1
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
for $1,000,000,000 Credit Facility
dated as of May 12, 2000
among
EOP OPERATING LIMITED PARTNERSHIP,
THE BANKS LISTED HEREIN,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Syndication Agent, Joint Lead Arranger
and Joint Book Runner,
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arranger and Joint Book Runner
BANK OF AMERICA, N.A.,
as Administrative Agent,
THE CHASE MANHATTAN BANK,
as Co-Documentation Agent,
PNC BANK, NATIONAL ASSOCIATION
as Co-Documentation Agent,
THE BANK OF NOVA SCOTIA,
COMMERZBANK AG NEW YORK BRANCH,
DRESDNER BANK AG, NEW YORK AND CAYMAN BRANCHES,
and
UBS AG STAMFORD BRANCH,
as Managing Agents
AND
CREDIT LYONNAIS, NEW YORK BRANCH,
FLEET NATIONAL BANK,
and
U.S. BANK NATIONAL ASSOCIATION,
as Co-Agents.
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS..................................................................................................2
SECTION 1.1. Definitions................................................................2
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SECTION 1.2. Accounting Terms and Determinations.......................................27
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SECTION 1.3. Types of Borrowings.......................................................27
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SECTION 1.4. Interrelationship with the Existing Credit Agreement......................27
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ARTICLE II
THE CREDITS.................................................................................................28
SECTION 2.1. Commitments to Lend.......................................................28
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SECTION 2.2. Notice of Borrowing.......................................................28
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SECTION 2.3. Intentionally Omitted.....................................................28
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SECTION 2.4. Intentionally Omitted.....................................................28
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SECTION 2.5. Notice to Banks; Funding of Loans.........................................28
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SECTION 2.6. Notes.....................................................................29
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SECTION 2.7. Method of Electing Interest Rates.........................................30
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SECTION 2.8. Interest Rates............................................................32
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SECTION 2.9. Intentionally Omitted.....................................................32
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SECTION 2.10. Maturity Date............................................................32
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SECTION 2.11. Optional and Mandatory Prepayments.......................................33
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SECTION 2.12. General Provisions as to Payments........................................34
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SECTION 2.13. Funding Losses...........................................................34
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SECTION 2.14. Computation of Interest and Fees.........................................35
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SECTION 2.15. Use of Proceeds..........................................................35
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ARTICLE III
CONDITIONS..................................................................................................35
SECTION 3.1. Closing...................................................................35
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SECTION 3.2. Borrowings................................................................37
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES..............................................................................38
SECTION 4.1. Existence and Power.......................................................38
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SECTION 4.2. Power and Authority.......................................................38
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SECTION 4.3. No Violation..............................................................39
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SECTION 4.4. Financial Information.....................................................40
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SECTION 4.5. Litigation................................................................40
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SECTION 4.6. Compliance with ERISA.....................................................40
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SECTION 4.7. Environmental.............................................................41
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SECTION 4.8. Taxes.....................................................................41
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SECTION 4.9. Full Disclosure...........................................................42
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SECTION 4.10. Solvency.................................................................42
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SECTION 4.11. Use of Proceeds..........................................................42
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SECTION 4.12. Governmental Approvals...................................................42
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SECTION 4.13. Investment Company Act; Public Utility Holding Company Act...............42
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SECTION 4.14. Principal Offices........................................................42
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SECTION 4.15. REIT Status..............................................................42
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SECTION 4.16. Patents, Trademarks, etc.................................................43
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SECTION 4.17. Judgments................................................................43
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SECTION 4.18. No Default...............................................................43
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SECTION 4.19. Licenses, etc............................................................43
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SECTION 4.20. Compliance With Law......................................................43
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SECTION 4.21. No Burdensome Restrictions...............................................43
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SECTION 4.22. Brokers' Fees............................................................43
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SECTION 4.23. Labor Matters............................................................44
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SECTION 4.24. Insurance................................................................44
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SECTION 4.25. Organizational Documents.................................................44
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SECTION 4.26. Qualifying Unencumbered Properties.......................................44
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ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS..........................................................................45
SECTION 5.1. Information...............................................................45
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SECTION 5.2. Payment of Obligations....................................................48
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SECTION 5.3. Maintenance of Property; Insurance; Leases................................48
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SECTION 5.4. Maintenance of Existence..................................................48
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SECTION 5.5. Compliance with Laws......................................................48
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SECTION 5.6. Inspection of Property, Books and Records.................................48
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SECTION 5.7. Existence.................................................................49
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SECTION 5.8. Financial Covenants.......................................................49
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(a)Total Liabilities to Total Asset Value.......................................49
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(b)EBITDA to Interest Expense Ratio.............................................49
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(c)Intentionally Omitted........................................................49
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(d)Cash Flow to Fixed Charges Ratio.............................................49
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(e)Secured Debt to Total Asset Value............................................49
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(f)Unencumbered Pool............................................................49
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(g)Unencumbered Net Operating Income to Unsecured Debt Service..................50
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(h)Minimum Tangible Net Worth...................................................50
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(i)Dividends....................................................................50
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(j)Permitted Holdings...........................................................50
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(k)No Liens.....................................................................50
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(l)Calculation..................................................................51
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SECTION 5.9. Restriction on Fundamental Changes........................................51
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SECTION 5.10. Changes in Business......................................................52
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SECTION 5.11. EOPT Status..............................................................52
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(a)Status.......................................................................52
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(b)Indebtedness.................................................................52
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(c)Restriction on Fundamental Changes...........................................52
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(d)Environmental Liabilities....................................................53
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(e)Disposal of Partnership Interests............................................53
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SECTION 5.12. Other Indebtedness.......................................................53
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SECTION 5.13. Forward Equity Contracts.................................................53
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ARTICLE VI
DEFAULTS....................................................................................................54
SECTION 6.1. Events of Default.........................................................54
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SECTION 6.2. Rights and Remedies.......................................................56
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SECTION 6.3. Notice of Default.........................................................57
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SECTION 6.4. Distribution of Proceeds after Default....................................58
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ARTICLE VII
THE AGENTS..................................................................................................58
SECTION 7.1. Appointment and Authorization.............................................58
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SECTION 7.2. Agency and Affiliates.....................................................58
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SECTION 7.3. Action by Administrative Agent and Documentation Agent....................58
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SECTION 7.4. Consultation with Experts.................................................59
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SECTION 7.5. Liability of Administrative Agent and Documentation Agent.................59
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SECTION 7.6. Indemnification...........................................................59
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SECTION 7.7. Credit Decision...........................................................60
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SECTION 7.8. Successor Administrative Agent,
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Documentation Agent or Syndication Agent........................................60
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SECTION 7.9. Consents and Approvals....................................................61
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES.....................................................................................62
SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair..................62
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SECTION 8.2. Illegality................................................................62
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SECTION 8.3. Increased Cost and Reduced Return.........................................63
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SECTION 8.4. Taxes.....................................................................65
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SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar Loans................67
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ARTICLE IX
MISCELLANEOUS...............................................................................................67
SECTION 9.1. Notices...................................................................67
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SECTION 9.2. No Waivers................................................................68
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SECTION 9.3. Expenses; Indemnification.................................................68
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SECTION 9.4. Sharing of Set-Offs.......................................................70
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SECTION 9.5. Amendments and Waivers....................................................70
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SECTION 9.6. Successors and Assigns....................................................71
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SECTION 9.7. Collateral................................................................73
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SECTION 9.8. Governing Law; Submission to Jurisdiction.................................73
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SECTION 9.9. Counterparts; Integration.................................................74
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SECTION 9.10. WAIVER OF JURY TRIAL.....................................................74
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SECTION 9.11. Survival.................................................................74
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SECTION 9.12. Domicile of Loans........................................................74
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SECTION 9.13. Limitation of Liability..................................................75
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SECTION 9.14. Recourse Obligation......................................................75
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SECTION 9.15. Confidentiality..........................................................75
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SECTION 9.16. Bank's Failure to Fund...................................................75
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SECTION 9.17. Banks' ERISA Covenant....................................................81
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SECTION 9.18. Managing Agents and Co-Agents............................................81
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SCHEDULE 1.1
SCHEDULE 4.4 (b)
SCHEDULE 4.6
SCHEDULE 5.11(c)(1)
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SCHEDULE 5.11(c)(2)
SCHEDULE 5.11(c)(3)
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") dated
as of May 12, 2000 among EOP OPERATING LIMITED PARTNERSHIP (the "Borrower"), the
BANKS listed on the signature pages hereof, ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as
Syndication Agent, Joint Lead Arranger and Joint Book Runner, BANC OF AMERICA
SECURITIES LLC, as Joint Lead Arranger and Joint Book Runner, BANK OF AMERICA,
N.A., as Administrative Agent, THE CHASE MANHATTAN BANK, as Co-Documentation
Agent, PNC BANK, NATIONAL ASSOCIATION, as Co-Documentation Agent, THE BANK OF
NOVA SCOTIA, COMMERZBANK AG NEW YORK BRANCH, DRESDNER BANK AG, NEW YORK AND
CAYMAN BRANCHES, and UBS AG STAMFORD BRANCH, as Managing Agents, CREDIT
LYONNAIS, NEW YORK BRANCH, FLEET NATIONAL BANK, and U.S. BANK NATIONAL
ASSOCIATION, as Co-Agents.
W I T N E S S E T H
WHEREAS, the Borrower has executed and delivered to the Agents (or
their predecessors), the Managing Agents, certain of the Co-Agents and the Banks
that certain Second Amended and Restated Revolving Credit Agreement, dated as of
May 29, 1998, by and among the Borrower, certain of the Banks, the Managing
Agents, the Co-Agents and the Agents (as amended, the "Existing Credit
Agreement"), which Existing Credit Agreement was amended by that certain First
Amendment to Second Amended and Restated Revolving Credit Agreement, dated as of
June 18, 1999;
WHEREAS, the Borrower, the Agents, the Managing Agents, the
Co-Agents and the Banks party to the Existing Credit Agreement desire to amend
and restate the Existing Credit Agreement in its entirety as hereinafter set
forth; and
WHEREAS, it is the intent of the Borrower, the Agents, the
Managing Agents, the Co-Agents and the Banks that this Agreement replace in its
entirety the Existing Credit Agreement and that, from and after the Closing Date
(as defined below), the Existing Credit Agreement shall be of no force and
effect, except to evidence the terms and conditions under which the Borrower
heretofore incurred obligations and liabilities to the Banks, the Agents, the
Managing Agents and the Co-Agents, as evidenced by the Existing Credit Agreement
and the Banks', the Agents', the Managing Agents's and the Co-Agents' books and
records;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein contained, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein,
have the following meanings:
"Adjusted Interbank Offered Rate" as applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i) the Interbank Offered
Rate applicable during such Interest Period by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
"Administrative Agent" shall mean Bank of America, N.A. in its
capacity as Administrative Agent hereunder, and its permitted successors in such
capacity in accordance with the terms of this Agreement.
"Administrative Questionnaire" means with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower and the
Documentation Agent) duly completed by such Bank.
"Agents" shall mean the Administrative Agent, the Documentation
Agents and the Syndication Agent, collectively.
"Agreement" shall mean this Third Amended and Restated Credit
Agreement as the same may from time to time hereafter be modified, supplemented
or amended.
"Applicable Interest Rate" means (i) with respect to any Fixed
Rate Indebtedness, the fixed interest rate applicable to such Fixed Rate
Indebtedness at the time in question, and (ii) with respect to any Floating Rate
Indebtedness, either (x) the rate at which the interest rate applicable to such
Floating Rate Indebtedness is actually capped (or fixed pursuant to an interest
rate hedging device), at the time of calculation, if Borrower has entered into
an interest rate cap agreement or other interest rate hedging device with
respect thereto or (y) if Borrower has not entered into an interest rate cap
agreement or other interest rate hedging device with respect to such Floating
Rate Indebtedness, the greater of (A) the rate at which the interest rate
applicable to such Floating Rate Indebtedness could be fixed for the remaining
term of such Floating Rate Indebtedness, at the time of calculation, by
Borrower's entering into any unsecured interest rate hedging device either not
requiring an upfront payment or if requiring an upfront payment, such upfront
payment shall be amortized over the term of such device and included in the
calculation of the interest rate (or, if such rate is incapable of being fixed
by entering into an unsecured interest rate hedging device at the time of
calculation, a fixed rate equivalent reasonably determined by
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Administrative Agent) or (B) the floating rate applicable to such Floating Rate
Indebtedness at the time in question.
"Applicable Lending Office" means with respect to any Bank, (i) in
the case of its Base Rate Loans, its Domestic Lending Office, and (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Applicable Margin" means with respect to each Loan, the
respective percentages per annum determined, at any time, based on the range
into which Borrower's Credit Rating then falls, in accordance with the table set
forth below. Any change in Borrower's Credit Rating causing it to move to a
different range on the table shall effect an immediate change in the Applicable
Margin. In the event that Borrower receives only two (2) Credit Ratings, and
such Credit Ratings are not equivalent, the Applicable Margin shall be
determined by the lower of such two (2) Credit Ratings. In the event that
Borrower receives more than two (2) Credit Ratings, and such Credit Ratings are
not all equivalent, the Applicable Margin shall be determined by the higher of
the ratings from S&P and ▇▇▇▇▇'▇, provided that the rating from one of the other
Rating Agencies shall be at least equivalent to such higher rating; provided,
further, that if the rating from one of the other Rating Agencies is not at
least equivalent to the higher of the ratings from S&P and ▇▇▇▇▇'▇, then the
Applicable Margin shall be determined by the second (2nd) highest Credit Rating.
In the event that only one of the Rating Agencies shall have set Borrower's
Credit Rating, then the Applicable Margin shall be based on such rating only.
Range of Applicable
Borrower's Margin for Applicable
Credit Rating Base Rate Margin for Euro
(S&P/▇▇▇▇▇'▇ Loans Dollar Loans
Ratings) (% per annum) (% per annum)
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Non-Investment Grade 0.0 1.50
BBB-/Baa3 0.0 1.10
BBB/Baa2 0.0 0.90
BBB+/Baa1 0.0 0.80
A-/A3 or better 0.0 0.70
"Assignee" has the meaning set forth in Section 9.6(c).
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"Balance Sheet Indebtedness" means with respect to any Person and
assuming such Person is required to prepare financial statements in accordance
with GAAP, without duplication, the Indebtedness of such Person which would be
required to be included on the liabilities side of the balance sheet of such
Person in accordance with GAAP. Notwithstanding the foregoing, Balance Sheet
Indebtedness shall include current liabilities and all guarantees of
Indebtedness of any Person.
"Balloon Payments" shall mean with respect to any loan
constituting Balance Sheet Indebtedness, any required principal payment of such
loan which is either (i) payable at the maturity of such Indebtedness or (ii) in
an amount which exceeds fifteen percent (15%) of the original principal amount
of such loan; provided, however, that the final payment of a fully amortizing
loan shall not constitute a Balloon Payment.
"Bank" means each entity (other than Borrower) listed on the
signature pages hereof, each Assignee which becomes a Bank pursuant to Section
9.6(c), and their respective successors. For purposes of this Agreement, neither
▇.▇. ▇▇▇▇▇▇ Securities, Inc. nor Banc of America Securities LLC shall constitute
a "Bank."
"Bankruptcy Code" shall mean Title 11 of the United States Code,
entitled "Bankruptcy", as amended from time to time, and any successor statute
or statutes.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 0.5% plus the
Federal Funds Rate for such day. Each change in the Base Rate shall become
effective automatically as of the opening of business on the date of such change
in the Base Rate, without prior written notice to Borrower or Banks.
"Base Rate Loan" means a Loan to be made by a Bank as a Base Rate
Loan in accordance with the provisions of this Agreement.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means EOP Operating Limited Partnership, a Delaware
limited partnership.
"Borrower's Share" means Borrower's and EOPT's direct or indirect
share of an Investment Affiliate based upon Borrower's and EOPT's percentage
ownership (whether direct or indirect) of such Investment Affiliate.
"Borrowing" has the meaning set forth in Section 1.3.
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"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in Dallas, Texas are authorized by law to close.
"Capital Leases" as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"Cash or Cash Equivalents" shall mean (a) cash; (b) marketable
direct obligations issued or unconditionally guaranteed by the United States
Government or issued by an agency thereof and backed by the full faith and
credit of the United States, in each case maturing within one (1) year after the
date of acquisition thereof; (c) marketable direct obligations issued by any
state of the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within ninety (90) days
after the date of acquisition thereof and, at the time of acquisition, having
one of the two highest ratings obtainable from any two of S & P, ▇▇▇▇▇'▇, Duff
or Fitch (or, if at any time no two of the foregoing shall be rating such
obligations, then from such other nationally recognized rating services
acceptable to Administrative Agent); (d) domestic corporate bonds, other than
domestic corporate bonds issued by Borrower or any of its Affiliates, maturing
no more than two (2) years after the date of acquisition thereof and, at the
time of acquisition, having a rating of at least A or the equivalent from any
two (2) of S & P, ▇▇▇▇▇'▇, ▇▇▇▇ or Fitch (or, if at any time no two of the
foregoing shall be rating such obligations, then from such other nationally
recognized rating services acceptable to Administrative Agent); (e)
variable-rate domestic corporate notes or medium term corporate notes, other
than notes issued by Borrower or any of its Affiliates, maturing or resetting no
more than one (1) year after the date of acquisition thereof and having a rating
of at least AA or the equivalent from two of S & P, ▇▇▇▇▇'▇, Duff or Fitch (or,
if at any time no two of the foregoing shall be rating such obligations, then
from such other nationally recognized rating services acceptable to
Administrative Agent); (f) commercial paper (foreign and domestic) or master
notes, other than commercial paper or master notes issued by Borrower or any of
its Affiliates, and, at the time of acquisition, having a long-term rating of at
least A or the equivalent from S & P, ▇▇▇▇▇'▇, ▇▇▇▇ or Fitch and having a
short-term rating of at least A-1 and P-1 from S & P and ▇▇▇▇▇'▇, respectively
(or, if at any time neither S & P nor ▇▇▇▇▇'▇ shall be rating such obligations,
then the highest rating from such other nationally recognized rating services
acceptable to Administrative Agent); (g) domestic and Eurodollar certificates of
deposit or domestic time deposits or Eurodollar deposits or bankers' acceptances
(foreign or domestic) that are issued by a bank (I) which has, at the time of
acquisition, a long-term rating of at least A or the equivalent from S & P,
▇▇▇▇▇'▇, Duff or Fitch and (II) if a domestic bank, which is a member of the
Federal Deposit Insurance Corporation; and (h) overnight securities repurchase
agreements, or reverse repurchase agreements secured by any of the foregoing
types of securities or debt instruments, provided that the collateral supporting
such repurchase agreements shall have a value not less than 101% of the
principal amount of the repurchase agreement plus accrued interest.
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"Cash Flow" means, for any period, EBITDA for such period, as
adjusted for a normalized recurring level of capital expenditures by Borrower
for such period, which adjustment shall be at the rate of One Dollar and Fifty
cents ($1.50) per square foot per annum of office space leased as of the
applicable date of determination for (i) all Office Properties of Borrower and
Consolidated Subsidiaries, and (ii) Borrower's Share of each Office Property of
an Investment Affiliate (provided that, as to any Office Property acquired
during such period such $1.50 per square foot adjustment shall be pro-rated for
the period of ownership).
"Closing Date" means the date on which the conditions set forth in
Section 3.1 shall have been satisfied to the satisfaction of the Administrative
Agent and the Documentation Agent.
"Co-Agents" means Credit Lyonnais, New York Branch, Fleet National
Bank, and U.S. Bank National Association, in their capacity as Co-Agents
hereunder.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
and as it may be further amended from time to time, any successor statutes
thereto, and applicable U.S. Department of Treasury regulations issued pursuant
thereto in temporary or final form.
"Commitment" means with respect to each Bank, the amount set forth
under the name of such Bank on the signature pages hereof (and, for each Bank
which is an Assignee, the amount set forth in the Transfer Supplement entered
into pursuant to Section 9.6(c) as the Assignee's Commitment), as such amount
may be reduced from time to time pursuant to Section 2.11 or in connection with
an assignment to an Assignee.
"Confidential Information Memorandum" means that certain Equity
Office Properties Trust - Confidential Information Memorandum, dated March 14,
2000, from ▇.▇. ▇▇▇▇▇▇, Securities, Inc., Bank of America, N.A., The Chase
Manhattan Bank, and Warburg Dillon Read LLC.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity which is consolidated with Borrower or EOPT in accordance with
GAAP.
"Consolidated Tangible Net Worth" means, at any time, the tangible
net worth of Borrower, on a consolidated basis, determined in accordance with
GAAP, plus all accumulated depreciation and amortization of Borrower plus
Borrower's Share of accumulated depreciation and amortization of Investment
Affiliates, deducted, in either case, from earnings in calculating Net Income.
"Contingent Obligation" as to any Person means, without
duplication, (i) any contingent obligation of such Person required to be shown
on such Person's balance sheet in accordance with GAAP, and (ii) any obligation
required to be disclosed in the footnotes to such
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Person's financial statements, guaranteeing partially or in whole any
Non-Recourse Indebtedness, lease, dividend or other obligation, exclusive of
contractual indemnities (including, without limitation, any indemnity or
price-adjustment provision relating to the purchase or sale of securities or
other assets) and guarantees of non-monetary obligations (other than guarantees
of completion) which have not yet been called on or quantified, of such Person
or of any other Person. The amount of any Contingent Obligation described in
clause (ii) shall be deemed to be (a) with respect to a guaranty of interest or
interest and principal, or operating income guaranty, the Net Present Value of
the sum of all payments required to be made thereunder (which in the case of an
operating income guaranty shall be deemed to be equal to the debt service for
the note secured thereby), calculated at the Applicable Interest Rate, through
(i) in the case of an interest or interest and principal guaranty, the stated
date of maturity of the obligation (and commencing on the date interest could
first be payable thereunder), or (ii) in the case of an operating income
guaranty, the date through which such guaranty will remain in effect, and (b)
with respect to all guarantees not covered by the preceding clause (a), an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such guaranty is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as recorded on the balance sheet and
on the footnotes to the most recent financial statements of Borrower required to
be delivered pursuant to Section 5.1 hereof. Notwithstanding anything contained
herein to the contrary, guarantees of completion shall not be deemed to be
Contingent Obligations unless and until a claim for payment or performance has
been made thereunder, at which time any such guaranty of completion shall be
deemed to be a Contingent Obligation in an amount equal to any such claim.
Subject to the preceding sentence, (i) in the case of a joint and several
guaranty given by such Person and another Person (but only to the extent such
guaranty is recourse, directly or indirectly to Borrower), the amount of the
guaranty shall be deemed to be 100% thereof unless and only to the extent that
such other Person has delivered Cash or Cash Equivalents to secure all or any
part of such Person's guaranteed obligations and (ii) in the case of a guaranty
(whether or not joint and several) of an obligation otherwise constituting
Indebtedness of such Person, the amount of such guaranty shall be deemed to be
only that amount in excess of the amount of the obligation constituting
Indebtedness of such Person. Notwithstanding anything contained herein to the
contrary, "Contingent Obligations" shall be deemed not to include guarantees of
Unused Commitments or of construction loans to the extent the same have not been
drawn. All matters constituting "Contingent Obligations" shall be calculated
without duplication.
"Convertible Securities" means evidences of shares of stock,
limited or general partnership interests or other ownership interests, warrants,
options, or other rights or securities which are convertible into or
exchangeable for, with or without payment of additional consideration, common
shares of beneficial interest of EOPT or partnership interests of Borrower, as
the case may be, either immediately or upon the arrival of a specified date or
the happening of a specified event.
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"Cornerstone Bank Line" means the $550 million revolving line of
credit to Cornerstone Properties Inc., evidenced by that certain Second Amended
and Restated Revolving Credit and Guaranty Agreement, dated as of November 3,
1998, among Cornerstone Properties Inc. and Cornerstone Properties Limited
Partnership, as Borrowers, the subsidiaries of the borrowers which are
signatories thereto, as Guarantors, Bankers Trust Company, as Administrative
Agent, The Chase Manhattan Bank, as Syndication Agent, Nationsbank, N.A., as
Documentation Agent, and the lenders which are signatories thereto.
"Cornerstone Merger" means the proposed merger of Cornerstone
Properties Inc. with and into EOPT as more particularly described in the
Confidential Information Memorandum.
