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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
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OPEN-END MORTGAGE AND SECURITY AGREEMENT
(This Mortgage Secures Future Advances)
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Dated: As of May 30, 1997
Location: __________________
__________________
__________________
RECORD AND RETURN TO:
Battle Xxxxxx LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Uniform Parcel Identifier: _______
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Master Pennsylvania Mortgage
TABLE OF CONTENTS
Page
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1. Payment of Debt.................................................... 3
2. Warranty of Title.................................................. 3
3. Leases and Rents................................................... 3
4. Notice............................................................. 3
5. Sale of Mortgaged Property......................................... 4
6. Changes in Laws Regarding Taxation................................. 4
7. No Credits on Account of the Debt.................................. 5
8. Documentary Stamps................................................. 5
9. Events of Default.................................................. 5
10. Certain Remedies................................................... 5
11. Appointment of Receiver............................................ 6
12. Non-Waiver......................................................... 6
13. Construction....................................................... 7
14. Security Agreement................................................. 7
15. Further Acts, etc.................................................. 8
16. Headings, etc...................................................... 8
17. Filing of Mortgage, etc............................................ 8
18. Recovery of Sums Required To Be Paid............................... 8
19. Actions, Cases and Proceedings..................................... 8
20. Inapplicable Provisions............................................ 8
21. Duplicate Originals................................................ 9
22. Certain Usage...................................................... 9
23. Waiver of Notice................................................... 9
24. No Oral Change..................................................... 9
25. Waiver of Statutory Rights......................................... 9
26. Credit Agreement................................................... 9
27. Binding Effect..................................................... 9
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Page
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28. Exculpation........................................................ 9
29. Open-End Mortgage.................................................. 10
ACKNOWLEDGEMENT
EXHIBIT A - (Definitions)
EXHIBIT B - (Description of Premises)
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Uniform Parcel Identifier: _______
OPEN-END MORTGAGE AND SECURITY AGREEMENT
(This Mortgage Secures Future Advances)
This Mortgage entered into as of the 30th day of May,
1997, between Brandywine Operating Partnership, L.P., a Delaware
limited partnership having an office c/o Brandywine Realty Trust,
Newtown Square Corporate Campus, 00 Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx (hereinafter referred to as "Mortgagor");
and NationsBank, N.A., a national banking association having an office
at 0000 Xxxxxxxxxx Xxxxx, XxXxxx, Xxxxxxxx, 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 credit facility in the
principal sum of up to, but not in excess of, $70,000,000 (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 were willing to extend the Credit Facility to
Borrowers only if Mortgagor executed and delivered 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, Seventy Million and 00/100
Dollars ($70,000,000.00), lawful money of the United States of America, or so
much thereof as may be advanced 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
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(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:
1. Payment of Debt. Mortgagor will pay the Debt at the time
and in the manner provided for its payment in the Credit Facility Documents.
2. 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.
3. 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.
4. 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,
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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
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
With a copy to:
Pepper, Xxxxxxxx & Xxxxxxx
3000 Two Xxxxx Square
Eighteenth and Arch Streets
Philadelphia, Pennsylvania 19103-2799
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
If to Mortgagee:
NationsBank, N.A.
Real Estate Banking
0000 Xxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxx
Vice President
With copies to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxx Xxxxxxx Xxxxxx - Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
and
Battle Xxxxxx LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, 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.
5. 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.
6. 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
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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.
7. 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.
8. 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.
9. 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.
10. 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:
(i) 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.
(ii) 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.
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(iii) 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.
(iv) 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.
11. 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.
12. 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
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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.
13. Construction. The terms of this Mortgage shall be
construed in accordance with the laws of the State in which the Premises are
located.
14. 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
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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.
15. 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.
16. 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.
17. 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
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assigns, against any liability incurred by reason of the imposition of any tax
on the making and recording of this Mortgage.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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
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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.
26. 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 by
Co-Lenders 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.
27. 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.
28. 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.
29. 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.
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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/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
Certificate of Residence of the Mortgagee
The business address of the Mortgagee herein is 0000
Xxxxxxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000-0000.
_________________________________________
Agent/Attorney for Mortgagee
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ACKNOWLEDGEMENT
(To be attached)
EXHIBIT A
(Definitions)
Borrowers: The term "Borrowers" as used in this Mortgage shall mean Mortgagor
and BRT.
BRT: The term "BRT" as used in this Mortgage shall mean Brandywine Realty Trust,
a Maryland real estate investment trust.
Co-Lenders: The term "Co-Lenders" as used in this Mortgage shall mean,
collectively, Xxxxx Xxxxxx and NB.
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 the date
hereof between Xxxxx Xxxxxx and NB, in its individual capacity and in its
capacity as administrative and documentation agent for the Credit Facility, as
the same may be amended from time to time.
Credit Agreement: The term "Credit Agreement" as used in this Mortgage shall
mean that certain Credit Agreement dated as of the date of this Mortgage among
Xxxxx Xxxxxx, NB, in its individual capacity, Mortgagor and BRT, 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
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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.
Xxxxx Xxxxxx: The term "Xxxxx Xxxxxx" as used in this Mortgage shall mean Xxxxx
Xxxxxx 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.
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*EXHIBIT B
(Description of Premises)
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* Legal description of premises should include insurable description of
any easements which are appurtenant to the Premises.
