Exhibit 4.3
GUARANTY OF PAYMENT -- NO. 2
GUARANTY OF PAYMENT -- NO. 2 (this "Guaranty"), made as of May 9,
2003, between EQUITY OFFICE PROPERTIES TRUST, a Maryland real estate investment
trust, having an address at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000 ("Guarantor"), and BANK OF AMERICA, N.A., as administrative agent
("Administrative Agent") for the banks and other financial institutions (the
"Banks") listed on the signature pages of the Revolving Credit Agreement (as the
same may be amended, modified, supplemented or restated, the "Credit
Agreement"), dated as of the date hereof, among EOP Operating Limited
Partnership ("Borrower"), the Banks, BANC OF AMERICA SECURITIES LLC and X.X.
XXXXXX SECURITIES, INC., as joint lead arrangers and joint bookrunners, JPMORGAN
CHASE BANK, as syndication agent, and BANK ONE, NA, as documentation agent.
W I T N E S S E T H:
WHEREAS, the Banks have agreed to make loans to Borrower in the
aggregate principal amount not to exceed One Billion Dollars ($1,000,000,000)
(hereinafter collectively referred to as the "Loans");
WHEREAS, the Loans are evidenced by certain promissory notes (the
"Notes") of Borrower made to each of the Banks in accordance with the terms of
the Credit Agreement;
WHEREAS, the Credit Agreement and the Notes and any other documents
executed in connection therewith are hereinafter collectively referred to as the
"Loan Documents";
WHEREAS, capitalized terms used herein and not otherwise defined
shall have the meanings ascribed thereto in the Credit Agreement;
WHEREAS, Guarantor is the sole general partner of Borrower;
WHEREAS, as a condition to the execution and delivery of the Loan
Documents, the Banks have required that Guarantor execute and deliver this
Guaranty, as well as that certain Guaranty of Payment -- Xx. 0 ("Xxxxxxxx Xx.
0"); and
WHEREAS, Xxxx Xxxxxxx and Xxxxxx X. Xxxxxxx (collectively, the
"Individual Guarantors") have executed and delivered a Guaranty of Payment,
dated as of even date herewith (the "Acorn Guaranty"), to provide for the
Individual Guarantors to guarantee certain portions of the Obligations of
Borrower under the Notes and the Credit Agreement.
NOW THEREFORE, in consideration of the premises and the benefits to
be derived from the making of the Loans by the Banks to Borrower, and in order
to induce the Administrative Agent and the Banks to enter into the Credit
Agreement and the other Loan Documents, the Guarantor hereby agrees as follows:
(a) Subject to the provisions of Section 2 hereof, Guarantor, on behalf of
itself and its successors and assigns, hereby irrevocably, absolutely and
unconditionally guarantees the full and punctual payment when due, whether at
stated maturity or otherwise, of all Obligations of Borrower now or hereafter
existing under the Notes and the Credit Agreement, for principal and/or interest
as well as any and all other amounts due thereunder, including, without
limitation, all indemnity obligations of Borrower thereunder, and any and all
reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by the Administrative Agent or the
Banks in enforcing their rights under this Guaranty (all of the foregoing
obligations being the "Guaranteed Obligations").
(b) Notwithstanding anything to the contrary contained in this Guaranty (but
subject to the proviso contained in this Section 1(b)), in no event shall
Guarantor be obligated to make any payment under this Guaranty until all of the
following have occurred:
(1) the Banks shall be entitled to receive payment from the Individual
Guarantors in accordance with the provisions of the Acorn Guaranty; and
(2) the Banks shall have made demand for payment under the Acorn Guaranty to the
Individual Guarantors and shall not have received such payment in full in
immediately available funds within thirty (30) days after the making of such
demand;
provided, however, that, notwithstanding the preceding clauses (1) and (2), the
Administrative Agent on behalf of the Banks shall be entitled to immediate
payment under this Guaranty in the event Borrower or any of its Consolidated
Subsidiaries (as defined in the Credit Agreement) or Investment Affiliates (as
defined in the Credit Agreement) shall transfer any assets to Guarantor in
violation of the terms of the Credit Agreement.