"Credit Rating" means the rating assigned by the Rating Agencies
to Borrower's senior unsecured long term indebtedness.
"Debt Restructuring" means a restatement of, or material change
in, the amortization or other financial terms of any Indebtedness of EOPT, the
Borrower or any Subsidiary or Investment Affiliate.
"Debt Service" means, for any period and without duplication,
Interest Expense for such period plus scheduled principal amortization
(excluding Balloon Payments) for such period on all Balance Sheet Indebtedness
of Borrower on a consolidated basis, plus Borrower's Share of scheduled
principal amortization (excluding Balloon Payments) for such period on all
Balance Sheet Indebtedness of Investment Affiliates.
"Default" means any condition or event which with the giving of
notice or lapse of time or both would, unless cured or waived, become an Event
of Default.
"Default Rate" has the meaning set forth in Section 2.8(d).
"Development Activity" means (a) the development and construction
of office buildings and parking facilities by the Borrower or any of its
Financing Partnerships or Joint Venture Subsidiaries excluding Unimproved
Assets, (b) the financing by the Borrower or any of its Financing Partnerships
or Joint Venture Subsidiaries of any such development or construction and (c)
the incurrence by the Borrower or any of its Financing Partnerships or Joint
Venture Subsidiaries of any Contingent Obligations in connection with such
development or construction (other than purchase contracts for Real Property
Assets which are not payable until after completion of development or
construction). For purposes of Section 5.8(j) hereof, the "value" of Development
Activity shall mean (i) in the case of the development and construction by the
Borrower or any of its Financing Partnerships described in clause (a) of this
definition, the full cost budget to complete such development and construction,
(ii) in the case of the development and construction by a Joint Venture
Subsidiary of the Borrower described in clause (a) of this
definition, an amount equal to the product of (AA) the full cost budget to
complete such
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development and construction, multiplied by (BB) Borrower's Share of such Joint
Venture Subsidiary, (iii) in the case of the financing of any development and
construction by the Borrower or any of its Financing Partnerships described in
clause (b) of this definition, the amount the Borrower or any Financing
Partnership has committed to fund to pay the cost to complete such development
and construction, (iv) in the case of the financing of any development and
construction by a Joint Venture Subsidiary of the Borrower described in clause
(b) of this definition, an amount equal to the product of (AA) the amount such
Joint Venture Subsidiary has committed to fund to pay the cost to complete such
development and construction, multiplied by (B) Borrower's Share of such Joint
Venture Subsidiary, (v) in the case of the incurrence of any Contingent
Obligations in connection with any development and construction by the Borrower
or any of its Financing Partnerships described in clause (c) of this
definition, the amount of such Contingent Obligation of the Borrower or such
Financing Partnership, (vi) in the case of the incurrence of any Contingent
Obligations in connection with any development and construction by a Joint
Venture Subsidiary of the Borrower described in clause (c) of this definition,
an amount equal to the product of (AA) the amount of such Contingent Obligation
of such Joint Venture Subsidiary, multiplied by (BB) Borrower's Share of such
Joint Venture Subsidiary..
"Documentation Agent" means, collectively, The Chase Manhattan
Bank and PNC Bank, National Association, in their capacities as Co-Documentation
Agents hereunder, and their respective permitted successors in such capacity in
accordance with the terms of this Agreement.
"Domestic Lending Office" means, as to each Bank, its office
located at its address in the United States set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Domestic
Lending Office) or such other office as such Bank may hereafter designate as its
Domestic Lending Office by notice to the Borrower and the Administrative Agent.
"Duff" means Duff & ▇▇▇▇▇▇ Credit Rating Company, or any successor
thereto.
"EBITDA" means, for any period (i) Net Income for such period,
plus (ii) depreciation and amortization expense and other non-cash items
deducted in the calculation of Net Income for such period, plus (iii) Interest
Expense deducted in the calculation of Net Income for such period, plus (iv)
Taxes (net of any Taxes actually paid to, or withheld by, any foreign
jurisdiction with respect to any Real Property Asset located outside of the
United States) deducted in the calculation of Net Income for such period, plus
(v) Borrower's Share of the Investment Affiliate EBITDA for each Investment
Affiliate, minus (vi) the gains (and plus the losses) from extraordinary items
or asset sales or write-ups or forgiveness of indebtedness included (or
deducted) in the calculation of Net Income for such period, all of the foregoing
without duplication.
"Effective Date" has the meaning set forth in Section 3.2.
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"Environmental Affiliate" means any partnership, joint venture,
trust or corporation in which an equity interest is owned directly or indirectly
by the Borrower and, as a result of the ownership of such equity interest,
Borrower may have recourse liability for Environmental Claims against such
partnership, joint venture, trust or corporation (or the property thereof).
"Environmental Claim" means, with respect to any Person, any
notice, claim, demand or similar communication (written or oral) by any other
Person alleging potential liability of such Person for investigatory costs,
cleanup costs, governmental response costs, natural resources damage, property
damages, personal injuries, fines or penalties arising out of, based on or
resulting from (i) the presence, or release into the environment, of any
Materials of Environmental Concern at any location, whether or not owned by such
Person or (ii) circumstances forming the basis of any violation, or alleged
violation, of any Environmental Law, in each case (with respect to both (i) and
(ii) above) as to which there is a reasonable possibility of an adverse
determination with respect thereto and which, if adversely determined, would
have a Material Adverse Effect on the Borrower.
"Environmental Laws" means any and all federal, state, and local
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, licenses,
agreements and other governmental restrictions relating to the environment, the
effect of the environment on human health or to emissions, discharges or
releases of Materials of Environmental Concern into the environment including,
without limitation, ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials of Environmental Concern
or the clean up or other remediation thereof.
"EOPT" means Equity Office Properties Trust, a Maryland real
estate investment trust, the sole managing general partner of the Borrower.
"EOPT Guaranty" means the Second Amended and Restated Guaranty of
Payment, dated as of even date herewith, executed by and between EOPT and
Administrative Agent for the benefit of the Banks.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary, EOPT and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control and all members of an
"affiliated service group" which, together with the Borrower, any Subsidiary or
EOPT, are treated as a single employer under Section 414 of the Code or Section
4001(b)(1) of ERISA.
"Euro-Dollar Borrowing" has the meaning set forth in Section 1.3.
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"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Loan to be made by a Bank as a
Euro-Dollar Loan in accordance with the applicable Notice of Borrowing.
"Euro-Dollar Reference Bank"" means the principal Dallas offices
of the Administrative Agent.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) under
Regulation D, as Regulation D may be amended, modified or supplemented, for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
"Event of Default" has the meaning set forth in Section 6.1.
"Existing Credit Agreement" has the meaning set forth in the
Recitals hereto.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (ii) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Administrative Agent on such day on such transactions as determined by the
Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System as constituted from time to time.
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"FFO" means "funds from operations," defined to mean, without
duplication for any period, Net Income, plus (i) Borrower's Share of the Net
Income of any Investment Affiliate (plus Borrower's Share of real estate
depreciation and amortization expenses of Investment Affiliates), plus (ii) real
estate depreciation and amortization expense for such period, plus (iii) any
amortization of loan discount deducted from the calculation of Net Income for
such period, plus (iv) Taxes deducted from the calculation of Net Income for
such period, minus (v) gains (and plus the losses) from Debt Restructurings and
sales or other dispositions of Property of the Borrower or any Subsidiary or
Investment Affiliate included (or deducted) in the calculation of Net Income for
such period.
"Financing Partnerships" means any Subsidiary which is
wholly-owned, directly or indirectly, by Borrower or by Borrower and EOPT, with
EOPT holding, directly or indirectly other than through its interest in
Borrower, no more than a 2% economic interest in such Subsidiary.
"Fiscal Quarter" means a fiscal quarter of a Fiscal Year.
"Fiscal Year" means the fiscal year of Borrower and EOPT.
"Fitch" means Fitch Investors Services, Inc., or any successor
thereto.
"Fixed Charges" for any Fiscal Quarter period means the sum of (i)
Debt Service for such period, (ii) dividends on preferred units payable by
Borrower for such period, and (iii) distributions made by Borrower in such
period to EOPT for the purpose of paying dividends on preferred shares in EOPT.
"Fixed Rate Borrowing" has the meaning set forth in Section 1.3.
"Fixed Rate Indebtedness" means all Indebtedness which accrues
interest at a fixed rate.
"Floating Rate Indebtedness" means all Indebtedness which is not
Fixed Rate Indebtedness and which is not a Contingent Obligation or an Unused
Commitment.
"GAAP" means generally accepted accounting principles recognized
as such in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession, which
are applicable to the circumstances as of the date of determination.
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"Group of Loans" means, at any time, a group of Loans consisting
of (i) all Loans which are Base Rate Loans at such time, or (ii) all Euro-Dollar
Loans having the same Interest Period at such time; provided that, if a Loan of
any particular Bank is converted to or made as a Base Rate Loan pursuant to
Section 8.2 or 8.5, such Loan shall be included in the same Group or Groups of
Loans from time to time as it would have been in if it had not been so converted
or made.
"Indebtedness" as applied to any Person (and without duplication),
means (a) all indebtedness, obligations or other liabilities of such Person for
borrowed money, (b) all indebtedness, obligations or other liabilities of such
Person evidenced by Securities or other similar instruments, (c) all Contingent
Obligations of such Person, (d) all reimbursement obligations and other
liabilities of such Person with respect to letters of credit or banker's
acceptances issued for such Person's account or other similar instruments for
which a contingent liability exists, (e) all obligations of such Person to pay
the deferred purchase price of Property or services, (f) all obligations in
respect of Capital Leases (including, without limitation, ground leases to the
extent such ground leases constitute Capital Leases) of such Person, (g) all
indebtedness obligations or other liabilities of such Person or others secured
by a Lien on any asset of such Person, whether or not such indebtedness,
obligations or liabilities are assumed by, or are a personal liability of such
Person, (h) all indebtedness, obligations or other liabilities (other than
interest expense liability) in respect of Interest Rate Contracts and foreign
currency exchange agreements (other than Interest Rate Contracts purchased to
hedge Indebtedness), to the extent such liabilities are material and are
reported or are required under GAAP to be reported by such Person in its
financial statements, (i) ERISA obligations currently due and payable and (j)
all other items which, in accordance with GAAP, would be included as liabilities
on the liability side of the balance sheet of such Person; exclusive, however,
of all dividends and distributions declared but not yet paid..
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Interbank Offered Rate" applicable to any Interest Period means
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in dollars are offered to the
Euro-Dollar Reference Bank in the interbank market at approximately 11:00 a.m.
(Dallas time) two Business Days before the first day of such Interest Period in
an amount approximately equal to the principal amount of the Euro-Dollar
Borrowing or Group of Loans or portion thereof to be converted into or continued
as Euro-Dollar Loans to which such Interest Period is to apply and for a period
of time comparable to such Interest Period.
"Interest Expense" means, for any period and without duplication,
total interest expense, whether paid, accrued or capitalized of Borrower, on a
consolidated basis determined in accordance with GAAP, plus Borrower's Share of
accrued, paid or capitalized interest with respect to any Balance Sheet
Indebtedness of Investment Affiliates (in each case, including, without
limitation, the interest component of Capital Leases but excluding interest
expense
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covered by an interest reserve established under a loan facility such as
capitalized construction interest provided for in a construction loan).
"Interest Period" means with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing specified in the
Notice of Borrowing or on the date specified in the applicable Notice of
Interest Rate Election and ending 30, 60, 90, or 180 days thereafter (or a
period less than 30 days with the reasonable approval of Administrative Agent,
unless any Bank has previously advised Administrative Agent and Borrower that it
is unable to enter into Interbank Offered Rate contracts for an Interest Period
of the same duration) as the Borrower may elect in the applicable Notice of
Borrowing or Notice of Interest Rate Election; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding Business
Day;
(b) any Interest Period which begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(c) no Interest Period may end later than the Maturity Date.
"Interest Rate Contracts" means, collectively, interest rate swap,
collar, cap or similar agreements providing interest rate protection.
"Investment Affiliate" means any Person in whom EOPT or Borrower
holds an equity interest, directly or indirectly, whose financial results are
not consolidated under GAAP with the financial results of EOPT or Borrower on
the consolidated financial statements of EOPT and Borrower.
"Investment Affiliate EBITDA" means, for any period (i) the net
earnings (or loss) of an Investment Affiliate for such period calculated in
conformity with GAAP, plus (ii) depreciation and amortization expense and other
non-cash items of such Investment Affiliate deducted in the calculation of such
net earnings (or loss) for such period, plus (iii) total interest expense,
whether paid, accrued or capitalized, of such Investment Affiliate deducted in
the calculation of such net earnings (or loss) for such period, plus (iv) Taxes
of such Investment Affiliate deducted in the calculation of such net earnings
(or loss) for such period.
"Investment Grade Rating" means a rating for a Person's senior
long-term unsecured debt of BBB- or better from S&P or a rating of Baa3 or
better from ▇▇▇▇▇'▇. In the
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event that Borrower receives Credit Ratings only from S&P and ▇▇▇▇▇'▇, and such
Credit Ratings are not equivalent, the lower of such two (2) Credit Ratings
shall be used to determine whether an Investment Grade Rating was achieved. In
the event that Borrower receives more than two (2) Credit Ratings, and such
Credit Ratings are not all equivalent, the higher of the ratings from S&P and
▇▇▇▇▇'▇ shall be used to determine whether an Investment Grade Rating was
achieved, provided that the rating from one of the other Rating Agencies shall
be at least equivalent to such higher rating; provided, further, that if the
rating from one of the other Rating Agencies is not at least equivalent to the
higher of the ratings from S&P and ▇▇▇▇▇'▇, then the second (2nd) highest
Credit Rating shall be used to determine whether an Investment Grade Rating was
achieved.
"Investment Mortgages" means mortgages securing indebtedness with
respect to Office Properties and Parking Properties directly or indirectly owed
to Borrower or any of its Subsidiaries, including, without limitation,
certificates of interest in real estate mortgage investment conduits.
"Joint Venture Interests" means partnership, joint venture
interests, membership or other equity issued by any Person which is an
Investment Affiliate that is not a Subsidiary.
"Joint Venture Parent" means Borrower or one or more Financing
Partnerships of Borrower which directly owns any interest in a Joint Venture
Subsidiary.
"Joint Venture Subsidiary" means any entity (other than a
Financing Partnership) in which (i) a Joint Venture Parent owns at least 50% of
the economic interests and (ii) the sale or financing of any Property owned by
such Joint Venture Subsidiary is substantially controlled by a Joint Venture
Parent, subject to customary provisions set forth in the organizational
documents of such Joint Venture Subsidiary with respect to refinancings or
rights of first refusal granted to other members of such Joint Venture
Subsidiary. For purposes of the preceding sentence, the sale or financing of a
Property owned by a Joint Venture Subsidiary shall be deemed to be substantially
controlled by a Joint Venture Parent if such Joint Venture Parent has the
ability to exercise a buy-sell right in the event of a disagreement regarding
the sale or financing of such Property. For purposes of this definition, the
Borrower shall be deemed to "control" Civic Parking, L.L.C., a Missouri limited
liability company ("Civic") so long as (i) a Joint Venture Parent owns at least
50% of economic interest therein and (ii) such Joint Venture Parent's consent
shall be required to authorize and approve the sale or financing of the Property
owned by Civic.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind, or any other type
of preferential arrangement, in each case that has the effect of creating a
security interest, in respect of such asset. For the purposes of this Agreement,
the Borrower or any Consolidated Subsidiary shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor
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or lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means a Base Rate Loan or a Euro-Dollar Loan and "Loans"
means Base Rate Loans or Euro-Dollar Loans, or any combination of the foregoing.
"Loan Documents" means this Agreement, the Notes and the EOPT
Guaranty.
"Majority Banks" means at any time Banks holding Notes evidencing
at least 51% of the aggregate unpaid principal amount of the Loans.
"Managing Agents" means The Bank of Nova Scotia, Commerzbank AG
New York Branch, Dresdner Bank AG, New York and Cayman Branches, and UBS AG
Stamford Branch, in their capacity as Managing Agents hereunder.
"Material Adverse Effect" means an effect resulting from any
circumstance or event or series of circumstances or events, of whatever nature
(but excluding general economic conditions), which does or could reasonably be
expected to, materially and adversely (i) impair the ability of the Borrower and
its Consolidated Subsidiaries, taken as a whole, to perform their respective
obligations under the Loan Documents, or (ii) the ability of Administrative
Agent, Documentation Agent or the Banks to enforce the Loan Documents.
"Material Plan" means at any time a Plan or Plans having aggregate
unfunded liabilities in excess of $5,000,000.
"Materials of Environmental Concern" means and includes
pollutants, contaminants, hazardous wastes, toxic and hazardous substances,
asbestos, lead, petroleum and petroleum by-products.
"Maturity Date" shall mean the date when all of the Obligations
hereunder shall be due and payable which shall be May 29, 2001, unless
accelerated pursuant to the terms hereof.
"Merger Date" means the date on which the Cornerstone Merger is
consummated.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Services, Inc. or any successor
thereto.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has at any time after September 25, 1980 made contributions or has been
required to make contributions (for these purposes any Person which ceased to be
a member of the ERISA Group after September 25, 1980 will be treated as a member
of the ERISA Group).
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"Negative Pledge" means, with respect to any Property, any
covenant, condition, or other restriction entered into by the owner of such
Property or directly binding on such Property which prohibits or limits the
creation or assumption of any Lien upon such Property to secure any or all of
the Obligations.
"Net Income" means, for any period, the net earnings (or loss)
after Taxes of any Person, on a consolidated basis, before the deduction of
minority interests and before the deduction of payment of any preferred
dividends, for such period calculated in conformity with GAAP.
"Net Offering Proceeds" means all cash or other assets received by
EOPT or Borrower as a result of the sale of common shares of beneficial
interest, preferred shares of beneficial interest, partnership interests,
limited liability company interests, Convertible Securities or other ownership
or equity interests in EOPT or Borrower or of unsecured notes, bonds or other
debt instruments which have a term in excess of ninety days or three months,
whichever is longer (other than drawings under the Revolving Credit Agreement,
dated as of May 12, 2000, among the Borrower, the banks listed on the signature
pages thereof, ▇▇ ▇▇▇▇▇▇ Securities Inc., as Co-Syndication Agent, Lead Arranger
and Book Runner, Bank of America, N.A., as Administrative Agent, The Chase
Manhattan Bank, as Documentation Agent, and UBS Warburg LLC, as Syndication
Agent), less customary costs and discounts of issuance paid by EOPT or Borrower,
as the case may be, or, in the case of notes, bonds or other debt instruments,
less any principal of other existing debt paid with the proceeds thereof.
"Net Price" means, with respect to the purchase or sale of any
Property, without duplication, (i) the aggregate purchase price paid as cash
consideration for such purchase or sale (without adjustment for prorations),
including, without limitation, the principal amount of any note received or
other deferred payment to be made in connection with such purchase or sale
(except as described in clause (ii) below) and the value of any non-cash
consideration delivered in connection with such purchase or sale (including,
without limitation, shares or preferred shares of beneficial interest in EOPT
and OP Units or Preferred OP Units (as defined in Borrower's partnership
agreement)) plus (ii) reasonable costs of sale and non-recurring taxes paid or
payable in connection with such purchase or sale.
"Net Present Value" shall mean, as to a specified or ascertainable
dollar amount, the present value, as of the date of calculation of any such
amount using a discount rate equal to the Base Rate in effect as of the date of
such calculation.
"Non-Recourse Indebtedness" means Indebtedness with respect to
which recourse for payment is limited to (i) specific assets related to a
particular Property or group of Properties encumbered by a Lien securing such
Indebtedness or (ii) any Subsidiary (provided that if a Subsidiary is a
partnership, there is no recourse to Borrower or EOPT as a general partner of
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such partnership); provided, however, that personal recourse of Borrower or EOPT
for any such Indebtedness for fraud, misrepresentation, misapplication of cash,
waste, environmental claims and liabilities and other circumstances customarily
excluded by institutional lenders from exculpation provisions and/or included in
separate indemnification agreements in non-recourse financing of real estate
shall not, by itself, prevent such Indebtedness from being characterized as
Non-Recourse Indebtedness.
"Notes" means the amended and restated promissory notes of the
Borrower, substantially in the form of Exhibit A hereto, evidencing the
obligation of the Borrower to repay the Loans, and "Note" means any one of such
promissory notes issued hereunder. The Notes shall be issued in substitution for
the "Notes" issued pursuant to the Existing Credit Agreement.
"Notice of Borrowing" means a notice from Borrower in accordance
with Section 2.2.
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.7.
"Obligations" means all obligations, liabilities, indemnity
obligations and Indebtedness of every nature of the Borrower, from time to time
owing to Administrative Agent, Documentation Agent or any Bank under or in
connection with this Agreement or any other Loan Document.
"Office Property" means any Property which constitutes primarily
commercial office space other than a Parking Property.
"Original Closing Date" means the "Closing Date" as defined in the
Existing Credit Agreement.
"Parking Property" means any Property which is primarily used for
parking.
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Holdings" means Unimproved Assets, Development
Activity, Joint Venture Interests, interests in Taxable REIT Subsidiaries,
Investment Mortgages and Securities, but only to the extent permitted in Section
5.8.
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"Permitted Liens" means:
a. Liens for Taxes, assessments or other governmental charges
not yet due and payable or which are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted in
accordance with the terms hereof;
b. statutory liens of carriers, warehousemen, mechanics,
materialmen and other similar liens imposed by law, which are incurred in
the ordinary course of business for sums not more than sixty (60) days
delinquent or which are being contested in good faith in accordance with
the terms hereof;
c. deposits made in the ordinary course of business to secure
liabilities to insurance carriers;
d. Liens for purchase money obligations for equipment;
provided that (i) the Indebtedness secured by any such Lien does not
exceed the purchase price of such equipment, (ii) any such Lien encumbers
only the asset so purchased and the proceeds upon sale, disposition, loss
or destruction thereof, and (iii) such Lien, after giving effect to the
Indebtedness secured thereby, does not give rise to an Event of Default;
e. easements, rights-of-way, zoning restrictions, other
similar charges or encumbrances and all other items listed on Schedule B
to Borrower's owner's title insurance policies, except in connection with
any Indebtedness, for any of Borrower's Real Property Assets, so long as
the foregoing do not interfere in any material respect with the use or
ordinary conduct of the business of Borrower and do not diminish in any
material respect the value of the Property to which it is attached or for
which it is listed;
f. Liens and judgments which have been or will be bonded or
released of record within thirty (30) days after the date such Lien or
judgment is entered or filed against EOPT, Borrower, or any Subsidiary;
g. Liens on Property of the Borrower or its Subsidiaries
(other than Qualifying Unencumbered Property) securing Indebtedness which
may be incurred or remain outstanding without resulting in an Event of
Default hereunder; and
h. Liens in favor of Borrower against any asset of any
Financing Partnership or Joint Venture Subsidiaries.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including, without limitation, a government or political
subdivision or an agency or instrumentality thereof.
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"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by the
Administrative Agent from time to time as its Prime Rate (it being understood
that the same shall not necessarily be the best rate offered by the
Administrative Agent to customers).
"Pro Rata Share" means, with respect to any Bank, a fraction
(expressed as a percentage), the numerator of which shall be the amount of such
Bank's Commitment and the denominator of which shall be the aggregate amount of
all of the Banks' Commitments, as adjusted from time to time in accordance with
the provisions of this Agreement.
"Property" means, with respect to any Person, any real or personal
property, building, facility, structure, equipment or unit, or other asset owned
by such Person.
"Qualified Institution" means a Bank, or one or more banks,
finance companies, insurance or other financial institutions which (A) has (or,
in the case of a bank which is a subsidiary, such bank's parent has) a rating of
its senior debt obligations of not less than Baa-1 by ▇▇▇▇▇'▇ or a comparable
rating by a rating agency acceptable to Syndication Agent and (B) has total
assets in excess of Ten Billion Dollars ($10,000,000,000).
