GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of January 5, 1998 (this "Guaranty"), is
executed and delivered by the undersigned guarantors (each individually a
"Guarantor" and collectively the "Guarantors") in favor of NATIONSBANK, N.A.
(the "Lender") and at the request of Brandywine Realty Trust and Brandywine
Operating Partnership, L.P. (collectively, the "Borrowers"). All capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
such terms in the Note (as defined below).
RECITALS
WHEREAS, the Lender agreed to extend credit to the Borrowers pursuant to
the terms of that certain Promissory Note, dated as of the date hereof, in the
face amount of $100,000,000, given by the Borrowers in favor of the Lender (the
"Note");
WHEREAS, the Lender has required that the Guarantors execute and deliver
this Guaranty as a condition precedent to accepting the Note and agreeing to the
terms thereof;
WHEREAS, because of the direct and indirect benefit to the Guarantors from
the execution and delivery of the Note and from the Loans thereunder to the
Borrowers, the Guarantors have agreed to unconditionally guarantee the payment
to the Lender of the obligations of the Borrowers under the Note in accordance
with the terms set forth below.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, each of the Guarantors hereby agrees as follows:
AGREEMENT
1. Guaranty of Payment. Subject to Section 17 below, each of the
Guarantors hereby, jointly and severally, unconditionally guarantees to the
Lender the prompt payment of the Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise). For the
purposes hereof, the term "Obligations" means any and all indebtedness of the
Borrowers to the Lender under the Note, including, without limitation, all
principal, interest and fees evidenced thereby and all payments made by the
Borrowers to the Lender and subsequently returned by the Lender to any Borrower
or a trustee of any Borrower pursuant to the bankruptcy or insolvency of a
Borrower, together with any other amounts owing under the Note and all other
obligations (including specifically without limitation indemnity obligations) of
the Borrowers under the Note, howsoever evidenced, whether now existing or
hereafter arising, as such Obligations may be modified, extended or renewed from
time to time and any and all expenses (including reasonable fees and
disbursements of legal counsel), reasonable fees and all other reasonable
amounts incurred or paid by or on behalf of the Lender in enforcing
any rights hereunder. This Guaranty is a guaranty of payment and not of
collection and shall apply to all Obligations whenever arising.
2. Modifications. Each of the Guarantors agrees that (a) all or any part
of the security now or hereafter held for the Obligations, if any, may be
exchanged, compromised or surrendered from time to time; (b) the Lender shall
not have any obligation to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any, for the
Obligations or the properties subject thereto; (c) the time or place of payment
of the Obligations may be changed or extended, in whole or in part, to a time
certain or otherwise, and may be renewed or accelerated, in whole or in part;
(d) the Borrowers and any other party liable for payment under the Note may be
granted indulgences generally; (e) any of the provisions of the Note may be
modified, amended or waived; (f) any party (including any co-guarantor) liable
for the payment thereof may be granted indulgences or be released; and (g) any
deposit balance for the credit of the Borrowers or any other party liable for
the payment of the Obligations or liable upon any security therefor may be
released, in whole or in part, at, before or after the stated, extended or
accelerated maturity of the Obligations, all without notice to or further assent
by such Guarantor, which shall remain bound thereon, notwithstanding any such
exchange, compromise, surrender, extension, renewal, acceleration, modification,
indulgence or release.
3. Waiver of Rights. Each Guarantor expressly waives to the fullest
extent permitted by law: (a) notice of acceptance of this Guaranty by the
Lender and of all extensions of credit to the Borrowers by the Lender; (b)
presentment and demand for payment or performance of any of the Obligations; (c)
protest and notice of dishonor or of default (except as specifically required in
the Note) with respect to the Obligations or with respect to any security
therefor; (d) notice of the Lender obtaining, amending, substituting for,
releasing, waiving or modifying any security interest, lien or encumbrance, if
any, hereafter securing the Obligations, or the Lender's subordinating,
compromising, discharging or releasing such security interests, liens or
encumbrances, if any; (e) all other notices to which such Guarantor might
otherwise be entitled; and (f) demand for payment under this Guaranty.
