1
REVOLVING CREDIT AGREEMENT
for $1,000,000,000 Revolving Credit Facility
dated as of May 12, 2000
among
EOP OPERATING LIMITED PARTNERSHIP,
THE BANKS LISTED HEREIN,
X.X. XXXXXX SECURITIES INC.,
as Lead Arranger, Book Runner and Co-Syndication Agent,
BANK OF AMERICA, N.A.,
as Administrative Agent,
THE CHASE MANHATTAN BANK,
as Documentation Agent,
UBS WARBURG LLC,
as Syndication Agent,
PNC BANK, NATIONAL ASSOCIATION,
FLEET NATIONAL BANK,
DRESDNER BANK AG, NEW YORK AND CAYMAN BRANCHES,
COMMERZBANK AG NEW YORK BRANCH, and
U.S. BANK NATIONAL ASSOCIATION,
as Senior Managing Agents
BANK ONE, NA,
BANKERS TRUST COMPANY,
BAYERISCHE HYPO-UND VEREINSBANK AG (NEW YORK BRANCH),
THE INDUSTRIAL BANK OF JAPAN, LIMITED, and
NATIONAL AUSTRALIA BANK LIMITED,
as Managing Agents
AND
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY,
WACHOVIA BANK, N.A.,
and
UNION BANK OF CALIFORNIA, N.A.,
as Co-Agents.
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TABLE OF CONTENTS
ARTICLE IDEFINITIONS..............................................................................................1
SECTION 1.1. Definitions...........................................................1
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SECTION 1.2. Accounting Terms and Determinations..................................30
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SECTION 1.3. Types of Borrowings..................................................30
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ARTICLE IITHE CREDITS............................................................................................30
SECTION 2.1. Commitments to Lend..................................................30
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SECTION 2.2. Notice of Borrowing..................................................31
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SECTION 2.3. Swingline Loan Subfacility...........................................31
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(a)Swingline Commitment..............................................31
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(b)Swingline Borrowings..............................................31
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(c)Interest Rate.....................................................33
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SECTION 2.4. Money Market Borrowings..............................................33
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(a)The Money Market Option...........................................33
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(b)Money Market Quote Request........................................34
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(c)Invitation for Money Market Quotes................................34
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(d)Submission and Contents of Money Market
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Quotes...............................................................34
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(e)Notice to Borrower................................................36
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(f)Acceptance and Notice by Borrower.................................36
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(g)Allocation by Agent...............................................37
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SECTION 2.5. Notice to Banks; Funding of Loans....................................37
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SECTION 2.6. Notes................................................................39
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SECTION 2.7. Method of Electing Interest Rates....................................39
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SECTION 2.8. Interest Rates.......................................................41
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SECTION 2.9. Fees.................................................................42
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(a)Facility Fee......................................................42
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(b)Intentionally omitted.............................................42
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(c)Fees Non-Refundable...............................................42
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SECTION 2.10. Maturity Date; Extension............................................43
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SECTION 2.11. Optional Prepayments................................................43
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SECTION 2.12. General Provisions as to Payments...................................44
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SECTION 2.13. Funding Losses......................................................45
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SECTION 2.14. Computation of Interest and Fees....................................46
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SECTION 2.15. Use of Proceeds.....................................................46
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ARTICLE IIICONDITIONS............................................................................................46
SECTION 3.1. Closing..............................................................46
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SECTION 3.2. Conditions to Initial Borrowings.....................................48
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SECTION 3.3. Borrowings...........................................................48
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ARTICLE IVREPRESENTATIONS AND WARRANTIES.........................................................................49
SECTION 4.1. Existence and Power..................................................49
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SECTION 4.2. Power and Authority..................................................50
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SECTION 4.3. No Violation.........................................................50
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SECTION 4.4. Financial Information................................................51
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SECTION 4.5. Litigation...........................................................51
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SECTION 4.6. Compliance with ERISA................................................51
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SECTION 4.7. Environmental........................................................52
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SECTION 4.8. Taxes................................................................52
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SECTION 4.9. Full Disclosure......................................................53
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SECTION 4.10. Solvency............................................................53
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SECTION 4.11. Use of Proceeds.....................................................53
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SECTION 4.12. Governmental Approvals..............................................53
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SECTION 4.13. Investment Company Act; Public Utility Holding
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Company Act.........................................................53
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SECTION 4.14. Principal Offices...................................................53
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SECTION 4.15. REIT Status.........................................................53
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SECTION 4.16. Patents, Trademarks, etc............................................54
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SECTION 4.17. Judgments...........................................................54
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SECTION 4.18. No Default..........................................................54
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SECTION 4.19. Licenses, etc.......................................................54
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SECTION 4.20. Compliance With Law.................................................54
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SECTION 4.21. No Burdensome Restrictions..........................................54
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SECTION 4.22. Brokers' Fees.......................................................54
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SECTION 4.23. Labor Matters.......................................................55
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SECTION 4.24. Insurance...........................................................55
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SECTION 4.25. Organizational Documents............................................55
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SECTION 4.26. Qualifying Unencumbered Properties..................................55
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ARTICLE VAFFIRMATIVE AND NEGATIVE COVENANTS......................................................................56
SECTION 5.1. Information..........................................................56
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SECTION 5.2. Payment of Obligations...............................................58
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SECTION 5.3. Maintenance of Property; Insurance; Leases...........................59
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SECTION 5.4. Maintenance of Existence.............................................59
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SECTION 5.5. Compliance with Laws.................................................59
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SECTION 5.6. Inspection of Property, Books and Records............................59
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SECTION 5.7. Existence............................................................60
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SECTION 5.8. Financial Covenants..................................................60
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(a)Total Liabilities to Total Asset Value............................60
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(b)EBITDA to Interest Expense Ratio..................................60
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(c)[Intentionally Omitted.]..........................................60
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(d)Cash Flow to Fixed Charges Ratio..................................60
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(e)Secured Debt to Total Asset Value.................................60
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(f)Unencumbered Pool.................................................60
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(g)Unencumbered Net Operating Income to Unsecured Debt
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Service...........................................................60
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(h)Minimum Tangible Net Worth........................................60
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(i)Dividends.........................................................61
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(j)Permitted Holdings................................................61
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(k)No Liens..........................................................61
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(l)Calculation.......................................................61
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SECTION 5.9. Restriction on Fundamental Changes...................................61