"Qualifying Unencumbered Property" means any Property (excluding
Unimproved Assets) from time to time which (i) is an operating Office Property
or Parking Property wholly-owned (directly or beneficially) by Borrower, a
Financing Partnership or a Joint Venture Subsidiary, (ii) is not subject (nor
are any equity interests in such Property that are owned directly or indirectly
by Borrower, EOPT or any Joint Venture Parent subject) to a Lien which secures
Indebtedness of any Person other than Permitted Liens, and (iii) is not subject
(nor are any equity interests in such Property that are owned directly or
indirectly by Borrower, EOPT or any Joint Venture Parent subject) to any
Negative Pledge (provided that a financial covenant given for the benefit of
any Person that may be violated by the granting of any Lien on any Property to
secure any or all of the Obligations shall not be deemed a Negative Pledge). In
addition, in the case of any Property that is owned by a Subsidiary of Borrower
and/or EOPT, no such Property shall constitute Qualifying Unencumbered Property
during any period of time that such Subsidiary is in default beyond the
expiration of any applicable grace or cure period in the payment of any
Indebtedness of such Subsidiary for borrowed money (other than Indebtedness
with respect to which recourse for payment is limited to (i) specific assets
related to a particular Property or group of Properties encumbered by a Lien
securing such Indebtedness, which Properties, in any
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event, do not constitute Qualifying Unencumbered Properties, or (ii) any
subsidiary of such Subsidiary (provided that if such subsidiary of such
Subsidiary is a partnership, there is no recourse to such Subsidiary as a
general partner of such partnership); provided, however, that personal recourse
of such Subsidiary for any such Indebtedness for fraud, misrepresentation,
misapplication of cash, waste, environmental claims and liabilities and other
circumstances customarily excluded by institutional lenders from exculpation
provisions and/or included in separate indemnification agreements in
non-recourse financing of real estate (each, a "Recourse Carveout Event") shall
not, by itself, cause such Indebtedness to be characterized as Indebtedness
with respect to which recourse for payment is not limited as described in
clauses (i) or (ii) above; unless, as a result of the occurrence of a Recourse
Carveout Event, such Indebtedness becomes a recourse obligation of such
Subsidiary).
"Rating Agencies" means, collectively, S&P, ▇▇▇▇▇'▇, ▇▇▇▇ and
Fitch.
"Real Property Assets" means as to any Person as of any time, the
real property assets (including, without limitation, interests in participating
mortgages in which such Person's interest therein is characterized as equity
according to GAAP) owned directly or indirectly by such Person at such time.
"Recourse Debt" shall mean Indebtedness that is not Non-Recourse
Indebtedness.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REIT" means a real estate investment trust, as defined under
Section 856 of the Code.
"Required Banks" means at any time Banks holding Notes evidencing
at least 66 2/3% of the aggregate unpaid principal amount of the Loans.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Secured Debt" means Indebtedness, the payment of which is
secured by a Lien (other than a Permitted Lien, except for those Permitted
Liens described in clauses (d) and (g) of the definition thereof) on any
Property owned or leased by EOPT, Borrower, or any Consolidated Subsidiary plus
Borrower's Share of Indebtedness, the payment of which is secured by a Lien
(other than a Permitted Lien, except for those Permitted Liens described in
clauses (d) and (g) of the definition thereof) on any Property owned or leased
by any Investment Affiliate.
"Securities" means any stock, partnership interests, shares,
shares of beneficial interest, voting trust certificates, bonds, debentures,
notes or other evidences of indebtedness,
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secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities," or any certificates of interest,
shares, or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include Joint Venture Interests, any interest in any
Subsidiary of EOPT or Borrower, any interest in a Taxable REIT Subsidiary, any
Indebtedness which would not be required to be included on the liabilities side
of the balance sheet of EOPT or Borrower in accordance with GAAP, any Cash or
Cash Equivalents or any evidence of the Obligations.
"Solvent" means, with respect to any Person, that the fair
saleable value of such Person's assets exceeds the Indebtedness of such Person.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower or EOPT.
"Syndication Agent" means ▇.▇. ▇▇▇▇▇▇ Securities Inc., in its
capacity as syndication agent hereunder and its permitted successors in such
capacity in accordance with the terms of this Agreement.
"Taxable REIT Subsidiary" means any corporation (other than a
REIT) in which EOPT directly or indirectly owns stock and EOPT and such
corporation jointly elect that such corporation shall be treated as a taxable
REIT subsidiary of EOPT under and pursuant to Section 856 of the Code.
"Taxes" means all federal, state, local and foreign income and
gross receipts taxes.
"Term" has the meaning set forth in Section 2.10.
"Termination Event" shall mean (i) a "reportable event", as such
term is described in Section 4043 of ERISA (other than a "reportable event" not
subject to the provision for 30-day notice to the PBGC), or an event described
in Section 4062(e) of ERISA, (ii) the withdrawal by any member of the ERISA
Group from a Multiemployer Plan during a plan year in which it is a
"substantial employer" (as defined in Section 4001(a)(2) of ERISA), or the
incurrence of liability by any member of the ERISA Group under Section 4064 of
ERISA upon the termination of a Multiemployer Plan, (iii) the filing of a
notice of intent to terminate any Plan under Section 4041 of ERISA, other than
in a standard termination within the meaning of Section 4041 of ERISA, or the
treatment of a Plan amendment as a distress termination under Section 4041 of
ERISA, (iv) the institution by the PBGC of proceedings to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or cause a trustee to be appointed to administer, any Plan or (v) any other
event or condition that might reasonably constitute grounds for the
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termination of, or the appointment of a trustee to administer, any Plan or the
imposition of any liability or encumbrance or Lien on the Real Property Assets
or any member of the ERISA Group under ERISA or the Code.
"Total Asset Value" means, with respect to Borrower and without
duplication, (i) for any Properties owned by Borrower, any Consolidated
Subsidiary or Investment Affiliate which was neither acquired nor disposed of by
Borrower, a Consolidated Subsidiary or an Investment Affiliate in the Fiscal
Quarter most recently ended, the quotient obtained by dividing (a) (x) EBITDA
attributable to such Properties for the Fiscal Quarter most recently ended
multiplied by four (4) less (y) $0.20 (or, in the case of Office Properties
owned by an Investment Affiliate, Borrower's Share of $0.20) per square foot of
leased office space within such Properties which are Office Properties, by (b)
0.0875, plus (ii) for any Property which was acquired by Borrower or a
Consolidated Subsidiary in the Fiscal Quarter most recently ended, the Net Price
of the Property paid by Borrower or the Consolidated Subsidiary for such
Property, plus (iii) for any Property which was acquired by an Investment
Affiliate in the Fiscal Quarter most recently ended, Borrower's Share of the Net
Price of the Property paid by such Investment Affiliate for such Property, plus
(iv) the value of any Cash or Cash Equivalent owned by Borrower, plus (v) the
value of any Unimproved Assets and any other tangible assets of Borrower or its
Consolidated Subsidiaries (including foreign currency exchange agreements, to
the extent such agreements are material and are reported or are required under
GAAP to be reported by the Borrower or its Consolidated Subsidiaries in their
financial statements), as measured on a GAAP basis, plus (vi) Borrower's Share
of the value of any Unimproved Assets and any other tangible assets of any
Investment Affiliate as measured on a GAAP basis. Anything in the foregoing to
the contrary notwithstanding, in the event that Borrower, a Consolidated
Subsidiary or an Investment Affiliate disposes (for purposes of this definition
of "Total Asset Value", each, a "Disposition") of (x) an interest in any
Property (which was not acquired during the Fiscal Quarter most recently ended),
(y) a direct or indirect interest in the owner of any such Property or (z) any
such Property in such a manner that results in Borrower, a Consolidated
Subsidiary or an Investment Affiliate holding an interest in such Property or
the owner of such Property, then, for purposes of the foregoing calculation of
Total Asset Value, such Property shall be treated as follows:
(A) if, following a Disposition, the Property or an
undivided interest in the Property is owned by Borrower or a
Consolidated Subsidiary, then such Property or undivided interest shall
be treated as if Borrower or such Consolidated Subsidiary had owned such
Property or such undivided interest in the Property for the entire
Fiscal Quarter most recently ended;
(B) if, following a Disposition, the Property or an
undivided interest in the Property is owned by an Investment Affiliate,
then such Property or undivided interest shall be treated as if such
Investment Affiliate had owned such Property or undivided interest for
the entire Fiscal Quarter most recently ended; and
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(C) and no such Property or undivided interest therein
will be treated as having been disposed of or acquired in such Fiscal
Quarter.
"Total Liabilities" means, as of the date of determination and
without duplication, all Balance Sheet Indebtedness of Borrower, on a
consolidated basis, plus Borrower's Share of all Balance Sheet Indebtedness of
Investment Affiliates.
"Treasury Rate" means, as of any date, a rate equal to the annual
yield to maturity on the U.S. Treasury Constant Maturity Series with a ten year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
-- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the
Administrative Agent shall select, in its reasonable discretion, an alternate
basis for the determination of Treasury yield for U.S. Treasury Constant
Maturity Series with ten year maturities.
"Unencumbered Asset Value" means the sum of (i) all Cash and Cash
Equivalents of the Borrower, all Financing Partnerships and Joint Venture
Subsidiaries which are not subject to any pledge, negative pledge, encumbrance,
hypothecation or other restriction (provided that in the case of Cash and Cash
Equivalents of any Joint Venture Subsidiary which is not a Consolidated
Subsidiary, the amount of Cash and Cash Equivalents attributable to such Joint
Venture Subsidiary shall be reduced to a percentage equal to the Borrower's
percentage ownership interest (whether direct or indirect) in such Joint
Venture Subsidiary), plus (ii) for any Qualifying Unencumbered Properties which
were neither acquired or disposed of by Borrower, a Financing Partnership or a
Joint Venture Subsidiary in the Fiscal Quarter most recently ended, the
quotient of (a) (x) the aggregate EBITDA for such Fiscal Quarter attributable
to such Qualifying Unencumbered Properties for the Fiscal Quarter most recently
ended multiplied by four (4) less (y) $0.50 (or, in the case of Qualifying
Unencumbered Properties owned by an Investment Affiliate, Borrower's Share of
$0.50) per square foot of leased office space within such Qualifying
Unencumbered Properties which are Office Properties, and less (z) in the case
of any Qualifying Unencumbered Property located outside of the United States,
an amount equal to the applicable withholding taxes imposed by any foreign
jurisdiction applicable to the EBITDA attributable to any such Qualifying
Unencumbered Property for the applicable period, divided by (b) 0.0875, plus
(iii) for all Qualifying Unencumbered Properties owned (directly or
beneficially) by Borrower, any Financing Partnership or any Joint Venture
Subsidiary which were acquired (directly or indirectly) by the Borrower, any
Financing Partnership or any Joint Venture Subsidiary during the Fiscal Quarter
most recently ended, the aggregate Net Price of such Qualifying Unencumbered
Properties paid by Borrower or its Affiliates for such Qualifying Unencumbered
Properties; provided, however, that, unless otherwise approved by the Majority
Banks, (aa) in the event any such Qualifying Unencumbered Property is owned by
a Joint Venture Subsidiary which is not a Consolidated Subsidiary, the amount
of the EBITDA attributable to such Qualifying Unencumbered Property for
purposes of clause (i) above and the Net Price of such Qualifying
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Unencumbered Property for the purposes of clause (iii) above shall be reduced
to a percentage equal to the Borrower's percentage ownership interest (whether
direct or indirect) in such Joint Venture Subsidiary, (bb) the portion of the
amount of the Unencumbered Asset Value attributable to any single Qualifying
Unencumbered Property which would cause such amount to exceed fifteen percent
(15%) of the total Unencumbered Asset Value at such time (after making all
adjustments required by this proviso) will be disregarded in determining
Unencumbered Asset Value, (cc) the portion of the aggregate amount of the
Unencumbered Asset Value attributable to Qualifying Unencumbered Properties
that are Parking Properties which would cause such aggregate amount to exceed
fifteen percent (15%) of the total Unencumbered Asset Value at such time (after
making all adjustments required by this proviso) will be disregarded in
determining Unencumbered Asset Value, (dd) the portion of the aggregate amount
of the Unencumbered Asset Value attributable to Qualifying Unencumbered
Properties that are Qualifying Unencumbered Properties owned by Joint Venture
Subsidiaries (after first taking into account the adjustment provided in clause
(aa) of this proviso) which would cause such aggregate amount to exceed
thirty-five percent (35%) of the total Unencumbered Asset Value at such time
(after making all adjustments required by this proviso) will be disregarded in
determining Unencumbered Asset Value, and (ee) the portion of the amount of the
Unencumbered Asset Value attributable to all Qualifying Unencumbered Property
located outside of the United States (after first taking into account the
adjustment provided in clause (aa) of this proviso) which would cause such
amount to exceed ten percent (10%) of the total Unencumbered Asset Value at
such time (after making all adjustments required by this proviso) will be
disregarded in determining Unencumbered Asset Value. Anything in the foregoing
to the contrary notwithstanding, in the event that Borrower, a Financing
Partnership or a Joint Venture Subsidiary disposes (for purposes of this
definition of "Unencumbered Asset Value", each, a "Disposition") of (x) an
interest in any Qualified Unencumbered Property (which was not acquired during
the Fiscal Quarter most recently ended), (y) a direct or indirect interest in
the owner of any such Property or (z) any such Property in such a manner that
results in Borrower holding a direct or indirect interest in such Property or
the owner of such Property, then, for purposes of the foregoing calculation of
Unencumbered Asset Value, such Property shall be treated as follows:
(A) if, following a Disposition, an undivided interest
in the Property is owned by Borrower or a Financing Partnership, then
such undivided interest shall be treated as if Borrower or such Financing
Partnership had owned such undivided interest in the Property for the
entire Fiscal Quarter most recently ended;
(B) if, following a Disposition, the Property or an
undivided interest in the Property is owned by a Joint Venture
Subsidiary, then such Property or undivided interest shall be treated as
if such Joint Venture Subsidiary had owned such Property for the entire
Fiscal Quarter most recently ended; and
(C) and no such Property or undivided interest therein
will be treated as having been disposed of or acquired in such Fiscal
Quarter.
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"Unencumbered Net Operating Income" means, for any period, for all
Qualifying Unencumbered Properties, the aggregate EBITDA attributable to each
such Qualifying Unencumbered Property for such period (provided that as to any
Qualifying Unencumbered Property acquired during such period, only EBITDA
attributable to such period occurring after such acquisition shall be included),
as adjusted for a normalized recurring level of capital expenditures by Borrower
for such period, which adjustment shall be at the rate of One Dollar and Fifty
Cents ($1.50) per square foot per annum of office space leased as of the
applicable date of determination for all Qualifying Unencumbered Properties that
are Office Properties (provided that, as to any Office Property acquired during
such period, such amount per square foot shall be pro-rated for the period of
ownership).
"Unimproved Assets" means Real Property Assets containing no
material improvements.
"United States" means the United States of America, including the
fifty states and the District of Columbia.
"Unsecured Debt" means the amount of Indebtedness for borrowed
money of EOPT Borrower and any Financing Partnership which is not Secured Debt,
including, without limitation, the amount of all then outstanding Loans, plus,
for the purpose of calculating the ratio of outstanding Unsecured Debt to
Unencumbered Asset Value, an amount equal to the Borrower's percentage ownership
interest (whether direct or indirect) in each Joint Venture Subsidiary which is
not a Consolidated Subsidiary times any Indebtedness for borrowed money of such
Joint Venture Subsidiary which is not Secured Debt.
"Unsecured Debt Service" means Debt Service payable in respect of
Unsecured Debt.
"Unused Commitments" shall mean an amount equal to all unadvanced
funds (other than unadvanced funds in connection with any construction loan)
which any third party is obligated to advance to Borrower or another Person or
otherwise pursuant to any loan document, written instrument or otherwise.
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Administrative Agent; provided that for purposes of references to the
financial results and information of "EOPT, on a consolidated basis," EOPT shall
be deemed to own one
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hundred percent (100%) of the partnership interests in Borrower; and provided
further that, if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article V to eliminate the effect of
any change in GAAP on the operation of such covenant (or if the Administrative
Agent notifies the Borrower that the Required Banks wish to amend Article V for
such purpose), then the Borrower's compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is withdrawn or such
covenant is amended in a manner reasonably satisfactory to the Borrower and the
Required Banks.
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article 2 on the same date, all of which Loans are of the same type (subject to
Article 8) and, except in the case of Base Rate Loans, have the same initial
Interest Period. Borrowings are classified for purposes of this Agreement either
by reference to the pricing of Loans comprising such Borrowing (e.g., a "Fixed
Rate Borrowing" is a Euro-Dollar Borrowing), and a "Euro-Dollar Borrowing" is a
Borrowing comprised of Euro-Dollar Loans).
SECTION 1.4. Interrelationship with the Existing Credit Agreement.
As stated in the recitals to this Agreement, this Agreement is intended to amend
and restate the provisions of the Existing Credit Agreement as of the Effective
Date and, notwithstanding the issuance of the Notes on the Closing Date, (a) all
of the terms and provisions of the Existing Credit Agreement shall continue to
apply for the period prior to the Effective Date, including any determination of
the interest periods, payment dates, interest rates, Events of Default or any
amount that may be payable to the Banks or the Agents, and (b) the "Obligations"
under the Existing Credit Agreement shall continue to be paid or repaid on or
prior to the Effective Date in accordance with the terms thereof, and shall from
and after the Effective Date be paid or repaid in accordance with the terms of
this Agreement. All references in the Loan Documents to the Existing Credit
Agreement, as it may be amended from time to time, shall from and after the
Effective Date be deemed to include references to this Agreement. All "Loans"
under the Existing Credit Agreement shall constitute comparable "Loans" under
this Agreement. Borrower hereby acknowledges that no Bank is currently in
default of its obligations under the Existing Credit Agreement.
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend. Each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make Loans to the
Borrower pursuant to this Article on the Effective Date in such amounts that the
aggregate principal amount of Loans by
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such Bank outstanding on the Effective Date shall equal the amount of its
Commitment. Any amounts repaid may not be reborrowed.
SECTION 2.2. Notice of Borrowing. With respect to the Borrowing
described in Section 2.1, the Borrower shall give Administrative Agent notice
not later than 11:00 a.m. (Dallas, Texas time) (x) in the case of Base Rate
Borrowings, one Business Day before the Closing Date or (y) in the case of
Euro-Dollar Borrowings, three Business Days before the Closing Date, specifying:
(i) the aggregate amount of such Borrowing,
(ii) whether the Loans comprising such Borrowing are to be Base
Rate Loans or Euro-Dollar Loans; and
(iii) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
SECTION 2.3. Intentionally Omitted.
SECTION 2.4. Intentionally Omitted.
SECTION 2.5. Notice to Banks; Funding of Loans.
(a) Upon receipt of the Notice of Borrowing from Borrower in
accordance with Section 2.2 hereof, the Administrative Agent shall, on the date
such Notice of Borrowing is received by the Administrative Agent, notify
Documentation Agent and each Bank of the contents thereof and of such Bank's
share of such Borrowing, of the interest rate determined pursuant thereto and
the Interest Period(s) (if different from those requested by the Borrower).
(b) On the Effective Date, each Bank shall (except as provided
in subsection (d) of this Section) make available its share of the Borrowings
hereunder in Federal funds immediately available in Dallas, Texas, to the
Administrative Agent at its address referred to in Section 9.1.
(c) Intentionally Omitted.
(d) Unless the Administrative Agent shall have received notice
from a Bank prior to the Closing Date in respect of any Borrowing that such Bank
will not make available to the Administrative Agent such Bank's share of such
Borrowing, the Administrative Agent may assume that such Bank has made such
share available to the Administrative Agent on the Closing Date in accordance
with of this Section 2.5 and the Administrative Agent may, in reliance upon such
assumption, but shall not be obligated to, make available to the Borrower on
such date a
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corresponding amount on behalf of such Bank. If and to the extent that such
Bank shall not have so made such share available to the Administrative Agent,
such Bank agrees to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at the rate of interest applicable to such
Borrowing hereunder. If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement. If such Bank shall
not pay to Administrative Agent such corresponding amount after reasonable
attempts are made by Administrative Agent to collect such amounts from such
Bank, Borrower agrees to repay to Administrative Agent forthwith on demand such
corresponding amounts together with interest thereto, for each day from the
date such amount is made available to Borrower until the date such amount is
repaid to Administrative Agent, at the interest rate applicable thereto one (1)
Business Day after demand. Nothing contained in this Section 2.5(d) shall be
deemed to reduce the Commitment of any Bank or in any way affect the rights of
Borrower with respect to any defaulting Bank or Administrative Agent. The
failure of any Bank to make available to the Administrative Agent such Bank's
share of any Borrowing in accordance with Section 2.5(b) hereof shall not
relieve any other Bank of its obligations to fund its Commitment, in accordance
with the provisions hereof.
(e) Subject to the provisions hereof, the Administrative Agent
shall make available each Borrowing to Borrower in Federal funds immediately
available on the Closing Date and in accordance with the applicable Notice of
Borrowing.
SECTION 2.6. Notes.
(a) The Loans of each Bank shall be evidenced by a single Note
payable to the order of such Bank for the account of its Applicable Lending
Office.
(b) Each Bank may, by notice to the Borrower, the
Administrative Agent and the Documentation Agent, request that its Loans of a
particular type be evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Any additional costs incurred
by the Administrative Agent, the Borrower or the Banks in connection with
preparing such a Note shall be at the sole cost and expense of the Bank
requesting such Note. In the event any Loans evidenced by such a Note are paid
in full prior to the Maturity Date, any such Bank shall return such Note to
Borrower. Each such Note shall be in substantially the form of Exhibit A hereto
with appropriate modifications to reflect the fact that it evidences solely
Loans of the relevant type. Upon the execution and delivery of any such Note,
any existing Note payable to such Bank shall be replaced or modified
accordingly. Each reference in this Agreement to the "Note" of such Bank shall
be deemed to refer to and include any or all of such Notes, as the context may
require.
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(c) Upon receipt of each Bank's Note pursuant to
Section 3.1(a), the Documentation Agent shall forward such Note to such Bank.
Each Bank shall record the date, amount, type and maturity of each Loan made by
it and the date and amount of each payment of principal made by the Borrower
with respect thereto, and may, if such Bank so elects in connection with any
transfer or enforcement of its Note, endorse on the appropriate schedule
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
(d) The Loans shall mature, and the principal amount thereof
shall be due and payable, on the Maturity Date.
(e) Intentionally Omitted.
(f) There shall be no more than ten (10) Euro-Dollar Groups of
Loans outstanding at any one time.
SECTION 2.7. Method of Electing Interest Rates.
(a) The Loans included in each Borrowing shall bear interest
initially at the type of rate specified by the Borrower in the applicable Notice
of Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in each
case to the provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may
elect to convert all or any portion of such Loans to Euro-Dollar Loans as of any
Business Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower
may elect to convert all or any portion of such Loans to Base Rate Loans and/or
elect to continue all or any portion of such Loans as Euro-Dollar Loans for an
additional Interest Period or additional Interest Periods, in each case
effective on the last day of the then current Interest Period applicable to such
Loans, or on such other date designated by Borrower in the Notice of Interest
Rate Election provided Borrower shall pay any losses pursuant to Section 2.13.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent at least three (3) Business Days
before the conversion or continuation selected in such notice is to be
effective. A Notice of Interest Rate Election may, if it so specifies, apply to
only a portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group, (ii) the portion to which such Notice applies, and the remaining
portion to which it does not apply,
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are each $500,000 or any larger multiple of $100,000, (iii) there shall be no
more than ten (10) Euro-Dollar Groups of Loans outstanding at any time, (iv) no
Loan may be continued as, or converted into, a Euro-Dollar Loan when any Event
of Default has occurred and is continuing, and (v) no Interest Period shall
extend beyond the Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which
such notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply with the
applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be
converted, the new type of Loans and, if such new Loans are Euro-Dollar Loans,
the duration of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar
Loans for an additional Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall notify
the Documentation Agent and each Bank the same day as it receives such Notice of
Interest Rate Election of the contents thereof, the interest rates determined
pursuant thereto and the Interest Periods (if different from those requested by
the Borrower) and such notice shall not thereafter be revocable by the Borrower.
If the Borrower fails to deliver a timely Notice of Interest Rate Election to
the Administrative Agent for any Group of Euro-Dollar Loans, such Loans shall be
converted into Base Rate Loans on the last day of the then current Interest
Period applicable thereto.
SECTION 2.8. Interest Rates.
