HAZARDOUS MATERIAL
GUARANTY AND
INDEMNIFICATION AGREEMENT
This Guaranty and Indemnification Agreement entered
into as of the 30th day of May, 1997, among Brandywine Realty Trust
("BRT"), a Maryland real estate investment trust; Brandywine Operating
Partnership, L.P. ("BOP), a Delaware limited partnership, (BRT and BOP
are hereinafter collectively referred to as "Borrowers"); Witmer
Operating Partnership, L.P. ("WOP"), a Delaware limited partnership;
Brandywine Realty Partners, a Pennsylvania general partnership ("BRP");
Brandywine Realty Services Corporation ("BRSC"), a Pennsylvania
corporation (BRT, BOP, WOP, BRP and BRSC are hereinafter collectively
referred to as "Guarantors"); and NationsBank, N.A., a national banking
association having an office at 8300 Greensboro Drive, McLean, Virginia
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 "Agent").
PRELIMINARY STATEMENT
A. All capitalized terms as used in this Guaranty and
Indemnification Agreement shall, unless otherwise defined in this Guaranty and
Indemnification Agreement, have the meanings given to such terms in Exhibit A
attached hereto.
B. Co-Lenders have agreed on the terms, covenants and
provisions of the Credit Agreement to extend to Borrowers a credit facility in
the principal sum of up to, but not in excess of, $70,000,000 (the "Credit
Facility"), which Credit Facility shall be evidenced by the Credit Facility
Notes and secured inter alia by the Mortgages.
C. Co-Lenders were willing to extend the Credit Facility to
Borrowers only if Guarantors execute and deliver this Guaranty and
Indemnification Agreement to Agent, individually, and as administrative and
documentation agent for the equal and ratable benefit of Co-Lenders.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt of which is hereby
acknowledged, and to induce Co-Lenders to extend the Credit Facility, Guarantors
hereby represent and warrant to and covenant and agree with Agent, individually
and for the equal and ratable benefit of Co-Lenders, as follows:
1. Guarantors hereby represents and warrants to Agent that to
the best of Guarantors' knowledge (i) no Hazardous Material is currently located
at, on, in, under or about any Property, except as specifically set forth in the
Environmental Reports, (ii) no Hazardous Material is currently located at, in,
on, under or about any Property in a manner which violates any Environmental
Requirement, or which requires cleanup or corrective action of
any kind under any Environmental Requirement, (iii) no releasing, emitting,
discharging, leaching, dumping or disposing of any Hazardous Material from any
Property onto or into any other property or from any other property onto or into
any Property has occurred or is occurring in violation of any Environmental
Requirement, (iv) no notice of violation, lien, complaint, suit, order or other
notice with respect to any Property is presently outstanding under any
Environmental Requirement, and (v) each Property and the operation thereof are
in full compliance with all Environmental Requirements.
2. Guarantors absolutely and unconditionally guarantee to
Agent that Borrowers will fully comply with all of the Environmental Provisions
of the Credit Agreement. If Borrowers do not fully comply with all of the
Environmental Provisions of the Credit Agreement, Guarantors shall reimburse
Agent upon demand for all costs and expenses (including, but not limited to,
reasonable legal fees) incurred by Agent or any Co-Lender (to the extent not
otherwise reimbursed to Agent or any such Co-Lender by Borrowers) in connection
with Agent or any of Co-Lenders performing Borrowers' obligations under or in
respect of the Environmental Provisions of the Credit Agreement, together with
interest thereon at the Default Rate.
3. Guarantors will defend, indemnify, and hold harmless Agent
and Co-Lenders, and their respective employees, agents, officers and directors,
from and against any and all claims, demands, penalties, causes of action,
fines, liabilities, settlements, damages, costs or expenses of whatever kind or
nature, known or unknown, foreseen or unforeseen, contingent or otherwise
(including, without limitation, consultant fees and expenses, investigation and
laboratory fees and expenses, court costs, litigation expenses and reasonable
attorneys fees) arising out of, or in any way related to (i) any breach by
Borrowers of any of the Environmental Provisions of the Credit Agreement, (ii)
the presence, disposal, spillage, discharge, emission, leakage, release, or
threatened release of any Hazardous Material which is at, in, on, under, about,
from or affecting any Property, including without limitation, any damage or
injury resulting from any such Hazardous Material to or affecting any Property
or the soil, water, air, vegetation, buildings, personal property, persons or
animals located on any Property or on any other property or otherwise, (iii) any
personal injury (including wrongful death) or property damage (real or personal)
arising out of or related to any such Hazardous Material, (iv) any lawsuit
brought or threatened, settlement reached, or order or directive of or by any
Governmental Authority relating to such Hazardous Material, or (v) any violation
of any Environmental Requirement.