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SECTION 5.10. Changes in Business.................................................62
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SECTION 5.11. EOPT Status.........................................................63
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(a)Status............................................................63
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(b)Indebtedness......................................................63
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(c)Restriction on Fundamental Changes................................63
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(d)Environmental Liabilities.........................................63
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(e)Disposal of Partnership Interests.................................64
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SECTION 5.12. Other Indebtedness..................................................64
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SECTION 5.13. Forward Equity Contracts............................................64
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ARTICLE VIDEFAULTS...............................................................................................64
SECTION 6.1. Events of Default....................................................64
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SECTION 6.2. Rights and Remedies..................................................67
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SECTION 6.3. Notice of Default....................................................68
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SECTION 6.4. Distribution of Proceeds after Default...............................68
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ARTICLE VIITHE AGENTS............................................................................................69
SECTION 7.1. Appointment and Authorization........................................69
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SECTION 7.2. Agency and Affiliates................................................69
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SECTION 7.3. Action by Administrative Agent and Documentation
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Agent................................................................69
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SECTION 7.4. Consultation with Experts............................................69
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SECTION 7.5. Liability of Administrative Agent and Documentation
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Agent................................................................70
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SECTION 7.6. Indemnification......................................................70
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SECTION 7.7. Credit Decision......................................................70
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SECTION 7.8. Successor Administrative Agent, Documentation Agent
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or Syndication Agent.................................................71
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SECTION 7.9. Consents and Approvals...............................................72
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ARTICLE VIIICHANGE IN CIRCUMSTANCES..............................................................................73
SECTION 8.1. Basis for Determining Interest Rate Inadequate or
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Unfair...............................................................73
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SECTION 8.2. Illegality...........................................................73
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SECTION 8.3. Increased Cost and Reduced Return....................................74
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SECTION 8.4. Taxes................................................................75
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SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar
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Loans................................................................77
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ARTICLE IXMISCELLANEOUS..........................................................................................78
SECTION 9.1. Notices..............................................................78
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SECTION 9.2. No Waivers...........................................................79
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SECTION 9.3. Expenses; Indemnification............................................79
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SECTION 9.4. Sharing of Set-Offs..................................................80
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SECTION 9.5. Amendments and Waivers...............................................81
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SECTION 9.6. Successors and Assigns...............................................82
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SECTION 9.7. Collateral...........................................................85
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SECTION 9.8. Governing Law; Submission to Jurisdiction............................85
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SECTION 9.9. Counterparts; Integration;. Effectiveness............................85
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SECTION 9.10. WAIVER OF JURY TRIAL................................................86
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SECTION 9.11. Survival............................................................86
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SECTION 9.12. Domicile of Loans...................................................86
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SECTION 9.13. Limitation of Liability.............................................86
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SECTION 9.14. Recourse Obligation.................................................86
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SECTION 9.15. Confidentiality.....................................................86
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SECTION 9.16. Bank's Failure to Fund..............................................87
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SECTION 9.17. Banks' ERISA Covenant...............................................92
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SECTION 9.18. Senior Managing Agents, Managing Agents and Co-
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Agents..............................................................92
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SECTION 9.19. No Bankruptcy Proceedings...........................................92
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SCHEDULE 1.1
SCHEDULE 4.4 (b)
SCHEDULE 4.6
SCHEDULE 5.11(c)(1)
SCHEDULE 5.11(c)(2)
SCHEDULE 5.11(c)(3)
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING 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, X.X. XXXXXX SECURITIES INC., as Lead Arranger,
Book Runner and Co-Syndication Agent, BANK OF AMERICA, N.A., as Administrative
Agent, THE CHASE MANHATTAN BANK, as Documentation Agent, UBS WARBURG LLC, as
Syndication Agent, PNC BANK, NATIONAL ASSOCIATION, FLEET NATIONAL BANK, DRESDNER
BANK AG, NEW YORK AND CAYMAN BRANCHES, COMMERZBANK AG NEW YORK BRANCH, and U.S.
BANK NATIONAL ASSOCIATION, as Senior Managing Agents, BANK ONE, N.A., BANKERS
TRUST COMPANY, BAYERISCHE HYPO-UND VEREINSBANK AG (NEW YORK BRANCH), THE
INDUSTRIAL BANK OF JAPAN, LIMITED, and NATIONAL AUSTRALIA BANK LIMITED, as
Managing Agents, CREDIT LYONNAIS, NEW YORK BRANCH, FLEET NATIONAL BANK, and THE
BANK OF NOVA SCOTIA, NEW YORK AGENCY, WACHOVIA BANK, N.A., and UNION BANK OF
CALIFORNIA, N.A., as Co-Agents.
W I T N E S S E T H
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.1. Definitions. The following terms, as used herein,
have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market
Quotes setting forth Money Market Absolute Rates pursuant to Section 2.4.
"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.
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"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 Agent and the Syndication Agent, collectively.
"Agreement" shall mean this Revolving Credit Agreement as the
same may from time to time hereafter be modified, supplemented or amended.
"Applicable Fee Percentage" means 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 Fee Percentage. In
the event that Borrower receives only two (2) Credit Ratings, and such Credit
Ratings are not equivalent, the Applicable Fee Percentage 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 Fee Percentage shall be determined by the higher of
the ratings from S&P and Xxxxx'x, 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 Xxxxx'x, then the
Applicable Fee Percentage 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 Fee Percentage shall be based on
such rating only.
Range of
Borrower's
Credit Rating Applicable
(S&P/Xxxxx'x Fee Percentage
Ratings) (% per annum)
------------ --------------
Non-Invest-
ment Grade 0.25
BBB-/Baa3 0.20
BBB/Baa2 0.20
BBB+/Baa1 0.20
A-/A3 or better 0.15
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"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 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 and Swingline Loans, its Domestic Lending
Office, (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar Lending
Office, and (iii) in the case of its Money Market Loans, its Money Market
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 Xxxxx'x; 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 Xxxxx'x, 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.
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Range of Applicable
Borrower's Margin for Applicable
Credit Rating Base Rate Margin for Euro
(S&P/Xxxxx'x Loans Dollar Loans
Ratings) (% per annum) (% per annum)
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Non-Invest-
ment Grade 0.0 1.50
BBB-/Baa3 0.0 0.90
BBB/Baa2 0.0 0.70
BBB+/Baa1 0.0 0.60
A-/A3 or better 0.0 0.55
"Assignee" has the meaning set forth in Section 9.6(c).
"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 and each Designated Lender; provided,
however, that the term "Bank" shall exclude each Designated Lender when used in
reference to a Committed Loan, the Commitments or terms relating to the
Committed Loans and the Commitments and shall further exclude each Designated
Lender for all other purposes hereunder except that any Designated Lender which
funds a Money Market Loan shall, subject to Section 9.6(d), have the rights
(including the rights given to a Bank contained in Section 9.3 and otherwise in
Article 9) and obligations of a Bank associated with holding such Money Market
Loan. For purposes of this Agreement, neither X.X. Xxxxxx Securities, Inc. nor
UBS Warburg LLC shall constitute a "Bank."
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"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 Committed 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.
"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, Xxxxx'x, Xxxx or
Fitch (or, if at any time no two of the foregoing shall be rating such
obligations,
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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, Xxxxx'x, 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); (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, Xxxxx'x, Xxxx 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, Xxxxx'x, Duff or Fitch and having a short-term rating of at least A-1
and P-1 from S&P and Xxxxx'x, respectively (or, if at any time neither S&P nor
Xxxxx'x 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, Xxxxx'x, Xxxx 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.
"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 The Bank of Nova Scotia, New York Agency,
Wachovia Bank, N.A., and Union Bank of California, N.A., 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.
