PROMISSORY NOTE
$100,000,000 January 5, 1998
FOR VALUE RECEIVED, Brandywine Realty Trust ("BRT") and Brandywine
Operating Partnership, L.P. (collectively, the "Borrowers"), jointly and
severally, hereby unconditionally promise to pay to NationsBank, N.A.
("Lender"), at its offices located in Charlotte, North Carolina or such other
place as designated by the Lender, the principal sum of ONE HUNDRED MILLION
DOLLARS ($100,000,000) or such lesser principal amount as may be outstanding
from time to time hereunder, in lawful money of the United States of America
and in immediately available funds, together with interest on such principal
amount and such other amounts as may be due and owing hereunder in accordance
with the terms hereof.
This Note is issued upon, and the undersigned acknowledge and agree to,
the following terms and conditions:
1. Definitions. As used herein the following terms shall have the
meanings herein specified unless the context other requires.
"Business Day" means any day other than a Saturday, a Sunday, a
legal holiday or a day on which banking institutions are authorized or
required by law or other governmental action to close in McLean,
Virginia, Charlotte, North Carolina or New York, New York; provided that
in the case of Eurodollar Loans, such day is also a day on which dealings
between banks are carried on in U.S. dollar deposits in the London
interbank market.
"Default" means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Eurodollar Loan" means a Loan bearing interest based at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate determined pursuant
to the following formula:
Eurodollar Rate = London Interbank Offered Rate
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1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means, for any day, that percentage
(expressed as a decimal) which is in effect from time to time under
Regulation D of the Board of Governors of the Federal Reserve System (or
any successor), as such regulation may be amended from time to time, or
any successor regulation, as the maximum reserve requirement (including,
without limitation, any basic, supplemental, emergency, special, or
marginal reserves) applicable with respect to Eurodollar liabilities as
that term is defined in
Regulation D (or against any other category of liabilities that includes
deposits by reference to which the interest rate of Eurodollar Loans is
determined), whether or not any Lender has any Eurodollar liabilities
subject to such reserve requirement at that time. Eurodollar Loans shall
be deemed to constitute Eurodollar liabilities and as such shall be
deemed subject to reserve requirements without benefits of credits for
proration, exceptions or offsets that may be available from time to time
to a Lender. The Eurodollar Rate shall be adjusted automatically on and
as of the effective date of any change in the Eurodollar Reserve
Percentage.
"Event of Default" means any of the events or circumstances
described in Section 7 hereof.
"Final Maturity Date" means August 5, 1998.
"Guarantors" has the meaning set forth in the Senior Revolving
Credit Agreement.
"Initial Maturity Date" means May 5, 1998.
"Interest Period" means, as to Eurodollar Loans, a period of one
months' duration commencing, in each case, on the date of the borrowing
(including continuations and conversions thereof); provided, however, (a)
if any Interest Period would end on a day which is not a Business Day,
such Interest Period shall be extended to the next succeeding Business
Day (except that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day), (b)
no Interest Period shall extend beyond the Maturity Date, (c) with
respect to Eurodollar Loans, where an Interest Period begins on a day for
which there is no numerically corresponding day in the calendar month in
which the Interest Period is to end, such Interest Period shall end on
the last Business Day of such calendar month, and (d) no Interest Period
shall extend beyond the Initial Maturity Date unless the Maturity Date
has been extended pursuant to Section 4(c) hereof.
"Interest Payment Date" means (a) as to Prime Rate Loans, the last
Business Day of each month and on the Maturity Date, (b) as to Eurodollar
Loans on the last day of the applicable Interest Period and on the
Maturity Date.
"London Interbank Offered Rate" means, for any Eurodollar Loan for
any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) appearing on Telerate Page 3750 (or
any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified on
Telerate Page 3750, the applicable rate shall be the arithmetic mean of
all such rates. If for any reason such rate is not available, the term
"London Interbank Offered Rate" shall mean, for any Eurodollar Loan for
any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) appearing on Reuters Screen LIBO
Page as the London interbank
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offered rate for deposits in U.S. dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however,
if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates.
"Maturity Date" means the Initial Maturity Date or if the Initial
Maturity Date is extended in accordance with the terms hereof, the Final
Maturity Date.