4. The indemnifications hereinabove set forth in this Guaranty
and Indemnification Agreement shall not be applicable to any claim, demand,
penalty, cause of action, fine, liability, settlement, damage, cost or other
expense of any type whatsoever pertaining to a particular Property (i)
occasioned, arising and caused solely and directly as the result of the
negligence or willful misconduct of Agent or any Co-Lender, or any nominee or
any wholly owned subsidiary of Agent or a Co-Lender or any of their respective
employees or agents and irrespective of whether occurring prior or subsequent to
the date upon which Agent or any Co-Lender or any nominees or any wholly owned
subsidiaries of Agent or any Co-Lender acquires possession of such Property by
foreclosure of a Mortgage, a sale of such Property pursuant to the provisions of
a Mortgage, acceptance of a deed or assignment in lieu of foreclosure or sale or
otherwise, or (ii) occasioned, arising and caused solely and directly as the
result of any act of any person or party (other than (A) an act of Borrowers or
Guarantors, their respective employees or agents or persons or parties under the
control of Borrowers or Guarantors, or
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(B) an act of Agent or any Co-Lender, any nominee or any wholly owned subsidiary
of Agent or any Co-Lender or any of their respective employees or agents which
does not constitute negligence or willful misconduct, or (C) an act of any
Governmental Authority, including, without limitation, any change in any
Environmental Requirement) and occurring subsequent to the earlier to occur of
(x) the date of payment in cash of the entire Debt, and (y) the date upon which
Agent, Co-Lenders, any nominee(s) or any wholly owned subsidiary(ies) of Agent
or Co-Lenders acquire possession of such Property by foreclosure of a Mortgage,
a sale of such Property pursuant to the provisions of a Mortgage, acceptance of
a deed or assignment in lieu of foreclosure or sale or otherwise.
5. Except as hereinabove specifically provided to the contrary
in paragraph 4 above, the obligations and liabilities of Guarantors under this
Guaranty and Indemnification Agreement shall survive and continue in full force
and effect and shall not be terminated, discharged or released, in whole or in
part, irrespective of whether the Debt has been paid in full and irrespective of
any foreclosure of the Mortgages, the sale of any one or more of the Properties
pursuant to the provisions of the Mortgages or acceptance by Agent, Co-Lenders,
their nominee(s) or wholly-owned subsidiary(ies), of one or more deeds or
assignments in lieu of foreclosure or sale and irrespective of any other fact or
circumstance whatsoever.
6. Guarantors hereby consent that from time to time, before or
after any default by Borrowers, with or without further notice to or assent from
Guarantors, any security at any time held by or available to Agent or any
Co-Lender for any obligation of Borrowers, or any security at any time held by
or available to Agent or any Co-Lenders for any obligation of any other person
or party secondarily or otherwise liable for all or any portion of the Debt or
for the performance of all or any portion of the Environmental Provisions of the
Credit Agreement, may be exchanged, surrendered or released and any obligation
of Borrowers, or of any such other person or party, may be changed, altered,
renewed, extended, continued, surrendered, compromised, waived or released in
whole or in part, or any default with respect thereto waived, and Agent or any
Co-Lender may fail to set off and may release, in whole or in part, any balance
of any deposit account or credit on its books in favor of Borrowers, or of any
such other person or party, and may extend further credit in any manner
whatsoever to Borrowers, and generally deal with Borrowers or any such security
or other person or party as Agent or such Co-Lender may see fit; and Guarantors
shall remain bound under this Guaranty and Indemnification Agreement
notwithstanding any such exchange, surrender, release, change, alteration,
renewal, extension, continuance, compromise, waiver, inaction, extension of
further credit or other dealing.
7. To the full extent that this Guaranty and Indemnification
Agreement relates to any monetary obligation of Borrowers in respect of the
Environmental Provisions of the Credit Agreement, this Guaranty and
Indemnification Agreement is a guaranty of payment and not of collection and
Guarantors further waive any right to require that any action, case or
proceeding be brought against Borrowers or any other person or party or to
require that resort be had to any security or to any balance of any deposit
account or credit on the books of Agent or any Co-Lender in favor of Borrowers
or any other person or party.