"Committed Borrowing" has the meaning set forth in Section
1.3.
"Committed Loan" means a loan made by a Bank pursuant to
Section 2.1; provided that, if any such loan or loans (or portions thereof) are
combined or subdivided pursuant
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to a Notice of Interest Rate Election, the term "Committed Loan" shall refer to
the combined principal amount resulting from such combination or to each of the
separate principal amounts resulting from such subdivision, as the case may be.
"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(c) 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 X.X. Xxxxxx, 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 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
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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.
"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.
"Co-Syndication Agent" shall mean X.X Xxxxxx Securities, Inc.
in its capacity as Co-Syndication Agent hereunder, and its permitted successors
in such capacity in accordance with the terms of this Agreement.
"Credit Rating" means the rating assigned by the Rating
Agencies to Borrower's senior unsecured long term indebtedness.
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"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).
"Designated Lender" means a special purpose corporation that
(i) shall have become a party to this Agreement pursuant to Section 9.6(d), and
(ii) is not otherwise a Bank.
"Designated Lender Notes" means promissory notes of the
Borrower, substantially in the form of Exhibit A-1 hereto, evidencing the
obligation of the Borrower to repay Money Market Loans made by Designated
Lenders, and "Designated Lender Note" means any one of such promissory notes
issued under Section 9.6(d) hereof.
"Designating Lender" shall have the meaning set forth in
Section 9.6(d) hereof.
"Designation Agreement" means a designation agreement in
substantially the form of Exhibit G attached hereto, entered into by a Bank and
a Designated Lender and accepted by the Lead Agent.
"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 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
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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 The Chase Manhattan Bank, in its
capacity as Documentation Agent hereunder, and its 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 & Xxxxxx 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.
"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).
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"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 (i) the Guaranty of Payment -- No. 1,
dated as of even date herewith, executed by and between EOPT and Administrative
Agent for the benefit of the Banks, and (ii) the Guaranty of Payment -- No. 2,
dated as of even date herewith, executed by and between EOPT and Administrative
Agent for the benefit of the Banks. All uses herein of the term "EOPT Guaranty"
shall be deemed to refer to each of the guarantees listed in clauses (i) and
(ii) above individually and to both such guarantees collectively.
"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.
"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
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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 Committed 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 Revolving Credit Facility" shall mean the revolving
credit facility evidenced by that certain Second Amended and Restated Revolving
Credit Agreement, dated as of May 29, 1998, by and among the Borrower and the
banks and agents listed therein, providing for a revolving loan facility in the
amount of $1,000,000,000, as amended by that certain First Amendment to Second
Amended and Restated Revolving Credit Agreement, dated as of June 18, 1999.
"Extension Date" has the meaning set forth in Subsection
2.10(b) hereof.
"Extension Fee" shall mean a fee in an amount equal to
twenty-five basis points (0.25%) due and payable on the aggregate amount of the
Commitments on the date the Maturity Date is extended pursuant to the terms of
Subsection 2.10(b) hereof.
"Extension Notice" has the meaning set forth in Subsection
2.10(b) hereof.
"Extension Option" has the meaning set forth in Subsection
2.10(b) hereof.
"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
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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.
"Fee Accrual Date" has the meaning set forth in Section
2.9(a).
"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.
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"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.
"Group of Loans" means, at any time, a group of Loans
consisting of (i) all Committed 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 Committed 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.
"IBOR Auction" means a solicitation of Money Market Quotes
setting forth Money Market Margins based on the Interbank Offered Rate pursuant
to Section 2.4.
"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).
"Initial Funding Date" means the date initial Loans are made
in accordance with the provisions of Section 3.2 hereof.
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"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 covered by an interest reserve established under a loan
facility such as capitalized construction interest provided for in a
construction loan).
"Interest Period" means: (1) 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.
(2) Intentionally omitted.
(3) with respect to each Money Market IBOR Loan, the period commencing on the
date of borrowing specified in the applicable Money Market Quote Request and
ending such number of months thereafter as the Borrower may elect in accordance
with Section 2.4; provided that:
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(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, subject to clause (c) below, end on the last Business
Day of a calendar month; and
(c) no Interest Period may end later than the Maturity Date.
(4) with respect to each Money Market Absolute Rate Loan, the period commencing
on the date of borrowing specified in the applicable Money Market Quote Request
and ending such number of days thereafter (but not less than 14 days or more
than 180 days) as the Borrower may elect in accordance with Section 2.4;
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; and
(b) 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 Moody's. In the event that Borrower receives Credit Ratings only
from S&P and Moody's, 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
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ratings from S&P and Xxxxx'x 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 Xxxxx'x, 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.
"Invitation for Money Market Quotes" has the meaning set forth
in Section 2.4(c).
"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 or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
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"Loan" means a Base Rate Loan, a Euro-Dollar Loan, a Money
Market Loan or a Swingline Loan and "Loans" means Base Rate Loans, Euro-Dollar
Loans, Money Market Loans or Swingline Loans or any combination of the
foregoing.
"Loan Documents" means this Agreement, the Notes, the EOPT
Guaranty, and the Acorn Guaranty (as defined in the EOPT Guaranty).
"Loan Effective Date" has the meaning set forth in Section 8.3
hereof.
"Majority Banks" means at any time Banks having at least 51%
of the aggregate amount of Commitments, or if the Commitments shall have been
terminated, holding Notes evidencing at least 51% of the aggregate unpaid
principal amount of the Loans, (provided, that in the case of Swingline Loans,
the amount of each Bank's funded participation interest in such Swingline Loans
shall be considered for purposes hereof as if it were a direct loan and not a
participation interest, and the aggregate amount of Swingline Loans owing to the
Swingline Lender shall be considered for purposes hereof as reduced by the
amount of such funded participation interests).
"Managing Agents" means Bank One, N.A., Bankers Trust Company,
Bayerische Hypo-Und Vereinsbank AG (New York Branch), The Industrial Bank of
Japan, Limited, and National Australia Bank Limited, in their capacity as
Managing Agents hereunder.
"Mandatory Borrowing" has the meaning set forth in Section
2.3(b)(iii).
"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, subject to the provisions of
Section 2.10(b), the date which is third anniversary of the Closing Date.
"Merger Date" means the date on which the Cornerstone Merger
is consummated.
"Money Market Absolute Rate" has the meaning set forth in
Section 2.4(d)(2).
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"Money Market Absolute Rate Loan" means a loan to be made by a
Bank pursuant to an Absolute Rate Auction.
"Money Market Borrowing" has the meaning set forth in Section
1.3.
"Money Market Lending Office" means, as to each Bank, its
Domestic Lending Office or such other office, branch or affiliate of such Bank
as it may hereafter designate as its Money Market Lending Office by notice to
the Borrower and the Agent; provided that any Bank may from time to time by
notice to the Borrower and the Administrative Agent designate separate Money
Market Lending Offices for its Money Market IBOR Loans, on the one hand, and its
Money Market Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as the context may require.