"Notice of Borrowing" means a request by the Borrowers for a Loan,
in the form of Exhibit 2(b) attached hereto.
"Notice of Continuation/Conversion" means a request by the Borrowers
to continue an existing Eurodollar Loan to a new Interest Period or to
convert a Eurodollar Loan to a Prime Rate Loan or to convert a Prime Rate
Loan to a Eurodollar Loan, in the form of Exhibit 2(c) attached hereto.
"Prime Rate" means the per annum rate of interest established from
time to time by the Lender at its principal office in Charlotte, North
Carolina (or such other principal office of the Lender as communicated in
writing to the Borrowers) as its Prime Rate. Any change in the interest
rate resulting from a change in the Prime Rate shall become effective as
of 12:01 a.m. of the Business Day on which each change in the Prime Rate
is announced by the Lender. The Prime Rate is a reference rate used by
the Lender in determining interest rates on certain loans and is not
intended to be the lowest rate of interest charged on any extension of
credit to any debtor.
"Prime Rate Loan" means a Loan bearing interest based at a rate
determined by reference to the Prime Rate.
"Senior Revolving Credit Agreement" means that certain $300 million
revolving credit agreement, dated as of the date hereof, among the
Borrowers, the Subsidiaries of the Borrowers as Guarantors, the Lender,
as Administrative Agent, and the other lenders party thereto.
2. The Loans.
(a) Commitment. Subject to the terms and conditions set forth
herein, the Lender agrees to make loans (each a "Loan" and collectively
the "Loans") to the Borrowers, in U.S. dollars, at any time and from time
to time, from the date hereof to but not including the Maturity Date;
provided that the aggregate principal amount of Loans advanced hereunder
cannot exceed $100,000,000.
(b) Method of Borrowing for Loans. By no later than 11:00 a.m. (i)
one Business Day prior to the date of the requested borrowing of Loans
that will be Prime Rate Loans or (ii) three Business Days prior to the
date of the requested borrowing of Loans that will be Eurodollar Loans,
the Borrowers shall submit a written Notice of Borrowing in the
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form of Exhibit 2(b) attached hereto to the Lender setting forth (A) the
amount requested, (B) whether such Loans shall be Prime Rate Loans or
Eurodollar Loans, and (C) certification that the Borrowers have complied
in all respects with Section 6(b) hereof. The Lender will make the
requested Loan to the Borrowers on the date set forth in the Notice of
Borrowing by crediting the account of the Borrowers on the books of the
Lender.
(c) Continuations and Conversions. The Borrowers shall have the
option, on any Business Day, to continue existing Eurodollar Loans for a
subsequent Interest Period, to convert Prime Rate Loans into Eurodollar
Loans, or to convert Eurodollar Loans into Prime Rate Loans; provided,
however, that (i) each such continuation or conversion must be requested
by the Borrowers pursuant to a written Notice of Continuation/Conversion,
in the form of Exhibit 2(c) attached hereto, in compliance with the terms
set forth below, (ii) Eurodollar Loans may only be continued or converted
on the last day of the Interest Period applicable thereto, (iii)
Eurodollar Loans may not be continued nor may Prime Rate Loans be
converted into Eurodollar Loans during the existence and continuation of
a Default or Event of Default and (iv) any request to continue a
Eurodollar Loan that fails to comply with the terms hereof or any failure
to request a continuation of a Eurodollar Loan at the end of an Interest
Period shall result in a conversion of such Eurodollar Loan to a Prime
Rate Loan on the last day of the applicable Interest Period. Each
continuation or conversion must be requested by the Borrowers no later
than 11:00 a.m. (A) one Business Day prior to the date for a requested
conversion of a Eurodollar Loan to a Prime Rate Loan or (B) three
Business Days prior to the date for a requested continuation of a
Eurodollar Loan or conversion of a Prime Rate Loan to a Eurodollar Loan,
in each case pursuant to a written Notice of Continuation/Conversion
submitted to the Lender.