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until the
date it is repaid or converted into a Euro-Dollar Loan pursuant to Section 2.7,
at a rate per annum equal to the Base Rate plus the Applicable Margin for Base
Rate Loans for such day.
(b) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for each day during the Interest Period
applicable thereto, at a rate per annum
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equal to the sum of the Applicable Margin for Euro-Dollar Loans for such day
plus the Adjusted Interbank Offered Rate applicable to such Interest Period.
(c) Intentionally Omitted.
(d) In the event that, and for so long as, any Event of Default
shall have occurred and be continuing, the outstanding principal amount of the
Loans, and, to the extent permitted by applicable law, overdue interest in
respect of all Loans, shall bear interest at the annual rate equal to the sum of
the Base Rate and four percent (4%) (the "Default Rate").
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the Banks of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of demonstrable
error.
(f) Intentionally Omitted.
(g) Interest on all Loans (other than Base Rate Loans) shall be
payable on the last Business Day of each applicable Interest Period (provided
that in the event any Interest Period ends on the date which is 60, 90 or 180
days after the date on which any Interest Period commences, interest on all
Loans (other than Base Rate Loans) shall be payable on the first Business Day of
each calendar month during such Interest Period and on the last day of such
Interest Period) and interest on Base Rate Loans shall be payable on the first
Business Day of each calendar month.
SECTION 2.9. Intentionally Omitted.
SECTION 2.10. Maturity Date. The term (the "Term") of the
Commitments (and each Bank's obligations to make Loans hereunder) shall
terminate and expire on the Maturity Date. Upon the date of the termination of
the Term, any Loans then outstanding (together with accrued interest thereon and
all other Obligations) shall be due and payable on such date.
SECTION 2.11. Optional and Mandatory Prepayments.
(a) The Borrower may, upon at least one (1) Business Day's
notice to the Administrative Agent, prepay any Group of Base Rate Loans, in
whole at any time, or from time to time in part in amounts aggregating One
Million Dollars ($1,000,000) or any larger multiple of One Hundred Thousand
Dollars ($100,000), by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Banks
included in such Group or Borrowing.
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(b) The Borrower may, upon at least one (1) Business Days'
notice to the Administrative Agent, prepay any Euro-Dollar Loan as of the last
day of the Interest Period applicable thereto. Except as provided in Article 8
and except with respect to any Euro-Dollar Loan which has been converted to a
Base Rate Loan pursuant to Section 8.2, 8.3 or 8.4 hereof, the Borrower may not
prepay all or any portion of the principal amount of any Euro-Dollar Loan prior
to the end of the Interest Period applicable thereto unless the Borrower shall
also pay any applicable expenses pursuant to Section 2.13. Each such optional
prepayment shall be in the amounts set forth in Section 2.11(a) above and shall
be applied to prepay ratably the Loans of the Banks included in any Group of
Euro-Dollar Loans, except that any Euro-Dollar Loan which has been converted to
a Base Rate Loan pursuant to Section 8.2, 8.3 or 8.4 hereof may be prepaid
without ratable payment of the other Loans in such Group of Loans which have
not been so converted.
(c) If at any time after the Effective Date the Borrower or
EOPT shall receive Net Offering Proceeds in the form of cash, then,
simultaneously therewith, the Borrower shall repay the Loans in an amount equal
to the lesser of (x) the aggregate Net Offering Proceeds then received by the
Borrower in cash, and (y) the outstanding Obligations.
(d) If at any time after the Effective Date, the Borrower
shall receive proceeds, dividends or distributions relating to sale or
disposition of the Borrower's interests in material Property or other assets
(including, but not limited to, Joint Venture Interests and equity interests in
Subsidiaries), then, simultaneously therewith, the Borrower shall repay the
Loans in an amount equal to the lesser of (x) the aggregate Net Price in the
form of cash relating to such sale or disposition received by the Borrower, and
(y) the outstanding Obligations; provided, however, the Borrower shall not be
required to make any such repayment if and to the extent the Borrower uses such
proceeds, dividends or distributions to purchase Real Property Assets, provided
that (i) the Borrower identifies such Real Property Assets to the
Administrative Agent within forty-five (45) days after the date of the receipt
of such proceeds, dividends or distributions and (ii) the purchase and sale of
one or more of such Real Property Assets closes within 180 days after the date
of the receipt of such proceeds, dividends or distributions.
(e) Except as provided in Section 2.11(b) to the contrary,
each prepayment pursuant to this Section 2.11 shall be applied to prepay
ratably the Loans of the Lenders. Amounts prepaid pursuant to this Section
2.11 may not be reborrowed.
SECTION 2.12. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of and
interest on the Loans and of fees hereunder, not later than 11:00 a.m. (Dallas,
Texas time) on the date when due, in Federal or other funds immediately
available in Dallas, Texas, to the Administrative Agent at its address referred
to in Section 9.1. The Administrative Agent will promptly (and in any event
within one (1) Business Day after receipt thereof) distribute to each Bank its
ratable share of each
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such payment received by the Administrative Agent for the account of the Banks.
If and to the extent that the Administrative Agent shall receive any such
payment for the account of the Banks on or before 12:00 Noon (Dallas, Texas
time) on any Business Day, and Administrative Agent shall not have distributed
to any Bank its applicable share of such payment on such Business Day,
Administrative Agent shall distribute such amount to such Bank together with
interest thereon, for each day from the date such amount should have been
distributed to such Bank until the date Administrative Agent distributes such
amount to such Bank, at the Federal Funds Rate. Whenever any payment of
principal of, or interest on the Base Rate Loans or of fees shall be due on a
day which is not a Business Day, the date for payment thereof shall be extended
to the next succeeding Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day unless such Business Day falls in another calendar
month, in which case the date for payment thereof shall be the next preceding
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent
that the Borrower shall not have so made such payment, each Bank shall repay to
the Administrative Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower makes any payment
of principal with respect to any Euro-Dollar Loan (pursuant to Article II, VI
or VIII or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or if the Borrower fails to borrow any Euro-Dollar Loans
after notice has been given to any Bank in accordance with Section 2.5(a), as
applicable, or if Borrower shall deliver a Notice of Interest Rate Election
specifying that a Euro-Dollar Loan shall be converted on a date other than the
first (1st) day of the then current Interest Period applicable thereto, the
Borrower shall reimburse each Bank within 15 days after certification of such
Bank of such loss or expense (which shall be delivered by each such Bank to
Administrative Agent for delivery to Borrower) for any resulting loss or
expense incurred by it (or by an existing Participant in the related Loan),
including, without limitation, any loss incurred in obtaining, liquidating or
employing deposits from third parties, but excluding loss of margin for the
period after any such payment or failure to borrow, provided that such Bank
shall have delivered to Administrative Agent and Administrative Agent shall
have delivered to the Borrower a certification as to the amount of such loss or
expense, which certification shall set
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forth in reasonable detail the basis for and calculation of such loss or
expense and shall be conclusive in the absence of demonstrable error.
SECTION 2.14. Computation of Interest and Fees. All interest
and fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.15. Use of Proceeds. The Borrower shall use the
proceeds of the Loans for general corporate purposes, including, without
limitation, the acquisition of real property to be used in the Borrower's
existing business and for general working capital needs of the Borrower.
ARTICLE III
CONDITIONS
SECTION 3.1. Closing. The closing hereunder shall occur on the
date when each of the following conditions is satisfied (or waived in writing
by the Administrative Agent and the Banks), each document to be dated the
Closing Date unless otherwise indicated:
(a) the Borrower shall have executed and delivered to the
Documentation Agent a Note for the account of each Bank dated on or before the
Closing Date complying with the provisions of Section 2.6;
(b) the Borrower, the Administrative Agent and Documentation
Agent and each of the Banks shall have executed and delivered to the Borrower,
the Administrative Agent and Documentation Agent a duly executed original of
this Agreement;
(c) EOPT shall have executed and delivered to the
Administrative Agent and Documentation Agent a duly executed original of the
EOPT Guaranty;
(d) the Documentation Agent shall have received an opinion of
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Borrower and EOPT, acceptable to
the Documentation Agent, the Banks and their counsel;
(e) the Documentation Agent shall have received all documents
the Documentation Agent may reasonably request relating to the existence of the
Borrower and EOPT, the authority for and the validity of this Agreement and the
other Loan Documents, the incumbency of officers executing this Agreement and
the other Loan Documents and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent. Such documentation shall
include, without limitation, the agreement of limited partnership of the
Borrower, as well as the certificate of limited partnership of the
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Borrower, both as amended, modified or supplemented to the Closing Date,
certified to be true, correct and complete by a senior officer of the Borrower
as of a date not more than ten (10) days prior to the Closing Date, together
with a certificate of existence as to the Borrower from the Secretary of State
(or the equivalent thereof) of Delaware, to be dated not more than thirty (30)
days prior to the Closing Date, as well as the declaration of trust of EOPT, as
amended, modified or supplemented to the Closing Date, certified to be true,
correct and complete by a senior officer of EOPT as of a date not more than ten
(10) days prior to the Closing Date, together with a good standing certificate
as to EOPT from the Secretary of State (or the equivalent thereof) of Maryland,
to be dated not more than thirty (30) days prior to the Closing Date;
(f) the Borrower and EOPT each shall have executed a solvency
certificate acceptable to the Documentation Agent;
(g) the Documentation Agent shall have received all
certificates, agreements and other documents and papers referred to in this
Section 3.1 and the Notice of Borrowing referred to in Section 3.2, if
applicable, unless otherwise specified, in sufficient counterparts,
satisfactory in form and substance to the Documentation Agent in their sole
discretion;
(h) the Borrower shall have taken all actions required to
authorize the execution and delivery of this Agreement and the other Loan
Documents and the performance thereof by the Borrower, and EOPT shall have
taken all actions required to authorize the execution and delivery of the EOPT
Guaranty and the other Loan Documents and the performance thereof by EOPT;
(i) the Banks shall be satisfied that neither the Borrower,
EOPT nor any Consolidated Subsidiary is subject to any present or contingent
environmental liability which could have a Material Adverse Effect and the
Borrower shall have delivered a certificate so stating;
(j) the Administrative Agent shall have received, for its and
any other Bank's account, all fees due and payable pursuant to Section 2.9
hereof on or before the Closing Date, and the reasonable fees and expenses
accrued through the Closing Date of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
if required by such firm and if such firm has delivered an invoice in
reasonable detail of such fees and expenses in sufficient time for Borrower to
approve and process the same, shall have been paid to Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP;
(k) the Borrower shall have delivered copies of all consents,
licenses and approvals, if any, required in connection with the execution,
delivery and performance by the Borrower and EOPT, and the validity and
enforceability, of the Loan Documents, or in connection with any of the
transactions contemplated thereby, and such consents, licenses and approvals
shall be in full force and effect;
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(l) no Default or Event of Default shall have occurred;
(m) the Borrower shall have delivered a certificate in form
acceptable to Documentation Agent showing compliance with the requirements of
Section 5.8 as of the Closing Date; and
(n) the Borrower shall have drawn down in full the Existing
Credit Facility.
SECTION 3.2. Borrowings. The amendment and restatement of the
Existing Credit Agreement shall become effective (the "Effective Date") upon
the Merger Date and the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.2;
(b) immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate amount
of the Commitments;
(c) immediately before and after such Borrowing, no Default or
Event of Default shall have occurred and be continuing both before and after
giving effect to the making of such Loans;
(d) the representations and warranties of the Borrower
contained in this Agreement (other than representations and warranties which
expressly speak as of a different date) shall be true and correct in all
material respects on and as of the Effective Date both before and after giving
effect to the making of such Loans;
(e) no law or regulation shall have been adopted, no order,
judgment or decree of any governmental authority shall have been issued, and no
litigation shall be pending, which does or seeks to enjoin, prohibit or
restrain, the making or repayment of the Loans or the consummation of the
transactions contemplated by this Agreement; and
(f) no event, act or condition shall have occurred after the
Closing Date which, in the reasonable judgment of the Administrative Agent,
Documentation Agent or the Required Banks, as the case may be, has had or is
likely to have a Material Adverse Effect.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(b), (c), (d), (e) and (f) (to the extent that Borrower is or should have been
aware of any Material Adverse Effect) of this Section, except as otherwise
disclosed in writing by Borrower to the Banks. Notwithstanding anything to the
contrary, no Borrowing shall be permitted if such Borrowing would cause
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Borrower to fail to be in compliance with any of the covenants contained in
this Agreement or in any of the other Loan Documents.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, Documentation Agent
and each of the other Banks which is or may become a party to this Agreement to
make the Loans, the Borrower makes the following representations and warranties
as of the Closing Date. Such representations and warranties shall survive the
effectiveness of this Agreement, the execution and delivery of the other Loan
Documents and the making of the Loans.
SECTION 4.1. Existence and Power. The Borrower is a limited
partnership, duly formed and validly existing as a limited partnership under
the laws of the State of Delaware and has all powers and all material
governmental licenses, authorizations, consents and approvals required to own
its property and assets and carry on its business as now conducted or as it
presently proposes to conduct and has been duly qualified and is in good
standing in every jurisdiction in which the failure to be so qualified and/or
in good standing is likely to have a Material Adverse Effect. EOPT is a real
estate investment trust, duly formed, validly existing and in good standing as
a real estate investment trust under the laws of the State of Maryland and has
all powers and all material governmental licenses, authorizations, consents and
approvals required to own its property and assets and carry on its business as
now conducted or as it presently proposes to conduct and has been duly
qualified and is in good standing in every jurisdiction in which the failure to
be so qualified and/or in good standing is likely to have a Material Adverse
Effect.
SECTION 4.2. Power and Authority. The Borrower has the
partnership power and authority to execute, deliver and carry out the terms and
provisions of each of the Loan Documents to which it is a party and has taken
all necessary partnership action, if any, to authorize the execution and
delivery on behalf of the Borrower and the performance by the Borrower of such
Loan Documents. The Borrower and EOPT each have duly executed and delivered
each Loan Document to which it is a party in accordance with the terms of this
Agreement, and each such Loan Document constitutes the legal, valid and binding
obligation of the Borrower and EOPT, enforceable 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. EOPT has the power and authority to execute, deliver and carry out the
terms and provisions of each of the Loan Documents to which it is a party and
has taken all necessary action to authorize the execution, delivery and
performance of such Loan Documents. EOPT has the power and authority to
execute, deliver and carry out the terms and provisions of each of the
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Loan Documents on behalf of the Borrower to which the
Borrower is a party and has taken all necessary action to authorize the
execution and delivery on behalf of the Borrower and the performance by the
Borrower of such Loan Documents.
SECTION 4.3. No Violation.
(a) Neither the execution, delivery or performance by or on
behalf of the Borrower of the Loan Documents to which it is a party, nor
compliance by the Borrower with the terms and provisions thereof nor the
consummation of the transactions contemplated by the Loan Documents, (i) will
materially contravene any applicable provision of any law, statute, rule,
regulation, order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will materially conflict with or result in any breach of,
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of the Borrower
or any of its Consolidated Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, or other agreement or other instrument to which the
Borrower (or of any partnership of which the Borrower is a partner) or any of
its Consolidated Subsidiaries is a party or by which it or any of its property
or assets is bound or to which it is subject (except for such breaches and
defaults under loan agreements which the lenders thereunder have agreed to
forbear pursuant to valid forbearance agreements), or (iii) will cause a
material default by the Borrower under any organizational document of any
Person in which the Borrower has an interest, or cause a material default under
the Borrower's agreement or certificate of limited partnership, the
consequences of which conflict, breach or default would have a Material Adverse
Effect, or result in or require the creation or imposition of any Lien
whatsoever upon any Property (except as contemplated herein).
(b) Neither the execution, delivery or performance by EOPT of
the Loan Documents to which it is a party, nor compliance by EOPT with the
terms and provisions thereof nor the consummation of the transactions
contemplated by the Loan Documents, (i) will materially contravene any
applicable provision of any law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
materially conflict with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or
impose) any Lien upon any of the property or assets of EOPT or any of its
Consolidated Subsidiaries pursuant to the terms of any indenture, mortgage, deed
of trust, or other agreement or other instrument to which EOPT (or of any
partnership of which EOPT is a partner) or any of its Consolidated Subsidiaries
is a party or by which it or any of its property or assets is bound or to which
it is subject (except for such breaches and defaults under loan agreements which
the lenders thereunder have agreed to forbear pursuant to valid forbearance
agreements), or (iii) will cause a material default by EOPT under any
organizational document of any Person in which EOPT has an interest, the
consequences of which conflict, breach or default would have a Material Adverse
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Effect, or result in or require the creation or imposition of any Lien
whatsoever upon any Property (except as contemplated herein).
SECTION 4.4. Financial Information.
(a) The consolidated balance sheet of EOPT as of December 31,
1999, and the related statements of operations and cash flows of EOPT for the
fiscal year then ended, reported on by Ernst & Young LLP, fairly present, in
conformity with GAAP, the consolidated financial position of EOPT as of such
date and the consolidated results of operations and cash flows for such fiscal
year.
(b) Since March 31, 2000, (i) except as may have been
disclosed in writing to the Banks, nothing has occurred having a Material
Adverse Effect, and (ii) except as set forth on Schedule 4.4(b), neither the
Borrower nor EOPT has incurred any material indebtedness or guaranty on or
before the Closing Date.
SECTION 4.5. Litigation. Except as previously disclosed by the
Borrower in writing to the Banks, there is no action, suit or proceeding
pending against, or to the knowledge of the Borrower threatened against or
affecting, (i) the Borrower, EOPT or any of their Consolidated Subsidiaries,
(ii) the Loan Documents or any of the transactions contemplated by the Loan
Documents or (iii) any of their assets, before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable
possibility of an adverse decision which could, individually, or in the
aggregate have a Material Adverse Effect or which in any manner draws into
question the validity of this Agreement or the other Loan Documents. As of the
Closing Date, no such action, suit or proceeding exists.
SECTION 4.6. Compliance with ERISA.
(a) Except as set forth on Schedule 4.6 attached hereto,
neither Borrower nor EOPT is a member of or has entered into, maintained,
contributed to, or been required to contribute to, or may incur any liability
with respect to any Plan or Multiemployer Plan or any other Benefit
Arrangement.
(b) Except for a "prohibited transaction" arising solely
because of a Bank's breach of the covenant set forth in Section 9.17 hereof,
the transactions contemplated by the Loan Documents will not constitute a
nonexempt prohibited transaction (as such term is defined in Section 4975 of
the Code or Section 406 of ERISA) that could subject the Administrative Agent,
Documentation Agent or any of the Banks to any tax or penalty on prohibited
transactions imposed under Section 4975 of the Code or Section 502(i) of ERISA
and such transactions will not 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 in the
Administrative Agent, the Documentation Agent or any of the Banks being a
fiduciary or party in
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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. No assets of Borrower constitute "assets" (within the
meaning of ERISA or Section 4975 of the Code, including, but not limited to, 29
C.F.R. Section 2510.3-101 or any successor regulation thereto) 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 Code. In addition to the prohibitions
set forth in this Agreement and the other Loan Documents, and not in limitation
thereof, Borrower covenants and agrees that Borrower shall not use any "assets"
(within the meaning of ERISA or Section 4975 of the Code, including but not
limited to 29 C.F.R. Section 2510.3-101) 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 Code to repay or secure the Note, the Loan, or the
Obligations.
SECTION 4.7. Environmental. The Borrower conducts reviews of
the effect of Environmental Laws on the business, operations and properties of
the Borrower and its Consolidated Subsidiaries when necessary in the course of
which it identifies and evaluates associated liabilities and costs (including,
without limitation, any capital or operating expenditures required for clean-up
or closure of properties presently owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental protection
standards imposed by law or as a condition of any license, permit or contract,
any related constraints on operating activities, and any actual or potential
liabilities to third parties, including, without limitation, employees, and any
related costs and expenses). On the basis of this review, the Borrower has
reasonably concluded that such associated liabilities and costs, including,
without limitation, the costs of compliance with Environmental Laws, are
unlikely to have a Material Adverse Effect.
SECTION 4.8. Taxes. The Borrower, EOPT and their Consolidated
Subsidiaries have filed all United States Federal income tax returns and all
other material tax returns which are required to be filed by them and have paid
all taxes due pursuant to such returns or pursuant to any assessment received
by the Borrower, EOPT or any Consolidated Subsidiary, except such taxes, if
any, as are reserved against in accordance with GAAP, such taxes as are being
contested in good faith by appropriate proceedings or such taxes, the failure
to make payment of which when due and payable will not have, in the aggregate,
a Material Adverse Effect. The charges, accruals and reserves on the books of
the Borrower, EOPT and their Consolidated Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the Borrower, adequate.
SECTION 4.9. Full Disclosure. All information heretofore
furnished by the Borrower to the Administrative Agent, Documentation Agent or
any Bank for purposes of or in connection with this Agreement or any
transaction contemplated hereby or thereby is true and accurate in all material
respects on the date as of which such information is stated or certified. The
Borrower has disclosed to the Documentation Agent, in writing any and all facts
which have or may have (to the extent the Borrower can now reasonably foresee)
a Material Adverse Effect.
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SECTION 4.10. Solvency. On the Closing Date and after giving
effect to the transactions contemplated by the Loan Documents occurring on the
Closing Date, the Borrower and EOPT will be Solvent.
SECTION 4.11. Use of Proceeds. All proceeds of the Loans will
be used by the Borrower only in accordance with the provisions hereof. Neither
the making of any Loan nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of regulations T, U, or X of the Federal
Reserve Board.
SECTION 4.12. Governmental Approvals. No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with the execution, delivery and performance of any Loan Document
or the consummation of any of the transactions contemplated thereby other than
those that have already been duly made or obtained and remain in full force and
effect or those which, if not made or obtained, would not have a Material
Adverse Effect;
SECTION 4.13. Investment Company Act; Public Utility Holding
Company Act. Neither the Borrower, EOPT nor any Consolidated Subsidiary is (x)
an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended, (y) a
"holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" of either a "holding company" or a "subsidiary company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or (z)
subject to any other federal or state law or regulation which purports to
restrict or regulate its ability to borrow money.
SECTION 4.14. Principal Offices. As of the Closing Date, the
principal office, chief executive office and principal place of business of the
Borrower is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 4.15. REIT Status. EOPT is qualified and EOPT intends
to continue to qualify as a real estate investment trust under the Code.
SECTION 4.16. Patents, Trademarks, etc. The Borrower has
obtained and holds in full force and effect all patents, trademarks,
servicemarks, trade names, copyrights and other such rights, free from
burdensome restrictions, which are necessary for the operation of its business
as presently conducted, the impairment of which is likely to have a Material
Adverse Effect.
SECTION 4.17. Judgments. As of the Closing Date, there are no
final, non-appealable judgments or decrees in an aggregate amount of Five
Million Dollars ($5,000,000) or more entered by a court or courts of competent
jurisdiction against EOPT or the Borrower or, to
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the extent such judgment would be recourse to EOPT or Borrower, any of its
Consolidated Subsidiaries (other than judgments as to which, and only to the
extent, a reputable insurance company has acknowledged coverage of such claim
in writing or which have been paid or stayed).
SECTION 4.18. No Default. No Event of Default or, to the best
of the Borrower's knowledge, Default exists under or with respect to any Loan
Document and the Borrower is not in default in any material respect beyond any
applicable grace period under or with respect to any other material agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound in any respect, the existence of which default is likely to
result in a Material Adverse Effect.
SECTION 4.19. Licenses, etc. The Borrower has obtained and does
hold in full force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditation, easements, rights of way and
other consents and approvals which are necessary for the operation of its
businesses as presently conducted, the absence of which is likely to have a
Material Adverse Effect.
SECTION 4.20. Compliance With Law. To the Borrower's knowledge,
the Borrower and each of its Real Property Assets are in compliance with all
laws, rules, regulations, orders, judgments, writs and decrees, including,
without limitation, all building and zoning ordinances and codes, the failure
to comply with which is likely to have a Material Adverse Effect.
SECTION 4.21. No Burdensome Restrictions. Except as may have
been disclosed by the Borrower in writing to the Banks, Borrower is not a party
to any agreement or instrument or subject to any other obligation or any
charter or corporate or partnership restriction, as the case may be, which,
individually or in the aggregate, is likely to have a Material Adverse Effect.