8. Each reference herein to Co-Lenders and to Agent shall be
deemed to include their respective successors and assigns, in whose favor the
provisions of this Guaranty and Indemnification Agreement shall also inure. Each
reference herein to Guarantors shall be deemed to include the successors
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and assigns of Guarantors, all of whom shall be bound by the provisions of this
Guaranty and Indemnification Agreement, provided, however, that Guarantors shall
in no event or under any circumstance have the right without obtaining the prior
written consent of Agent to assign or transfer their respective obligations and
liabilities under this Guaranty and Indemnification Agreement, in whole or in
part, to any other person, party or entity.
9. The term "Guarantors" as used herein shall mean the
"Guarantors and each of them" and each undertaking herein contained shall be
their joint and several undertaking, provided, however, that in the next
succeeding paragraph hereof the term "Guarantors" shall mean the "Guarantors or
any of them."
10. No delay on the part of Agent in exercising any right or
remedy under this Guaranty and Indemnification Agreement 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 Guarantors shall be deemed to be a waiver of
the obligation of Guarantors or of the right of Agent to take further action
without notice or demand as provided in this Guaranty and Indemnification
Agreement.
11. This Guaranty and Indemnification Agreement may only be
modified, amended, changed or terminated by an agreement in writing signed by
Agent and Guarantors. No waiver of any term, covenant or provision of this
Guaranty and Indemnification Agreement shall be effective unless given in
writing by Agent and if so given by Agent shall only be effective in the
specific instance in which given.
12. Guarantors acknowledge that this Guaranty and
Indemnification Agreement and Guarantors's obligations under this Guaranty and
Indemnification Agreement 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 (a) any other agreements or circumstances of any nature
whatsoever which might otherwise constitute a defense (other than a defense of
payment) to this Guaranty and Indemnification Agreement and the obligations of
Guarantors under this Guaranty and Indemnification Agreement or the obligations
of Borrowers or of any other person or party relating to this Guaranty and
Indemnification Agreement or the obligations of Guarantors hereunder or
otherwise with respect to the Credit Facility, including, but not limited to,
the realization by Agent or any Co-Lender upon any collateral given, pledged or
assigned as security for all or any portion of the Debt or for the performance
of the Environmental Provisions of the Credit Agreement, or the filing of a
petition or the commencement of a case with respect to any Borrower or any
Guarantor under Title 11 of the United States Code, as now constituted or
hereafter amended (the "Bankruptcy Code"), or under any other applicable Federal
or state bankruptcy, insolvency or similar law, or the obtaining by Agent or any
Co-Lender of title to any collateral given, pledged or assigned as security for
the Debt or for the performance of the Environmental Provisions of the Credit
Agreement, by foreclosure or enforcement of Agent's or any Co-Lender's lien
thereon, acceptance of an assignment or deed in lieu of foreclosure or sale, or
otherwise, or (b) any modification, impairment, abatement, reduction, release,
limitation, restructure, reinstatement or cure, in whole or part, of the
Environmental Provisions of the Credit Agreement (including, without limitation,
any such modification, impairment, abatement, reduction, release, limitation,
restructure, reinstatement or cure, in whole or in part, of any interest or
other sums payable by Borrowers under or in respect of the Environmental
Provisions of the Credit Agreement) pursuant to an order by a bankruptcy court
or other court of competent jurisdiction in any action, case
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or proceeding brought under the Bankruptcy Code or under any other applicable
Federal or state bankruptcy, insolvency or similar law, it being expressly
acknowledged and agreed by Guarantors that if any such modification, impairment,
abatement, reduction, release, limitation, restructure, reinstatement or cure,
in whole or part, is so ordered in any such action, case or proceeding,
Guarantors' obligations under this Guaranty and Indemnification Agreement will
nevertheless continue to be determined as if such order had not been issued.
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 this Guaranty and Indemnification Agreement or the
obligations of Guarantors under this Guaranty and Indemnification Agreement or
the obligations of Borrowers or any other person or party relating to this
Guaranty and Indemnification Agreement or the obligations of Guarantors
hereunder or otherwise with respect to the Credit Facility, in any action, case
or proceeding brought by Agent or Co-Lenders to enforce the obligations of
Guarantors under this Guaranty and Indemnification Agreement (provided, however,
that the foregoing provisions of this sentence shall not be deemed a waiver of
the right of the 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 right of the 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 the Guarantors against Agent of Co-Lenders). Guarantors
acknowledge that no oral or other agreements, understandings, representations or
warranties exist with respect to this Guaranty and Indemnification Agreement or
with respect to the obligations of Guarantors under this Guaranty and
Indemnification Agreement, except those specifically set forth in this Guaranty
and Indemnification Agreement, and that this Guaranty and Indemnification
Agreement sets forth the entire agreement and understanding of Agent, Co-Lenders
and Guarantors.