"Money Market IBOR Loan" means a loan to be made by a Bank
pursuant to a IBOR Auction (including, without limitation, such a loan bearing
interest at the Base Rate pursuant to Article VIII).
"Money Market Loan" means a Money Market IBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
2.4(d)(2).
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.4.
"Money Market Quote Request" has the meaning set forth in
Section 2.4(b).
"Moody's" means Xxxxx'x 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).
"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
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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 less customary costs and
discounts of issuance paid by EOPT or Borrower, as the case may be.
"Net Price" means, with respect to the purchase of any
Property, without duplication, (i) the aggregate purchase price paid as cash
consideration for such purchase (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 (except as described in
clause (ii) below) and the value of any non-cash consideration delivered in
connection with such purchase (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.
"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
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 promissory notes of the Borrower,
substantially in the form of Exhibit A and Exhibit A-1 hereto, evidencing the
obligation of the Borrower to repay the Loans, and "Note" means any one of such
promissory notes issued hereunder.
"Notice of Borrowing" means a notice from Borrower in
accordance with Section
2.2 or Section 2.3(b)(i).
"Notice of Interest Rate Election" has the meaning set forth
in Section 2.7.
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"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.
"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.
"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
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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.
"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 Moody's 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).
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"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 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, Xxxxx'x, Xxxx 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.
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"Required Banks" means at any time Banks having at least 66
2/3% of the aggregate amount of the Commitments or, if the Commitments shall
have been terminated, holding Notes evidencing at least 66 2/3% of the aggregate
unpaid principal amount of the Loans (provided, that in the case of Swingline
Loans, the amount of each Bank's funded participation interest in such Swingline
Loans shall be considered for purposes hereof as if it were a direct loan and
not a participation interest, and the aggregate amount of Swingline Loans owing
to the Swingline Lender shall be considered for purposes hereof as reduced by
the amount of such funded participation interests).
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx 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, 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.
"Senior Managing Agents" means PNC Bank, National Association,
Fleet National Bank, Dresdner Bank AG, New York and Cayman Branches, Commerzbank
AG New York Branch, and U.S. Bank National Association, in their capacity as
Senior Managing Agents hereunder.
"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.
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"Syndication Agent" means, collectively, X.X. Xxxxxx
Securities Inc. and UBS Warburg LLC, in their capacities as syndication agents
hereunder and their respective permitted successors in such capacity in
accordance with the terms of this Agreement.
"Swingline Borrowing" has the meaning set forth in Section
1.3.
"Swingline Commitment" has the meaning set forth in Section
2.3(a).
"Swingline Lender" means Bank of America, N.A., in its
capacity as Swingline Lender hereunder, and its permitted successors in such
capacity in accordance with the terms of this Agreement.
"Swingline Loan" means a loan made by the Swingline Lender
pursuant to Section 2.3.
"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(a).
"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 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.
"Third Amended and Restated Credit Agreement" shall mean that
certain Third Amended and Restated Credit Agreement, dated as of May 12, 2000,
among the Borrower and the banks and agents listed therein, which amends and
restates the Existing Revolving Credit Facility to provide for a term loan
facility in the amount of $1,000,000,000.
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"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
(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.
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"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 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
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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.
"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).
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"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 I.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 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 and Swingline Loans, have
the same initial Interest Period. Borrowings are classified for purposes of this
Agreement either by reference to the pricing of Loans
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comprising such Borrowing (e.g., a "Fixed Rate Borrowing" is a Euro-Dollar
Borrowing or a Money Market Borrowing (excluding any such Borrowing consisting
of Money Market IBOR Loans bearing interest at the Base Rate pursuant to
Article VIII), and a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article 2 under which
participation therein is determined (i.e., a "Committed Borrowing" is a
Borrowing under Section 2.1 in which all Banks participate in proportion to
their Commitments, while a "Money Market Borrowing" is a Borrowing under
Section 2.4 in which a Bank's share is determined on the basis of its bid in
accordance therewith, and a "Swingline Borrowing" is a Borrowing under Section
2.3 in which only the Swingline Lender participates (subject to the provisions
of said Section 2.3)).
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 from time to time during the term hereof in amounts
such that the aggregate principal amount of Committed Loans by such Bank at any
one time outstanding plus such Bank's Pro Rata Share of Swingline Loans
outstanding at such time shall not exceed the amount of its Commitment. Each
Borrowing outstanding under this Section 2.1 shall be in an aggregate principal
amount of $5,000,000, or an integral multiple of $100,000 in excess thereof
(except that any such Borrowing may be in the aggregate amount available in
accordance with Section 3.3(b) or to repay the Swingline Lender the amount of
any Swingline Loan) and, other than with respect to Money Market Loans and
Swingline Loans, shall be made from the several Banks ratably in proportion to
their respective Commitments. Subject to the limitations set forth herein, any
amounts repaid may be reborrowed.
SECTION 2.2. Notice of Borrowing. With respect to any Committed
Borrowing, the Borrower shall give Administrative Agent notice not later than
11:00 a.m. (Dallas, Texas time) (x) one Business Day before each Base Rate
Borrowing, or (y) three Business Days before each Euro-Dollar Borrowing,
specifying:
(i) the date of such Borrowing, which shall be a Business Day in the
case of a Base Rate Borrowing or a Business Day in the case of a Euro-Dollar
Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be Base Rate
Loans or Euro-Dollar Loans, and
(iv) 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.
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SECTION 2.3. Swingline Loan Subfacility.
(a) Swingline Commitment. Subject to the terms and conditions of this
Section 2.3, the Swingline Lender, in its individual capacity, agrees to make
certain revolving credit loans to the Borrower (each a "Swingline Loan" and,
collectively, the "Swingline Loans") from time to time during the term hereof;
provided, however, that the aggregate amount of Swingline Loans outstanding at
any time shall not exceed the lesser of (i) SEVENTY-FIVE MILLION DOLLARS
($75,000,000), and (ii) the aggregate Commitments less all Loans then
outstanding (the "Swingline Commitment"). Subject to the limitations set forth
herein, any amounts repaid in respect of Swingline Loans may be reborrowed.
(b) Swingline Borrowings.
(i) Notice of Borrowing. With respect to any Swingline
Borrowing, the Borrower shall give the Swingline Lender and the Administrative
Agent notice in writing which is received by the Swingline Lender and
Administrative Agent not later than 1:00 p.m. (Dallas, Texas time) on the
proposed date of such Swingline Borrowing (and confirmed by telephone by such
time), specifying (A) that a Swingline Borrowing is being requested, (B) the
amount of such Swingline Borrowing, (C) the proposed date of such Swingline
Borrowing, which shall be a Business Day and (D) stating that no Default or
Event of Default has occurred and is continuing both before and after giving
effect to such Swingline Borrowing. Such notice shall be irrevocable.
(ii) Minimum Amounts. Each Swingline Borrowing shall be in a
minimum principal amount of $1,000,000, or an integral multiple of $100,000 in
excess thereof.