SECTION 4.22. Brokers' Fees. The Borrower has not dealt with
any broker or finder with respect to the transactions contemplated by this
Agreement or otherwise in connection with this Agreement, and the Borrower has
not done any act, had any negotiations or conversation, or made any agreements
or promises which will in any way create or give rise to any obligation or
liability for the payment by the Borrower of any brokerage fee, charge,
commission or other compensation to any party with respect to the transactions
contemplated by the Loan Documents, other than the fees payable to the
Administrative Agent, the Documentation Agent, the Syndication Agent and the
Banks, and certain other Persons as previously disclosed in writing to the
Administrative Agent and certain fees relating to the Cornerstone Merger.
SECTION 4.23. Labor Matters. Except as disclosed on Schedule
4.6, there are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Borrower or any member of the ERISA Group and
neither the Borrower nor any member of the
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ERISA Group has suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five years.
SECTION 4.24. Insurance. The Borrower currently maintains
insurance at 100% replacement cost insurance coverage (subject to customary
deductibles) in respect of each of its Real Property Assets, as well as
commercial general liability insurance (including, without limitation,
"builders' risk" where applicable) against claims for personal, and bodily
injury and/or death, to one or more persons, or property damage, as well as
workers' compensation insurance, in each case with respect to liability and
casualty insurance with insurers having an A.M. Best policyholders' rating of
not less than A-VII in amounts that prudent owners of assets such as Borrower's
directly or indirectly owned Real Property Assets would maintain.
SECTION 4.25. Organizational Documents. The documents delivered
pursuant to Section 3.1(e) constitute, as of the Closing Date, all of the
organizational documents (together with all amendments and modifications
thereof) of the Borrower and EOPT. The Borrower represents that it has
delivered to the Documentation Agent true, correct and complete copies of each
such documents. EOPT holds (directly or indirectly) an 88.20% ownership
interest in the Borrower as of the date hereof.
SECTION 4.26. Qualifying Unencumbered Properties. As of the
date hereof, each Property listed on Schedule 1.1 as a Qualifying Unencumbered
Property (i) is an operating Office Building or Parking Property wholly-owned
(directly or beneficially) by Borrower, a Financing Partnership or a Joint
Venture Subsidiary, (ii) is not subject (nor are any equity interests in such
Property that are owned directly or indirectly by Borrower, EOPT or any Joint
Venture Parent subject) to a Lien which secures Indebtedness of any Person,
other than Permitted Liens, and (iii) is not subject (nor are any equity
interests in such Property that are owned directly or indirectly by Borrower,
EOPT or Joint Venture Parent subject) to any covenant, condition, or other
restriction which prohibits or limits the creation or assumption of any Lien
upon such Property. All of the information set forth on Schedule 1.1 is true
and correct in all material respects.
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ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Bank has
any Commitment hereunder or any Obligations remain unpaid:
SECTION 5.1. Information. The Borrower will deliver to each of
the Banks:
(a) as soon as available and in any event within five (5)
Business Days after the same is required to be filed with the Securities and
Exchange Commission (but in no event later than 125 days after the end of each
Fiscal Year of the Borrower) a consolidated balance sheet of the Borrower, EOPT
and their Consolidated Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of Borrower's and EOPT's operations and
consolidated statements of Borrower's and EOPT's cash flow for such Fiscal
Year, setting forth in each case in comparative form the figures for the
previous Fiscal Year (if available), all reported in a manner acceptable to the
Securities and Exchange Commission on Borrower's and EOPT's Form 10K and
reported on by Ernst & Young LLP or other independent public accountants of
nationally recognized standing;
(b) as soon as available and in any event within five (5)
Business Days after the same is required to be filed with the Securities and
Exchange Commission (but in no event later than 80 days after the end of each
of the first three quarters of each Fiscal Year of the Borrower and EOPT), (i)
a consolidated balance sheet of the Borrower, EOPT and their Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of Borrower's and EOPT's operations and consolidated statements of
Borrower's and EOPT's cash flow for such quarter and for the portion of the
Borrower's or EOPT's Fiscal Year ended at the end of such quarter, all reported
in the form provided to the Securities and Exchange Commission on Borrower's
and EOPT's Form 10Q, and (ii) and such other information reasonably requested
by the Administrative Agent and Documentation Agent or any Bank;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer of the Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in compliance with
the requirements of Section 5.8 on the date of such financial statements; (ii)
certifying (x) that such financial statements fairly present the financial
condition and the results of operations of the Borrower on the dates and for
the periods indicated, on the basis of GAAP, with respect to the Borrower
subject, in the case of interim financial statements, to normally recurring
year-end adjustments, and (y) that such officer has reviewed the terms of the
Loan Documents and has made, or caused to be made under his or her supervision,
a review in reasonable detail of the business and condition of the Borrower
during the period beginning on the date through which the last such review was
made pursuant to this Section 5.1(c) (or, in the case of the first
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certification pursuant to this Section 5.1(c), the Closing Date) and ending on
a date not more than ten (10) Business Days prior to the date of such delivery
and that (1) on the basis of such financial statements and such review of the
Loan Documents, no Event of Default existed under Section 6.1(b) with respect
to Sections 5.8 and 5.9 at or as of the date of said financial statements, and
(2) on the basis of such review of the Loan Documents and the business and
condition of the Borrower, to the best knowledge of such officer, as of the
last day of the period covered by such certificate no Default or Event of
Default under any other provision of Section 6.1 occurred and is continuing or,
if any such Default or Event of Default has occurred and is continuing,
specifying the nature and extent thereof and, the action the Borrower proposes
to take in respect thereof. Such certificate shall set forth the calculations
required to establish the matters described in clauses (1) and (2) above;
(d) (i) within five (5) Business Days after any officer of the
Borrower obtains knowledge of any Default, if such Default is then continuing,
a certificate of the chief financial officer, or other executive officer of the
Borrower setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto; and (ii) promptly and in any
event within five (5) Business Days after the Borrower obtains knowledge
thereof, notice of (x) any litigation or governmental proceeding pending or
threatened against the Borrower or its directly or indirectly Real Property
Assets as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, is likely to individually or
in the aggregate, result in a Material Adverse Effect, and (y) any other event,
act or condition which is likely to result in a Material Adverse Effect;
(e) promptly upon the mailing thereof to the shareholders of
EOPT generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and
8-K (or their equivalents) (other than the exhibits thereto, which exhibits
will be provided upon request therefor by any Bank) which EOPT shall have filed
with the Securities and Exchange Commission;
(g) promptly and in any event within thirty (30) days, if and
when any member of the ERISA Group (i) gives or is required to give notice to
the PBGC of any "reportable event" (as defined in Section 4043 of ERISA) with
respect to any Plan which might constitute grounds for a termination of such
Plan under Title IV of ERISA, or knows that the plan administrator of any Plan
has given or is required to give notice of any such reportable event, a copy of
the notice of such reportable event given or required to be given to the PBGC;
(ii) receives notice of complete or partial withdrawal liability under Title IV
of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer
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any Plan, a copy of such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Code, a copy of such application; (v)
gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, and in
the case of clauses (i) through (vii) above, which event could result in a
Material Adverse Effect, a certificate of the chief financial officer or the
chief accounting officer of the Borrower setting forth details as to such
occurrence and action, if any, which the Borrower or applicable member of the
ERISA Group is required or proposes to take;
(h) promptly and in any event within ten (10) days after the
Borrower obtains actual knowledge of any of the following events, a certificate
of the Borrower, executed by an officer of the Borrower, specifying the nature
of such condition, and the Borrower's or, if the Borrower has actual knowledge
thereof, the Environmental Affiliate's proposed initial response thereto: (i)
the receipt by the Borrower, or any of the Environmental Affiliates of any
communication (written or oral), whether from a governmental authority,
citizens group, employee or otherwise, that alleges that the Borrower, or any
of the Environmental Affiliates, is not in compliance with applicable
Environmental Laws, and such noncompliance is likely to have a Material Adverse
Effect, (ii) the existence of any Environmental Claim pending against the
Borrower or any Environmental Affiliate and such Environmental Claim is likely
to have a Material Adverse Effect or (iii) any release, emission, discharge or
disposal of any Material of Environmental Concern that is likely to form the
basis of any Environmental Claim against the Borrower or any Environmental
Affiliate which in any such event is likely to have a Material Adverse Effect;
(i) promptly and in any event within five (5) Business Days
after receipt of any notices or correspondence from any company or agent for
any company providing insurance coverage to the Borrower relating to any loss
which is likely to result in a Material Adverse Effect, copies of such notices
and correspondence; and
(j) from time to time such additional information regarding
the financial position or business of the Borrower, EOPT and their Subsidiaries
as the Administrative Agent, at the request of any Bank, may reasonably request
in writing, so long as disclosure of such information could not result in a
violation of, or expose the Borrower, EOPT or their Subsidiaries to any
material liability under, any applicable law, ordinance or regulation or any
agreements with unaffiliated third parties that are binding on the Borrower,
EOPT or any of their Subsidiaries or on any Property of any of them.
SECTION 5.2. Payment of Obligations. The Borrower, EOPT and
their Consolidated Subsidiaries will pay and discharge, at or before maturity,
all their respective
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material obligations and liabilities including, without limitation, any
obligation pursuant to any agreement by which it or any of its properties is
bound, in each case where the failure to so pay or discharge such obligations
or liabilities is likely to result in a Material Adverse Effect, and will
maintain in accordance with GAAP, appropriate reserves for the accrual of any
of the same.
SECTION 5.3. Maintenance of Property; Insurance; Leases.
(a) The Borrower will keep, and will cause each Consolidated
Subsidiary to keep, all property useful and necessary in its business,
including without limitation its Real Property Assets (for so long as it
constitutes Real Property Assets), in good repair, working order and condition,
ordinary wear and tear excepted, in each case where the failure to so maintain
and repair will have a Material Adverse Effect.
(b) The Borrower shall maintain, or cause to be maintained,
insurance comparable to that described in Section 4.24 hereof with insurers
meeting the qualifications described therein, which insurance shall in any
event not provide for less coverage than insurance customarily carried by
owners of properties similar to, and in the same locations as, Borrower's Real
Property Assets. The Borrower will deliver to the Administrative Agent upon the
reasonable request of the Administrative Agent from time to time (i) full
information as to the insurance carried, (ii) within five (5) days of receipt
of notice from any insurer a copy of any notice of cancellation or material
change in coverage from that existing on the date of this Agreement and (iii)
forthwith, notice of any cancellation or nonrenewal of coverage by the
Borrower.
SECTION 5.4. Maintenance of Existence. The Borrower and EOPT
each will preserve, renew and keep in full force and effect, its partnership
and trust existence and its respective rights, privileges and franchises
necessary for the normal conduct of business unless the failure to maintain
such rights and franchises does not have a Material Adverse Effect.
SECTION 5.5. Compliance with Laws. The Borrower and EOPT will,
and will cause their Subsidiaries to, comply in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws,
and all zoning and building codes with respect to its Real Property Assets and
ERISA and the rules and regulations thereunder and all federal securities laws)
except where the necessity of compliance therewith is contested in good faith
by appropriate proceedings or where the failure to do so will not have a
Material Adverse Effect or expose Administrative Agent, Documentation Agent or
Banks to any material liability therefor.
SECTION 5.6. Inspection of Property, Books and Records. The
Borrower will keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in relation to
its business and activities in conformity with GAAP, modified as required by
this Agreement and applicable law; and will permit representatives of any Bank
at such Bank's expense to visit and inspect any of its properties, including
without limitation
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its Real Property Assets, and so long as disclosure of such information could
not result in a violation of, or expose the Borrower, EOPT or their
Subsidiaries to any material liability under, any applicable law, ordinance or
regulation or any agreements with unaffiliated third parties that are binding
on the Borrower, EOPT or any of their Subsidiaries or on any Property of any of
them, to examine and make abstracts from any of its books and records and to
discuss its affairs, finances and accounts with its officers and independent
public accountants, all at such reasonable times during normal business hours,
upon reasonable prior notice and as often as may reasonably be desired.
Administrative Agent shall coordinate any such visit or inspection to arrange
for review by any Bank requesting any such visit or inspection.
SECTION 5.7. Existence. The Borrower shall do or cause to be
done, all things necessary to preserve and keep in full force and effect its,
EOPT's and their Consolidated Subsidiaries' existence and its patents,
trademarks, servicemarks, tradenames, copyrights, franchises, licenses,
permits, certificates, authorizations, qualifications, accreditation,
easements, rights of way and other rights, consents and approvals the
nonexistence of which is likely to have a Material Adverse Effect.
SECTION 5.8. Financial Covenants.
(a) Total Liabilities to Total Asset Value. The Borrower shall
not permit the ratio of Total Liabilities to Total Asset Value of Borrower to
exceed 0.55:1 at any time.
(b) EBITDA to Interest Expense Ratio. Borrower shall not
permit the ratio of EBITDA for the then most recently completed Fiscal Quarter
to Interest Expense for the then most recently completed Fiscal Quarter to be
less than 2.00:1.
(c) Intentionally Omitted.
(d) Cash Flow to Fixed Charges Ratio. Borrower shall not
permit the ratio of Cash Flow for the then most recently completed Fiscal
Quarter to Fixed Charges for the then most recently completed Fiscal Quarter to
be less than 1.5:1.
(e) Secured Debt to Total Asset Value. Borrower shall not
permit the ratio of Secured Debt to Total Asset Value of Borrower to exceed
0.40:1 at any time.
(f) Unencumbered Pool. Borrower shall not permit the ratio of
the outstanding Unsecured Debt to Unencumbered Asset Value to exceed 0.55:1 at
any time.
(g) Unencumbered Net Operating Income to Unsecured Debt
Service. Borrower shall not permit the ratio of Unencumbered Net Operating
Income for the then most recently completed Fiscal Quarter to Unsecured Debt
Service for the then most recently completed Fiscal Quarter to be less than
2.0:1.
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(h) Minimum Tangible Net Worth. The Consolidated Tangible Net
Worth of the Borrower determined in conformity with GAAP will at no time be
less than the sum of (i) $7,800,000,000 and (ii) seventy percent (70%) of all
Net Offering Proceeds (other than cash or other assets received as a result of
the issuance of notes, bonds or other debt instruments) received by EOPT or
Borrower after February 29, 2000.
(i) Dividends. The Borrower will not, as determined on an
aggregate annual basis, pay any partnership distributions in excess of 90% of
the Borrower's FFO for such year. During the continuance of a monetary Event of
Default, Borrower shall only pay partnership distributions that are necessary
to enable EOPT to make those dividends necessary to maintain EOPT's status as a
real estate investment trust.
(j) Permitted Holdings. Borrower's primary business will be
the ownership, operation and development of Office Properties and Parking
Properties and any other business activities of Borrower and its Subsidiaries
will remain incidental thereto. Notwithstanding the foregoing, Borrower and its
Subsidiaries may acquire or maintain Permitted Holdings if and so long as the
aggregate value of Permitted Holdings, whether held directly or indirectly by
Borrower does not exceed, at any time, twenty-five percent (25%) of Total Asset
Value of Borrower unless a greater percentage is approved by the Majority Banks
(which approval shall not be unreasonably withheld, conditioned or delayed);
provided, however, Borrower and its Subsidiaries may not acquire or maintain
(i) Unimproved Assets if and to the extent that the aggregate value of
Unimproved Assets, whether held directly or indirectly by Borrower exceeds, at
any time, ten percent (10%) of Total Asset Value of Borrower or (ii) interests
in Taxable REIT Subsidiaries if and to the extent that the aggregate value of
interests in Taxable REIT Subsidiaries, whether held directly or indirectly by
Borrower exceeds, at any time, twenty percent (20%) of Total Asset Value of
Borrower unless, in either case, a greater percentage is approved by the
Majority Banks (which approval shall not be unreasonably withheld, conditioned
or delayed). For purposes of calculating the foregoing percentage the value of
Unimproved Assets and interests in Taxable REIT Subsidiaries shall be
calculated based upon the cost value thereof, determined in accordance with
GAAP; provided that, in the case of any Unimproved Assets held by an Investment
Affiliate, only Borrower's Share of the cost of such Unimproved Assets shall be
used in calculating the foregoing percentages.
(k) No Liens. Borrower and EOPT shall not, and shall not
allow any of their Subsidiaries, Financing Partnerships or Joint Venture
Subsidiaries to, allow any Qualifying Unencumbered Property (or any equity
interests in such Property that are owned directly or indirectly by Borrower,
EOPT or any Joint Venture Parent), that is necessary to comply with the
provisions of Sections 5.8(f) and (g) hereof, to become subject to a Lien that
secures the Indebtedness of any Person, other than Permitted Liens.
(l) Calculation. Each of the foregoing ratios and
financial requirements shall be calculated as of the last day of each Fiscal
Quarter.
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SECTION 5.9. Restriction on Fundamental Changes.
(a) Neither the Borrower nor EOPT shall enter into any merger
or consolidation without obtaining the prior written consent thereto in writing
of the Majority Banks, which consent shall not be unreasonably withheld,
conditioned or delayed, unless (i) the Borrower or EOPT is the surviving entity,
(ii) the entity which is merged into Borrower or EOPT is predominantly in the
commercial real estate business, (iii) the creditworthiness of the surviving
entity's long term unsecured debt or implied senior debt, as applicable, is not
lower than Borrower's or EOPT's creditworthiness two months immediately
preceding such merger, and (iv) the then fair market value of the assets of the
entity which is merged into the Borrower or EOPT is less than twenty-five
percent (25%) of the Borrower's or EOPT's then Total Asset Value following such
merger. Neither the Borrower nor EOPT shall liquidate, wind-up or dissolve (or
suffer any liquidation or dissolution), discontinue its business or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or substantially all of its business or property, whether now
or hereafter acquired. Nothing in this Section shall be deemed to prohibit the
sale or leasing of portions of the Real Property Assets in the ordinary course
of business. Notwithstanding anything in this Agreement to the contrary, the
parties hereto hereby agree that the Majority Banks shall be deemed to have
approved the terms of the Cornerstone Merger set forth in the Confidential
Information Memorandum.
(b) The Borrower shall not amend its agreement of limited
partnership or other organizational documents in any manner that would have a
Material Adverse Effect without the Majority Banks' consent, which shall not be
unreasonably withheld. Without limitation of the foregoing, no Person shall be
admitted as a general partner of the Borrower other than EOPT. EOPT shall not
amend its declaration of trust, by-laws, or other organizational documents in
any manner that would have a Material Adverse Effect without the Majority Banks'
consent, which shall not be unreasonably withheld. The Borrower shall not make
any "in-kind" transfer of any of its property or assets to any of its
constituent partners if such transfer would result in an Event of Default under
Section 6.1(b) by reason of a breach of the provisions of Section 5.8.
(c) Subject to the provisions of clause (b) above, the Borrower
shall deliver to Administrative Agent copies of all amendments to its agreement
of limited partnership or to EOPT's declaration of trust, by-laws, or other
organizational documents no less than ten (10) days after the effective date of
any such amendment.
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SECTION 5.10. Changes in Business.
(a) Except for Permitted Holdings, neither the Borrower nor
EOPT shall enter into any business which is substantially different from that
conducted by the Borrower or EOPT on the Closing Date after giving effect to the
transactions contemplated by the Loan Documents. The Borrower shall carry on its
business operations through the Borrower, its Consolidated Subsidiaries and its
Investment Affiliates.
(b) Except for Permitted Holdings, Borrower shall not engage in
any line of business other than ownership, operation and development of Office
Properties and Parking Properties and the provision of services incidental
thereto, whether directly or through its Consolidated Subsidiaries and
Investment Affiliates.
SECTION 5.11. EOPT Status.
(a) Status. EOPT shall at all times (i) remain a publicly
traded company listed for trading on the New York Stock Exchange, and (ii)
maintain its status as a self-directed and self-administered real estate
investment trust under the Code.
(b) Indebtedness. EOPT shall not, directly or indirectly,
create, incur, assume or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except:
(1) the Obligations; and
(2) Indebtedness of Borrower for which there is
recourse to EOPT which, after giving effect thereto, may be incurred or
may remain outstanding without giving rise to an Event of Default or
Default under any provision of this Article V.
(c) Restriction on Fundamental Changes.
(1) EOPT shall not have an investment in any Person
other than (i) Borrower or indirectly through Borrower, (ii) directly or
indirectly in Financing Partnerships, (iii) the interests identified on
Schedule 5.11(c)(1) as being owned by EOPT, and (iv) interests acquired
as a result of the Cornerstone Merger.
(2) EOPT shall not acquire an interest in any Property
other than (i) securities issued by Borrower and Financing Partnerships
and the interests identified on Schedule 5.11(c)(2) attached hereto and
(ii) interests acquired as a result of the Cornerstone Merger.
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(3) Neither of EOP-QRS Trust nor EOP-QRS LaJolla Trust
shall have any investments or own any assets other than the interests in
the Financing Partnerships identified on Schedule 5.11(c)(3) as being
owned by EOP-QRS Trust or EOP-QRS LaJolla Trust.
(d) Environmental Liabilities. Neither EOPT nor any of its
Subsidiaries shall become subject to any Environmental Claim which has a
Material Adverse Effect, including, without limitation, any arising out of or
related to (i) the release or threatened release of any Material of
Environmental Concern into the environment, or any remedial action in response
thereto, or (ii) any violation of any Environmental Laws. Notwithstanding the
foregoing provision, EOPT shall have the right to contest in good faith any
claim of violation of an Environmental Law by appropriate legal proceedings and
shall be entitled to postpone compliance with the obligation being contested as
long as (i) no Event of Default shall have occurred and be continuing, (ii) EOPT
shall have given Administrative Agent prior written notice of the commencement
of such contest, (iii) noncompliance with such Environmental Law shall not
subject EOPT or such Subsidiary to any criminal penalty or subject
Administrative Agent, Documentation Agent or any Bank to pay any civil penalty
or to prosecution for a crime, and (iv) no portion of any Property material to
Borrower or its condition or prospects shall be in substantial danger of being
sold, forfeited or lost, by reason of such contest or the continued existence of
the matter being contested.
(e) Disposal of Partnership Interests. EOPT will not directly
or indirectly convey, sell, transfer, assign, pledge or otherwise encumber or
dispose of any of its partnership interests in Borrower or any of its equity
interest in any of the partners of the Borrower as of the date hereof (except in
connection with the dissolution or liquidation of such partners of the
Borrower), except for the reduction of EOPT's interest in the Borrower arising
from Borrower's issuance of partnership interests in the Borrower or the
retirement of preference units by Borrower. EOPT will continue to be the
managing general partner of Borrower.
SECTION 5.12. Other Indebtedness. Borrower and EOPT shall not
allow any of their Subsidiaries, Financing Partnerships or Joint Venture
Subsidiaries that own, directly or indirectly, any Qualifying Unencumbered
Property to directly or indirectly create, incur, assume or otherwise become or
remain liable with respect to any Indebtedness other than trade debt incurred
in the ordinary course of business and Indebtedness owing to Borrower, if the
resulting failure of such Property to qualify as a Qualifying Unencumbered
Property would result in an Event of Default under Section 5.8.
SECTION 5.13. Forward Equity Contracts. If Borrower shall enter
into any forward equity contracts, Borrower may only settle the same by
delivery of stock, it being agreed that if Borrower shall settle the same with
cash, the same shall constitute an Event of Default hereunder.