(d) Minimum Amounts/Restrictions on Loans. Each request for a
borrowing, conversion or continuation shall be subject to the
requirements that (i) each Eurodollar Loan shall be in a minimum amount
of $1,000,000 and in integral multiples of $100,000 in excess thereof,
(ii) each Prime Rate Loan shall be in a minimum amount of $500,000 (and
integral multiples of $100,000 in excess thereof) or the remaining amount
available under this Note, (iv) no more than four Loans shall be made
during any one month and (v) no more than six Eurodollar Loans shall be
outstanding at any one time. For the purposes of this Section, all
Eurodollar Loans with the same Interest Periods beginning on the same
date shall be considered as one Eurodollar Loan, but Eurodollar Loans
with different Interest Periods, even if they begin on the same date,
shall be considered as separate Eurodollar Loans.
(e) Appointment of BOP. BRT hereby appoints BOP to act as its
agent for all purposes under this Note (including, without limitation,
with respect to all matters related to the borrowing and repayment of
Loans) and agrees that (i) BOP may execute such documents on behalf of
BRT as BOP deems appropriate in its sole discretion and BRT shall be
obligated by all of the terms of any such document executed on its
behalf, (ii) any notice or communication delivered by the Lender to BOP
shall be deemed delivered to BRT and (iii) the Lender may accept, and be
permitted to rely on, any document, instrument or agreement executed by
BOP on behalf of a Borrower or BRT.
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3. Interest.
(a) Interest Rate. From the date hereof until the Initial Maturity
Date, (i) all Prime Rate Loans shall accrue interest at the Prime Rate
plus .25% and all Eurodollar Loans shall accrue interest at the
Eurodollar Rate plus 1.50%. If the Maturity Date is extended pursuant to
the terms hereof, then from the day after the Initial Maturity Date until
the Final Maturity Date, all Prime Rate Loans shall accrue interest at
the Prime Rate plus .50% and all Eurodollar Loans shall accrue interest
at the Eurodollar Rate plus 1.75%.
(b) Default Rate of Interest. Upon the occurrence, and during the
continuance, of an Event of Default, the principal of and, to the extent
permitted by law, interest on the Loans and any other amounts owing
hereunder (including without limitation fees and expenses) shall bear
interest, payable on demand, at a per annum rate equal to four percent
(4%) plus the rate which would otherwise be applicable (or if no rate is
applicable, then the rate for Prime Rate Loans plus four percent (4%) per
annum).
(c) Interest Payments. Interest on Loans shall be due and payable
in arrears on each Interest Payment Date. If an Interest Payment Date
falls on a date which is not a Business Day, such Interest Payment Date
shall be deemed to be the succeeding Business Day, except that in the
case of Eurodollar Loans where the succeeding Business Day falls in the
succeeding calendar month, then on the preceding Business Day.
(d) Computation of Interest. Except for Prime Rate Loans which
shall be calculated on the basis of a 365 or 366 day year as the case may
be, all computations of interest hereunder shall be made on the basis of
the actual number of days elapsed over a year of 360 days. Interest
shall accrue from and include the date of borrowing (or continuation or
conversion) but exclude the date of payment. It is the intent of the
Lender and the Borrowers to conform to and contract in strict compliance
with applicable usury law from time to time in effect. All agreements
between the Lender and the Borrowers are hereby limited by the provisions
of this paragraph which shall override and control all such agreements,
whether now existing or hereafter arising and whether written or oral.
4. Payments.
(a) Place of Payments. All payments of principal, interest, fees,
expenses and other amounts to be made by a Borrower under this Note shall
be received not later than 2:00 p.m. on the date when due, in U.S.
dollars and in immediately available funds, by the Lender at its offices
in Charlotte, North Carolina. Payments received after such time shall be
deemed to have been received on the next Business Day. Whenever any
payment hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next
succeeding Business Day (subject to accrual of interest and fees for the
period of such extension), except that in the case of Eurodollar Loans,
if the extension would cause the payment to be made in the next following
calendar month, then such payment shall instead be made on the next
preceding Business Day.
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(b) Voluntary Prepayments. The Borrowers shall have the right to
prepay Loans in whole or in part from time to time without premium or
penalty; provided, however, that Eurodollar Loans may only be prepaid on
three Business Days' prior written notice to the Lender and any
prepayment of Eurodollar Loans will be subject to Section 4(d) below.
Prepayments shall be applied first to Prime Rate Loans and then to
Eurodollar Loans in direct order of Interest Period maturities. Xxxxx
repaid hereunder may not be reborrowed.