4. Obligations Unconditional. The obligations of the Guarantors hereunder
are absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of the Note, or any other agreement or
instrument referred to therein, to the fullest extent permitted by applicable
law, irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each Guarantor agrees that this Guaranty may be enforced by the Lender without
the necessity at any time of resorting to or exhausting any other security or
collateral, if any, and without the necessity at any time of having recourse to
the Note or any collateral, if any, hereafter securing the Obligations or
otherwise and each Guarantor hereby waives the right to require the Lender to
proceed against the Borrowers or any other Person (including a co-guarantor) or
to require the Lender to pursue any other remedy or enforce any other right.
Each Guarantor further agrees that it shall have no right of subrogation,
indemnity, reimbursement or contribution against the Borrowers or any other
Guarantor of the Obligations for amounts paid under this Guaranty until such
time as the Lender has been paid in full, all commitments to advance Loans under
the Note have been terminated and no person or governmental authority shall have
any right to request any return or
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reimbursement of funds from the Lender in connection with monies received under
the Note. Each Guarantor further agrees that nothing contained herein shall
prevent the Lender from suing on the Note or foreclosing its security interest
in or lien on any collateral, if any, securing the Obligations or from
exercising any other rights available to it under the Note or any instrument of
security, if any, and the exercise of any of the aforesaid rights and the
completion of any foreclosure proceedings shall not constitute a discharge of
any Guarantor's obligations hereunder; it being the purpose and intent of each
Guarantor that its obligations hereunder shall be absolute, independent and
unconditional under any and all circumstances. Neither any Guarantor's
obligations under this Guaranty nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner whatsoever by an
impairment, modification, change, release or limitation of the liability of the
Borrowers or by reason of the bankruptcy or insolvency of the Borrowers. Each
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance of by the
Lender upon this Guaranty or acceptance of this Guaranty. The Obligations, and
any of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon this
Guaranty. All dealings between the Borrowers and any of the Guarantors, on the
one hand, and the Lender, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this Guaranty. The
Guarantors further agree to all rights of set-off as set forth in Section 6.
5. Attorneys' Fees and Costs of Collection. If at any time or times
hereafter the Lender employs counsel to pursue collection, to intervene, or to
xxx for enforcement of this Guaranty or the Note, or to file a petition,
complaint, answer, motion or other pleading in any suit or proceeding relating
to this Guaranty or the Note, then in such event and until paid, all of the
reasonable attorneys' fees relating thereto shall be an additional liability of
the Guarantors to the Lender, payable on demand.
6. Setoff/Security. As security for the Guarantors' obligations
hereunder, each Guarantor agrees that the Lender shall have the right,
immediately and without further action by the Lender, to set off against the
Obligations all money owed by the Lender in any capacity to such Guarantor,
whether or not due, and the Lender shall be deemed to have made a charge against
any such money immediately upon the occurrence of such obligation becoming due
even though such charge is made or entered on the books of the Lender subsequent
thereto.
7. Term of Guaranty. This Guaranty shall be a continuing guaranty and
shall continue in full force and effect until the Obligations are fully paid,
performed and discharged and all commitments of the Lender to the Borrowers have
been terminated. This Guaranty covers all Obligations whether presently
existing and outstanding or arising subsequent to the date hereof including all
amounts advanced by the Lender to the Borrowers in stages or installments.