2. Notwithstanding anything to the contrary contained in this Guaranty, the
liability of Guarantor under this Guaranty (other than pursuant to Section 20(e)
hereof) on account of the Guaranteed Obligations shall not at any time exceed an
amount equal to the aggregate amount for which the Individual Guarantors are
liable under the Acorn Guaranty at such time after giving effect to Section 1(b)
of the Acorn Guaranty and after giving effect to any payment made on account of
the Guaranteed Obligations which reduce the amount for which the Individual
Guarantors are liable under the Acorn Guaranty.
3. It is agreed that, subject to the provisions of Sections 1(b) and 2 hereof,
the Guaranteed Obligations of Guarantor hereunder shall be enforceable against
Guarantor and its successors and assigns without the necessity for any suit or
proceeding of any kind or nature whatsoever brought by the Administrative Agent
or any of the Banks against Borrower or its
respective successors or assigns or any other party or against any security for
the payment and performance of the Guaranteed Obligations and without the
necessity of any notice of non-payment or non-observance or of any notice of
acceptance of this Guaranty or of any notice or demand to which Guarantor might
otherwise be entitled (including, without limitation, diligence, presentment,
notice of maturity, extension of time, change in nature or form of the
Guaranteed Obligations, acceptance of further security, release of further
security, imposition or agreement arrived at as to the amount of or the terms of
the Guaranteed Obligations, notice of adverse change in Borrower's financial
condition and any other fact which might materially increase the risk to
Guarantor), all of which Guarantor hereby expressly waives; and Guarantor hereby
expressly agrees that the validity of this Guaranty and the obligations of
Guarantor hereunder shall in no way be terminated, affected, diminished,
modified or impaired by reason of the assertion of or the failure to assert by
the Administrative Agent or any of the Banks against Borrower or its respective
successors or assigns, any of the rights or remedies reserved to the
Administrative Agent or any of the Banks pursuant to the provisions of the Loan
Documents except to the extent provided in Section 1(b) hereof to the contrary.
Guarantor agrees that any notice or directive given at any time to the
Administrative Agent or any of the Banks which is inconsistent with the waiver
in the immediately preceding sentence shall be void and may be ignored by the
Administrative Agent and the Banks, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Guaranty for the
reason that such pleading or introduction would be at variance with the written
terms of this Guaranty, unless the Administrative Agent has specifically agreed
otherwise in a writing, signed by a duly authorized officer. Guarantor
specifically acknowledges and agrees that the foregoing waivers are of the
essence of this transaction and that, but for this Guaranty and such waivers,
the Administrative Agent and the Banks would have declined to execute and
deliver the Loan Documents.
4. Guarantor waives, and covenants and agrees that, except to the extent
required to enforce or assure compliance with the provisions and conditions of
Sections 1(b) and 2 hereof, it will not at any time insist upon, plead or in any
manner whatsoever claim or take the benefit or advantage of, any and all
appraisal, valuation, stay, extension, marshalling-of-assets or redemption laws,
or right of homestead or exemption, whether now or at any time hereafter in
force, which may delay, prevent or otherwise affect the performance by Guarantor
of its obligations under, or the enforcement by the Administrative Agent or any
of the Banks of, this Guaranty. Guarantor further covenants and agrees not to
set up or claim any defense, counterclaim, offset, setoff or other objection of
any kind to any action, suit or proceeding in law, equity or otherwise, or to
any demand or claim that may be instituted or made by the Administrative Agent
or any of the Banks other than the defense of the actual timely payment and
performance by Borrower of the Guaranteed Obligations hereunder, except to the
extent required to enforce or assure compliance with the provisions and
conditions of Sections 1(b) and 2 hereof; provided, however, that the foregoing
shall not be deemed a waiver of Guarantor's right to assert any compulsory
counterclaim, if such counterclaim is compelled under local law or rule of
procedure, nor shall the foregoing be deemed a waiver of Guarantor's right to
assert any claim which would constitute a defense, setoff, counterclaim or
crossclaim of any nature whatsoever against Administrative Agent or any Bank in
any separate action or proceeding. Guarantor represents, warrants and agrees
that, as of the date hereof, its obligations under this Guaranty are
not subject to any counterclaims, offsets or defenses against the Administrative
Agent or any Bank of any kind.
