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GUARANTY OF PAYMENT -- NO. 1
GUARANTY OF PAYMENT -- NO. 1 (this "Guaranty"), made as of May 12,
2000, between EQUITY OFFICE PROPERTIES TRUST, a Maryland real estate investment
trust, having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Guarantor"), and BANK OF AMERICA, N.A., as administrative agent
("Administrative Agent") for the banks (the "Banks") listed on the signature
pages of the Revolving Credit Agreement (as the same may be amended, modified,
supplemented or restated, the "Credit Agreement"), dated as of the date hereof,
among EOP Operating Limited Partnership ("Borrower"), the Banks, ▇▇ ▇▇▇▇▇▇
SECURITIES INC., as lead arranger, book runner and syndication agent, BANC OF
AMERICA SECURITIES LLC, as joint lead arranger and joint book runner, the
Administrative Agent, THE CHASE MANHATTAN BANK, as documentation agent (the
"Documentation Agent"), and UBS WARBURG LLC, as syndication agent.
W I T N E S S E T H:
WHEREAS, the Banks have agreed to make loans to Borrower in the
aggregate principal amount not to exceed One Billion Dollars ($1,000,000,000)
(hereinafter collectively referred to as the "Loans");
WHEREAS, the Loans are evidenced by certain promissory notes (the
"Notes") of Borrower made to each of the Banks in accordance with the terms of
the Credit Agreement;
WHEREAS, the Credit Agreement and the Notes and any other
documents executed in connection therewith are hereinafter collectively referred
to as the "Loan Documents";
WHEREAS, capitalized terms used herein and not otherwise defined
shall have the meanings ascribed thereto in the Credit Agreement;
WHEREAS, Guarantor is the sole general partner of Borrower; and
WHEREAS, as a condition to the execution and delivery of the Loan
Documents, the Banks have required that Guarantor execute and deliver this
Guaranty, as well as that certain Guaranty of Payment -- No. 2; and
WHEREAS, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(collectively, the "Individual Guarantors") have executed and delivered a
Guaranty of Payment, dated as of May __, 2000 (the "Acorn Guaranty"), to provide
for the Individual Guarantors to guarantee certain portions of the Obligations
of Borrower under the Notes and the Credit Agreement.
NOW THEREFORE, in consideration of the premises and the benefits
to be derived from the making of the Loans by the Banks to Borrower, and in
order to induce the
Administrative Agent, the Documentation Agent and the Banks to enter into the
Credit
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Agreement and the other Loan Documents, the Guarantor hereby agrees as
follows:
1. Subject to the provisions of Section 2 hereof, Guarantor,
on behalf of itself and its successors and assigns, hereby irrevocably,
absolutely and unconditionally guarantees the full and punctual payment when
due, whether at stated maturity or otherwise, of all Obligations of Borrower now
or hereafter existing under the Notes and the Credit Agreement, for principal
and/or interest as well as any and all other amounts due thereunder, including,
without limitation, all indemnity obligations of Borrower thereunder, and any
and all reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by the Administrative Agent, the
Documentation Agent or the Banks in enforcing their rights under this Guaranty
(all of the foregoing obligations being the "Guaranteed Obligations").
2. Notwithstanding anything to the contrary contained herein,
the liability of Guarantor under this Guaranty (other than pursuant to Section
22(e) hereof) on account of the Guaranteed Obligations shall not at any time
exceed an amount equal to (i) the total amount of the Guaranteed Obligations at
such time minus (ii) the aggregate amount for which the Individual Guarantors
are liable under the Acorn Guaranty at such time after giving effect to Section
1(b) of the Acorn Guaranty (the "Individual Guarantors' Obligations"); provided,
however, that in the event the Acorn Guaranty is discharged, disaffirmed or
otherwise rendered unenforceable, then the Individual Guarantors' Obligations
shall be deemed to be Zero Dollars ($0).
3. The individual and personal liability of Guarantor
hereunder shall not be reduced or extinguished by any payments to Administrative
Agent or any of the Banks for application in payment or reduction of any of the
Guaranteed Obligations, whether made by Borrower, Guarantor or from any other
source, except to the extent that such payments permanently reduce the entire
amount of the Guaranteed Obligations to an amount less than the portion of the
Guaranteed Obligations hereby guaranteed by Guarantor. Any such payments shall
be applied by Administrative Agent or the Banks in the order of priority that
Administrative Agent, in its sole discretion, may determine, first to the
discharge of that portion, if any, of the Guaranteed Obligations as to which
Guarantor is not individually and personally liable pursuant to the terms and
provisions hereof (including, without limitation, the portion of the Guaranteed
Obligations guaranteed under Guaranty No. 2), and any amount remaining after
such application to the portion of the Guaranteed Obligations guaranteed
hereunder.