(c) Payment in full at Maturity; Extension of Maturity.
(i) On the Maturity Date, the entire outstanding principal
balance of all Loans, together with accrued but unpaid interest and
all other sums owing with respect thereto, shall be due and payable
in full, unless accelerated sooner pursuant to Section 8 hereof.
(ii) If on the Initial Maturity Date (A) no Default or Event of
Default exists and is continuing and (B) the Borrowers pay to the
Lender an extension fee equal to one-fourth of one percent (.25%) of
the then principal amount outstanding under this Note, the Borrowers
may elect to extend the Maturity Date to the Final Maturity Date;
provided that if the Borrowers elect to extend the Maturity Date
pursuant to this Section 4(c)(ii), the Lender may, in its sole
discretion, elect to require the Borrowers to provide collateral to
secure its obligations under this Note. The Borrowers shall give
written notice to the Lender of its desire to effect such election
at least 20 days, but no more than 45 days, prior to the Initial
Maturity Date.
(d) Compensation. The Borrowers promise to indemnify the Lender
and to hold the Lender harmless from any loss or expense which the Lender
may sustain or incur as a consequence of (i) default by the Borrowers in
making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Borrowers have given a notice requesting the same in
accordance with the provisions of this Note, (ii) default by the
Borrowers in making any prepayment of a Eurodollar Loan after the
Borrowers have given a notice thereof in accordance with the provisions
of this Note and (iii) the making of a prepayment of Eurodollar Loans on
a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to (A) the
amount of interest which would have accrued on the amount so prepaid, or
not so borrowed, converted or continued, for the period from the date of
such prepayment or of such failure to borrow, convert or continue to the
last day of the applicable Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein minus (B)
the amount of interest (as reasonably determined by the Lender) which
would have accrued to the Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank
Eurodollar market. The agreements in this section shall survive the
termination of this Note and the payment of the Loans and all other
amounts payable hereunder. Notwithstanding the
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foregoing any prepayment of a Eurodollar Loan made in connection with the
requirements of Section 3.3(b)(iii) of the Senior Revolving Credit
Agreement shall not be subject to this Section 4(d).
5. Incorporation by Reference.
(a) Yield Protection. Sections 3.9, 3.10, 3.11 and 3.12 of the
Senior Revolving Credit Agreement are incorporated herein by reference
(including any defined terms contained therein), to the extent
applicable, and shall be binding on the Borrowers as if set forth herein.
(b) Representations and Warranties. All of the representations and
warranties set forth in Section 6 of the Senior Revolving Credit
Agreement are incorporated herein by reference (including any defined
terms contained therein) and made and affirmed by the Borrowers to the
Lender as of the date of this Note and as of such dates as required
pursuant to Section 6(b) hereof.
(c) Covenants. All of the covenants set forth in Section 7 and
Section 8 of the Senior Revolving Credit Agreement are incorporated
herein by reference (including any defined terms contained therein) and
shall be binding on the Borrowers as if set forth herein.
6. Conditions Precedent.
(a) Closing Conditions. The obligation of the Lender to make the
initial Loan under this Note is subject to satisfaction of the following
conditions (in form and substance acceptable to Lender):
(i) Executed Documents. Receipt by the Lender of a duly
executed copy of this Note.
(ii) Guaranty Agreement. Receipt by the Lender of a guaranty
agreement, in form and substance acceptable to the Lender, executed
by the Guarantors (the "Guaranty Agreement").
(iii) Authority Documents. Receipt by the Lender of
documents and certificates from the Borrowers and Guarantors in the
same form and in the same manner as required by Sections 5.1(b),
(c), (d) and (e) of the Senior Revolving Credit Agreement.
(iv) Legal Opinion. Receipt by the Lender of opinions from
counsel to the Borrowers and Guarantors, in form and substance
acceptable to the Lender, addressed to the Lender and dated as of
the date hereof.
(v) Fees and Expenses. All fees and expenses required to be
paid by the Borrowers to the Lender under this Note have been paid
in full.
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(b) Conditions to Loans. In addition to the conditions precedent
stated elsewhere herein, the Lender shall not be obligated to make Loans
unless:
(i) Delivery of Notice. The Borrowers shall have delivered a
Notice of Borrowing, duly executed and completed, by the time
specified in Section 2(b) hereof.