5. The provisions of this Guaranty are for the benefit of the Administrative
Agent and the Banks and their successors and permitted assigns, and nothing
herein contained shall impair as between Borrower and the Administrative Agent
and the Banks the obligations of Borrower under the Loan Documents.
6. Subject to the provisions of Section 2 hereof, this Guaranty shall be a
continuing, unconditional and absolute guaranty and the liability of Guarantor
hereunder shall in no way be terminated, affected, modified, impaired or
diminished by reason of the happening, from time to time, of any of the
following, although without notice or the further consent of Guarantor:
(a) any assignment, amendment, modification or waiver of or change in any
of the terms, covenants, conditions or provisions of any of the Guaranteed
Obligations or the Loan Documents or the invalidity or unenforceability of
any of the foregoing; or
(b) any extension of time that may be granted by the Administrative Agent
to Borrower, any guarantor, or their respective successors or assigns,
heirs, executors, administrators or personal representatives; or
(c) any action which the Administrative Agent may take or fail to take
under or in respect of any of the Loan Documents or by reason of any
waiver of, or failure to enforce any of the rights, remedies, powers or
privileges available to the Administrative Agent under this Guaranty or
available to the Administrative Agent at law, equity or otherwise, or any
action on the part of the Administrative Agent granting indulgence or
extension in any form whatsoever; or
(d) any sale, exchange, release, or other disposition of any property
pledged, mortgaged or conveyed, or any property in which the
Administrative Agent and/or the Banks have been granted a lien or security
interest to secure any indebtedness of Borrower to the Administrative
Agent and/or the Banks; or
(e) any release of any person or entity (other than Borrower) who may be
liable in any manner for the payment and collection of any amounts owed by
Borrower to the Administrative Agent and/or the Banks; or
(f) except as may be required under the Acorn Guaranty, the application of
any sums by whomsoever paid or however realized to any amounts owing by
Borrower to the Administrative Agent and/or the Banks under the Loan
Documents in such manner as the Administrative Agent shall determine in
its sole discretion; or
(g) Borrower's or any guarantor's voluntary or involuntary liquidation,
dissolution, sale of all or substantially all of their respective assets
and liabilities, appointment of a trustee, receiver, liquidator,
sequestrator or conservator for all or any part of Borrower's or
Guarantor's assets, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment, or
the commencement of other similar proceedings affecting Borrower or any
guarantor or any of the assets of any of them, including, without
limitation, (i) the release or discharge of Borrower or any guarantor from
the payment and performance of their respective obligations under any of
the Loan Documents by operation of law, or (ii) the impairment, limitation
or modification of the liability of Borrower or any guarantor in
bankruptcy, or of any remedy for the enforcement of the Guaranteed
Obligations under any of the Loan Documents, or Guarantor's liability
under this Guaranty, resulting from the operation of any present or future
provisions of the Bankruptcy Code or other present or future federal,
state or applicable statute or law or from the decision in any court; or
(h) any improper disposition by Borrower of the proceeds of the Loans, it
being acknowledged by Guarantor that the Administrative Agent or any Bank
shall be entitled to honor any request made by Borrower for a disbursement
of such proceeds and that neither the Administrative Agent nor any Bank
shall have any obligation to see the proper disposition by Borrower of
such proceeds.