4. It is agreed that the Guaranteed Obligations of Guarantor
hereunder are primary and this Guaranty shall be enforceable against Guarantor
and its successors and assigns without the necessity for any suit or proceeding
of any kind or nature whatsoever brought by the Administrative Agent or any of
the Banks against Borrower or its respective successors or assigns or any other
party or against any security for the payment and performance of the Guaranteed
Obligations and without the necessity of any notice of non-payment or
non-observance or of any notice of acceptance of this Guaranty or of any notice
or demand to which Guarantor might otherwise be entitled (including, without
limitation, diligence, presentment, notice of maturity, extension of time,
change in nature or form of the Guaranteed
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Obligations, acceptance of further security, release of further security,
imposition or agreement arrived at as to the amount of or the terms of the
Guaranteed Obligations, notice of adverse change in Borrower's financial
condition and any other fact which might materially increase the risk to
Guarantor), all of which Guarantor hereby expressly waives; and Guarantor
hereby expressly agrees that the validity of this Guaranty and the obligations
of Guarantor hereunder shall in no way be terminated, affected, diminished,
modified or impaired by reason of the assertion of or the failure to assert by
the Administrative Agent or any of the Banks against Borrower or its respective
successors or assigns, any of the rights or remedies reserved to the
Administrative Agent or any of the Banks pursuant to the provisions of the Loan
Documents. Guarantor agrees that any notice or directive given at any time to
the Administrative Agent or any of the Banks which is inconsistent with the
waiver in the immediately preceding sentence shall be void and may be ignored
by the Administrative Agent and the Banks, and, in addition, may not be pleaded
or introduced as evidence in any litigation relating to this Guaranty for the
reason that such pleading or introduction would be at variance with the written
terms of this Guaranty, unless the Administrative Agent has specifically agreed
otherwise in a writing, signed by a duly authorized officer. Guarantor
specifically acknowledges and agrees that the foregoing waivers are of the
essence of this transaction and that, but for this Guaranty and such waivers,
the Administrative Agent and the Banks would have declined to execute and
deliver the Loan Documents.
5. Guarantor waives, and covenants and agrees that it will not
at any time insist upon, plead or in any manner whatsoever claim or take the
benefit or advantage of, any and all appraisal, valuation, stay, extension,
marshalling-of-assets or redemption laws, or right of homestead or exemption,
whether now or at any time hereafter in force, which may delay, prevent or
otherwise affect the performance by Guarantor of its obligations under, or the
enforcement by the Administrative Agent or any of the Banks of, this Guaranty.
Guarantor further covenants and agrees not to set up or claim any defense,
counterclaim, offset, setoff or other objection of any kind to any action, suit
or proceeding in law, equity or otherwise, or to any demand or claim that may be
instituted or made by the Administrative Agent or any of the Banks other than
the defense of the actual timely payment and performance by Borrower of the
Guaranteed Obligations hereunder; provided, however, that the foregoing shall
not be deemed a waiver of Guarantor's right to assert any compulsory
counterclaim, if such counterclaim is compelled under local law or rule of
procedure, nor shall the foregoing be deemed a waiver of Guarantor's right to
assert any claim which would constitute a defense, setoff, counterclaim or
crossclaim of any nature whatsoever against Administrative Agent or any Bank in
any separate action or proceeding. Guarantor represents, warrants and agrees
that, as of the date hereof, its obligations under this Guaranty are not subject
to any counterclaims, offsets or defenses against the Administrative Agent or
any Bank of any kind.
6. The provisions of this Guaranty are for the benefit of the
Administrative Agent, the Documentation Agent and the Banks and their successors
and permitted assigns, and nothing herein contained shall impair as between
Borrower and the Administrative Agent, the Documentation Agent and the Banks the
obligations of Borrower under the Loan Documents.