13. GUARANTORS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE,
AND AGENT AND CO-LENDERS BY THEIR ACCEPTANCE OF THIS GUARANTY AND
INDEMNIFICATION AGREEMENT IRREVOCABLY AND UNCONDITIONALLY WAIVE, 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 THIS GUARANTY AND
INDEMNIFICATION AGREEMENT.
14. Notwithstanding any payments made by Guarantors pursuant
to the provisions of this Guaranty and Indemnification Agreement, Guarantors
shall not seek to enforce or collect upon any rights which Guarantors now have
or may acquire against Borrowers either by way of subrogation, indemnity,
reimbursement or contribution for any amount paid under this Guaranty and
Indemnification Agreement, nor shall Guarantors file, assert or receive payment
on any claim, whether now existing or hereafter arising, against Borrowers
subsequent to the commencement of a case by or against Borrowers under the
Bankruptcy Code or under any other applicable Federal or state bankruptcy,
insolvency or similar law, in each case unless and until the Debt has been paid
in full and provided that no such action by Guarantors could, in the reasonable
opinion of Agent and its counsel, result in the "preference" period (as set
forth in Section 547(b)(4) of the Bankruptcy Code or any successor provision)
with respect to any payment or other transfer of assets to Agent or to any
Co-Lender from or on behalf of Borrowers being held to be longer than such
period would have been held to be if Guarantors had not taken such action. In
the event an action, case or proceeding is filed or commenced
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under the Bankruptcy Code or under any other applicable Federal or state
bankruptcy, insolvency or similar law in regard to Borrowers or an action, case
or proceeding is otherwise commenced for the benefit of the creditors of
Borrowers, this Guaranty and Indemnification Agreement shall at all times
thereafter remain effective in regard to any payments to Agent or any Co- Lender
or other transfers of assets to Agent or any Co-Lender received from or on
behalf of Borrowers under or in respect of the Environmental Provisions of the
Credit Facility Documents which are held voidable on the grounds of preference,
fraudulent conveyance or otherwise, whether or not the Debt has been paid in
full or whether or not the Mortgages or any or all of the Environmental
Provisions of the Credit Agreement have been discharged or released.
15. If at any time any payment, or portion thereof, made by,
or for the account of, Guarantors on account of the obligations under this
Guaranty and Indemnification Agreement, is set aside by any court or trustee
having jurisdiction as a voidable preference, fraudulent conveyance or otherwise
as being subject to avoidance or recovery under the provisions of the Bankruptcy
Code or under any other applicable Federal or state bankruptcy, insolvency or
similar law, Guarantors hereby agree that this Guaranty and Indemnification
Agreement (a) shall continue and remain in full force and effect, or (b) if
previously terminated as a result of Guarantors having fulfilled Guarantors'
obligations hereunder in full or as a result of Agent having released Guarantors
from Guarantors' obligations and liabilities hereunder, shall without further
act or instrument be reinstated and shall thereafter remain in full force and
effect, in either case with the same force and effect as though such payment or
portion thereof had not been made, and if applicable, as if such previous
termination had not occurred.
16. Any notice, request or demand given or made under this
Guaranty and Indemnification Agreement shall be in writing and shall be sent by
Federal Express or other reputable national courier service or by postage
prepaid 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 Agent:
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
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Battle Fowler LLP
Park Avenue Tower
75 East 55th Street
New York, New York 10022
Attention: Dean A. Stiffle, Esq.
If to Borrowers:
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 Guarantors:
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.
Each party to this Guaranty and Indemnification Agreement may designate a change
of address by notice given to the other parties fifteen (15) days prior to the
date such change of address is to become effective.
17. This Guaranty and Indemnification Agreement is, and shall
be deemed to be, a contract entered into under and pursuant to the laws of the
State of New York and shall be in all respects governed, construed, applied and
enforced in accordance with the laws of the State of New York. No defense given
or allowed by the laws of any other state or country shall be interposed in any
action, case or proceeding hereon unless such defense is also given or allowed
by the laws of the State of New York.
