorney at Law
================================================================================
Master New Jersey Mortgage
TABLE OF CONTENTS
Page
----
1. Payment of Debt........................................................ 3
2. Warranty of Title...................................................... 3
3. Leases and Rents....................................................... 3
4. Notice................................................................. 4
5. Sale of Mortgaged Property............................................. 5
6. Changes in Laws Regarding Taxation..................................... 5
7. No Credits on Account of the Debt...................................... 5
8. Documentary Stamps..................................................... 5
9. Events of Default...................................................... 7
10. Appointment of Receiver............................................... 7
11. Non-Waiver............................................................ 7
12. Construction.......................................................... 8
13. Security Agreement.................................................... 8
14. Further Acts, etc..................................................... 8
15. Headings, etc......................................................... 9
16. Filing of Mortgage, etc............................................... 9
17. Recovery of Sums Required To Be Paid.................................. 9
18. Actions, Cases and Proceedings........................................ 9
19. Inapplicable Provisions............................................... 9
20. Duplicate Originals................................................... 9
21. Certain Usage......................................................... 9
22. Waiver of Notice...................................................... 9
23. No Oral Change........................................................ 10
24. Waiver of Statutory Rights............................................ 10
25. Credit Agreement...................................................... 10
26. Revolving Credit Facility............................................. 10
27. Binding Effect........................................................ 11
28. Exculpation........................................................... 11
ACKNOWLEDGEMENT
EXHIBIT A (Definitions)
EXHIBIT B (Description of Premises)
Exhibit G
================================================================================
Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, as Assignor
and
NationsBank, N.A., not individually, but
acting in its capacity as collateral agent
for the equal and ratable benefit of the
co-lenders described herein, as Assignee
-------------------------------
ASSIGNMENT OF LEASES AND RENTS
-------------------------------
Dated: As of July 15, 1997
Location: __________________
__________________
__________________
RECORD AND RETURN TO:
Battle Fowler LLP
Park Avenue Tower
75 East 55th Street
New York, New York 10022
Attention: Dean A. Stiffle, Esq.
================================================================================
MASTER ASSIGNMENT OF LEASES
ASSIGNMENT OF LEASES AND RENTS
This Assignment of Leases and Rents entered into as of
the 15th day of July, 1997, by Brandywine Operating Partnership,
L.P., a Delaware limited partnership having an office at c/o
Brandywine Realty Trust, Newtown Square Corporate Campus, 16 Campus
Boulevard, Suite 150, Newtown Square, Pennsylvania (hereinafter
referred to as "Assignor"); and NationsBank, N.A., a national
banking association having an office at 8300 Greensboro Drive,
McLean, Virginia, not individually, but acting in its capacity as
administrative and documentation agent for the equal and ratable
benefit of Co-Lenders pursuant to and in accordance with the terms
and provisions of the Credit Agreement (NationsBank, N.A. acting in
such capacity as administrative and documentation agent being
hereinafter referred to as "Assignee").
PRELIMINARY STATEMENT
CCXLIII. All capitalized terms as used in this Assignment shall,
unless otherwise defined in this Assignment, have the meanings given to such
terms in Exhibit A attached hereto.
CCXLIV. Assignor is the owner of a fee estate in the premises
described in Exhibit B attached hereto (hereinafter referred to as the
"Premises");
CCXLV. Co-Lenders have on the terms, covenants and provisions set
forth in the Credit Agreement extended to Borrowers a revolving credit facility
in the principal sum of up to, but not in excess of, $150,000,000 (hereinafter
referred to as the "Credit Facility"), which Credit Facility is evidenced by,
and payable together with interest thereon in accordance with the provisions of,
the Credit Facility Notes.
D. Co-Lenders have approved the inclusion of the Premises as part of
the collateral pool for the Credit Facility in accordance with the provisions of
the Credit Agreement, and in connection therewith, and as consideration
therefor, Assignor has agreed to assign to Assignee, for the equal and ratable
benefit of Co-Lenders, in the manner hereinafter provided, as additional
security for the payment of the Debt and the observance and performance by
Borrowers of all of the terms, covenants and provisions of the Credit Facility
Documents on Borrowers' part to be observed and performed, all right, title and
interest of Assignor now owned, or hereafter acquired, in and to (i) all leases,
licenses and other agreements (hereinafter collectively referred to as the
"Leases") now or hereafter entered into and affecting or relating to the use or
occupancy of the Premises or of the improvements now or hereafter erected
thereon (the "Improvements"), and (ii) the rents, income, revenues, receipts,
accounts, accounts receivable, issues and profits of or derived from or relating
to the Premises or the Improvements or any portion thereof (hereinafter
collectively referred to as the "Rents").