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7. This Guaranty shall be a continuing, unconditional and
absolute guaranty and the liability of Guarantor hereunder shall in no way be
terminated, affected, modified, impaired or diminished by reason of the
happening, from time to time, of any of the following, although without notice
or the further consent of Guarantor:
(a) any assignment, amendment, modification or waiver of or
change in any of the terms, covenants, conditions or provisions of any of
the Guaranteed Obligations or the Loan Documents or the invalidity or
unenforceability of any of the foregoing; or
(b) any extension of time that may be granted by the
Administrative Agent to Borrower, any guarantor, or their respective
successors or assigns, heirs, executors, administrators or personal
representatives; or
(c) any action which the Administrative Agent or the
Documentation Agent may take or fail to take under or in respect of any
of the Loan Documents or by reason of any waiver of, or failure to
enforce any of the rights, remedies, powers or privileges available to
the Administrative Agent or the Documentation Agent under this Guaranty
or available to the Administrative Agent or the Documentation Agent at
law, equity or otherwise, or any action on the part of the Administrative
Agent or the Documentation Agent granting indulgence or extension in any
form whatsoever; or
(d) any sale, exchange, release, or other disposition of any
property pledged, mortgaged or conveyed, or any property in which the
Administrative Agent and/or the Banks have been granted a lien or
security interest to secure any indebtedness of Borrower to the
Administrative Agent and/or the Banks; or
(e) any release of any person or entity who may be liable in
any manner for the payment and collection of any amounts owed by Borrower
to the Administrative Agent, the Documentation Agent and/or the Banks; or
(f) the application of any sums by whomsoever paid or however
realized to any amounts owing by Borrower to the Administrative Agent,
the Documentation Agent and/or the Banks under the Loan Documents in such
manner as the Administrative Agent shall determine in its sole
discretion; or
(g) Borrower's or any guarantor's voluntary or involuntary
liquidation, dissolution, sale of all or substantially all of their
respective assets and liabilities, appointment of a trustee, receiver,
liquidator, sequestrator or conservator for all or any part of Borrower's
or Guarantor's assets, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment,
or the commencement of other similar proceedings affecting Borrower or
any guarantor or any of the assets of any of them, including, without
limitation, (i) the release or discharge of Borrower or any guarantor
from the payment and performance of their respective obligations under
any of the Loan Documents by operation of law, or (ii) the impairment,
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limitation or modification of the liability of Borrower or any guarantor
in bankruptcy, or of any remedy for the enforcement of the Guaranteed
Obligations under any of the Loan Documents, or Guarantor's liability
under this Guaranty, resulting from the operation of any present or
future provisions of the Bankruptcy Code or other present or future
federal, state or applicable statute or law or from the decision in any
court; or
(h) any improper disposition by Borrower of the proceeds of the
Loans, it being acknowledged by Guarantor that the Administrative Agent,
Documentation Agent or any Bank shall be entitled to honor any request
made by Borrower for a disbursement of such proceeds and that neither the
Administrative Agent, Documentation Agent nor any Bank shall have any
obligation to see the proper disposition by Borrower of such proceeds.
8. Guarantor agrees that if at any time all or any part of any
payment at any time received by the Administrative Agent from Borrower or
Guarantor under or with respect to this Guaranty is or must be rescinded or
returned by the Administrative Agent, Documentation Agent or any Bank for any
reason whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of Borrower or Guarantor), then Guarantor's obligations hereunder
shall, to the extent of the payment rescinded or returned, be deemed to have
continued in existence notwithstanding such previous receipt by such party, and
Guarantor's obligations hereunder shall continue to be effective or reinstated,
as the case may be, as to such payment, as though such previous payment had
never been made.
9. Until this Guaranty is terminated pursuant to the terms
hereof, Guarantor (i) shall have no right of subrogation against Borrower or any
entity comprising same by reason of any payments or acts of performance by
Guarantor in compliance with the obligations of Guarantor hereunder, (ii) waives
any right to enforce any remedy which Guarantor now or hereafter shall have
against Borrower or any entity comprising same by reason of any one or more
payment or acts of performance in compliance with the obligations of Guarantor
hereunder and (iii) from and after an Event of Default (as defined in the Credit
Agreement), subordinates any liability or indebtedness of Borrower or any entity
comprising same now or hereafter held by Guarantor or any affiliate of Guarantor
to the obligations of Borrower under the Loan Documents. The foregoing, however,
shall not be deemed in any way to limit any rights that Guarantor may have
pursuant to the Agreement of Limited Partnership of Borrower or which it may
have at law or in equity with respect to any other partners of Borrower.