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ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default. An "Event of Default" shall
have occurred if one or more of the following events shall have occurred and be
continuing:
(a) the Borrower shall fail to pay when due any principal of
any Loan, or the Borrower shall fail to pay when due interest on any Loan or
any fees or any other amount payable to Administrative Agent, Documentation
Agent, Syndication Agent or the Banks hereunder and the same shall continue for
a period of five (5) days after the same becomes due;
(b) the Borrower shall fail to observe or perform any covenant
contained in Section 5.8, Section 5.9(a) or (b), Section 5.10, Section 5.11(a),
(b) or (c), Section 5.12 or Section 5.13;
(c) the Borrower shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those covered by clause
(a), (b), (e), (f), (g), (h), (j), (n) or (o) of this Section 6.1) for 30 days
after written notice thereof has been given to the Borrower by the
Administrative Agent, or if such default is of such a nature that it cannot
with reasonable effort be completely remedied within said period of thirty (30)
days such additional period of time as may be reasonably necessary to cure
same, provided Borrower commences such cure within said thirty (30) day period
and diligently prosecutes same, until completion, but in no event shall such
extended period exceed ninety (90) days;
(d) any representation, warranty, certification or statement
made by the Borrower in this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall prove to
have been incorrect in any material respect when made (or deemed made) and,
with respect to such representations, warranties, certifications or statements
not known by the Borrower at the time made or deemed made to be incorrect, the
defect causing such representation or warranty to be incorrect when made (or
deemed made) is not removed within thirty (30) days after written notice
thereof from Administrative Agent to Borrower;
(e) the Borrower, EOPT, any Subsidiary or any Investment
Affiliate shall default in the payment when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) of any amount owing in
respect of any Recourse Debt (other than the Obligations) for which the
aggregate outstanding principal amount exceeds $25,000,000 and such default
shall continue beyond the giving of any required notice and the expiration of
any applicable grace period and such default has not been waived, in writing,
by the holder of any such Debt; or the Borrower, EOPT, any Subsidiary or any
Investment Affiliate shall default in the performance or observance of any
obligation or condition with respect to any such Recourse Debt
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or any other event shall occur or condition exist beyond the giving of any
required notice and the expiration of any applicable grace period, if the
effect of such default, event or condition is to accelerate the maturity of any
such indebtedness or to permit (without any further requirement of notice or
lapse of time) the holder or holders thereof, or any trustee or agent for such
holders, to accelerate the maturity of any such indebtedness;
(f) the Borrower or EOPT shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidate, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment
for the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any action to authorize any of the foregoing;
(g) an involuntary case or other proceeding shall be commenced
against the Borrower or EOPT seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 90 days; or an order for
relief shall be entered against the Borrower or EOPT under the federal
bankruptcy laws as now or hereafter in effect;
(h) one or more final, non-appealable judgments or decrees in
an aggregate amount of Twenty Million Dollars ($20,000,000) or more shall be
entered by a court or courts of competent jurisdiction against EOPT, the
Borrower or, to the extent of any recourse to EOPT or the Borrower, any of its
Consolidated Subsidiaries (other than any judgment as to which, and only to the
extent, a reputable insurance company has acknowledged coverage of such claim
in writing) and (i) any such judgments or decrees shall not be stayed,
discharged, paid, bonded or vacated within thirty (30) days or (ii) enforcement
proceedings shall be commenced by any creditor on any such judgments or
decrees;
(i) there shall be a change in the majority of the Board of
Trustees of EOPT during any twelve (12) month period, excluding any change in
directors resulting from (x) the death or disability of any director, or (y)
satisfaction of any requirement for the majority of the members of the board of
directors or trustees of EOPT to qualify under applicable law as independent
trustees or (z) the replacement of any trustee who is an officer or employee of
EOPT or an affiliate of EOPT with any other officer or employee of EOPT or an
affiliate of EOPT;
(j) any Person (including affiliates of such Person) or
"group" (as such term is defined in applicable federal securities laws and
regulations) shall acquire more than thirty percent (30%) of the common shares
of EOPT;
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(k) EOPT shall cease at any time to qualify as a real estate
investment trust under the Code;
(l) if any Termination Event with respect to a Plan,
Multiemployer Plan or Benefit Arrangement shall occur as a result of which
Termination Event or Events any member of the ERISA Group has incurred or may
incur any liability to the PBGC or any other Person and the sum (determined as
of the date of occurrence of such Termination Event) of the insufficiency of
such Plan, Multiemployer Plan or Benefit Arrangement and the insufficiency of
any and all other Plans, Multiemployer Plans and Benefit Arrangements with
respect to which such a Termination Event shall occur and be continuing (or, in
the case of a Multiple Employer Plan with respect to which a Termination Event
described in clause (ii) of the definition of Termination Event shall occur and
be continuing and in the case of a liability with respect to a Termination
Event which is or could be a liability of the Borrower or EOPT rather than a
liability of the Plan, the liability of the Borrower or EOPT) is equal to or
greater than $10,000,000 and which the Administrative Agent reasonably
determines will have a Material Adverse Effect;
(m) if, any member of the ERISA Group shall commit a failure
described in Section 302(f)(1) of ERISA or Section 412(n)(1) of the Code and
the amount of the lien determined under Section 302(f)(3) of ERISA or Section
412(n)(3) of the Code that could reasonably be expected to be imposed on any
member of the ERISA Group or their assets in respect of such failure shall be
equal to or greater than $10,000,000 and which the Administrative Agent
reasonably determines will have a Material Adverse Effect;
(n) at any time, for any reason the Borrower seeks to
repudiate its obligations under any Loan Document or EOPT seeks to repudiate
its obligations under the EOPT Guaranty.
(o) a default beyond any applicable notice or grace period
under any of the other Loan Documents;
(p) any assets of Borrower shall constitute "assets" (within
the meaning of ERISA or Section 4975 of the Code, including but not limited to
29 C.F.R. Section 2510.3-101 or any successor regulation thereto) 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 Code; or
(q) the Note, the Loan, the Obligations, the EOPT Guaranty or
any of the Loan Documents or the exercise of any of the Administrative Agent's,
the Documentation Agent's or any of the Bank's rights in connection therewith
shall constitute a prohibited transaction under ERISA and/or the Code.
SECTION 6.2. Rights and Remedies.
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(a) Upon the occurrence of any Event of Default described in
Sections 6.1(f), (g), (p) or (q), the unpaid principal amount of, and any and
all accrued interest on, the Loans and any and all accrued fees and other
Obligations hereunder shall automatically become immediately due and payable,
with all additional interest from time to time accrued thereon and without
presentation, demand, or protest or other requirements of any kind (including,
without limitation, valuation and appraisement, diligence, presentment, notice
of intent to demand or accelerate and notice of acceleration), all of which are
hereby expressly waived by the Borrower; and upon the occurrence and during the
continuance of any other Event of Default, the Administrative Agent may (and
upon the demand of the Required Banks shall), by written notice to the
Borrower, in addition to the exercise of all of the rights and remedies
permitted the Administrative Agent and the Banks at law or equity or under any
of the other Loan Documents, declare the unpaid principal amount of and any and
all accrued and unpaid interest on the Loans and any and all accrued fees and
other Obligations hereunder to be, and the same shall thereupon be, immediately
due and payable with all additional interest from time to time accrued thereon
and (except as otherwise provided in the Loan Documents) without presentation,
demand, or protest or other requirements of any kind (including, without
limitation, valuation and appraisement, diligence, presentment, notice of
intent to demand or accelerate and notice of acceleration), all of which are
hereby expressly waived by the Borrower.
(b) Notwithstanding anything to the contrary contained in this
Agreement or in any other Loan Document, the Documentation Agent, the
Administrative Agent, and the Banks each agree that any exercise or enforcement
of the rights and remedies granted to the Documentation Agent, the
Administrative Agent or the Banks under this Agreement or at law or in equity
with respect to this Agreement or any other Loan Documents shall be commenced
and maintained by the Documentation Agent or the Administrative Agent on behalf
of the Documentation Agent, the Administrative Agent and/or the Banks. The
Administrative Agent shall act at the direction of the Required Banks in
connection with the exercise of any and all remedies at law, in equity or under
any of the Loan Documents or, if the Required Banks are unable to reach
agreement, then, from and after an Event of Default, the Administrative Agent
may pursue such rights and remedies as it may determine.
SECTION 6.3. Notice of Default. The Administrative Agent shall
give notice to the Borrower under Section 6.1(c) and 6.1(d) promptly upon being
requested to do so by the Required Banks and shall thereupon notify all the
Banks thereof. Neither Administrative Agent nor Documentation Agent shall be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default (other than nonpayment of principal of or interest on the Loans) unless
Administrative Agent or Documentation Agent has received notice in writing from
a Bank or Borrower referring to this Agreement or the other Loan Documents,
describing such event or condition. Should Administrative Agent or
Documentation Agent receive notice of the occurrence of an Default or Event of
Default expressly stating that such notice is a notice of an Default or Event
of Default, or should Administrative Agent or Documentation Agent send
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Borrower a notice of Default or Event of Default, Administrative Agent or
Documentation Agent, as applicable, shall promptly give notice thereof to each
Bank.
SECTION 6.4. Distribution of Proceeds after Default.
Notwithstanding anything contained herein to the contrary but subject to the
provisions of Section 9.16 hereof, from and after an Event of Default, to the
extent proceeds are received by Administrative Agent, such proceeds will be
distributed to the Banks pro rata in accordance with the unpaid principal
amount of the Loans (giving effect to any participations granted therein
pursuant to Section 9.4).
ARTICLE VII
THE AGENTS
SECTION 7.1. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Administrative Agent, Documentation
Agent and the Syndication Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the other Loan Documents as
are delegated to the Administrative Agent, Documentation Agent and the
Syndication Agent by the terms hereof or thereof, together with all such powers
as are reasonably incidental thereto. Except as set forth in Sections 7.8 and
7.9 hereof, the provisions of this Article VII are solely for the benefit of
Administrative Agent, Documentation Agent, the Syndication Agent and the Banks,
and Borrower shall not have any rights to rely on or enforce any of the
provisions hereof. In performing its functions and duties under this Agreement,
Administrative Agent, Documentation Agent and the Syndication Agent shall each
act solely as an agent of the Banks and do not assume and shall not be deemed
to have assumed any obligation toward or relationship of agency or trust with
or for the Borrower.
SECTION 7.2. Agency and Affiliates. Bank of America, N.A.,
The Chase Manhattan Bank and PNC Bank, National Association shall have the same
rights and powers under this Agreement as any other Bank and may exercise or
refrain from exercising the same as though it were not the Administrative Agent
or Documentation Agent respectively, and Bank of America, N.A., The Chase
Manhattan Bank and PNC Bank, National Association, and their affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower, EOPT or any Subsidiary or affiliate of the Borrower
as if they were not the Administrative Agent and Documentation Agent,
respectively, hereunder, and the term "Bank" and "Banks" shall include Bank of
America, N.A., The Chase Manhattan Bank and PNC Bank, National Association, in
their individual capacities.
SECTION 7.3. Action by Administrative Agent and Documentation
Agent. The obligations of the Administrative Agent and Documentation Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Administrative Agent and Documentation Agent
shall not be required to take any action with respect to any
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Default or Event of Default, except as expressly provided in Article VI. The
duties of Administrative Agent and Documentation Agent shall be administrative
in nature. Subject to the provisions of Sections 7.1, 7.5 and 7.6,
Administrative Agent and Documentation Agent shall administer the Loans in the
same manner as each administers its own loans.
SECTION 7.4. Consultation with Experts. As between
Administrative Agent and Documentation Agent on the one hand and the Banks on
the other hand, the Administrative Agent and Documentation Agent may consult
with legal counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.5. Liability of Administrative Agent and
Documentation Agent. As between Administrative Agent and Documentation Agent
on the one hand and the Banks on the other hand, none of the Administrative
Agent, the Documentation Agent nor any of their affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or not taken by it in connection herewith (i) with the consent or
at the request of the Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. As between Administrative Agent and
Documentation Agent on the one hand and the Banks on the other hand, none of
the Administrative Agent, the Documentation Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify: (i) any statement, warranty or
representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified
in Article III, except receipt of items required to be delivered to the
Administrative Agent or the Documentation Agent; or (iv) the validity,
effectiveness or genuineness of this Agreement, the other Loan Documents or any
other instrument or writing furnished in connection herewith. As between
Administrative Agent and Documentation Agent on the one hand and the Banks on
the other hand, neither the Administrative Agent nor the Documentation Agent
shall incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank wire, telex or
similar writing) believed by it to be genuine or to be signed by the proper
party or parties.
SECTION 7.6. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Administrative Agent and the
Documentation Agent and their affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed by the Borrower)
against any cost, expense (including, without limitation, counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitee's gross negligence or willful misconduct) that such
indemnitee may suffer or incur in connection with its duties as Administrative
Agent and/or Documentation Agent under this Agreement, the other Loan Documents
or any action taken or omitted by such indemnitee hereunder. In the event that
the Documentation Agent or the Administrative Agent shall,
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subsequent to its receipt of indemnification payment(s) from Banks in accordance
with this section, recoup any amount from the Borrower, or any other party
liable therefor in connection with such indemnification, the Documentation Agent
or the Administrative Agent, as the case may be, shall reimburse the Banks which
previously made the payment(s) pro rata, based upon the actual amounts which
were theretofore paid by each Bank. The Documentation Agent or the
Administrative Agent, as the case may be, shall reimburse such Banks so entitled
to reimbursement within two (2) Business Days of its receipt of such funds from
the Borrower or such other party liable therefor.
SECTION 7.7. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon the Administrative Agent, the
Documentation Agent, the Syndication Agent or any other Bank, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges
that it will, independently and without reliance upon the Administrative Agent,
Documentation Agent, the Syndication Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking any action under this
Agreement.
SECTION 7.8. Successor Administrative Agent, Documentation
Agent or Syndication Agent. The Administrative Agent, the Documentation Agent
or the Syndication Agent may resign at any time by giving notice thereof to the
Banks, the Borrower and each other and the Administrative Agent, the
Documentation Agent or the Syndication Agent, as applicable, shall resign in
the event its Commitment (or, so long as ▇.▇. ▇▇▇▇▇▇ Securities, Inc. is the
Syndication Agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York's Commitment) is
reduced to less than Thirty Million Dollars ($30,000,000) unless as a result of
a cancellation or reduction in the aggregate Commitments. Upon any such
resignation, the Majority Banks shall have the right to appoint a successor
Administrative Agent, Documentation Agent or Syndication Agent, as applicable,
which successor Administrative Agent, successor Documentation Agent or
successor Syndication Agent (as applicable) shall, provided no Event of Default
has occurred and is then continuing, be subject to Borrower's approval, which
approval shall not be unreasonably withheld or delayed (except that Borrower
shall, in all events, be deemed to have approved The Chase Manhattan Bank or
▇▇▇▇▇▇ Guaranty Trust Company of New York, as a successor Administrative Agent
and ▇▇▇▇▇▇ Guaranty Trust Company of New York or Bank of America, N.A. as a
successor Documentation Agent). If no successor Administrative Agent,
Documentation Agent or Syndication Agent (as applicable) shall have been so
appointed by the Majority Banks and approved by the Borrower, and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent, Documentation Agent or Syndication Agent (as applicable) gives notice of
resignation, then the retiring Administrative Agent, retiring Documentation
Agent, or retiring Syndication Agent (as applicable) may, on behalf of the
Banks, appoint a successor Administrative Agent, Documentation Agent or
Syndication Agent (as applicable), which shall be the Administrative Agent, the
Documentation Agent or the Syndication Agent as the case may be, who shall act
until the Majority Banks shall appoint an Administrative
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Agent, Documentation Agent or Syndication Agent. Any appointment of a successor
Administrative Agent, Documentation Agent or Syndication Agent by Majority
Banks or the retiring Administrative Agent, the Documentation Agent or the
Syndication Agent pursuant to the preceding sentence shall, provided no Event
of Default has occurred and is then continuing, be subject to the Borrower's
approval, which approval shall not be unreasonably withheld or delayed. Upon
the acceptance of its appointment as the Administrative Agent, Documentation
Agent or Syndication Agent hereunder by a successor Administrative Agent or
successor Documentation Agent or successor Syndication Agent, as applicable,
such successor Administrative Agent, successor Documentation Agent or successor
Syndication Agent, as applicable, shall thereupon succeed to and become vested
with all the rights and duties of the retiring Administrative Agent, retiring
Documentation Agent or retiring Syndication Agent, as applicable, and the
retiring Administrative Agent, the retiring Documentation Agent or the retiring
Syndication Agent, as applicable, shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's, retiring
Documentation Agent's or retiring Syndication Agent's resignation hereunder,
the provisions of this Article shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent, the
Documentation Agent or the Syndication Agent, as applicable. For gross
negligence or willful misconduct, as determined by all the Banks (excluding for
such determination Administrative Agent or Documentation Agent in its capacity
as a Bank, as applicable), Administrative Agent, Documentation Agent or
Syndication Agent may be removed at any time by giving at least thirty (30)
Business Days prior written notice to Administrative Agent, Documentation
Agent, Syndication Agent and Borrower. Such resignation or removal shall take
effect upon the acceptance of appointment by a successor Administrative Agent,
Documentation Agent or Syndication Agent, as applicable, in accordance with the
provisions of this Section 7.8.
SECTION 7.9. Consents and Approvals. All communications from
Administrative Agent to the Banks requesting the Banks' determination, consent,
approval or disapproval (i) shall be given in the form of a written notice to
each Bank, (ii) shall be accompanied by a description of the matter or item as
to which such determination, approval, consent or disapproval is requested, or
shall advise each Bank where such matter or item may be inspected, or shall
otherwise describe the matter or issue to be resolved, (iii) shall include, if
reasonably requested by a Bank and to the extent not previously provided to
such Bank, written materials and a summary of all oral information provided to
Administrative Agent by Borrower in respect of the matter or issue to be
resolved, and (iv) shall include Administrative Agent's recommended course of
action or determination in respect thereof. Each Bank shall reply promptly, but
in any event within ten (10) Business Days after receipt of the request
therefor from Administrative Agent (the "Bank Reply Period"). Unless a Bank
shall give written notice to Administrative Agent that it objects to the
recommendation or determination of Administrative Agent (together with a
written explanation of the reasons behind such objection) within the Bank Reply
Period, such Bank shall be deemed to have approved of or consented to such
recommendation or determination. With respect to decisions requiring the
approval of the Required Banks, Majority Banks or all the Banks, Administrative
Agent shall submit its
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recommendation or determination for approval of or consent to such
recommendation or determination to all Banks and upon receiving the required
approval or consent shall follow the course of action or determination of the
Required Banks, Majority Banks or all the Banks (and each non-responding Bank
shall be deemed to have concurred with such recommended course of action), as
the case may be.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any
Euro-Dollar Borrowing the Administrative Agent determines in good faith that
deposits in dollars (in the applicable amounts) are not being offered in the
relevant market for such Interest Period, the Administrative Agent shall
forthwith give notice thereof to the Borrower and the Banks, whereupon until
the Administrative Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
Euro-Dollar Loans shall be suspended. Unless the Borrower notifies the
Administrative Agent at least two Business Days before the date of any
Euro-Dollar Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall instead be made
as a Base Rate Borrowing.
SECTION 8.2. Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of law) made after the
Closing Date of any such authority, central bank or comparable agency shall
make it unlawful for any Bank (or its Euro-Dollar Lending Office) to make,
maintain or fund its Euro-Dollar Loans, the Administrative Agent shall
forthwith give notice thereof to the other Banks and the Borrower, whereupon
until such Bank notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make Euro-Dollar Loans shall be suspended. With respect to
Euro-Dollar Loans, before giving any notice to the Administrative Agent
pursuant to this Section, such Bank shall designate a different Euro-Dollar
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to
such Bank. If such Bank shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Euro-Dollar Loans to maturity and
shall so specify in such notice, the Borrower shall be deemed to have delivered
a Notice of Interest Rate Election and such Euro-Dollar Loan shall be converted
as of such date to a Base Rate Loan (without payment of any amounts that
Borrower would otherwise be obligated to pay pursuant to Section 2.13 hereof
with respect to Loans converted pursuant to this Section 8.2) in
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an equal principal amount from such Bank (on which interest and principal shall
be payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
If at any time, it shall be unlawful for any Bank to make,
maintain or fund its Euro-Dollar Loans, the Borrower shall have the right, upon
five (5) Business Day's notice to the Administrative Agent, to either (x) cause
a bank, reasonably acceptable to the Administrative Agent, to offer to purchase
the Commitments of such Bank for an amount equal to such Bank's outstanding
Loans, and to become a Bank hereunder, or obtain the agreement of one or more
existing Banks to offer to purchase the Commitments of such Bank for such
amount, which offer such Bank is hereby required to accept, or (y) to repay in
full all Loans then outstanding of such Bank, together with interest and all
other amounts due thereon, in accordance with the terms of Section 2.11(b).
SECTION 8.3. Increased Cost and Reduced Return.
(a) If, on or after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule
or regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) made at the Closing Date of any such authority, central bank
or comparable agency shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System (but excluding with respect to any
Euro-Dollar Loan any such requirement reflected in an applicable Euro-Dollar
Reserve Percentage)), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or shall impose on any
Bank (or its Applicable Lending Office) or on the interbank market any other
condition materially more burdensome in nature, extent or consequence than
those in existence as of the date hereof affecting such Bank's Euro-Dollar
Loans, its Note, or its obligation to make Euro-Dollar Loans, and the result of
any of the foregoing is to increase the cost to such Bank (or its Applicable
Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce the
amount of any sum received or receivable by such Bank (or its Applicable
Lending Office) under this Agreement or under its Note with respect to such
Euro-Dollar Loans, by an amount deemed by such Bank to be material, then,
within 15 days after demand by such Bank (with a copy to the Administrative
Agent and Documentation Agent), the Borrower shall pay to such Bank such
additional amount or amounts (based upon a reasonable allocation thereof by
such Bank to the Euro-Dollar Loans made by such Bank hereunder) as will
compensate such Bank for such increased cost or reduction to the extent such
Bank generally imposes such additional amounts on other borrowers of such Bank
in similar circumstances.
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(b) If any Bank shall have reasonably determined that, after the date
hereof, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change in any such law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) made after the Closing Date of any
such authority, central bank or comparable agency, has or would have the effect
of reducing the rate of return on capital of such Bank (or its Parent) as a
consequence of such Bank's obligations hereunder to a level below that which
such Bank (or its Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount reasonably deemed by such Bank to be material,
then from time to time, within 15 days after demand by such Bank (with a copy
to the Administrative Agent and Documentation Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank (or
its Parent) for such reduction to the extent such Bank generally imposes such
additional amounts on other borrowers of such Bank in similar circumstances.
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Bank to compensation pursuant to this
Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall fail to notify Borrower of any
such event within 90 days following the end of the month during which such
event occurred, then Borrower's liability for any amounts described in this
Section incurred by such Bank as a result of such event shall be limited to
those attributable to the period occurring subsequent to the ninetieth (90th)
day prior to the date upon which such Bank actually notified Borrower of the
occurrence of such event. A certificate of any Bank claiming compensation under
this Section and setting forth a reasonably detailed calculation of the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of demonstrable error. In determining such amount, such Bank may
use any reasonable averaging and attribution methods.
(d) If at any time, any Bank shall be owed amounts pursuant to
this Section 8.3, the Borrower shall have the right, upon five (5) Business
Day's notice to the Administrative Agent to either (x) cause a bank, reasonably
acceptable to the Administrative Agent, to offer to purchase the Commitments of
such Bank for an amount equal to such Bank's outstanding Loans, and to become a
Bank hereunder, or to obtain the agreement of one or more existing Banks to
offer to purchase the Commitments of such Bank for such amount, which offer
such Bank is hereby required to accept, or (y) to repay in full all Loans then
outstanding of such Bank, together with interest and all other amounts due
thereon, in accordance with the terms of Section 2.11.
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SECTION 8.4. Taxes.
(a) Any and all payments by the Borrower to or for the account
of any Bank, the Documentation Agent or the Administrative Agent hereunder or
under any other Loan Document shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank, the Documentation Agent and the
Administrative Agent, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Bank, the Documentation
Agent or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Bank, taxes imposed on
its income, and franchise or similar taxes imposed on it, by the jurisdiction
of such Bank's Applicable Lending Office or any political subdivision thereof
or by any other jurisdiction (or any political subdivision thereof) as a result
of a present or former connection between such Bank, Documentation Agent or
Administrative Agent and such other jurisdiction or by the United States (all
such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Non-Excluded
Taxes"). If the Borrower shall be required by law to deduct any Non-Excluded
Taxes from or in respect of any sum payable hereunder or under any Note, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including, without limitation, deductions applicable to
additional sums payable under this Section 8.4) such Bank, the Documentation
Agent or the Administrative Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 9.1, the original
or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes, or
charges or similar levies which arise from any payment made hereunder or under
any Note or from the execution or delivery of, or otherwise with respect to,
this Agreement or any Note (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Bank, the
Documentation Agent and the Administrative Agent for the full amount of
Non-Excluded Taxes or Other Taxes (including, without limitation, any
Non-Excluded Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 8.4) paid by such Bank, the Documentation
Agent or the Administrative Agent (as the case may be) and, so long as such
Bank, Documentation Agent or Administrative Agent has promptly paid any such
Non-Excluded Taxes or Other Taxes, any liability for penalties and interest
arising therefrom or with respect thereto. This indemnification shall be made
within 15 days from the date such Bank, the Documentation Agent or the
Administrative Agent (as the case may be) makes demand therefor.