CCXLVI. NOW, THEREFORE, in consideration of the extension of the
Credit Facility and other good and valuable consideration, the receipt of which
is hereby acknowledged, Assignor hereby assigns to Assignee, as additional
security for the payment of the Debt and the observance and performance by
Borrowers of all of the terms, covenants and provisions of the Credit Facility
Documents on Borrowers' part to be observed or performed, all of Assignor's
right, title and interest now owned, or hereafter acquired, in and to the Leases
and the Rents, and Assignor hereby represents and warrants to and covenants and
agrees with Assignee as follows:
A. Except as expressly set forth to the contrary in the certified
rent roll for the Property being delivered by Assignor to Assignee in connection
with the execution and delivery of this Assignment, Assignor represents and
warrants that as of the date hereof (i) Assignor is the owner and holder of the
landlord's interest under the Leases, (ii) there are no prior or subordinate
assignments of the Leases or of any portion of the Rents due and payable or to
become due and payable thereunder which are presently outstanding, (iii) all of
the Leases are in full force and effect and the respective terms thereof have
commenced pursuant to the provisions thereof, (iv) the premises demised under
each of the Leases have been completed and the tenants under the Leases have
taken possession of the premises demised thereunder on a rent-paying basis, (v)
neither Assignor nor any tenant under the Leases is in default under any of the
terms, covenants or provisions of the Leases and Assignor knows of no event
which, but for the passage of time or the giving of notice or both, would
constitute an event of default under any of the Leases, (vi) neither Assignor
nor any tenant under the Leases has commenced any action or given or served any
notice for the purpose of terminating any of the Leases, (vii) all Rents due and
payable under the Leases have been paid in full and no such Rents have been paid
more than one (l) month in advance of the due dates thereof, and (viii) there
are no offsets or defenses to the payment of any portion of the Rents.
B. Assignor shall, at its sole cost and expense, (i) fulfill and
perform, or cause to be fulfilled and performed, each and every term, covenant
and provision of the Leases on the part of the Assignor thereunder to be
observed and performed, (ii) promptly send copies of all notices of default
which Assignor shall send or receive under the Leases to Assignee, (iii) enforce
the observance and performance of the terms and provisions of the Leases by the
tenants thereunder, (iv) enforce the observance and performance of each and
every term, covenant and provision of the Leases on the part of the tenants
thereunder to be observed and performed and (v) appear in and defend any action
or proceeding arising under or in any manner connected with the Leases or with
the obligations and undertakings of the landlord or the tenants thereunder.
C. Assignor shall not, without the prior consent of Co-Lenders, (i)
further transfer, sell, assign, pledge, encumber or grant a security interest in
all or any portion of the Rents or the Leases, (ii) accept prepayments of
installments of the Rents for a period of more than one (1) month in advance,
(iii) make or suffer to be made any Lease, including any renewal of an existing
Lease (other than renewals at rents and/on other terms expressly reserved in
such Lease) other than in accordance and in a manner consistent with the
provisions of the Credit Agreement, (iv) consent to or permit the assignment or
subletting of any leasehold estate created under any Lease (other than in
accordance with the express provisions of such Lease), (v) terminate, modify or
amend, or consent to the termination, modification or amendment of, any Lease or
any term thereof other than in accordance and in a manner consistent with the
provisions of the Credit Agreement, (vi) commence or continue proceedings to
evict, remove or dispossess the tenant under any Lease, provided, however, that
Assignor may commence and continue such a proceeding without obtaining the prior
consent of Assignor if the Lease in question does not cover in excess of 20,000
square feet of space in the Improvements and the commencement of such proceeding
is otherwise consistent with customary business practices for the operation of
improvements which are comparable to the Improvements, or (vii) waive, cancel,
release, modify, excuse, condone, set-off, compromise or in any manner release
or discharge the tenant under any Lease other than in a manner which is
consistent with customary business practices for the operation of improvements
comparable to the Improvements.