10. Guarantor represents and warrants to the Administrative
Agent, the Documentation Agent and the Banks with the knowledge that the
Administrative Agent, the Documentation Agent and the Banks are relying upon the
same, as follows:
(a) as of the date hereof, Guarantor is the sole managing
general partner of Borrower;
(b) based upon such relationships, Guarantor has determined
that it is in its
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best interests to enter into this Guaranty;
(c) this Guaranty is necessary and convenient to the conduct,
promotion and attainment of Guarantor's business, and is in furtherance
of Guarantor's business purposes;
(d) the benefits to be derived by Guarantor from Borrower's
access to funds made possible by the Loan Documents are at least equal to
the obligations undertaken pursuant to this Guaranty;
(e) Guarantor is solvent and has full power and legal right to
enter into this Guaranty and to perform its obligations under the term
hereof and (i) Guarantor is organized and validly existing under the laws
of the State of Maryland, (ii) Guarantor has complied with all provisions
of applicable law in connection with all aspects of this Guaranty, and
(iii) the person executing this Guaranty has all the requisite power and
authority to execute and deliver this Guaranty;
(f) to the best of Guarantor's knowledge, there is no action,
suit, proceeding, or investigation pending or threatened against or
affecting Guarantor at law, in equity, in admiralty or before any
arbitrator or any governmental department, commission, board, bureau,
agency or instrumentality (domestic or foreign) which is likely to
materially and adversely impair the ability of Guarantor to perform its
obligations under this Guaranty;
(g) the execution and delivery of and the performance by
Guarantor of its obligations under this Guaranty have been duly
authorized by all necessary action on the part of Guarantor and do not
(i) violate any provision of any law, rule, regulation (including,
without limitation, Regulation U or X of the Board of Governors of the
Federal Reserve System of the United States), order, writ, judgment,
decree, determination or award presently in effect having applicability
to Guarantor or the organizational documents of Guarantor the
consequences of which violation is likely to materially and adversely
impair the ability of Guarantor to perform its obligations under this
Guaranty or (ii) violate or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
indenture, agreement or other instrument to which Guarantor is a party,
or by which Guarantor or any of its property is bound, the consequences
of which violation, conflict, breach or default is likely to materially
and adversely impair the ability of Guarantor to perform its obligations
under this Guaranty;
(h) this Guaranty has been duly executed by Guarantor and
constitutes the legal, valid and binding obligation of Guarantor,
enforceable against it in accordance with its terms except as
enforceability may be limited by applicable insolvency, bankruptcy or
other laws affecting creditors' rights generally or general principles of
equity, whether such enforceability is considered in a proceeding in
equity or at law;
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(i) no authorization, consent, approval, license or formal
exemption from, nor any filing, declaration or registration with, any
Federal, state, local or foreign court, governmental agency or
regulatory authority is required in connection with the making and
performance by Guarantor of this Guaranty, except those which have
already been obtained; and
(j) Guarantor is not an "investment company" as that term is
defined in, nor is it otherwise subject to regulation under, the
Investment Company Act of 1940, as amended.
11. Guarantor and Administrative Agent each acknowledge and
agree that this Guaranty is a guarantee of payment and performance and not of
collection and enforcement in respect of any obligations which may accrue to the
Administrative Agent and/or the Banks from Borrower under the provisions of any
Loan Document.
12. Subject to the terms and conditions of the Credit
Agreement, and in conjunction therewith, the Administrative Agent, Documentation
Agent or any Bank may assign any or all of its rights under this Guaranty. In
the event of any such assignment, the Administrative Agent shall give Guarantor
prompt notice of same. If the Administrative Agent elects to sell all the Loans
or participations in the Loans and the Loan Documents, including this Guaranty,
the Administrative Agent, Documentation Agent or any Bank may forward to each
purchaser and prospective purchaser all documents and information relating to
this Guaranty or to Guarantor, whether furnished by Borrower or Guarantor or
otherwise, subject to the terms and conditions of the Credit Agreement.
13. Guarantor agrees, upon the written request of the
Administrative Agent, to execute and deliver to the Administrative Agent, from
time to time, any modification or amendment hereto or any additional instruments
or documents reasonably considered necessary by the Administrative Agent or its
counsel to cause this Guaranty to be, become or remain valid and effective in
accordance with its terms, provided, that, any such modification, amendment,
additional instrument or document shall not increase Guarantor's obligations or
diminish its rights hereunder and shall be reasonably satisfactory as to form to
Guarantor and to Guarantor's counsel.