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(d) Each Bank organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Bank listed on the signature
pages hereof and on or prior to the date on which it becomes a Bank in the case
of each other Bank, shall provide the Borrower with (A) two duly completed
copies of Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, and (B) an Internal
Revenue Service Form W-8 or W-9, or any successor form prescribed by the
Internal Revenue Service, and shall provide Borrower with two further copies of
any such form or certification on or before the date that any such form or
certification expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered by it to
Borrower, certifying (i) in the case of a Form 1001 or 4224, that such Bank is
entitled to benefits under an income tax treaty to which the United States is a
party which reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States, and
(ii) in the case of a Form W-8 or W-9, that it is entitled to an exemption from
United States backup withholding tax. If the form provided by a Bank at the
time such Bank first becomes a party to this Agreement indicates a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from "Non-Excluded Taxes" as defined in
Section 8.4(a).
(e) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form pursuant to Section 8.4(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Bank shall not be entitled to indemnification under Section 8.4(c) with
respect to Non-Excluded Taxes imposed by the United States; provided, however,
that should a Bank, which is otherwise exempt from or subject to a reduced rate
of withholding tax, become subject to Non-Excluded Taxes because of its failure
to deliver a form required hereunder, the Borrower shall take such steps as
such Bank shall reasonably request to assist such Bank to recover such Taxes so
long as Borrower shall incur no cost or liability as a result thereof.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Bank pursuant to this Section 8.4, then such Bank
will change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue if
such change, in the judgment of such Bank, is not otherwise disadvantageous to
such Bank.
(g) If at any time, any Bank shall be owed amounts pursuant to
this Section 8.4, the Borrower shall have the right, upon five (5) Business
Day's notice to the Administrative Agent to either (x) cause a bank, reasonably
acceptable to the Administrative Agent, to offer to purchase the Commitments of
such Bank for an amount equal to such Bank's outstanding Loans, and to become a
Bank hereunder, or to obtain the agreement of one or more existing Banks to
offer to purchase the Commitments of such Bank for such amount, which offer
such Bank is
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hereby required to accept, or (y) to repay in full all Loans then outstanding of
such Bank, together with interest and all other amounts due thereon, in
accordance with the terms of Section 2.11.
SECTION 8.5. Base Rate Loans Substituted for Affected
Euro-Dollar Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans
has been suspended pursuant to Section 8.2 or (ii) any Bank has demanded
compensation under Section 8.3 or 8.4 with respect to its Euro-Dollar Loans and
the Borrower shall, by at least five Business Days' prior notice to such Bank
through the Administrative Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until such Bank notifies the
Borrower that the circumstances giving rise to such suspension or demand for
compensation no longer exist:
(a) Borrower shall be deemed to have delivered a Notice of
Interest Rate Election with respect to such affected Euro-Dollar Loans and
thereafter all Loans which would otherwise be made by such Bank as Euro-Dollar
Loans shall be made instead as Base Rate Loans (on which interest and principal
shall be payable contemporaneously with the related Euro-Dollar Loans of the
other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such
Euro-Dollar Loans shall be applied to repay its Base Rate Loans instead, and
(c) Borrower will not be required to make any payment which
would otherwise be required by Section 2.13 with respect to such Euro-Dollar
Loans converted to Base Rate Loans pursuant to clause (a) above.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices. 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 given to such party: (x) in the case of the Borrower, the
Documentation Agent, the Syndication Agent or the Administrative Agent, at its
address, telex number or facsimile number set forth on Exhibit C attached
hereto with a duplicate copy thereof, in the case of the Borrower, to the
Borrower, at Equity Office Properties Trust, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Chief Legal Counsel, and to ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., (y) in the case of any Bank, at its address, telex
number or facsimile number set forth in its Administrative Questionnaire or (z)
in the case of any party, such other address, telex number or facsimile number
as such party may hereafter specify for the purpose by notice to the
Administrative Agent and the Borrower. Each such notice, request or
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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; provided that notices to the Administrative Agent and the
Documentation Agent under Article II or Article VIII shall not be effective
until received.
SECTION 9.2. No Waivers. No failure or delay by the
Administrative Agent, the Documentation Agent or any Bank in exercising any
right, power or privilege hereunder or under any Note shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 9.3. Expenses; Indemnification.
(a) The Borrower shall pay within thirty (30) days after
written notice from the Administrative Agent or Documentation Agent, as
applicable, (i) all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Documentation Agent (including, without
limitation, reasonable fees and disbursements of special counsel Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP), in connection with the preparation of this
Agreement, the Loan Documents and the documents and instruments referred to
therein, and any waiver or consent hereunder or any amendment hereof or any
Default or alleged Default hereunder, (ii) all reasonable fees and
disbursements of special counsel in connection with the syndication of the
Loans, and (iii) if an Event of Default occurs, all reasonable out-of-pocket
expenses incurred by the Administrative Agent, Documentation Agent and each
Bank, including, without limitation, fees and disbursements of counsel for the
Administrative Agent, the Documentation Agent and each of the Banks, in
connection with the enforcement of the Loan Documents and the instruments
referred to therein and such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom; provided,
however, that the attorneys' fees and disbursements for which Borrower is
obligated under this subsection (a)(iii) shall be limited to the reasonable
non-duplicative fees and disbursements of (A) counsel for Administrative Agent,
(B) counsel for Documentation Agent and (C) counsel for all of the Banks as a
group; and provided, further, that all other costs and expenses for which
Borrower is obligated under this subsection (a)(iii) shall be limited to the
reasonable non-duplicative costs and expenses of Administrative Agent and
Documentation Agent. For purposes of this Section 9.3(a)(iii), (1) counsel for
Administrative Agent shall mean a single outside law firm representing
Administrative Agent, (2) counsel for Documentation Agent shall mean a single
outside law firm representing Documentation Agent (which may or may not be the
same law firm representing Administrative
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Agent) and (3) counsel for all of the Banks as a group shall mean a single
outside law firm representing such Banks as a group (which law firm may or may
not be the same law firm representing either or both of Administrative Agent or
Documentation Agent).
(b) The Borrower agrees to indemnify the Documentation Agent,
the Administrative Agent and each Bank, their respective affiliates and the
respective directors, officers, agents and employees of the foregoing (each an
"Indemnitee") and hold each Indemnitee harmless from and against any and all
liabilities, losses, damages, costs and expenses of any kind, including,
without limitation, the reasonable fees and disbursements of counsel, which may
be incurred by such Indemnitee in connection with any investigative,
administrative or judicial proceeding that may at any time (including, without
limitation, at any time following the payment of the Obligations) be asserted
against any Indemnitee, as a result of, or arising out of, or in any way
related to or by reason of, (i) any of the transactions contemplated by the
Loan Documents or the execution, delivery or performance of any Loan Document,
(ii) any violation by the Borrower or the Environmental Affiliates of any
applicable Environmental Law, (iii) any Environmental Claim arising out of the
management, use, control, ownership or operation of property or assets by the
Borrower or any of the Environmental Affiliates, including, without limitation,
all on-site and off-site activities of Borrower or any Environmental Affiliate
involving Materials of Environmental Concern, (iv) the breach of any
environmental representation or warranty set forth herein, but excluding those
liabilities, losses, damages, costs and expenses (a) for which such Indemnitee
has been compensated pursuant to the terms of this Agreement, (b) incurred
solely by reason of the gross negligence, willful misconduct bad faith or fraud
of any Indemnitee as finally determined by a court of competent jurisdiction,
(c) arising from violations of Environmental Laws relating to a Property which
are caused by the act or omission of such Indemnitee after such Indemnitee
takes possession of such Property or (d) owing by such Indemnitee to any third
party based upon contractual obligations of such Indemnitee owing to such third
party which are not expressly set forth in the Loan Documents. In addition, the
indemnification set forth in this Section 9.3(b) in favor of any director,
officer, agent or employee of Administrative Agent, Documentation Agent or any
Bank shall be solely in their respective capacities as such director, officer,
agent or employee. The Borrower's obligations under this Section shall survive
the termination of this Agreement and the payment of the Obligations. Without
limitation of the other provisions of this Section 9.3, Borrower 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
reasonable attorneys' fees and expenses), expenses, taxes, and damages
(including consequential damages) that the Administrative Agent, the
Documentation Agent and the Banks may suffer or incur by reason of the
investigation, defense and settlement of claims and in obtaining any prohibited
transaction exemption under ERISA or the Code necessary in the Administrative
Agent's or the Documentation Agent's reasonable judgment by reason of the
inaccuracy of the representations and warranties, or a breach of the
provisions, set forth in Section 4.6(b).
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SECTION 9.4. Sharing of Set-Offs. In addition to any rights now
or hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance
of any Event of Default, each Bank is hereby authorized at any time or from
time to time, without presentment, demand, protest or other notice of any kind
to the Borrower or to any other Person, any such notice being hereby expressly
waived, but subject to the prior consent of the Administrative Agent and the
Documentation Agent, to set off and to appropriate and apply any and all
deposits (general or special, time or demand, provisional or final) and any
other indebtedness at any time held or owing by such Bank (including, without
limitation, by branches and agencies of such Bank wherever located) to or for
the credit or the account of the Borrower against and on account of the
Obligations of the Borrower then due and payable to such Bank under this
Agreement or under any of the other Loan Documents, including, without
limitation, all interests in Obligations purchased by such Bank. Each Bank
agrees that if it shall by exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the aggregate amount of principal
and interest due with respect to any Note held by it which is greater than the
proportion received by any other Bank, the Bank receiving such proportionately
greater payment shall purchase such participations in the Notes held by the
other Banks, and such other adjustments shall be made, as may be required so
that all such payments of principal and interest with respect to the Notes held
by the Banks shall be shared by the Banks pro rata; provided that nothing in
this Section shall impair the right of any Bank to exercise any right of
set-off or counterclaim it may have to any deposits not received in connection
with the Loans and to apply the amount subject to such exercise to the payment
of indebtedness of the Borrower other than its indebtedness under the Notes.
The Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation. Notwithstanding anything to the contrary
contained herein, any Bank may, by separate agreement with the Borrower, waive
its right to set off contained herein or granted by law and any such written
waiver shall be effective against such Bank under this Section 9.4.
SECTION 9.5. Amendments and Waivers. Any provision of this
Agreement or the Notes or other Loan Documents may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed by the Borrower
and the Majority Banks (and, if the rights or duties of the Administrative
Agent or the Documentation Agent in their capacity as Administrative Agent or
Documentation Agent, as applicable, are affected thereby, by the Administrative
Agent or the Documentation Agent, as applicable); provided that (A) no
amendment or waiver of the provisions of Article V (including, without
limitation, any of the definitions of the defined terms used in Section 5.8
hereof) shall be effective unless signed by the Borrower and the Required Banks
and (B) no such amendment or waiver with respect to this Agreement, the Notes
or any other Loan Documents shall, unless signed by all the Banks, (i) increase
or decrease the Commitment of any Bank (except for a ratable decrease in the
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Commitments of all Banks) or subject any Bank to any additional obligation,
(ii) reduce the principal of or rate of interest on any Loan or any fees
hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for any reduction or termination
of any Commitment, (iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Section or any other provision of this Agreement, (v) release the EOPT Guaranty
or (vi) modify the provisions of this Section 9.5.
SECTION 9.6. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement or the other Loan Documents without the prior
written consent of all Banks and the Administrative Agent and a Bank may not
assign or otherwise transfer any of its interest under this Agreement except as
permitted in subsection (b) and (c) of this Section 9.6.
(b) Prior to the occurrence of an Event of Default, any Bank
may at any time, with (and subject to) the consent of Borrower (which consent
shall not be unreasonably withheld or delayed), grant to an existing Bank, one
or more banks, finance companies, insurance companies or other financial
institutions (a "Participant") in minimum amounts of not less than $5,000,000
(or any lesser amount in the case of participations to an existing Bank)
participating interests in its Commitment or any or all of its Loans. After the
occurrence and during the continuance of an Event of Default, any Bank may at
any time grant to any Person in any amount (also a "Participant"),
participating interests in its Commitment or any or all of its Loans. Any
participation made during the continuation of an Event of Default shall not be
affected by the subsequent cure of such Event of Default. In the event of any
such grant by a Bank of a participating interest to a Participant, whether or
not upon notice to the Borrower and the Administrative Agent, such Bank shall
remain responsible for the performance of its obligations hereunder, and the
Borrower, the Documentation Agent and the Administrative Agent shall continue
to deal solely and directly with such Bank in connection with such Bank's
rights and obligations under this Agreement. Any agreement pursuant to which
any Bank may grant such a participating interest shall provide that such Bank
shall retain the sole right and responsibility to enforce the obligations of
the Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause
(i), (ii), (iii), (iv) or (v) of Section 9.5 without the consent of the
Participant. The Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of Article
VIII with respect to its participating interest.
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(c) Any Bank may at any time assign to a Qualified Institution
(in each case, an "Assignee") (i) prior to the occurrence of an Event of
Default, in minimum amounts of not less than Five Million Dollars ($5,000,000)
and integral multiple of One Million Dollars ($1,000,000) thereafter (or any
lesser amount in the case of assignments to an existing Bank) and (ii) after
the occurrence and during the continuance of an Event of Default, in any
amount, all or a proportionate part of all, of its rights and obligations under
this Agreement, the Notes and the other Loan Documents, and, in either case,
such Assignee shall assume such rights and obligations, pursuant to a Transfer
Supplement in substantially the form of Exhibit B hereto executed by such
Assignee and such transferor Bank; provided, that if no Event of Default shall
have occurred and be continuing, such assignment shall be subject to the
Administrative Agent's and the Borrower's consent, which consent shall not be
unreasonably withheld or delayed; and provided further that if an Assignee is
an affiliate of such transferor Bank or was a Bank immediately prior to such
assignment, no such consent shall be required. Upon execution and delivery of
such instrument and payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and no further consent or action by any party shall
be required and the transferor Bank shall be released from its obligations
hereunder to a corresponding extent. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Administrative Agent
and the Borrower shall make appropriate arrangements so that, if required, a
new Note is issued to the Assignee. In connection with any such assignment, the
transferor Bank shall pay to the Administrative Agent an administrative fee for
processing such assignment in the amount of $2,500. If the Assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Administrative Agent certification as
to exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 8.4. Any assignment made during the
continuation of an Event of Default shall not be affected by any subsequent
cure of such Event of Default.
(d) Intentionally Omitted.
(e) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(f) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.3 or
8.4 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 8.2, 8.3 or 8.4
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
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(g) No Assignee of any rights and obligations under this
Agreement shall be permitted to further assign less than all of such rights and
obligations. No participant in any rights and obligations under this Agreement
shall be permitted to sell subparticipations of such rights and obligations.
(h) Anything in this Agreement to the contrary
notwithstanding, so long as no Event of Default shall have occurred and be
continuing, no Bank shall be permitted to enter into an assignment of, or sell
a participation interest in, its rights and obligations hereunder which would
result in such Bank holding a Commitment without participants of less than Five
Million Dollars ($5,000,000) (or in the case of the Administrative Agent,
Documentation Agent or ▇▇▇▇▇▇ Guaranty Trust Company of New York or the
Managing Agents, Thirty Million Dollars ($30,000,000), or in the case of any
Co-Agent, Twenty Million Dollars ($20,000,000)) unless as a result of a
cancellation or reduction of the aggregate Commitments; provided, however, that
no Bank shall be prohibited from assigning its entire Commitment so long as
such assignment is otherwise permitted under this Section 9.6.
(i) By its execution of this Agreement, each of the Banks
which were parties to the Existing Credit Agreement (each an "Existing Bank")
hereby assigns and sells to the Banks accepting the same as set forth below,
without recourse, representation or warranty (except as expressly provided
herein), that portion of its "Commitment" under the Existing Credit Agreement
which is in excess of its Commitment hereunder. By its execution of this
Agreement, each of the Banks which were not parties to the Existing Credit
Agreement (each a "New Bank") and each Existing Bank whose Commitment hereunder
exceeds its "Commitment" under the Existing Credit Agreement hereby accepts the
portion of the above-referenced excess "Commitments" which is equal to the (i)
in the case of a New Bank, the amount of its Commitment hereunder, and (ii) in
the case of an Existing Bank whose Commitment hereunder exceeds its
"Commitment" under the Existing Credit Agreement, the amount of such increase.
Each Bank hereby acknowledges and agrees that, as of the date hereof, its
Commitment hereunder is in the amount shown on the signature page of such Bank
attached to this Agreement. Each Existing Bank hereby represents and warrants
that it is the legal and beneficial owner of the interests being assigned by it
in accordance with this Section 9.6(f) and that such interests are free and
clear of any adverse claim.
SECTION 9.7. Collateral. Each of the Banks represents to the
Administrative Agent and each of the other Banks that it in good faith is not
relying upon any "margin stock" (as defined in Regulation U) as collateral in
the extension or maintenance of the credit provided for in this Agreement.
SECTION 9.8. Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
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SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO
CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this
Agreement or any other Loan Document 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 Agreement, the Borrower 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 Borrower irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by the hand
delivery, or mailing of copies thereof by registered or certified mail, postage
prepaid, to the Borrower at its address set forth below. The Borrower hereby
irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out of
or in connection with this Agreement or any other Loan Document 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 or the Documentation Agent
to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Borrower in any other
jurisdiction.
SECTION 9.9. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT, THE SYNDICATION AGENT AND THE
BANKS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 9.11. Survival. All indemnities set forth herein shall
survive the execution and delivery of this Agreement and the other Loan
Documents and the making and repayment of the Loans hereunder.
SECTION 9.12. Domicile of Loans. Each Bank may transfer and
carry its Loans at, to or for the account of any domestic or foreign branch
office, subsidiary or affiliate of such Bank.
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SECTION 9.13. Limitation of Liability. No claim may be made by
the Borrower or any other Person acting by or through Borrower against the
Administrative Agent, the Documentation Agent, the Syndication Agent or any
Bank or the affiliates, directors, officers, employees, attorneys or agent of
any of them for any punitive damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement or by the other Loan Documents, or
any act, omission or event occurring in connection therewith; and the Borrower
hereby waives, releases and agrees not to ▇▇▇ upon any claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
SECTION 9.14. Recourse Obligation. This Agreement and the
Obligations hereunder are fully recourse to the Borrower. Notwithstanding the
foregoing, no recourse under or upon any obligation, covenant, or agreement
contained in this Agreement shall be had against (i) any officer, director,
shareholder or employee of the Borrower or EOPT or (ii) any general partner of
Borrower other than EOPT, in each case except in the event of fraud or
misappropriation of funds on the part of such officer, director, shareholder or
employee or such general partner.
SECTION 9.15. Confidentiality. The Administrative Agent, the
Documentation Agent and each Bank shall use reasonable efforts to assure that
information about Borrower, EOPT and its Subsidiaries and Investments
Affiliates, and the Properties thereof and their operations, affairs and
financial condition, not generally disclosed to the public, which is furnished
to Administrative Agent, the Documentation Agent or any Bank pursuant to the
provisions hereof or any other Loan Document is used only for the purposes of
this Agreement and shall not be divulged to any Person other than the
Administrative Agent, the Documentation Agent, the Banks, and their affiliates
and respective officers, directors, employees and agents who are actively and
directly participating in the evaluation, administration or enforcement of the
Loan and other transactions between such Bank and the Borrower, except: (a) to
their attorneys and accountants, (b) in connection with the enforcement of the
rights and exercise of any remedies of the Administrative Agent, the
Documentation Agent and the Banks hereunder and under the other Loan Documents,
(c) in connection with assignments and participations and the solicitation of
prospective assignees and participants referred to in Section 9.6 hereof, who
have agreed in writing to be bound by a confidentiality agreement substantially
equivalent to the terms of this Section 9.15, and (d) as may otherwise be
required or requested by any regulatory authority having jurisdiction over the
Administrative Agent, the Documentation Agent or any Bank or by any applicable
law, rule, regulation or judicial process.
SECTION 9.16. Bank's Failure to Fund.
(a) If a Bank does not advance to Administrative Agent such
Bank's Pro Rata Share of a Loan in accordance herewith, then neither
Administrative Agent, Documentation
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Agent nor the other Banks shall be required or obligated to fund such Bank's Pro
Rata Share of such Loan.
(b) As used herein, the following terms shall have the
meanings set forth below:
(i) "Defaulting Bank" shall mean any Bank which (x) does
not advance to the Administrative Agent such Bank's Pro Rata Share of a Loan in
accordance herewith for a period of five (5) Business Days after notice of such
failure from Administrative Agent, (y) shall otherwise fail to perform such
Bank's obligations under the Loan Documents (including, without limitation, the
obligation to purchase participations pursuant to Section 2.3) for a period of
five (5) Business Days after notice of such failure from Administrative Agent,
or (z) shall fail to pay the Administrative Agent, Documentation Agent or any
other Bank, as the case may be, upon demand, such Bank's Pro Rata Share of any
costs, expenses or disbursements incurred or made by the Administrative Agent
pursuant to the terms of the Loan Documents for a period of five (5) Business
Days after notice of such failure from Administrative Agent, and in all cases,
such failure is not as a result of a good faith dispute as to whether such
advance is properly required to be made pursuant to the provisions of this
Agreement, or as to whether such other performance or payment is properly
required pursuant to the provisions of this Agreement.
(ii) "Junior Creditor" means any Defaulting Bank which
has not (x) fully cured each and every default on its part under the Loan
Documents and (y) unconditionally tendered to the Administrative Agent such
Defaulting Bank's Pro Rata Share of all costs, expenses and disbursements
required to be paid or reimbursed pursuant to the terms of the Loan Documents.
(iii) "Payment in Full" means, as of any date, the receipt
by the Banks who are not Junior Creditors of an amount of cash, in lawful
currency of the United States, sufficient to indefeasibly pay in full all Senior
Debt.
(iv) "Senior Debt" means (x) collectively, any and all
indebtedness, obligations and liabilities of the Borrower to the Banks who are
not Junior Creditors from time to time, whether fixed or contingent, direct or
indirect, joint or several, due or not due, liquidated or unliquidated,
determined or undetermined, arising by contract, operation of law or otherwise,
whether on open account or evidenced by one or more instruments, and whether for
principal, premium, interest (including, without limitation, interest accruing
after the filing of a petition initiating any proceeding referred to in Section
6.1(f) or (g)), reimbursement for fees, indemnities, costs, expenses or
otherwise, which arise under, in connection with or in respect of the Loans or
the Loan Documents, and (y) any and all deferrals, renewals, extensions and
refundings of, or amendments, restatements, rearrangements, modifications or
supplements to, any such indebtedness, obligation or liability.
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(v) "Subordinated Debt" means (x) any and all
indebtedness, obligations and liabilities of Borrower to one or more Junior
Creditors from time to time, whether fixed or contingent, direct or indirect,
joint or several, due or not due, liquidated or unliquidated, determined or
undetermined, arising by contract, operation of law or otherwise, whether on
open account or evidenced by one or more instruments, and whether for principal,
premium, interest (including, without limitation, interest accruing after the
filing of a petition initiating any proceeding referred to in Section 6.1(f) or
(g)), reimbursement for fees, indemnities, costs, expenses or otherwise, which
arise under, in connection with or in respect of the Loans or the Loan
Documents, and (y) any and all deferrals, renewals, extensions and refundings
of, or amendments, restatements, rearrangements, modifications or supplements
to, any such indebtedness, obligation or liability.
(c) Immediately upon a Bank's becoming a Junior Creditor and
until such time as such Bank shall have cured all applicable defaults, no
Junior Creditor shall, prior to Payment in Full of all Senior Debt:
(i) accelerate, demand payment of, ▇▇▇ upon, collect, or
receive any payment upon, in any manner, or satisfy or otherwise discharge, any
Subordinated Debt, whether for principal, interest and otherwise;
(ii) take or enforce any Liens to secure Subordinated
Debt or attach or levy upon any assets of Borrower, to enforce any Subordinated
Debt;
(iii) enforce or apply any security for any Subordinated
Debt; or
(iv) incur any debt or liability, or the like, to, or
receive any loan, return of capital, advance, gift or any other property, from,
the Borrower.