D. This Assignment shall not be deemed or construed to obligate
Assignee or any Co-Lender to take any action or incur any expense or perform or
discharge any obligation, duty or liability under the Leases, and Assignor
hereby agrees to indemnify and hold Assignee and Co-Lenders harmless from and
against all liability, loss or damage, including, but not limited to, reasonable
attorneys' fees, which Assignee or any Co-Lender may or might incur under the
Leases or under or by reason of this Assignment and from and against any and all
claims whatsoever which may be asserted against Assignee or any Co-Lender by
reason of any alleged obligation or undertaking on the part of Assignee or any
Co-Lender to perform or discharge any of the terms, covenants or provisions
contained in the Leases.
E. This Assignment has been made as additional security for the
payment of the Debt and the observance and performance by Borrowers of the
terms, covenants and provisions of the Credit Facility Documents on Borrowers'
part to be observed and performed. Subject to the provisions of this Assignment
hereinafter set forth, Assignee waives the right to enter the Premises for the
purpose of collecting the Rents, and grants Assignor the right to collect the
Rents. Assignor shall collect and hold the Rents, or an amount sufficient to
discharge all current sums due on the Debt, in trust for use in the payment of
the Debt. The right of Assignor to collect the Rents may be revoked by Assignee
upon the occurrence of any Event of Default, by giving notice of such revocation
to Assignor. Following such notice and as long as such Event of Default is
continuing (it being understood that the decision whether or not to accept the
cure of an Event of Default shall be in the sole and absolute discretion of
Assignee), Assignee may retain and apply the Rents toward payment of the Debt in
such order, priority and proportions as Assignee in its discretion, shall deem
proper, or to the operation, maintenance and repair of the Property, and
irrespective of whether Assignee shall have declared the Debt to be immediately
due and payable, or shall have commenced a foreclosure of the Mortgage or shall
have applied or arranged for the appointment of a receiver. In addition,
Assignee shall have the absolute and unconditional right following the
occurrence and during the continuance of an Event of Default, to notify the
tenants under the Leases that all Rents should be paid directly to Assignee.
Upon the occurrence and during the continuance of an Event of Default, the
tenants under the Leases shall, upon notice from Assignee of the occurrence of
such Event of Default, thereafter pay to Assignee or to any appointed receiver
the Rents due or to become due under the Leases without any obligation to
determine whether or not such Event of Default does in fact exist, and Assignor
shall facilitate in all reasonable ways the collection of the Rents by Assignee,
and without implying the necessity therefor will, upon demand of Assignee,
execute written notices to the tenants under the Leases directing the tenants
under the Leases to pay the Rents to Assignee, which Rents may, during the
continuance of such Event of Default, be retained and applied by Assignee toward
the payment of the Debt in such order, priority and proportions as Assignee in
its discretion, shall deem proper, or to the operation, maintenance and repair
of the Property.
F. Upon the occurrence of an Event of Default and for so long as
such Event of Default continues Assignee shall have the right, at its option, to
enter upon and take over and assume the management, operation and maintenance of
the Property and to perform all necessary and proper acts and to expend such
sums out of the income of the Property as may be necessary in connection
therewith, in the same manner and to the same extent as Assignor theretofore
might do, including the right to effect new Leases, cancel or surrender the
Leases, alter, modify or amend the provisions thereof, or make concessions to
the tenants thereunder and Assignor hereby releases and waives all claims
against Assignee arising out of such management, operation and maintenance.
Assignor shall, from time to time, at its expense, execute, deliver, file and
record any statement, assignment, instrument, document, agreement or other paper
and take any other action (including any filings of financing or continuation
statements under the Uniform Commercial Code) that
from time to time may be necessary or desirable, or that Assignee may reasonable
request, in order to create, preserve, perfect, confirm or validate the
assignment of the Leases and Rents made pursuant to the provisions of this
Assignment or to enable Assignee to obtain the full benefits of this Assignment,
or to enable Assignee to exercise and enforce any of its rights, powers and
remedies hereunder. To the extent permitted by applicable law, Assignor hereby
authorizes Assignee, and appoints Assignee as its true and lawful attorney (with
full power of substitution, in the name of Assignor), to execute and file
financing statements or continuation statements without Assignor's signature
appearing thereon.