18. Guarantors agree to submit to personal jurisdiction in the
State of New York in any action, case or proceeding arising out of this Guaranty
and Indemnification Agreement and, in furtherance of such agreement, Guarantors
hereby agree and consent that without limiting other methods of
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obtaining jurisdiction, personal jurisdiction over Guarantors 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 Guarantors by registered or certified mail to or
by personal service at the last known addresses of Guarantors, whether such
addresses be within or without the jurisdiction of any such court. Guarantors
also agree that the venue of any litigation arising in connection with the
Environmental Provisions of the Credit Agreement, the Debt or in respect of any
of the obligations of Guarantors under this Guaranty and Indemnification
Agreement shall, to the extent permitted by law, be in New York County, New
York.
19. No exculpatory provisions contained in any of the Credit
Facility Documents shall in any event or any circumstance be deemed or construed
to modify, qualify, or affect in any manner whatsoever the personal recourse
obligations and liabilities of Guarantors under this Guaranty and
Indemnification Agreement.
20. The obligations and liabilities of Guarantors under this
Guaranty and Indemnification Agreement are in addition to the obligations and
liabilities of Guarantors under the Other Guaranties (as hereinafter defined).
The discharge of Guarantors' obligations and liabilities under any one or more
of the Other Guaranties by Guarantors or by reason of operations of law or
otherwise shall in no event or under any circumstance in and of itself
constitute or be deemed to constitute a discharge, in whole or in part, of
Guarantors' obligations and liabilities under this Guaranty and Indemnification
Agreement. Conversely, the discharge of Guarantors' obligations and liabilities
under this Guaranty and Indemnification Agreement by Guarantors or by reason of
operation of law or otherwise shall in no event or under any circumstance in and
of itself constitute or be deemed to constitute a discharge, in whole or in
part, of Guarantors' obligations and liabilities under any of the Other
Guaranties. The term "Other Guaranties" as used herein shall mean any other
guaranty of payment, guaranty of performance, completion guaranty,
indemnification agreement or other guaranty or instrument of personal recourse
obligation or undertaking of any nature whatsoever (other than this Guaranty and
Indemnification Agreement) now or hereafter executed and delivered by Guarantors
to Agent or Co-Lenders or any of them in connection with the Credit Facility.
21. This Guaranty and Indemnification Agreement 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 of guaranty. The failure of any party listed below
to execute this Guaranty and Indemnification Agreement, or any counterpart
hereof, shall not relieve the other signatories from their obligations
hereunder.
22. Guarantors agree that, with or without notice or demand,
Guarantors will reimburse Agent, (to the extent that such reimbursement is not
made by Borrowers), for all costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred by Agent or any Co-Lender in connection
with any action, case or proceeding brought by Agent to enforce the obligations
of Guarantors under this Guaranty and Indemnification Agreement.
23. No recourse shall be had for any obligation of BRT under
this Guaranty and Indemnification Agreement or for any claim based thereon or
otherwise in respect thereof, against any past, present or future trustee,
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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
and beneficiary of this Guaranty and Indemnification Agreement.
24. No recourse shall be had for any obligation of BRP under
this Guaranty and Indemnification Agreement 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 Guaranty and Indemnification
Agreement and by the other general partners of BRP.
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IN WITNESS WHEREOF, Guarantors have duly executed and
delivered this Guaranty and Indemnification Agreement to Agent as of the day and
year first above set forth.
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., a
Delaware limited 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
WITMER OPERATING PARTNERSHIP, L.P.
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
limited partnership, 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
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EXHIBIT A
(Definitions)
Agent: The term "Agent" as used in this Guaranty and Indemnification Agreement
shall have the meaning given to such term in the preamble to this Guaranty and
Indemnification Agreement.
BOP: The term "BOP" as used in this Guaranty and Indemnification Agreement
shall have the meaning given to such term in the preamble to this Guaranty and
Indemnification Agreement.
Borrowers: The term "Borrowers" as used in this Guaranty and Indemnification
Agreement shall have the meaning given to such term in the preamble to this
Guaranty and Indemnification Agreement.
BRP: The term "BRP" as used in this Guaranty and Indemnification Agreement
shall have the meaning given to such term in the preamble to this Guaranty and
Indemnification Agreement.
BRSC: The term "BRSC" as used in this Guaranty and Indemnification Agreement
shall have the meaning given to such term in the preamble to this Guaranty and
Indemnification Agreement.
BRT: The term "BRT" as used in this Guaranty and Indemnification Agreement
shall have the meaning given to such term in the preamble to this Guaranty and
Indemnification Agreement.