(iii) Repayment of Swingline Loans. Each Swingline Loan shall be
due and payable on the earliest of (A) 5 days from the date of the applicable
Swingline Borrowing, (B) the date of the next Committed Borrowing or (C) the
Maturity Date. If, and to the extent, any Swingline Loans shall be outstanding
on the date of any Committed Borrowing, such Swingline Loans shall first be
repaid from the proceeds of such Committed Borrowing prior to the disbursement
of the same to the Borrower. If, and to the extent, a Committed Borrowing is not
requested prior to the Maturity Date or the end of the 5-day period after a
Swingline Borrowing, the Borrower shall be deemed to have requested a Committed
Borrowing comprised entirely of Base Rate Loans in the amount of the applicable
Swingline Loan then outstanding, the proceeds of which shall be used to repay
such Swingline Loan to the Swingline Lender. In addition, the Swingline Lender
may, at any time, in its sole discretion, by written notice to the Borrower and
the Administrative Agent, demand repayment of its Swingline Loans by way of a
Committed Borrowing, in which case the Borrower shall be deemed to have
requested a Committed Borrowing comprised entirely of Base Rate Loans in the
amount of such Swingline Loans then outstanding, the proceeds of which shall be
used to repay such Swingline Loans to the Swingline Lender. Any Committed
Borrowing which is deemed requested by the Borrower in accordance with this
Section 2.3(b)(iii) is hereinafter referred to as a "Mandatory Borrowing". Each
Bank hereby irrevocably agrees to make Committed Loans promptly upon receipt of
notice from the
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Swingline Lender of any such deemed request for a Mandatory Borrowing in the
amount and in the manner specified in the preceding sentences and on the date
such notice is received by such Bank (or the next Business Day if such notice is
received after 12:00 P.M. (Dallas, Texas time)) notwithstanding (I) the amount
of the Mandatory Borrowing may not comply with the minimum amount of Committed
Borrowings otherwise required hereunder, (II) whether any conditions specified
in Section 3.3 are then satisfied, (III) whether a Default or an Event of
Default then exists, (IV) failure of any such deemed request for a Committed
Borrowing to be made by the time otherwise required in Section 2.1, (V) the date
of such Mandatory Borrowing (provided that such date must be a Business Day), or
(VI) any termination of the Commitments immediately prior to such Mandatory
Borrowing or contemporaneously therewith; provided, however, that no Bank shall
be obligated to make Committed Loans in respect of a Mandatory Borrowing if a
Default or an Event of Default then exists and the applicable Swingline Loan was
made by the Swingline Lender without receipt of a written Notice of Borrowing in
the form specified in subclause (i) above or after Administrative Agent has
delivered a notice of Default or Event of Default which has not been rescinded.
(iv) Purchase of Participations. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code with respect to the Borrower), then each Bank hereby
agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing
would otherwise have occurred, but adjusted for any payment received from the
Borrower on or after such date and prior to such purchase) from the Swingline
Lender such participations in the outstanding Swingline Loans as shall be
necessary to cause each such Bank to share in such Swingline Loans ratably based
upon its Pro Rata Share (determined before giving effect to any termination of
the Commitments pursuant to Section 6.2), provided that (A) all interest payable
on the Swingline Loans with respect to any participation shall be for the
account of the Swingline Lender until but excluding the day upon which the
Mandatory Borrowing would otherwise have occurred, and (B) in the event of a
delay between the day upon which the Mandatory Borrowing would otherwise have
occurred and the time any purchase of a participation pursuant to this sentence
is actually made, the purchasing Bank shall be required to pay to the Swingline
Lender interest on the principal amount of such participation for each day from
and including the day upon which the Mandatory Borrowing would otherwise have
occurred to but excluding the date of payment for such participation, at the
rate equal to the Federal Funds Rate, for the two (2) Business Days after the
date the Mandatory Borrowing would otherwise have occurred, and thereafter at a
rate equal to the Base Rate. Notwithstanding the foregoing, no Bank shall be
obligated to purchase a participation in any Swingline Loan if a Default or an
Event of Default then exists and such Swingline Loan was made by the Swingline
Lender without receipt of a written Notice of Borrowing in the form specified in
subclause (i) above or after Administrative Agent has delivered a notice of
Default or Event of Default which has not been rescinded.
(c) Interest Rate. Each Swingline Loan shall bear interest on
the outstanding principal amount thereof, for each day from the date such
Swingline Loan is made until the date it
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is repaid, at a rate per annum equal to the Federal Funds Rate plus the
Applicable Margin for Euro-Dollar Loans for such day.
SECTION 2.4. Money Market Borrowings.
(a) The Money Market Option. From time to time during the Term,
and provided that at such time the Borrower maintains a Credit Rating of at
least BBB- or Baa3 (or their equivalent) from two (2) Rating Agencies at least
one (1) of which is S&P or Xxxxx'x, the Borrower may, as set forth in this
Section 2.4, request the Banks during the Term to make offers to make Money
Market Loans to the Borrower, not to exceed, at such time, the lesser of (i)
$350,000,000 (adjusted pro rata for changes in the aggregate Commitments), and
(ii) the aggregate Commitments less all Loans then outstanding (excluding any
Loans or any portion thereof to be repaid from the proceeds of such Money Market
Loans). Subject to the provisions of this Agreement, the Borrower may repay any
outstanding Money Market Loan on any day which is both a Business Day and a
Business Day and any amounts so repaid may be reborrowed, up to the amount
available under this Section 2.4 at the time of such Borrowing, until the
Business Day next preceding the Maturity Date. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section
2.4.
(b) Money Market Quote Request. When the Borrower wishes to
request offers to make Money Market Loans under this Section, it shall transmit
to the Administrative Agent by telex or facsimile transmission a Money Market
Quote Request substantially in the form of Exhibit B hereto (a "Money Market
Quote Request") so as to be received not later than 11:00 A.M. (Dallas, Texas
time) on (x) the fifth Business Day prior to the date of Borrowing proposed
therein, in the case of a IBOR Auction or (y) the Business Day immediately
preceding the date of Borrowing proposed therein, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the Borrower and
the Administrative Agent shall have mutually agreed and shall have notified the
Banks not later than the date of the Money Market Quote Request for the first
IBOR Auction or Absolute Rate Auction for which such change is to be effective)
specifying:
(i) the proposed date of Borrowing, which shall be a Business
Day in the case of a IBOR Auction or a Business Day in the case of an
Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$5,000,000 or a larger multiple of $100,000,
(iii) the duration of the Interest Period applicable thereto
(which shall not be less than 14 days or more than 180 days), subject to
the provisions of the definition of Interest Period,
(iv) whether the Money Market Quotes requested are to set forth
a Money Market Margin or a Money Market Absolute Rate, and
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(v) the aggregate amount of all Money Market Loans then
outstanding. The Borrower may request offers to make Money Market Loans for more
than one Interest Period in a single Money Market Quote Request. In no event may
Borrower give a Money Market Quote Request within ten (10) days of the giving of
any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt
of a Money Market Quote Request, the Administrative Agent shall send to the
Banks by telex or facsimile transmission an "Invitation for Money Market Quotes"
substantially in the form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market Quote Request relates
in accordance with this Section.