G. Nothing contained in this Assignment, and no entry by Assignee
upon the Property as hereinabove provided, shall be construed as to constitute
Assignee as a mortgagee in possession.
H. Nothing contained in this Assignment is intended or shall be
construed to prevent Assignee in the exercise of its discretion from foreclosing
the Mortgage or otherwise enforcing the provisions thereof or of any of the
other Credit Facility Documents, in whole or in part, in accordance with their
terms.
I. No alteration, extension, renewal, change, modification, release,
amendment, compromise or cancellation, in whole or in part, of any term,
covenant or provision of any of the other Credit Facility Documents shall affect
this Assignment in any manner or diminish or release any of the rights of
Assignee hereunder.
J. Assignor hereby waives any and all legal requirements that
Assignee institute any action or proceeding in law or in equity against any
other party, or exhaust its remedies under any of the other Credit Facility
Documents as a condition precedent to exercising its rights and remedies under
this Assignment. All remedies afforded to Assignee by reason of this Assignment
are separate and cumulative remedies and it is agreed that no one of such
remedies whether exercised by Assignee or not, shall be deemed to be in
exclusion of any of the other remedies available to Assignee and shall not in
any manner limit or prejudice any other legal or equitable remedies which
Assignee may have, including, but not limited to, all rights and remedies of
Assignee under any of the other Credit Facility Documents.
K. It is the intention of the parties hereto that any and all other
Leases affecting the Property or any portion thereof presently in effect or
hereafter entered into by Assignor or in which Assignor shall otherwise have an
interest shall be covered by the provisions of this Assignment and all such
Leases and all of Assignor's right, title and interest in all such Leases, and
the rents, additional rents, charges, issues, profits and other sums payable
thereunder, are hereby assigned to Assignee until the end of the respective
terms thereof and any renewals or extensions thereof, subject to all of the
terms, covenants and provisions of this Assignment. Assignor shall deliver a
true and correct copy of each such Lease to Assignee promptly after the
execution and delivery of the same. Assignor shall, upon the request of
Assignee, execute and deliver in recordable form all instruments which Assignee
may reasonably request to further evidence and confirm such assignment of each
such Lease.
L. This Assignment shall be binding upon Assignor, and its
successors and assigns and shall inure to the benefit of Assignee, and its
successors and assigns.
M. This Assignment may only be modified, altered, amended, or
terminated by an agreement in writing executed by the parties hereto.
N. Any notice, request, demand, statement or consent made hereunder
or in connection herewith shall be in writing and shall be sent in the manner
specified in the Credit Agreement.
O. If any term, covenant or condition of this Assignment shall be
held to be invalid, illegal or unenforceable in any respect, this Assignment
shall be construed without such provision.
P. This Assignment shall be governed by and construed under the laws
of the State in which the Property is located.
18. No recourse shall be had for any obligation of BRT under this
Assignment or any of the other Credit Facility Documents or for any claim based
thereon or otherwise in respect thereof, against any past, present or future
trustee, shareholder, officer or employee of BRT, 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 each other
party to this Assignment and the other Credit Facility Documents.
IN WITNESS WHEREOF, Assignor has duly executed this Assignment as of
the day and year first above written.
BRANDYWINE OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership
By: Brandywine Realty Trust, a Maryland
real estate investment trust
By: /s/ Gerard H. Sweeney
----------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
ACKNOWLEDGMENTS
(To be attached)
EXHIBIT A
(Definitions)
Assignee: The term "Assignee" as used in this Assignment shall have the
meaning given to such term in the preamble to this Agreement.
Assignor: The term "Assignor" as used in this Assignment shall have the
meaning given to such term in the preamble to this Agreement.
Approved Leasing Parameters: The term "Approved Leasing Parameters" as used in
this Assignment shall have the meaning given to such term in the Credit
Agreement.
BMS: The term "BMS" as used in this Agreement shall mean Brandywine - Main
Street, LLC, a Delaware limited liability company.
BOP: The term "BOP" as used in this Agreement shall mean Brandywine
Operating Partnership, L.P., a Delaware limited partnership.
Borrowers: The term "Borrowers" as used in this Assignment shall
collectively mean BRT, BOP, BMS and the BRT/BOP Limited Partnerships.
BRT: The term "BRT" as used in this Assignment shall mean Brandywine Realty
Trust, a Maryland real estate investment trust.