(ii) Representations and Warranties. The representations and
warranties made by the Borrowers as incorporated herein by reference
are true and correct in all material respects at and as if made as
of such date except to the extent they expressly relate to an
earlier date.
(iii) No Default. No Default or Event of Default shall
exist or be continuing either prior to or after giving effect
thereto.
(iv) Availability. After giving effect to the making of the
requested Loan, the aggregate principal amount of Loans advanced
under this Note shall be less than or equal to $100,000,000.
The delivery of each Notice of Borrowing shall constitute a representation and
warranty by the Borrowers of the correctness of the matters specified in
subsections (b), (c), and (d) above.
7. Events of Default. An Event of Default shall exist upon the
occurrence of any of the following:
(a) Payments. The Borrowers shall default in the payment (i) when
due of any principal amount of any Loans or (ii) within three days of
when due of any interest on the Loans or any fees or other amounts owing
hereunder.
(b) Senior Revolving Credit Agreement. An Event of Default shall
exist under the terms of the Senior Revolving Credit Agreement.
(c) Guaranty Agreement. An Event of Default shall exist under the
terms of the Guaranty Agreement.
8. Remedies. Upon the occurrence of an Event of Default, the Lender
may (a) declare any commitment to advance Loans under this Note to be
terminated, (b) declare all unpaid principal, accrued but unpaid interest and
all other sums owing under this Note to be immediately due and payable in full
without presentation, demand, protest or notice of any kind, all of which are
hereby waived by the Borrowers and/or (c) enforce any and all rights and
interests in accordance with applicable law, including, without limitation,
all rights against the Guarantors and all rights of set-off.
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9. Miscellaneous.
(a) Notices. Except as otherwise expressly provided herein, all
notices and other communications shall have been duly given and shall be
effective (i) when delivered by hand, (ii) when transmitted via telecopy
(or other facsimile device), (iii) the Business Day following the day on
which the same has been delivered prepaid to a reputable national
overnight air courier service, or (iv) the third Business Day following
the day on which the same is sent by certified or registered mail,
postage prepaid, in each case to the respective parties at the address or
telecopy numbers set forth below, or at such other address as such party
may specify by written notice to the other parties hereto; provided,
however, that if any notice is delivered on a day other than a Business
Day then such notice shall not be effective until the next Business Day:
if to the Borrowers: [name of Xxxxxxxx]
c/o Brandywine Operating Partnership, L.P.
Newtown Square Corporate Campus
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 19073
Attention: Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
if to the Lender: Xxxxxx Xxxxxxxxxx
NationsBank Real Estate
Structured Debt Group
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) Set-Off. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default and the
commencement of remedies described in Section 8 hereof, the Lender is
authorized at any time and from time to time, without presentment,
demand, protest or other notice of any kind (all of which rights being
hereby expressly waived), to set-off and to appropriate and apply any and
all deposits (general or special) and any other indebtedness at any time
held or owing by the Lender (including, without limitation, branches,
agencies or affiliates of the Lender wherever located) to or for the
credit or the account of any Borrower against obligations and liabilities
of such Borrower to the Lender hereunder, irrespective of whether the
Lender shall have made any demand hereunder and although such
obligations, liabilities or claims, or any of them, may be contingent or
unmatured, and any such set-off shall be deemed to have been made
immediately upon the occurrence of an Event of Default even though such
charge is made or entered on the books of the Lender subsequent thereto.
The Borrowers hereby agree that any person purchasing a
9
participation in the Loans hereunder may exercise all rights of set-off
with respect to its participation interest as fully as if such Person
were the Lender hereunder.
(c) Benefit of Agreement. This Note shall be binding upon and
inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that the Borrowers may not
assign and transfer any of their interests without the prior written
consent of the Lender; and provided further that the Lender may transfer,
assign or grant participations in its rights and/or obligations hereunder
as it deems necessary or appropriate.
(d) No Waiver; Remedies Cumulative. No failure or delay on the
part of the Lender in exercising any right, power or privilege hereunder
and no course of dealing between the Borrowers and the Lender shall
operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder. The rights and remedies provided herein are cumulative and
not exclusive of any rights or remedies which the Lender would otherwise
have. No notice to or demand on the Borrowers in any case shall entitle
the Borrowers to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Lender to
any other or further action in any circumstances without notice or
demand.