(d) Submission and Contents of Money Market Quotes.
1. Each Bank may submit a Money Market Quote containing an
offer or offers to make Money Market Loans in response to any Invitation for
Money Market Quotes. Each Money Market Quote must comply with the requirements
of this subsection (d) and must be submitted to the Administrative Agent by
telex or facsimile transmission at its offices specified in or pursuant to
Section 9.1 not later than (x) 2:00 P.M. (Dallas, Texas time) on the fourth
Business Day prior to the proposed date of Borrowing, in the case of a IBOR
Auction or (y) 9:30 A.M. (Dallas, Texas time) on the proposed date of Borrowing,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Borrower and the Administrative Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first IBOR Auction or Absolute Rate Auction for which such
change is to be effective); provided that Money Market Quotes submitted by the
Administrative Agent (or any affiliate of the Administrative Agent) in the
capacity of a Bank may be submitted, and may only be submitted, if the
Administrative Agent or such affiliate notifies the Borrower of the terms of the
offer or offers contained therein not later than (x) one hour prior to the
deadline for the other Banks, in the case of an IBOR Auction or (y) one hour
prior to the deadline for the other Banks, in the case of an Absolute Rate
Auction. Subject to Articles 3 and 6, any Money Market Quote so made shall be
irrevocable except with the written consent of the Administrative Agent given on
the instructions of the Borrower.
2. Each Money Market Quote shall be in substantially the form
of Exhibit D hereto and shall in any case specify:
(i) the proposed date of Borrowing,
(ii) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be greater than or
less than the Commitment of the quoting Bank, (x) must be $5,000,000 or a larger
multiple of $100,000, (y) may not exceed the principal amount of Money Market
Loans for which
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offers were requested and (z) may be subject to an aggregate limitation as to
the principal amount of Money Market Loans for which offers being made by such
quoting Bank may be accepted,
(iii) the Interest Period(s) with respect to which each such
offer is being made,
(iv) in the case of an IBOR Auction, the margin above or below
the applicable Interbank Offered Rate (the "Money Market Margin") offered
for each such Money Market Loan, expressed as a percentage (specified to
the nearest 1/10,000th of 1%) to be added to or subtracted from such base
rate,
(v) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the
"Money Market Absolute Rate") offered for each such Money Market Loan,
and
(vi) the identity of the quoting Bank. A Money Market Quote may
set forth up to five separate offers by the quoting Bank with respect to
each Interest Period specified in the related Invitation for Money Market
Quotes.
3. Any Money Market Quote shall be disregarded if it:
(i) is not substantially in conformity with Exhibit D hereto or
does not specify all of the information required by subsection (d)(2)
above;
(ii) contains qualifying, conditional or similar language
(except for an aggregate limitation as provided in subsection (d)(2)(ii)
above);
(iii) proposes terms other than or in addition to those set forth
in the applicable Invitation for Money Market Quotes; or
(iv) arrives after the time set forth in subsection (d)(1).
(e) Notice to Borrower. The Administrative Agent shall promptly
(and in any event within one (1) Business Day after receipt thereof) notify the
Borrower in writing of the terms (x) of any Money Market Quote submitted by a
Bank that is in accordance with subsection (d) and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote or modifies
the terms of such previous Money Market Quote to provide terms more favorable to
Borrower. The Administrative Agent's notice to the Borrower shall specify (A)
the aggregate principal amount of Money Market Loans for which offers have been
received for each Interest Period specified in the related Money
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Market Quote Request, (B) the respective principal amounts and Money Market
Margins or Money Market Absolute Rates, as the case may be, so offered and (C)
if applicable, limitations on the aggregate principal amount of Money Market
Loans for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:00
A.M. (Dallas, Texas time) on (x) the third Business Day prior to the proposed
date of Borrowing, in the case of an IBOR Auction or (y) the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first IBOR Auction or Absolute Rate
Auction for which such change is to be effective), the Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; provided that:
1. the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
2. the principal amount of each Money Market Borrowing must be
$5,000,000 or a larger multiple of $100,000;
3. acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the
case may be; and
4. the Borrower may not accept any offer that is described in
subsection (d)(3) or that otherwise fails to comply with the requirements
of this Agreement.
(g) Allocation by Agent. If offers are made by two or more
Banks with the same Money Market Margins or Money Market Absolute Rates, as the
case may be, for a greater aggregate principal amount than the amount in respect
of which such offers are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are accepted shall
be allocated by the Administrative Agent among such Banks as nearly as possible
(in multiples of $100,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. The Administrative
Agent shall promptly (and in any event within one (1) Business Day after such
offers are accepted) notify the Borrower and each such Bank in writing of any
such allocation of Money Market Loans. Determinations by the Administrative
Agent of the allocation of Money Market Loans shall be conclusive in the absence
of manifest error.
(h) Notwithstanding anything to the contrary contained herein,
each Bank shall be required to fund its Pro Rata Share of Committed Loans in
accordance with Section 2.1 hereof
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despite the fact that any Bank's Commitment may have been or may be exceeded as
a result of such Bank's making of Money Market Loans.
SECTION 2.5. Notice to Banks; Funding of Loans.
(a) Upon receipt of a 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) and
such Notice of Borrowing shall not thereafter be revocable by the Borrower,
unless Borrower shall pay any applicable expenses pursuant to Section 2.13.
(b) Not later than 1:00 p.m. (Dallas, Texas time) on the date
of each Committed Borrowing (including without limitation each Mandatory
Borrowing) as indicated in the applicable Notice of Borrowing, each Bank shall
(except as provided in subsection (d) of this Section) make available its share
of such Committed Borrowing in Federal funds immediately available in Dallas,
Texas, to the Administrative Agent at its address referred to in Section 9.1.
(c) Not later than 3:00 p.m. (Dallas, Texas time) on the date
of each Swingline Borrowing as indicated in the applicable Notice of Borrowing,
the Swingline Lender shall make available such Swingline Borrowing in Federal
funds immediately available in Dallas, Texas, to the Administrative Agent at its
address referred to in Section 9.1.
(d) Unless the Administrative Agent shall have received notice
from a Bank prior to the date 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 date of such Borrowing 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 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
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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 in accordance with, and on the date set forth in, 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 (including, without limitation, Swingline Loans and Money Market
Loans) 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.
(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 Committed Loans shall mature, and the principal amount
thereof shall be due and payable, on the Maturity Date. The Swingline Loans
shall mature, and the principal amount thereof shall be due and payable, in
accordance with Section 2.3(b)(iii).
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(e) Each Money Market Loan included in any Money Market
Borrowing shall mature, and the principal amount thereof shall be due and
payable, together with accrued interest thereon, on the earlier to occur of (i)
last day of the Interest Period applicable to such Borrowing or (ii) the
Maturity Date.