BRT/BOP Limited Partnerships: The term "BRT/BOP Limited Partnerships" as used in
this Assignment shall mean LC/N Horsham Limited Partnership, a Pennsylvania
limited partnership; LC/N Keith Valley Limited Partnership I, a Pennsylvania
limited partnership; Nichols Lansdale Limited Partnership III, a Pennsylvania
limited partnership; Newtech III Limited Partnership, a Pennsylvania limited
partnership; Newtech IV Limited Partnership, a Pennsylvania limited partnership;
C/N Oaklands Limited Partnership I, a Pennsylvania limited partnership; Fifteen
Horsham, L.P., a Pennsylvania limited partnership; C/N Leedom Limited
Partnership II, a Pennsylvania limited partnership; C/N Iron Run Limited
Partnership III, a Pennsylvania limited partnership.
Co-Lenders: The term "Co-Lenders" as used in this Assignment shall collectively
mean, Smith Barney Mortgage Capital Group, Inc., and NationsBank, N.A., acting
in its individual capacity, The First National Bank of Chicago, a national
banking association, Mellon Bank, N.A., a national banking association, PNC
Bank, National Association, a national banking association, Signet Bank, a state
banking association organized under the laws of the Commonwealth of Virginia and
Summit Bank, a state banking association organized under the laws of the State
of New Jersey, and all other parties from time to time to whom direct interests
in the Credit Facility are sold, transferred and assigned, and who are as a
result thereof are designated as Co-Lenders under and pursuant to the provisions
of the Credit Agreement and the Co-Lenders Agreement.
Co-Lenders Agreement: The term "Co-Lenders Agreement" as used in this Assignment
shall mean that certain Co-Lender and Servicing Agreement dated as of November
25, 1996 among Smith Barney Mortgage Capital Group, Inc., NationsBank, N.A.,
acting in its individual capacity, and NationsBank, N.A., acting in its capacity
as administrative and documentation agent for the equal and ratable benefit of
Co-Lenders in accordance with the provisions of the Credit Agreement, as the
same may be further modified, amended or supplemented from time to time.
Credit Agreement: The term "Credit Agreement" as used in this Assignment shall
mean that certain Revolving Credit Agreement dated as of November 25, 1996 among
Smith Barney Mortgage Capital Group, Inc., NationsBank, N.A., acting in its
individual capacity, Borrowers and NationsBank, N.A., acting in its capacity as
administrative and documentation agent for the equal and ratable benefit of
Co-Lenders, as the same may be amended from time to time, and pursuant to the
provisions of which the Credit Facility is being extended by Co-Lenders to
Borrowers.
Credit Facility: The term "Credit Facility" as used in this Assignment shall
have the meaning given to such term in paragraph C of the Preliminary Statement
of this Assignment.
Credit Facility Notes: The term "Credit Facility Notes" as used in this
Assignment shall have the meaning given to such term in the Credit Agreement.
Credit Facility Documents: The term "Credit Facility Documents" as used in this
Assignment shall have the meaning given to such term in the Credit Agreement.
Debt: The term "Debt" as used in this Assignment shall have the meaning
given to such term in the Credit Agreement.
Event of Default: The term "Event of Default" as used in this Assignment shall
have the meaning given to such term in the Credit Agreement.
Improvements: The term "Improvements" as used in this Assignment shall have the
meaning given to such term in paragraph D of the Preliminary Statement of this
Assignment.
Leases: The term "Leases" as used in this Assignment shall have the meaning
given to such term in paragraph D of the Preliminary Statement of this
Assignment.
Mortgage: The term "Mortgage" as used in this Assignment shall mean that certain
Mortgage dated as of the date hereof given by Assignor to Assignee , as security
for the payment of the Debt and the observance and performance by Borrowers of
the terms, covenants and provisions of the Credit Facility Document on
Borrowers' part to be observed and performed, and encumbering
Assignor's right, title and interest in and to the Property and intended to be
duly recorded in __________County, __________.
Property: The term "Property" as used in this Assignment shall collectively
mean the Premises and the Improvements.
Premises: The term "Premises" as used in this Assignment shall have the meaning
given to such term in paragraph B of the Preliminary Statement of this
Assignment.
Rents: The term "Rents" as used in this Assignment shall have the meaning given
to such term in paragraph D of the Preliminary Statement of this Assignment.
EXHIBIT B