Co-Lenders: The term "Co-Lenders" as used in this Guaranty and Indemnification
Agreement shall collectively mean Smith Barney Mortgage Capital Group, Inc., a
Delaware corporation, and NationsBank, N.A., a national banking association.
Co-Lenders Agreement: The term "Co-Lenders Agreement" as used in this Guaranty
and Indemnification Agreement shall mean that certain Co-Lender and Servicing
Agreement dated as of the date hereof among Smith Barney Mortgage Capital Group,
Inc., NationsBank, N.A., in its individual capacity, and NationsBank, N.A., in
its capacity as Agent, as the same may be further amended from time to time.
Credit Agreement: The term "Credit Agreement" as used in this Guaranty and
Indemnification Agreement shall mean that certain Credit Agreement dated as of
the date hereof among Smith Barney Mortgage Capital Group, Inc., NationsBank,
N.A., in its individual capacity, Borrowers and NationsBank, N.A., in its
capacity as Agent and pursuant to the provisions of which the Credit Facility is
being extended by Co-Lenders to Borrowers, as the same may be further amended
from time to time.
Credit Facility: The term "Credit Facility" as used in this Guaranty and
Indemnification Agreement shall have the meaning given to such term in paragraph
B of the Preliminary Statement of this Guaranty and Indemnification Agreement.
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Credit Facility Documents: The term "Credit Facility Documents" as used in this
Guaranty and Indemnification Agreement shall have the meaning given to such term
in the Credit Agreement.
Credit Facility Notes: The term "Credit Facility Notes" as used in this
Guaranty and Indemnification Agreement shall have the meaning given to such term
in the Credit Agreement.
Debt: The term "Debt" as used in this Guaranty and Indemnification Agreement
shall have the meaning given to such term in the Credit Agreement.
Default Rate: The term "Default Rate" as used in this Guaranty and
Indemnification Agreement shall to the extent necessary be determined on a daily
basis and shall be equal to four (4%) percent plus the Floating Rate.
Environmental Provisions: The term "Environmental Provisions" as used in this
Guaranty and Indemnification Agreement shall mean the terms, covenants and
provisions set forth in the paragraph of the Credit Agreement entitled
"Environmental Provisions" on the part of Borrowers to be observed and
performed.
Environmental Requirements: The term "Environmental Requirements" as used in
this Guaranty and Indemnification Agreement shall mean all present and future
laws, statutes, ordinances, rules, regulations, orders, codes, licenses,
permits, decrees, judgments, directives or the equivalent of or by any
Governmental Authority and relating to or addressing the protection of the
environment or human health.
Environmental Reports: The term "Environmental Reports" as used in this
Guaranty and Indemnification Agreement shall have the meaning given to such
term in the Credit Agreement.
Floating Rate: The term "Floating Rate" as used in this Guaranty and
Indemnification Agreement shall have the meaning given to such term in the
Credit Agreement.
Governmental Authority: The term "Governmental Authority" as used in this
Guaranty and Indemnification Agreement shall mean the Federal government, or any
state or other political subdivision thereof, or any agency, court or body of
the Federal government, any state or other political subdivision thereof,
exercising executive, legislative, judicial, regulatory or administrative
functions.
Guarantors: The term "Guarantors" as used in this Guaranty and Indemnification
Agreement shall have the meaning given to such term in the preamble to this
Guaranty and Indemnification Agreement.
Hazardous Material: The term "Hazardous Material" as used in this Guaranty and
Indemnification Agreement shall mean any material or substance that, whether by
its nature or use, is now or hereafter defined as a hazardous waste, hazardous
substance, pollutant or contaminant under any Environmental Requirement, or
which is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous and which is now or hereafter
regulated under any Environmental Requirement, or which is or contains
petroleum, gasoline, diesel fuel or another petroleum hydrocarbon product.
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Mortgages: The term "Mortgages" as used in this Guaranty and Indemnification
Agreement shall have the meaning given to such term in the Credit Agreement.
Other Guaranties: The term "Other Guaranties" as used in this Guaranty and
Indemnification Agreement shall have the meaning given to such term in paragraph
20 of this Guaranty and Indemnification Agreement.
Properties: The term "Properties" as used in this Guaranty and
Indemnification Agreement shall have the meaning given to such term in the
Credit Agreement.
WOP: The term "WOP" as used in this Guaranty and Indemnification Agreement
shall have the meaning given to such term in the preamble to this Guaranty and
Indemnification Agreement.
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