(d) In the event of:
(i) any insolvency, bankruptcy, receivership,
liquidation, dissolution, reorganization, readjustment, composition or other
similar proceeding relating to Borrower;
(ii) any liquidation, dissolution or other winding-up of
the Borrower, voluntary or involuntary, whether or not involving insolvency,
reorganization or bankruptcy proceedings;
(iii) any assignment by the Borrower for the benefit of
creditors;
(iv) any sale or other transfer of all or substantially
all assets of the Borrower; or
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(v) any other marshaling of the assets of the Borrower;
each of the Banks shall first have received Payment in Full of all Senior Debt
before any payment or distribution, whether in cash, securities or other
property, shall be made in respect of or upon any Subordinated Debt. Any payment
or distribution, whether in cash, securities or other property that would
otherwise be payable or deliverable in respect of Subordinated Debt to any
Junior Creditor but for this Agreement shall be paid or delivered directly to
the Administrative Agent for distribution to the Banks in accordance with this
Agreement until Payment in Full of all Senior Debt. If any Junior Creditor
receives any such payment or distribution, it shall promptly pay over or deliver
the same to the Administrative Agent for application in accordance with the
preceding sentence.
(e) Each Junior Creditor shall file in any bankruptcy or other
proceeding of Borrower in which the filing of claims is required by law, all
claims relating to Subordinated Debt that such Junior Creditor may have against
Borrower and assign to the Banks who are not Junior Creditors all rights of
such Junior Creditor thereunder. If such Junior Creditor does not file any such
claim prior to forty-five (45) days before the expiration of the time to file
such claim, Administrative Agent, as attorney-in-fact for such Junior Creditor,
is hereby irrevocably authorized to do so in the name of such Junior Creditor
or, in Administrative Agent's sole discretion, to assign the claim to a nominee
and to cause proof of claim to be filed in the name of such nominee. The
foregoing power of attorney is coupled with an interest and cannot be revoked.
The Administrative Agent shall, to the exclusion of each Junior Creditor, have
the sole right, subject to Section 9.5 hereof, to accept or reject any plan
proposed in any such proceeding and to take any other action that a party
filing a claim is entitled to take. In all such cases, whether in
administration, bankruptcy or otherwise, the Person or Persons authorized to
pay such claim shall pay to Administrative Agent the amount payable on such
claim and, to the full extent necessary for that purpose, each Junior Creditor
hereby transfers and assigns to the Administrative Agent all of the Junior
Creditor's rights to any such payments or distributions to which Junior
Creditor would otherwise be entitled.
(f) (i) If any payment or distribution of any character or
any security, whether in cash, securities or other property, shall be received
by any Junior Creditor in contravention of any of the terms hereof, such payment
or distribution or security shall be received in trust for the benefit of, and
shall promptly be paid over or delivered and transferred to, Administrative
Agent for application to the payment of all Senior Debt, to the extent necessary
to achieve Payment in Full. In the event of the failure of any Junior Creditor
to endorse or assign any such payment, distribution or security, Administrative
Agent is hereby irrevocably authorized to endorse or assign the same as
attorney-in-fact for such Junior Creditor.
(ii) Each Junior Creditor shall take such action
(including, without limitation, the execution and filing of a financing
statement with respect to this Agreement and the execution, verification,
delivery and filing of proofs of claim, consents, assignments or other
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instructions that Administrative Agent may require from time to time in order to
prove or realize upon any rights or claims pertaining to Subordinated Debt or to
effectuate the full benefit of the subordination contained herein) as may, in
Administrative Agent's sole and absolute discretion, be necessary or desirable
to assure the effectiveness of the subordination effected by this Agreement.
(g) (i) Each Bank that becomes a Junior Creditor understands
and acknowledges by its execution hereof that each other Bank is entering into
this Agreement and the Loan Documents in reliance upon the absolute
subordination in right of payment and in time of payment of Subordinated Debt to
Senior Debt as set forth herein.
(ii) Only upon the Payment in Full of all Senior Debt
shall any Junior Creditor be subrogated to any remaining rights of the Banks
which are not Defaulting Banks to receive payments or distributions of assets of
the Borrower made on or applicable to any Senior Debt.
(iii) Each Junior Creditor agrees that it will deliver all
instruments or other writings evidencing any Subordinated Debt held by it to
Administrative Agent, promptly after request therefor by the Administrative
Agent.
(iv) No Junior Creditor may at any time sell, assign or
otherwise transfer any Subordinated Debt, or any portion thereof, including,
without limitation, the granting of any Lien thereon, unless and until
satisfaction of the requirements of Section 9.6 above and the proposed
transferee shall have assumed in writing the obligation of the Junior Creditor
to the Banks under this Agreement, in a form acceptable to the Administrative
Agent.
(v) If any of the Senior Debt, should be invalidated,
avoided or set aside, the subordination provided for herein nevertheless shall
continue in full force and effect and, as between the Banks which are not
Defaulting Banks and all Junior Creditors, shall be and be deemed to remain in
full force and effect.
(vi) Each Junior Creditor hereby irrevocably waives, in
respect of Subordinated Debt, all rights (x) under Sections 361 through 365,
502(e) and 509 of the Bankruptcy Code (or any similar sections hereafter in
effect under any other Federal or state laws or legal or equitable principles
relating to bankruptcy, insolvency, reorganizations, liquidations or otherwise
for the relief of debtors or protection of creditors), and (y) to seek or
obtain conversion to a different type of proceeding or to seek or obtain
dismissal of a proceeding, in each case in relation to a bankruptcy,
reorganization, insolvency or other proceeding under similar laws with respect
to the Borrower. Without limiting the generality of the foregoing, each Junior
Creditor hereby specifically waives (A) the right to seek to give credit
(secured or otherwise) to the Borrower in any way under Section 364 of the
Bankruptcy Code unless the same is subordinated in all respects to Senior Debt
in a manner acceptable to Administrative Agent in its sole and absolute
discretion and (B) the right to receive any collateral security (including,
without
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limitation, any "super priority" or equal or "priming" or replacement Lien) for
any Subordinated Debt unless the Banks which are not Defaulting Banks have
received a senior position acceptable to the Banks in their sole and absolute
discretion to secure all Senior Debt (in the same collateral to the extent
collateral is involved).
(h) (i) In addition to and not in limitation of the
subordination effected by this Section 9.16, the Administrative Agent and each
of the Banks which are not Defaulting Banks may in their respective sole and
absolute discretion, also exercise any and all other rights and remedies
available at law or in equity in respect of a Defaulting Bank; and
(ii) The Administrative Agent shall give each of the
Banks notice of the occurrence of a default under this Section 9.16 by a
Defaulting Bank and if the Administrative Agent and/or one or more of the other
Banks shall, at their option, fund any amounts required to be paid or advanced
by a Defaulting Bank, the other Banks who have elected not to fund any portion
of such amounts shall not be liable for any reimbursements to the Administrative
Agent and/or to such other funding Banks.
(i) Notwithstanding anything to the contrary contained or
implied herein, a Defaulting Bank shall not be entitled to vote on any matter
as to which a vote by the Banks is required hereunder, including, without
limitation, any actions or consents on the part of the Administrative Agent as
to which the approval or consent of all the Banks or the Required Banks or
Majority Banks is required under Article VIII, Section 9.5 or elsewhere, so
long as such Bank is a Defaulting Bank; provided, however, that in the case of
any vote requiring the unanimous consent of the Banks, if all the Banks other
than the Defaulting Bank shall have voted in accordance with each other, then
the Defaulting Bank shall be deemed to have voted in accordance with such
Banks.
(j) Each of the Administrative Agent and any one or more of
the Banks which are not Defaulting Banks may, at their respective option, (i)
advance to the Borrower such Bank's Pro Rata Share of the Loans not advanced by
a Defaulting Bank in accordance with the Loan Documents, or (ii) pay to the
Administrative Agent such Bank's Pro Rata Share of any costs, expenses or
disbursements incurred or made by the Administrative Agent pursuant to the
terms of this Agreement not theretofore paid by a Defaulting Bank. Immediately
upon the making of any such advance by the Administrative Agent or any one of
the Banks, such Bank's Pro Rata Share and the Pro Rata Share of the Defaulting
Bank shall be recalculated to reflect such advance. All payments, repayments
and other disbursements of funds by the Administrative Agent to Banks shall
thereupon and, at all times thereafter be made in accordance with such Bank's
recalculated Pro Rata Share unless and until a Defaulting Bank shall fully cure
all defaults on the part of such Defaulting Bank under the Loan Documents or
otherwise existing in respect of the Loans or this Agreement, at which time the
Pro Rata Share of the Bank(s) which advanced sums on behalf of the Defaulting
Bank and of the Defaulting Bank shall be restored to their original
percentages.
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SECTION 9.17. Banks' ERISA Covenant. Each Bank, by its
signature hereto or on the applicable Transfer Supplement, hereby agrees (a)
that on the date any Loan is disbursed hereunder no portion of such Bank's Pro
Rata Share of such Loan will constitute "assets" within the meaning of 29
C.F.R. Section 2510.3-101 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 Code, and (b) that following such date such Bank shall not allocate such
Bank's Pro Rata Share of any Loan to an account of such Bank if such allocation
(i) by itself would cause such Pro Rata Share of such Loan to then constitute
"assets" (within the meaning of 29 C.F.R. Section 2510.3-101) 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 Code and (ii) by itself would cause
such Loan to constitute a prohibited transaction under ERISA or the Code (which
is not exempt from the restrictions of Section 406 of ERISA and Section 4975 of
the Code and the taxes and penalties imposed by Section 4975 of the Code and
Section 502(i) of ERISA) or any Agent or Bank being deemed in violation of
Section 404 of ERISA.
SECTION 9.18. Managing Agents and Co-Agents. Borrower, the
Agents and each Bank acknowledges and agrees that the obligations of the
Managing Agents and the Co-Agents hereunder shall be limited to those
obligations that are expressly set forth herein, if any, and the Managing
Agents and the Co-Agents shall not be required to take any action or assume any
liability except as may be required in each of their capacity as a Bank
hereunder. Borrower, the Agents and each Bank agrees that the indemnifications
set forth herein for the benefit of the Agents shall also run to the benefit of
the Managing Agents and the Co-Agents to the extent the Managing Agents and/or
any Agent incurs any loss, cost or damage arising from its capacity as the
Managing Agents or as a Co-Agent.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
EOP OPERATING LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Equity Office Properties Trust, a Maryland real
estate investment trust, its managing general partner
By: /s/ ▇▇▇▇▇▇▇ FEAR
---------------------------------------------------
Name: ▇▇▇▇▇▇▇ Fear
Title: Senior Vice President, Treasurer
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Address: Two ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
TOTAL COMMITMENTS: $1,000,000,000
S-1
89
BANK OF AMERICA, N.A.,as Administrative Agent
and as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Commitment: $138,000,000
S-2
90
THE CHASE MANHATTAN BANK, as
Co- Documentation Agent and as a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Commitment: $65,000,000
S-3
91
▇.▇. ▇▇▇▇▇▇ SECURITIES, INC., as Syndication Agent,
as Joint Lead Arranger and Joint Book Runner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
Title: Vice President
S-4
92
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as a Bank
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Commitment: $69,000,000
S-5
93
BANC OF AMERICA SECURITIES LLC,
as a Joint Lead Arranger and Joint Book Runner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
S-6
94
PNC BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agent and as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Commitment: $65,000,000
S-7
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as Managing Agent and
as a Bank
By: /s/ ▇. ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇. ▇. ▇▇▇▇▇
Title: MANAGING DIRECTOR
Commitment: $45,000,000
S-8
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ BRANCH,
as Managing Agent and as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
Commitment: $65,000,000
▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ AG, NEW YORK AND CAYMAN
BRANCHES, as Managing Agent and as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
Commitment: $65,000,000
S-10
98
UBS STAMFORD BRANCH, as Managing Agent
and as a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Director
Principal
Commitment: $65,000,000
S-11
99
CREDIT LYONNAIS, NEW YORK BRANCH, as Co-Agent
and as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Commitment: $54,000,000
S-12
100
FLEET NATIONAL BANK, as Co-Agent and as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Officer
Commitment: $85,000,000
S-13
101
U.S. BANK NATIONAL ASSOCIATION, as Co-Agent
and as a Bank
By: /s/ ▇▇▇▇ ▇. SOHS
-------------------------------------
Name: ▇▇▇▇ ▇. Sohs
Title: Vice President
Commitment: $54,000,000
S-14
102
BANK ONE, NA, as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BANK ONE, NA
Commitment: $50,000,000
▇-▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ AG (NEW
YORK BRANCH), as a Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
Commitment: $50,000,000
S-16
104
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN, as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------- -------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: First Vice President Title: Vice President
Commitment: $20,000,000
S-17
105
LASALLE BANK NATIONAL ASSOCIATION,
as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: AVP
Commitment: $30,000,000
S-18
106
MELLON BANK, N.A., as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Commitment: $30,000,000
S-19
107
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as a
Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Joint General Manager
Commitment: $20,000,000
S-20
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A., as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Commitment: $30,000,000
S-21
109
Schedule 1.1
Initial Qualifying Unencumbered Properties
-----------------------------------------------------------------------------------------------
Property Name Location
-----------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Summit Office Park Ft. Worth, TX
-----------------------------------------------------------------------------------------------
Intercontinental Center Houston, TX
-----------------------------------------------------------------------------------------------
Four Forest Plaza Dallas, TX
-----------------------------------------------------------------------------------------------
Dominion Tower Norfolk, VA
-----------------------------------------------------------------------------------------------
Northborough Tower Houston, TX
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Denver Corporate Center II & III Denver, CO
-----------------------------------------------------------------------------------------------
University Tower Durham, NC
-----------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Pointe Shelton, CT
-----------------------------------------------------------------------------------------------
San Jacinto Center Austin, TX
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
-----------------------------------------------------------------------------------------------
North Central Plaza Three Dallas, TX
-----------------------------------------------------------------------------------------------
The Quadrant Englewood, CO
-----------------------------------------------------------------------------------------------
Union Square San Antonio, TX
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Northwest Center San Antonio, TX
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
One Lakeway Center Metairie, LA
-----------------------------------------------------------------------------------------------
Three Lakeway Center Metairie, LA
-----------------------------------------------------------------------------------------------
Two Lakeway Center Metairie, LA
-----------------------------------------------------------------------------------------------
Bank of America Plaza Nashville, TN
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Paces West Atlanta, GA
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
110
-----------------------------------------------------------------------------------------------
Property Name Location
-----------------------------------------------------------------------------------------------
One American Center Austin, TX
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Colonnade I San Antonio, TX
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Oakbrook Terrace Tower Oakbrook Terrace, IL
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Tower San Diego, CA
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Prudential Portfolio Various
-----------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Four and Five Valley Square Blue ▇▇▇▇, PA
-----------------------------------------------------------------------------------------------
Four Falls Corporate Center Conshohocken, PA
-----------------------------------------------------------------------------------------------
Oak Hill Plaza King of Prussia, PA
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Three Devon Square Wayne, PA
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Three Valley Square Blue ▇▇▇▇, PA
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Fair Oaks Plaza Fairfax, VA
-----------------------------------------------------------------------------------------------
Lakeside Square Dallas, TX
-----------------------------------------------------------------------------------------------
LaSalle Plaza Minneapolis, MN
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Calais Office Center Anchorage, AK
-----------------------------------------------------------------------------------------------
▇▇▇▇▇ Fargo Center Seattle, WA
-----------------------------------------------------------------------------------------------
Nordstrom Medical Tower Seattle, WA
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Rainier Plaza Bellevue, WA
-----------------------------------------------------------------------------------------------
Second and Seneca Buildings Seattle, WA
-----------------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
111
-----------------------------------------------------------------------------------------------
Property Name Location
-----------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
AT&T Plaza Oak Brook, IL
-----------------------------------------------------------------------------------------------
Civic Opera House Chicago, IL
-----------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Corporate Center Bedford, MA
-----------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Corporate Center II Bedford, MA
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
New England Executive Park Burlington, MA
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Presidents Plaza Chicago, IL
-----------------------------------------------------------------------------------------------
Riverview I & II Cambridge, MA
-----------------------------------------------------------------------------------------------
Russia Wharf Boston, MA
-----------------------------------------------------------------------------------------------
Shoreline Technology Park Mountain View, CA
-----------------------------------------------------------------------------------------------
South Station Boston, MA
-----------------------------------------------------------------------------------------------
Sunnyvale Business Center Sunnyvale, CA
-----------------------------------------------------------------------------------------------
Ten Canal Park Cambridge, MA
-----------------------------------------------------------------------------------------------
Tri-State International Lincolnshire, IL
-----------------------------------------------------------------------------------------------
Westwood Business Center Wellesley, MA
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
The Tower at New England Executive Park Burlington, MA
-----------------------------------------------------------------------------------------------
Denver Post Tower Denver, CO
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇▇ Center Denver, CO
-----------------------------------------------------------------------------------------------
Trinity Place Denver, CO
-----------------------------------------------------------------------------------------------
Dominion Plaza Denver, CO
-----------------------------------------------------------------------------------------------
Millennium Plaza Englewood, CO
-----------------------------------------------------------------------------------------------
Polk and ▇▇▇▇▇▇ Buildings Arlington, VA
-----------------------------------------------------------------------------------------------
Bank of America Tower Seattle, WA
-----------------------------------------------------------------------------------------------
112
-----------------------------------------------------------------------------------------------
Property Name Location
-----------------------------------------------------------------------------------------------
Northland Plaza Bloomington, MN
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Metropoint Denver, CO
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Terrace Building Englewood, CO
-----------------------------------------------------------------------------------------------
The Solarium Englewood, CO
-----------------------------------------------------------------------------------------------
Second and Spring Building Seattle, WA
-----------------------------------------------------------------------------------------------
Colonnade I & II Dallas, TX
-----------------------------------------------------------------------------------------------
Colonnade III Dallas, TX
-----------------------------------------------------------------------------------------------
Computer Associates Tower Irving, TX
-----------------------------------------------------------------------------------------------
Texas Commerce Tower Irving, TX
-----------------------------------------------------------------------------------------------
City Center Bellevue Bellevue, WA
-----------------------------------------------------------------------------------------------
Prominence in Buckhead Atlanta, GA
-----------------------------------------------------------------------------------------------
Riverside Newton, MA
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Metropoint II Denver, CO
-----------------------------------------------------------------------------------------------
▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
10 & ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Preston Commons Dallas, TX
-----------------------------------------------------------------------------------------------
Sterling Plaza Dallas, TX
-----------------------------------------------------------------------------------------------
Parking Facilities:
-----------------------------------------------------------------------------------------------
Property Name Location
-----------------------------------------------------------------------------------------------
Boston Harbor Garage Boston, MA
-----------------------------------------------------------------------------------------------
Milwaukee Center Garage Milwaukee, WI
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
Juniper/Locust Streets Garage Philadelphia, PA
-----------------------------------------------------------------------------------------------
▇▇▇▇▇-Wabash Garage Chicago, IL
-----------------------------------------------------------------------------------------------
Riverfront Center Pittsburg, PA
-----------------------------------------------------------------------------------------------
Forbes and Allies Garages Pittsburg, PA
-----------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
-----------------------------------------------------------------------------------------------
113
-----------------------------------------------------------------------------------------------
Property Name Location
-----------------------------------------------------------------------------------------------
St. Louis Parking St. Louis, MO
-----------------------------------------------------------------------------------------------
114
SCHEDULE 4.4 (b)
Disclosure of
Additional Material Indebtedness
1. Drawings under this Agreement.
2. Drawings under the Revolving Credit Agreement, dated as of May 12, 2000,
among the Borrower, the banks listed on the signature pages thereof, ▇▇
▇▇▇▇▇▇ Securities Inc., as Co-Syndication Agent, Lead Arranger and Book
Runner, Bank of America, N.A., as Administrative Agent, The Chase
Manhattan Bank, as Documentation Agent, and UBS Warburg LLC, as
Syndication Agent.
115
SCHEDULE 4.6
Borrower and EOPT ERISA Plans
and Collective Bargaining Agreements
The employees of EOPT and the Borrower (other than union employees) may
currently participate in a 401(k) Plan.
Other benefits for non-union employees include:
Health care plan, dental care, vision care,
life insurance and accidental death and
dismemberment plan, travel/accident insurance,
short-term disability, long-term disability,
sick time, vacation time, personal days,
holidays and direct paycheck deposit.
With the following plans:
Equity Office Properties Trust Welfare Benefit
Plan
Equity Office Retirement Savings Plan
Beacon Properties Pension Plan
Cornerstone Properties Inc. 401(k) Plan (as of
merger)
Union employee benefits include:
Sick time, vacation time, personal days,
holidays, direct paycheck deposit, monthly
employer contributions into the health and
welfare trust and pension fund (which health
and welfare trusts and pension funds are
generally Plans, Multiemployer Plans or
Benefit Arrangements).
With the following plans:
Central Pension Fund of the International
Union of Operating Engineers
Service Employees International Union Local 36
Health and Welfare Plan
Service Employees International Union Local 36
Pension Fund
116
Stationary Engineers Local 39 Health and
Welfare Trust Fund
Stationary Engineers Local 39 Pension Trust
Fund
Local 94-94A-94B Health and Benefit Fund
Local 94-94A-94B Annuity Fund
Health and Welfare Trust, International Union
of Operating Engineers, Local 399, Chicago
Operating Engineers Local 501 Security Fund
Health and Welfare Plan
For employees covered by the following collective bargaining agreements:
Agreement, between Equity Office Properties Management Corp., a Delaware
corporation, and the International Union of Operating Engineers 18S,
effective February 1, 1999 through February 1, 2001.
Agreement, dated as of July 1, 1997, by and between Equity Office
Property Management Corp., Inc., and the International Union of Operating
Engineers, Local 30, AFL-CIO.
Multi-Employer Agreement, dated November 16, 1996, by and between
Building Operators Labor Relations, Inc., and Service Employees
International Union, Local #36, AFL-CIO.
Agreement, by and between Building Owners and Managers Association of San
Francisco, and International Union of Operating Engineers, Stationary
Local No. 39, affiliated with the AFL-CIO, effective September 1, 1998.
1998 Engineer Agreement, between Realty Advisory Board of Labor
Relations, Incorporated, and Local 94-94A-94B International Union of
Operating Engineers AFL-CIO, effective January 1, 1998 to December 31,
2000.
Agreement, between Building ▇▇▇▇▇ and Managers Association of Chicago,
and International Union of Operating Engineers Local 399, AFL-CIO,
effective May 18, 1998 through May 20, 2001.
Agreement, by and between the International Union of Operating Engineers,
Local 501, and the members listed in Exhibit A of the Building Owners and
Managers Association of Greater Los Angeles, Incorporated, effective
January 1, 1996 through October 31, 2001.
117
Agreement, dated as of February 17, 1996, by and between Premisys Real
Estate Services, Inc., and Local #835 International Union of Operating
Engineers, AFL-CIO.
118
SCHEDULE 5.11(c)(1)
EOP-QRS Trust
EOP-QRS LaJolla Trust
119
SCHEDULE 5.11(c)(2)
EOP-QRS Trust
EOP-QRS LaJolla Trust
120
SCHEDULE 5.11(c)(3)
FINANCING PARTNERSHIPS OWNED BY EOP-QRS TRUST AND
EOP-QRS LAJOLLA TRUST
Properties in which EOP-QRS Trust is a 1% Limited Partner:
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Limited Partnership, a Delaware limited partnership
(1601 Market Street, Philadelphia, Pennsylvania)
EOP-1620 Limited Partnership, an Illinois limited partnership (▇▇▇▇
▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.)
EOP-NB Plaza Limited Partnership, a Delaware limited partnership
(Bank of America Plaza, Nashville, Tennessee)
EOP-Lakeway I, L.L.C., a Delaware limited liability company (Lakeway
Center I, Metairie, Louisiana)
EOP-Lakeway II, L.L.C., a Delaware limited liability company (Lakeway
Center I, Metairie, Louisiana)
EOP-Lakeway III, L.L.C., a Delaware limited liability company
(Lakeway Center I, Metairie, Louisiana)
Property in which EOP-QRS LaJolla Trust is a 1% Limited Partner:
EOP-La Jolla Limited Partnership, a Delaware limited partnership
(Plaza at LaJolla Village)