14. The representations and warranties of Guarantor set forth
in this Guaranty shall survive until this Guaranty shall terminate in accordance
with the terms hereof.
15. This Guaranty and Guaranty No. 2 contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements relating to such subject matter and may not be
modified, amended, supplemented or discharged except by a written agreement
signed by Guarantor and the Administrative Agent.
16. If all or any portion of any provision contained in this
Guaranty shall be determined to be invalid, illegal or unenforceable in any
respect for any reason, such provision
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or portion thereof shall be deemed stricken and severed from this Guaranty and
the remaining provisions and portions thereof shall continue in full force and
effect.
17. This Guaranty may be executed in counterparts which
together shall constitute the same instrument.
18. All notices, requests and other communications to any party
hereunder shall be in writing (including bank wire, telex, facsimile
transmission followed by telephonic confirmation or similar writing) and shall
be addressed to such party at the address set forth below or to such other
address as may be identified by any party in a written notice to the others:
If to Guarantor Equity Office Properties Trust
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
With Copies of
Notices to Guarantor to: Equity Office Properties Trust
Two ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Legal Counsel
and
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to the
Administrative Agent: Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (TXI-492-14-05)
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Each such notice, request or other communication shall be
effective (i) if given by telex or facsimile transmission, when such telex or
facsimile is transmitted to the telex number or facsimile number specified in
this Section and the appropriate answerback or facsimile confirmation is
received, (ii) if given by certified registered mail, return receipt requested,
with first class postage prepaid, addressed as aforesaid, upon receipt or
refusal to accept delivery, (iii) if given by a nationally recognized overnight
carrier, 24 hours after such communication is deposited with such carrier with
postage prepaid for next day delivery, or (iv) if given by any other means, when
delivered at the address specified in this Section.
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19. Any acknowledgment or new promise, whether by payment of
principal or interest or otherwise by Borrower or Guarantor, with respect to
the Guaranteed Obligations shall, if the statute of limitations in favor of
Guarantor against the Administrative Agent shall have commenced to run, toll
the running of such statute of limitations, and if the period of such statute
of limitations shall have expired, prevent the operation of such statute of
limitations.
20. This Guaranty shall be binding upon Guarantor and its
successors and assigns and shall inure to the benefit of the Administrative
Agent, the Documentation Agent and the Banks and their successors and permitted
assigns.
21. The failure of the Administrative Agent to enforce any
right or remedy hereunder, or promptly to enforce any such right or remedy,
shall not constitute a waiver thereof, nor give rise to any estoppel against the
Administrative Agent, nor excuse Guarantor from its obligations hereunder. Any
waiver of any such right or remedy to be enforceable against the Administrative
Agent must be expressly set forth in a writing signed by the Administrative
Agent.
22. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this
Guaranty and any action for enforcement of any judgment in respect thereof may
be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery of
this Guaranty, the Guarantor hereby accepts for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and appellate courts from any thereof. The Guarantor
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 the Guarantor at its address
for notices set forth herein. The 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 above 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. Nothing herein shall affect the right of the Administrative Agent to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Guarantor in any other
jurisdiction.
(c) GUARANTOR HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL
OF ANY AND ALL CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS
GUARANTY. IT IS HEREBY ACKNOWLEDGED BY GUARANTOR THAT THE WAIVER OF A JURY TRIAL
IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT TO ACCEPT THIS GUARANTY
AND THAT THE LOANS MADE BY THE BANKS ARE MADE IN RELIANCE UPON SUCH WAIVER.
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GUARANTOR FURTHER WARRANTS AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY
AND VOLUNTARILY MADE, FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, THIS GUARANTY MAY BE FILED BY THE ADMINISTRATIVE AGENT IN COURT AS A
WRITTEN CONSENT TO A NON-JURY TRIAL.
(d) Guarantor does hereby further covenant and agree to
and with the Administrative Agent that Guarantor may be joined in any action
against Borrower in connection with the Loan Documents and that recovery may be
had against Guarantor in such action or in any independent action against
Guarantor (with respect to the Guaranteed Obligations), without the
Administrative Agent first pursuing or exhausting any remedy or claim against
Borrower or its successors or assigns. Guarantor also agrees that, in an action
brought with respect to the Guaranteed Obligations in any jurisdiction, it shall
be conclusively bound by the judgment in any such action by the Administrative
Agent (wherever brought) against Borrower or its successors or assigns, as if
Guarantor were a party to such action, even though Guarantor was not joined as a
party in such action.