(e) Expenses and Indemnification. The Borrowers agree to: (a) pay
all reasonable out-of-pocket costs and expenses of the Lender in
connection with (i) the negotiation, preparation, execution and delivery
and administration of this Note (including, without limitation, the
reasonable fees and expenses of Xxxxx & Xxx Xxxxx, special counsel to the
Lender, (ii) any amendment, waiver or consent relating hereto and thereto
including, but not limited to, any such amendments, waivers or consents
resulting from or related to any work-out, renegotiation or restructure
relating to the performance by the Borrowers under this Note, (iii) the
enforcement of this Note, including, without limitation, the reasonable
fees and disbursements of counsel for the Lender, and (iv) any bankruptcy
or insolvency proceeding of a Borrower or any of its Subsidiaries, and
(b) indemnify the Lender, its officers, directors, employees,
representatives and agents from and hold each of them harmless against
any and all losses, liabilities, claims, damages or expenses incurred by
any of them as a result of, or arising out of, or in any way related to,
or by reason of, any investigation, litigation or other proceeding
(whether or not the Lender is a party thereto) related to the entering
into and/or performance of this Note or the use of proceeds of any Loans
(including other extensions of credit) hereunder or the consummation of
any other transactions contemplated in this Note, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding
(but excluding any such losses, liabilities, claims, damages or expenses
to the extent incurred by reason of gross negligence or willful
misconduct on the part of the person to be indemnified).
(f) Amendments, Waivers and Consents. Neither this Note nor any of
the terms hereof may be amended, changed, waived, discharged or
terminated unless such
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amendment, change, waiver, discharge or termination is in writing signed
by the Borrowers and the Lender.
(g) Survival of Indemnification and Representations and Warranties.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Note and the
making of the Loans.
(h) Counterparts. This Note may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
(i) Headings. The headings of the sections and subsections hereof
are provided for convenience only and shall not in any way affect the
meaning or construction of any provision of this Note.
(j) Governing Law; Venue.
(i) THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NORTH CAROLINA. Any legal action or proceeding with
respect to this Note may be brought in the courts of the
State of North Carolina in Mecklenburg County, or of the
United States for the Western District of North Carolina,
and, by execution and delivery of this Note, each Borrower
hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the
jurisdiction of such courts. Each Borrower further
irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to it at the address
for notices pursuant to Section 9(a). Nothing herein
shall affect the right of the Lender to serve process in
any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against a Borrower in
any other jurisdiction.
(ii) Each Borrower hereby irrevocably waives any
objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Note brought in
the courts referred to in subsection (i) hereof and hereby
further irrevocably waives and agrees not to plead or
claim in any such court that any such action or proceeding
brought in any such court has been brought in an
inconvenient forum.
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(k) Waiver of Jury Trial. EACH OF THE UNDERSIGNED HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS NOTE, ANY OF THE OTHER
DOCUMENTS EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(l) Severability. If any provision of this Note is determined to
be illegal, invalid or unenforceable, such provision shall be fully
severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal,
invalid or unenforceable provisions.
(m) Entirety. This Note, together with the other documents
referred to herein, represent the entire agreement of the parties hereto
and thereto, and supersede all prior agreements and understandings, oral
or written, if any, including any commitment letters or correspondence.
(n) Non-Recourse. Notwithstanding anything herein to the contrary,
no recourse shall be had against the Brandywine Realty Services
Partnership or any past, present or future shareholder, officer, director
or trustee of BRT for any obligation of the Borrowers hereunder, or for
any claim based thereon or otherwise in respect thereof; provided,
however, that this subparagraph (n) shall not restrict or limit any claim
against any such person arising out of or occurring with respect to fraud
or any intentional misrepresentation or any act or omission that is
willful or wanton or constitutes gross negligence or willful misconduct.
12
This Note is executed as of the date first set forth above.
BRANDYWINE REALTY TRUST, a Maryland
real estate investment trust
By:
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Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
By:
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
ACKNOWLEDGED AND AGREED
AS OF THE DATE FIRST
SET FORTH ABOVE
NATIONSBANK, N.A.
By:
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Name:
--------------------
Title:
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