7. Guarantor agrees that if at any time all or any part of any payment at any
time received by the Administrative Agent from Borrower or Guarantor under or
with respect to this Guaranty is or must be rescinded or returned by the
Administrative Agent or any Bank for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of Borrower or
Guarantor), then Guarantor's obligations hereunder shall, to the extent of the
payment rescinded or returned, be deemed to have continued in existence
notwithstanding such previous receipt by such party, and Guarantor's obligations
hereunder shall continue to be effective or reinstated, as the case may be, as
to such payment, as though such previous payment had never been made.
8. Until this Guaranty is terminated pursuant to the terms hereof, Guarantor (i)
shall have no right of subrogation against Borrower or any entity comprising
same by reason of any payments or acts of performance by Guarantor in compliance
with the obligations of Guarantor hereunder, (ii) waives any right to enforce
any remedy which Guarantor now or hereafter shall have against Borrower or any
entity comprising same by reason of any one or more payment or acts of
performance in compliance with the obligations of Guarantor hereunder and (iii)
from and after an Event of Default (as defined in the Credit Agreement),
subordinates any liability or indebtedness of Borrower or any entity comprising
same now or hereafter held by Guarantor or any affiliate of Guarantor to the
obligations of Borrower under the Loan Documents. The foregoing, however, shall
not be deemed in any way to limit any rights that Guarantor may have pursuant to
the Agreement of Limited Partnership of Borrower or which it may have at law or
in equity with respect to any other partners of Borrower. Prior to or
simultaneously with the receipt of payment from Guarantor hereunder, the Banks
shall assign to Guarantor all of their rights, to the extent of such payment
from Guarantor, against the Individual
Guarantors under the Acorn Guaranty.
9. Guarantor represents and warrants to the Administrative Agent and the Banks
with the knowledge that the Administrative Agent and the Banks are relying upon
the same, as follows:
(a) as of the date hereof, Guarantor is the sole general partner of
Borrower;
(b) based upon such relationships, Guarantor has determined that it is in
its best interests to enter into this Guaranty;
(c) this Guaranty is necessary and convenient to the conduct, promotion
and attainment of Guarantor's business, and is in furtherance of
Guarantor's business purposes;
(d) the benefits to be derived by Guarantor from Borrower's access to
funds made possible by the Loan Documents are at least equal to the
obligations undertaken pursuant to this Guaranty;
(e) Guarantor is solvent and has full power and legal right to enter into
this Guaranty and to perform its obligations under the term hereof and (i)
Guarantor is organized and validly existing under the laws of the State of
Maryland, (ii) Guarantor has complied with all provisions of applicable
law in connection with all aspects of this Guaranty, and (iii) the person
executing this Guaranty has all the requisite power and authority to
execute and deliver this Guaranty;
(f) to the best of Guarantor's knowledge, there is no action, suit,
proceeding, or investigation pending or threatened against or affecting
Guarantor at law, in equity, in admiralty or before any arbitrator or any
governmental department, commission, board, bureau, agency or
instrumentality (domestic or foreign) which is likely to materially and
adversely impair the ability of Guarantor to perform its obligations under
this Guaranty;
(g) the execution and delivery of and the performance by Guarantor of its
obligations under this Guaranty have been duly authorized by all necessary
action on the part of Guarantor and do not (i) violate any provision of
any law, rule, regulation (including, without limitation, Regulation U or
X of the Board of Governors of the Federal Reserve System of the United
States), order, writ, judgment, decree, determination or award presently
in effect having applicability to Guarantor or the organizational
documents of Guarantor the consequences of which violation is likely to
materially and adversely impair the ability of Guarantor to perform its
obligations under this Guaranty or (ii) violate or conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a
default under any indenture, agreement or other instrument to which
Guarantor is a party, or by which Guarantor or any of its property is
bound, the consequences of which violation, conflict, breach or default is
likely to
materially and adversely impair the ability of Guarantor to perform its
obligations under this Guaranty;
(h) this Guaranty has been duly executed by Guarantor and constitutes the
legal, valid and binding obligation of Guarantor, enforceable against it
in accordance with its terms except as enforceability may be limited by
applicable insolvency, bankruptcy or other laws affecting creditors'
rights generally or general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law;
(i) no authorization, consent, approval, license or formal exemption from,
nor any filing, declaration or registration with, any Federal, state,
local or foreign court, governmental agency or regulatory authority is
required in connection with the making and performance by Guarantor of
this Guaranty, except those which have already been obtained; and
(j) Guarantor is not an "investment company" as that term is defined in,
nor is it otherwise subject to regulation under, the Investment Company
Act of 1940, as amended.