Notwithstanding the foregoing, the obligations of the Guarantors under this
Guaranty shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any person in respect of the Obligations
is rescinded or must be otherwise restored by the Lender, whether as a result of
any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor
agrees that it will indemnify the Lender on demand for all reasonable costs and
expenses (including, without limitation, reasonable fees of counsel) incurred by
the Lender in connection
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with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
8. Representations and Warranties. Each Guarantor represents, warrants
and covenants to the Lender (i) that such Guarantor is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
and has all requisite power to own its property and conduct its business as
presently contemplated, (ii) that such Guarantor has the capacity or
authorization to enter into this Guaranty and to perform the transactions
contemplated herein, (iii) that this Guaranty is binding upon and enforceable
against such Guarantor (and any successors and assigns), in accordance with its
terms, except that such enforceability may be subject to (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (b) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
at law or in equity), (iv) that the execution and delivery of this Guaranty does
not violate or constitute a breach of any agreement to which such Guarantor is a
party or of any applicable laws or (v) that there is no litigation, claim,
action or proceeding pending, or, to the best knowledge of such Guarantor,
threatened against such Guarantor which would materially adversely affect the
financial condition of such Guarantor or its ability to fulfill its obligations
hereunder.
9. Event of Default. If (a) an Event of Default exists under the Note,
(b) any of the representations and warranties made by any Guarantor herein are
false in any material respect or (c) any Guarantor fails to perform any of its
obligations under this Guaranty then an Event of Default shall be deemed to
exist.
10. Financial Condition of Borrowers. Each Guarantor represents and
warrants to the Lender that such Guarantor has knowledge of the Borrowers'
financial conditions and affairs and represents and agrees that such Guarantor
will keep so informed while this Guaranty is in force. Each Guarantor agrees
that the Lender will have no obligation to investigate the financial conditions
or affairs of the Borrowers for the benefit of such Guarantor nor to advise such
Guarantor of any fact respecting, or any change in, the financial conditions or
affairs of the Borrowers which might come to the knowledge of the Lender at any
time, whether or not the Lender knows or believes or has reason to know or
believe that any such fact or change is unknown to such Guarantor or might (or
does) materially increase the risk of such Guarantor as a guarantor or might (or
would) affect the willingness of such Guarantor to continue as a guarantor with
respect to the Obligations.
11. Additional Liability of Guarantor. If any Guarantor is or becomes
liable for any indebtedness owing by the Borrowers to the Lender whether by
endorsement or any other means other than under this Guaranty, such liability
shall not be in any manner impaired or reduced hereby but shall have all and the
same force and effect it would have had if this Guaranty had not existed and
such Guarantor's liability hereunder shall not be in any manner impaired or
reduced thereby.
12. Cumulative Rights. All rights of the Lender hereunder or otherwise
arising under any documents executed in connection with or as security for the
Obligations are separate and
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cumulative and may be pursued separately, successively or concurrently, or not
pursued, without affecting or limiting any other right of the Lender and without
affecting or impairing the liability of any Guarantor.
13. Multiple Counterparts; Pronouns; Captions; Severability. This
Guaranty may be executed in multiple counterparts, each of which shall be deemed
an original but all of which shall constitute but one and the same document.
The pronouns used in this instrument shall be construed as masculine, feminine
or neuter as the occasion may require. Captions are for reference only and in
no way limit the terms of this Guaranty. Invalidation of any one or more of the
provisions of this Guaranty shall in no way affect any of the other provisions
hereof, which shall remain in full force and effect.
14. Successors and Assigns. This Guaranty is intended for and shall inure
to the benefit of the Lender and each and every person who shall from time to
time be or become the owner or holder of any of the Obligations, and each and
every reference herein to "Lender" shall include and refer to each and every
successor or assignee of the Lender at any time holding or owning any part of or
interest in any part of the Obligations. This Guaranty shall be transferable
and negotiable with the same force and effect, and to the same extent, that the
Obligations are transferable and negotiable, it being understood and stipulated
that upon assignment or transfer by the Lender of any of the Obligations the
legal holder or owner of said Obligations (or a part thereof or interest therein
thus transferred or assigned by the Lender) shall (except as otherwise
stipulated by the Lender in its assignment) have and may exercise all of the
rights granted to the Lender under this Guaranty to the extent of that part of
or interest in the Obligations thus assigned or transferred to said person.
Each Guarantor expressly waives notice of transfer or assignment of the
Obligations, or any part thereof, or of the rights of the Lender hereunder.