(f) There shall be no more than ten (10) Euro-Dollar Groups of
Loans and no more than ten (10) Money Market Loans outstanding at any one time.
SECTION 2.7. Method of Electing Interest Rates.
(a) The Loans included in each Committed Borrowing shall bear
interest initially at the type of rate specified by the Borrower in the
applicable Notice of Borrowing or as otherwise provided in Section 2.3 with
respect to Mandatory Borrowings. 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, 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 Committed 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;
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(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 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) Subject to Section 8.1, each Money Market IBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the Interbank
Offered Rate for such Interest Period (determined in accordance with Section
2.8(b) as if the related Money Market IBOR Borrowing were a Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by the Bank making
such Loan in accordance with Section 2.4. Each Money Market Absolute Rate Loan
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the Money
Market Absolute Rate quoted by the Bank making such Loan in accordance with
Section 2.4. Any overdue principal of or interest on any Money Market Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the Base Rate until such failure shall become an Event of Default and
thereafter at a rate per annum equal to the sum of 4% plus the Base Rate for
such day.
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(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. Fees.
(a) Facility Fee. For the period beginning on the date which is
thirty (30) days after each Bank's written final Commitment is received by the
Co-Syndication Agent (the "Fee Accrual Date") and ending on the date the
Obligations are paid in full and this Agreement is terminated (the "Facility Fee
Period"), the Borrower shall pay to the Administrative Agent for the account of
the Banks ratably in proportion to their respective Commitments (1) for so long
as the Borrower has an Investment Grade Rating, a facility fee on the aggregate
Commitments at the Applicable Fee Percentage or (2) in the event that the
Borrower does not have an Investment Grade Rating, an unused fee at an annual
rate equal to the product of (i) the daily average aggregate Commitments less
the aggregate amount of all Loans then outstanding and (ii) the Applicable Fee
Percentage. The facility fee or, if applicable, the unused fee, shall be payable
in arrears on each January 1, April 1, July 1 and October 1 during the Facility
Fee Period; provided, however, the facility fee payable for the period
commencing on the Fee Accrual Date through, but not including, the Closing Date,
shall be payable on the Closing Date.
(b) Intentionally omitted.
(c) Fees Non-Refundable. All fees set forth in this Section 2.9
shall be deemed to have been earned on the date payment is due in accordance
with the provisions hereof and shall be non-refundable. The obligation of the
Borrower to pay such fees in accordance with the provisions hereof shall be
binding upon the Borrower and shall inure to the benefit of the Administrative
Agent, the Documentation Agent, the Syndication Agent and the Banks regardless
of whether any Loans are actually made.
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SECTION 2.10. Maturity Date; Extension.
(a) The term (the "Term") of the Commitments (and each Bank's
obligations to make Loans hereunder) shall terminate and expire on the Maturity
Date, subject, however, to the provisions of Subsection 2.10(b) hereof.
(b) Borrower shall have one option (the "Extension Option") to
extend the Maturity Date, for an additional twelve (12) month period, upon the
following terms and conditions: (i) delivery by Borrower of written notice
thereof to the Administrative Agent (the "Extension Notice") on or before the
date which is sixty (60) days prior to the current Maturity Date (which
Extension Notice, the Administrative Agent shall promptly deliver to the Banks);
(ii) no Default or Event of Default shall have occurred and be continuing both
on the date Borrower delivers the Extension Notice to the Administrative Agent
and on the first day of the extension period (the "Extension Date"); (iii) each
of the representations and warranties of Borrower contained in this Agreement
(other than representations and warranties which expressly speak of a different
date) shall be true and correct in all material respects on and as of the
Extension Date; and (iv) Borrower shall pay to the Administrative Agent, for the
account of the Banks, on the Extension Date, the Extension Fee. Borrower's
delivery of the Extension Notice shall be irrevocable.
(c) 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 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 or any
Money Market Borrowing bearing interest at the Base Rate pursuant to Section
8.1, 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. The Borrower may, from time
to time on any Business Day so long as prior notice is given to the
Administrative Agent and Swingline Lender no later than 1:00 p.m. (Dallas, Texas
time) on the day on which Borrower intends to make such prepayment, prepay any
Swingline Loans in whole or in part in amounts aggregating $100,000 or a higher
integral multiple of $100,000 (or, if less, the aggregate outstanding principal
amount of all Swingline Loans then outstanding) by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment
no later than 2:00 p.m. (Dallas, Texas time) on such day. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Banks (or
the Swingline Lender in the case of Swingline Loans) included in such Group or
Borrowing.
(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
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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. In addition, the Borrower may not prepay all
or any portion of the principal amount of any Money Market Loan prior to the end
of the Interest Period applicable thereto without the consent of all applicable
Designated Lenders and Banks. Any such prepayment shall be upon at least three
(3) Business Days notice to the Administrative Agent. 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) The Borrower may at any time and from time to time cancel
all or any part of the Commitments by the delivery to the Administrative Agent
of a notice of cancellation within the applicable time periods set forth in
Sections 2.11(a) and (b) if there are Loans then outstanding or, if there are no
Loans outstanding at such time as to which the Commitments with respect thereto
are being canceled, upon at least one (1) Business Day's notice to the
Administrative Agent, whereupon, in either event, all or such portion of the
Commitments, as applicable, shall terminate as to the Banks, pro rata on the
date set forth in such notice of cancellation, and, if there are any Loans then
outstanding, Borrower shall prepay, as applicable, all or such portion of Loans
outstanding on such date in accordance with the requirements of Section 2.11(a)
and (b), Borrower shall be permitted to designate in its notice of cancellation
which Loans, if any, are to be prepaid. A reduction of the Commitments pursuant
to this Section 2.11(c) shall not effect a reduction in the Swingline Commitment
(unless so elected by the Borrower) until the aggregate Commitments have been
reduced to an amount equal to the Swingline Commitment.
(d) Any amounts so prepaid pursuant to Section 2.11(a) or (b)
may be reborrowed. In the event Borrower elects to cancel all or any portion of
the Commitments and the Swingline Commitment pursuant to Section 2.11(c) hereof,
such amounts 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 (or applicable share with respect to Money Market Loans) of each
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
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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 Swingline 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. Whenever any payment of principal of, or interest on, the Money
Market 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. 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 or Money Market IBOR 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 or Money Market IBOR Loans after notice has been
given to any Bank in accordance with Section 2.5(a) or 2.4(f), 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 forth in reasonable detail the basis for and calculation
of such loss or expense and shall be conclusive in the absence of demonstrable
error.
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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; provided, however, that no
Swingline Loan shall be used more than once for the purpose of refinancing
another Swingline Loan, in whole or part.
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
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx, 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 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,
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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 3.3, 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, Xxxxxxx & Xxxx 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, Xxxxxxx & Xxxx
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;
(l) no Default or Event of Default shall have occurred; and
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(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.