10. Subject to compliance with the provisions of Section 1(b) hereof for so long
as the Acorn Guaranty is outstanding, Guarantor and Administrative Agent each
acknowledge and agree that this Guaranty is a guarantee of payment and
performance and not of collection and enforcement in respect of any obligations
which may accrue to the Administrative Agent and/or the Banks from Borrower
under the provisions of any Loan Document.
11. Subject to the terms and conditions of the Credit Agreement, and in
conjunction therewith, the Administrative Agent or any Bank may assign any or
all of its rights under this Guaranty. In the event of any such assignment, the
Administrative Agent shall give Guarantor prompt notice of same. If the
Administrative Agent elects to sell all the Loans or participations in the Loans
and the Loan Documents, including this Guaranty, the Administrative Agent or any
Bank may forward to each purchaser and prospective purchaser all documents and
information relating to this Guaranty or to Guarantor, whether furnished by
Borrower or Guarantor or otherwise, subject to the terms and conditions of the
Credit Agreement.
12. Guarantor agrees, upon the written request of the Administrative Agent, to
execute and deliver to the Administrative Agent, from time to time, any
modification or amendment hereto or any additional instruments or documents
reasonably considered necessary by the Administrative Agent or its counsel to
cause this Guaranty to be, become or remain valid and effective in accordance
with its terms, provided, that, any such modification, amendment, additional
instrument or document shall not increase Guarantor's obligations or diminish
its rights hereunder and shall be reasonably satisfactory as to form to
Guarantor and to Guarantor's counsel.
13. The representations and warranties of Guarantor set forth in this Guaranty
shall survive until this Guaranty shall terminate in accordance with the terms
hereof.
14. This Guaranty and Guaranty No. 1 contain the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements relating to such subject matter and may not be modified, amended,
supplemented or discharged except by a written agreement signed by Guarantor and
the Administrative Agent.
15. If all or any portion of any provision contained in this Guaranty shall be
determined to be invalid, illegal or unenforceable in any respect for any
reason, such provision or portion thereof shall be deemed stricken and severed
from this Guaranty and the remaining provisions and portions thereof shall
continue in full force and effect.
16. This Guaranty may be executed in counterparts which together shall
constitute the same instrument.
17. All notices, requests and other communications to any party hereunder shall
be in writing (including bank wire, telex, facsimile transmission followed by
telephonic confirmation or similar writing) and shall be addressed to such party
at the address set forth below or to such other address as may be identified by
any party in a written notice to the others:
If to Guarantor Equity Office Properties Trust
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
With Copies of
Notices to Guarantor to: Equity Office Properties Trust
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Legal Counsel
and
Xxxxx Xxxxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
If to the
Administrative Agent: Bank of America, N.A.
000 Xxxx Xxxxxx (XXX-000-00-00)
Xxxxxx, Xxxxx 00000-0000
Attn:
Facsimile: (214)
Each such notice, request or other communication shall be effective
(i) if given by telex or facsimile transmission, when such telex or facsimile is
transmitted to the telex number or facsimile number specified in this Section
and the appropriate answerback or facsimile confirmation is received, (ii) if
given by certified registered mail, return receipt requested, with first class
postage prepaid, addressed as aforesaid, upon receipt or refusal to accept
delivery, (iii) if given by a nationally recognized overnight carrier, 24 hours
after such communication is deposited with such carrier with postage prepaid for
next day delivery, or (iv) if given by any other means, when delivered at the
address specified in this Section.