(e) Guarantor agrees to pay all reasonable expenses
(including, without limitation, attorneys' fees and disbursements) which may be
incurred by the Administrative Agent, the Documentation Agent or the Banks in
connection with the enforcement of their rights under this Guaranty, whether or
not suit is initiated.
23. Notwithstanding anything to the contrary contained herein,
this Guaranty shall terminate and be of no further force or effect upon the full
performance and payment of the Guaranteed Obligations hereunder. Upon
termination of this Guaranty in accordance with the terms of this Guaranty, the
Administrative Agent promptly shall deliver to Guarantor such documents as
Guarantor or Guarantor's counsel reasonably may request in order to evidence
such termination.
24. All of the Administrative Agent's rights and remedies under
each of the Loan Documents or under this Guaranty are intended to be distinct,
separate and cumulative and no such right or remedy therein or herein mentioned
is intended to be in exclusion of or a waiver of any other right or remedy
available to the Administrative Agent.
25. The Guarantor shall not use any assets of an "employee
benefit plan" within the meaning of Section 3(3) of ERISA or a "plan" within the
meaning of Section 4975(e)(1) of the Internal Revenue Code (the "Code") to repay
or secure the Loan, the Note, the Obligations or this Guaranty. The Guarantor
shall not assign, sell, pledge, encumber, transfer, hypothecate or otherwise
dispose of any of its rights or interests (direct or indirect) in Borrower, or
attempt to do any of the foregoing or suffer any of the foregoing, or permit any
party with a direct or indirect interest or right in Borrower to do any of the
foregoing, if such action would cause the Note, the Loan, the Obligations, this
Guaranty, or any of the Loan Documents or the exercise of any of the
Administrative Agent's, Documentation Agent's or Bank's rights in connection
therewith, to constitute a prohibited transaction under ERISA or the Code
(unless the
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Guarantor furnishes to the Administrative Agent a legal opinion satisfactory to
the Administrative Agent that the transaction is exempt from the prohibited
transaction provisions of ERISA and the Code (and for this purpose, the
Administrative Agent, Documentation Agent and the Banks, by accepting the
benefits of this Guaranty, hereby agree to supply Guarantor all relevant
non-confidential, factual information reasonably necessary to such legal
opinion and reasonably requested by Guarantor) or would otherwise result in the
Administrative Agent, the Documentation Agent or any of the Banks being deemed
in violation of Sections 404 or 406 of ERISA or Section 4975 of the Code or
would otherwise result in the Administrative Agent, the Documentation Agent or
any of the Banks being a fiduciary or party in interest under ERISA or a
"disqualified person" as defined in Section 4975(e)(2) of the Code with respect
to an "employee benefit plan" within the meaning of Section 3(3) of ERISA or a
"plan" within the meaning of Section 4975(e)(1) of the Code. The Guarantor
shall indemnify and hold each of the Administrative Agent, the Documentation
Agent and the Banks free and harmless from and against all loss, costs
(including attorneys' fees and expenses), expenses, taxes and damages
(including consequential damages) that each of the Administrative Agent, the
Documentation Agent and the Banks may suffer by reason of the investigation,
defense and settlement of claims and in obtaining any prohibited transaction
exemption under ERISA necessary in Administrative Agent's reasonable judgment
as a result of Guarantor's action or inaction or by reason of a breach of the
foregoing provisions by Guarantor.
26. This Guaranty shall become effective simultaneously with
the making of the initial Loans under the Credit Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Guaranty as of the date and year first above written.
GUARANTOR:
EQUITY OFFICE PROPERTIES TRUST
By: /s/ ▇▇▇▇▇▇▇ FEAR
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Name: ▇▇▇▇▇▇▇ Fear
Title: Senior Vice President,
Treasurer
ACCEPTED:
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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ACKNOWLEDGMENT FOR GUARANTOR
STATE OF ILLINOIS )
) SS.
COUNTY OF ▇▇▇▇ )
On May ___, 2000, before me personally came _____________________,
to me known to be the person who executed the foregoing instrument, and who,
being duly sworn by me, did depose and say that he is ____________________ of
Equity Office Properties Trust, and that he executed the foregoing instrument in
the organization's name, and that he had authority to sign the same, and he
acknowledged to me that he executed the same as the act and deed of said
organization for the uses and purposes therein mentioned.
[Seal]
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Notary Public
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