Failure to give notice will not affect the liability of any Guarantor hereunder.
15. 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 Guarantors: [name of Guarantor]
c/o Brandywine Operating Partnership, L.P.
Newtown Square Corporate Campus
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
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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
16. Governing Law; Waiver of Jury Trial.
(a) THIS GUARANTY 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
Guaranty 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 Guarantor hereby irrevocably accepts
for itself and in respect of its property, generally and
unconditionally, the jurisdiction of such courts. Each Guarantor
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 15 hereof. 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
Guarantor in any other jurisdiction.
(b) Each Guarantor 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 Guaranty brought in the courts referred to
in subsection (a) 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.
(c) 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 GUARANTY AND ANY OTHER
DOCUMENTS EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
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17. Limitation on Guaranty. Notwithstanding anything in this Guaranty to
the contrary, to the extent the obligations of any Guarantor shall be
adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of such Guarantor
shall be limited to the maximum amount that is permissible under applicable law
(whether federal or state and including, without limitation, the Bankruptcy
Code).
18. Rights of Contribution. The Guarantors agree among themselves that, in
connection with payments made hereunder, each Guarantor shall have contribution
rights against the other Guarantors as permitted under applicable law. Such
contribution rights shall be subordinate and subject in right of payment to the
obligations of the Guarantors under this Guaranty and no Guarantor shall
exercise such rights of contribution until all Obligations have been paid in
full and the commitments to advance Loans under the Note terminated.
19. 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 Guarantors hereunder, or for any claim based thereon or
otherwise in respect thereof; provided, however, that this paragraph 19 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.
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Each of the undersigned Guarantors has caused this Guaranty to be duly
executed as of the date first above written.
GUARANTORS: LC/N HORSHAM LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general
partner
LC/N XXXXX VALLEY LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general
partner
XXXXXXX LANSDALE LIMITED PARTNERSHIP III,
a Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx L.L.C., a Pennsylvania
limited liability company, its general
partner
NEWTECH III LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx L.L.C., a Pennsylvania
limited liability company, its general
partner
XXXXXX OPERATING PARTNERSHIP I, L.P., a
Delaware limited partnership
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general partner
NEWTECH IV LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general
partner
C/N OAKLANDS LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general
partner
FIFTEEN HORSHAM, L.P., a Pennsylvania limited
partnership
By: Xxxxxx Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Xxxxxx, L.L.C., a Pennsylvania
limited liability company, its general
partner
C/N LEEDOM LIMITED PARTNERSHIP II, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
C/N IRON RUN LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
C/N OAKLANDS LIMITED PARTNERSHIP III a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
IRON RUN LIMITED PARTNERSHIP V, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE TB I, L.P., a Pennsylvania limited
partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE XX XX, L.P., a Pennsylvania limited
partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE TB III, L.P., a Pennsylvania limited
partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE DOMINION, L.P., a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE P.M., L.P., a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE REALTY PARTNERS, a
Pennsylvania general partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general
partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE REALTY SERVICES
CORPORATION, a Pennsylvania corporation
BRANDYWINE ACQUISITIONS, LLC, a
Delaware limited liability company
BRANDYWINE MAIN STREET, LLC, a
Delaware limited liability company
1100 BRANDYWINE, LLC, a
Delaware limited liability company
BRANDYWINE LEASING, LLC, a
Delaware limited liability company
BRANDYWINE TB I, L.L.C., a
Pennsylvania limited liability company
BRANDYWINE XX XX, L.L.C., a
Pennsylvania limited liability company
BRANDYWINE TB III, L.L.C., a
Pennsylvania limited liability company
BRANDYWINE XXXXXX, LLC, a
Pennsylvania limited liability company
BRANDYWINE DOMINION, L.L.C., a
Pennsylvania limited liability company
BRANDYWINE P.M., L.L.C., a
Pennsylvania limited liability company
By:
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Xxxxxx X. Xxxxxxx
President and Chief Executive Officer of
each of the above-named entities