18. Any acknowledgment or new promise, whether by payment of principal or
interest or otherwise by Borrower or Guarantor, with respect to the Guaranteed
Obligations shall, if the statute of limitations in favor of Guarantor against
the Administrative Agent shall have commenced to run, toll the running of such
statute of limitations, and if the period of such statute of limitations shall
have expired, prevent the operation of such statute of limitations.
19. This Guaranty shall be binding upon Guarantor and its successors and assigns
and shall inure to the benefit of the Administrative Agent and the Banks and
their successors and permitted assigns.
20. The failure of the Administrative Agent to enforce any right or remedy
hereunder, or promptly to enforce any such right or remedy, shall not constitute
a waiver thereof, nor give rise to any estoppel against the Administrative
Agent, nor excuse Guarantor from its obligations hereunder. Any waiver of any
such right or remedy to be enforceable against the Administrative Agent must be
expressly set forth in a writing signed by the Administrative Agent.
(a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
(b) Any legal action or proceeding with respect to this Guaranty and any action
for enforcement of any judgment in respect thereof may be brought in the courts
of the State of New York or of the United States of America for the Southern
District of New York, and, by execution and delivery of this Guaranty, the
Guarantor hereby accepts for itself and in respect of its property, generally
and unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
appellate courts from any thereof. The Guarantor irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the Guarantor at its address for notices set forth herein.
The Guarantor hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty brought in the
courts referred to above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of the Administrative Agent to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other jurisdiction.
(c) GUARANTOR HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY AND ALL CLAIMS OR
CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. IT IS HEREBY
ACKNOWLEDGED BY GUARANTOR THAT THE WAIVER OF A JURY TRIAL IS A MATERIAL
INDUCEMENT FOR THE ADMINISTRATIVE AGENT TO ACCEPT THIS GUARANTY AND THAT THE
LOANS MADE BY THE BANKS ARE MADE IN RELIANCE UPON SUCH WAIVER. GUARANTOR FURTHER
WARRANTS AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY
MADE, FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION,
THIS GUARANTY MAY BE FILED BY THE ADMINISTRATIVE AGENT IN COURT AS A WRITTEN
CONSENT TO A NON-JURY TRIAL.
(d) Guarantor does hereby further covenant and agree to and with the
Administrative Agent that, except as may be required to satisfy the conditions
set forth in Section 1(b) hereof, Guarantor may be joined in any action against
Borrower in connection with the Loan Documents and that recovery may be had
against Guarantor in such action or in any independent action against Guarantor
(with respect to the Guaranteed Obligations), without the Administrative Agent
first pursuing or exhausting any remedy or claim against Borrower or its
successors or assigns. Guarantor also agrees that, in an action brought with
respect to the Guaranteed Obligations in any jurisdiction, it shall be
conclusively bound by the judgment in any such action by the Administrative
Agent (wherever brought) against Borrower or its successors or assigns, as if
Guarantor were a party to such action, even though Guarantor was not joined as a
party in such action.
(e) Guarantor agrees to pay all reasonable expenses (including, without
limitation, attorneys' fees and disbursements) which may be incurred by the
Administrative Agent or the Banks in connection with the enforcement of their
rights under this Guaranty, whether or not suit is initiated.
21. Notwithstanding anything to the contrary contained herein, this Guaranty
shall terminate and be of no further force or effect upon the full performance
and payment of the Guaranteed Obligations hereunder and the termination of the
Commitments under the Credit Agreement. Upon termination
409799.02-New York Server 3A Draft May 7, 2003 - 10:21 am 409799.02-New York
Server 3A Draft May 7, 2003 - 10:21 am of this Guaranty in accordance with the
terms of this Guaranty, the Administrative Agent promptly shall deliver to
Guarantor such documents as Guarantor or Guarantor's counsel reasonably may
request in order to evidence such termination.
22. All of the Administrative Agent's rights and remedies under each of the Loan
Documents or under this Guaranty are intended to be distinct, separate and
cumulative and no such right or remedy therein or herein mentioned is intended
to be in exclusion of or a waiver of any other right or remedy available to the
Administrative Agent.
23. The Guarantor shall not use any assets of an "employee benefit plan" within
the meaning of Section 3(3) of ERISA or a "plan" within the meaning of Section
4975(e)(1) of the Internal Revenue Code (the "Code") to repay or secure the
Loan, the Note, the Obligations or this Guaranty. The Guarantor shall not
assign, sell, pledge, encumber, transfer, hypothecate or otherwise dispose of
any of its rights or interests (direct or indirect) in Borrower, or attempt to
do any of the foregoing or suffer any of the foregoing, or permit any party with
a direct or indirect interest or right in Borrower to do any of the foregoing,
if such action would cause the Note, the Loan, the Obligations, this Guaranty,
or any of the Loan Documents or the exercise of any of the Administrative
Agent's or Bank's rights in connection therewith, to constitute a prohibited
transaction under ERISA or the Code (unless the Guarantor furnishes to the
Administrative Agent a legal opinion satisfactory to the Administrative Agent
that the transaction is exempt from the prohibited transaction provisions of
ERISA and the Code (and for this purpose, the Administrative Agent and the
Banks, by accepting the benefits of this Guaranty, hereby agree to supply
Guarantor all relevant non-confidential, factual information reasonably
necessary to such legal opinion and reasonably requested by Guarantor) or would
otherwise result in the Administrative Agent or any of the Banks being deemed in
violation of Sections 404 or 406 of ERISA or Section 4975 of the Code or would
otherwise result in the Administrative Agent or any of the Banks being a
fiduciary or party in interest under ERISA or a "disqualified person" as defined
in Section 4975(e)(2) of the Code with respect to an "employee benefit plan"
within the meaning of Section 3(3) of ERISA or a "plan" within the meaning of
Section 4975(e)(1) of the Code. The Guarantor shall indemnify and hold each of
the Administrative Agent and the Banks free and harmless from and against all
loss, costs (including attorneys' fees and expenses), expenses, taxes and
damages (including consequential damages) that each of the Administrative Agent
and the Banks may suffer by reason of the investigation, defense and settlement
of claims and in obtaining any prohibited transaction exemption under ERISA
necessary in Administrative Agent's reasonable judgment as a result of
Guarantor's action or inaction or by reason of a breach of the foregoing
provisions by Guarantor.
24. This Guaranty shall become effective simultaneously with the making of the
initial Loans under the Credit Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Guaranty as of the date and year first above written.
GUARANTOR:
EQUITY OFFICE PROPERTIES TRUST
By: /s/ Xxxxxxx Fear
---------------------------
Name: Xxxxxxx Fear
Title: Senior Vice President,
Treasurer
ACCEPTED:
BANK OF AMERICA, N.A.
By: /s/ Xxxxx XxXxxxx
-----------------------
Name: Xxxxx XxXxxxx
Title: Principal
ACKNOWLEDGMENT FOR GUARANTOR
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
On May 8, 2003, before me personally came Xxxxxxx Fear, to me known
to be the person who executed the foregoing instrument, and who, being duly
sworn by me, did depose and say that she is Senior Vice President of Equity
Office Properties Trust, and that she executed the foregoing instrument in the
organization's name, and that she had authority to sign the same, and she
acknowledged to me that she executed the same as the act and deed of said
organization for the uses and purposes therein mentioned. [Seal]
/s/ Xxxx X. Xxx Xxxxxxxxxx
-----------------------------
Notary Public