SECTION 3.2. Conditions to Initial Borrowings. The obligations of
any Bank to make its initial Loan shall be subject to the satisfaction of the
following conditions:
(a) Borrower shall have either (1) repaid in full all amounts
outstanding under the Existing Revolving Credit Facility and terminated the same
(it being understood that such repayment may be made out of proceeds of such
Initial Loans) or (2)(i) closed the Cornerstone Merger in accordance with the
terms set forth in the Confidential Information Memorandum, (ii) repaid or
caused to be repaid in full all amounts outstanding under the Cornerstone Bank
Line and terminated the same, (iii) drawn down in full the Existing Revolving
Credit Facility and (iv) executed and delivered the Third Amended and Restated
Credit Agreement (it being understood that proceeds of such initial Loans may be
used in connection with the closing of the Cornerstone Merger and repayment of
the Cornerstone Bank Line); and
(b) Borrower shall have satisfied all of the conditions to the
obligation of a Bank to make a Loan set forth in Section 3.3 hereof.
SECTION 3.3. Borrowings. The obligation of any Bank to make a Loan
is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.2 or Section 2.3(b)(i) or a Notice of Money
Market Borrowing as required by Section 2.4;
(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 date of such Borrowing 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
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(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 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
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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 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
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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
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
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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 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 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
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 the extent such judgment would
be recourse to EOPT or Borrower, any of its Consolidated
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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 ERISA Group has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years.
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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.
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
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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 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
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(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 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
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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 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
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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 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.
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(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.
(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) (A) $5,500,000,000 from the date hereof to the Merger Date
or (B) $7,800,000,000 from and after the Merger Date, and (ii) seventy percent
(70%) of all Net Offering Proceeds 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
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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 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.
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.
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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.
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.
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(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.
(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
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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.
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;
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(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 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
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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;
(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
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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.
(a) Upon the occurrence of any Event of Default described in
Sections 6.1(f), (g), (p) or (q), the Commitments and the Swingline Commitment
shall immediately terminate and 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 that the Commitments are terminated and 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
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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 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 2.3 and 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. and The
Chase Manhattan Bank 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 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.
and The Chase Manhattan Bank, 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
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Agent and Documentation Agent shall not be required to take any action with
respect to any 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, subsequent to its
receipt of indemnification payment(s) from Banks in accordance with this
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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 X.X. Xxxxxx Securities, Inc. is a Syndication Agent,
Xxxxxx 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 Xxxxxx Guaranty Trust
Company of New York, as a successor Administrative Agent and Xxxxxx 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 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
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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. The rights and
duties of the Administrative Agent to be vested in any successor Administrative
Agent shall include, without limitation, the rights and duties as Swingline
Lender. 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
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
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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 or Money Market IBOR Loan 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
(i) 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, or (ii) any Money Market IBOR
Borrowing for which a Notice of Money Market Borrowing has previously been
given, the Money Market IBOR Loans comprising such Borrowing shall bear interest
for each day from and including the first day to but excluding the last day of
the Interest Period applicable thereto at the Base Rate for such day.
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 an equal principal amount from such Bank (on which interest and
principal shall be payable
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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, upon which event, such Bank's Commitments shall be
deemed to be canceled pursuant to Section 2.11(c).
SECTION 8.3. Increased Cost and Reduced Return.
(a) If, on or after (x) the date hereof in the case of
Committed Loans made pursuant to Section 2.1, or (y) the date of the related
Money Market Quote (in each case, the "Loan Effective Date"), in the case of any
Money Market Loan, 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 Loan Effective Date
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, upon which event, such Bank's Commitment shall be deemed to be canceled
pursuant to Section 2.11(c).
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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.
(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
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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 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, upon which event, such Bank's Commitment shall be deemed to be canceled
pursuant to Section 2.11(c).
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
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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 F attached
hereto with a duplicate copy thereof, in the case of the Borrower, to the
Borrower, at Equity Office Properties Trust, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Chief Legal Counsel, and to Xxxxx Xxxxxxx
Xxxxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attn: Xxxxx X. Xxxxxx, 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 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
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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,
Xxxxxxx & Xxxx 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 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
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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).
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
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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, the Documentation Agent or the Swingline Lender in their capacity as
Administrative Agent, Documentation Agent or the Swingline Lender, as
applicable, are affected thereby, by the Administrative Agent, the Documentation
Agent or the Swingline Lender, 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 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
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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. Notwithstanding anything
to the contrary in this subsection (b), with respect to a Bank's granting of
participations in its outstanding Money Market Loans prior to the occurrence of
an Event of Default, the minimum amount of such participations shall be
$5,000,000 and no consent of the Administrative Agent or the Borrower shall be
required. 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.
(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 "E" 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
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immediately prior to such assignment, no such consent shall be required; and
provided further that such assignment may, but need not, include rights of the
transferor Bank in respect of outstanding Money Market Loans. 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) Any Bank (each, a "Designating Lender") may at any time
designate one Designated Lender to fund Money Market Loans on behalf of such
Designating Lender subject to the terms of this Section 9.6(d) and the
provisions in Section 9.6(b) and (c) shall not apply to such designation. No
Bank may designate more than one (1) Designated Lender at any one time. The
parties to each such designation shall execute and deliver to the Lead Agent
for its acceptance a Designation Agreement. Upon such receipt of an
appropriately completed Designation Agreement executed by a Designating Lender
and a designee representing that it is a Designated Lender, the Lead Agent will
accept such Designation Agreement and will give prompt notice thereof to the
Borrower, whereupon, (i) the Borrower shall execute and deliver to the
Designating Lender a Designated Lender Note payable to the order of the
Designated Lender, (ii) from and after the effective date specified in the
Designation Agreement, the Designated Lender shall become a party to this
Agreement with a right (subject to the provisions of Section 2.4(b)) to make
Money Market Loans on behalf of its Designating Lender pursuant to Section 2.4
after the Borrower has accepted a Money Market Loan (or portion thereof) of the
Designating Lender, and (iii) the Designated Lender shall not be required to
make payments with respect to any obligations in this Agreement except to the
extent of excess cash flow of such Designated Lender which is not otherwise
required to repay obligations of such Designated Lender which are then due and
payable; provided, however, that regardless of such designation and assumption
by the Designated Lender, the Designating Lender shall be and remain obligated
to the Borrower, the Administrative Agent, the Senior Managing Agents, the
Managing Agents, the Co-Agents and the Banks for each and every of the
obligations of the Designating Lender and its related Designated Lender with
respect to this Agreement, including, without limitation, any indemnification
obligations under Section 7.6 hereof and any sums otherwise payable to the
Borrower by the Designated Lender. Each Designating Lender shall serve as the
administrative agent of the Designated Lender and shall on behalf of, and to
the exclusion of, the Designated Lender: (i) receive any and all payments made
for the benefit of the Designated Lender; and (ii) give and receive all
communications and
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notices and take all actions hereunder, including, without limitation, votes,
approvals, waivers, consents and amendments under or relating to this Agreement
and the other Loan Documents. Any such notice, communication, vote, approval,
waiver, consent or amendment shall be signed by the Designating Lender as
administrative agent for the Designated Lender and shall not be signed by the
Designated Lender on its own behalf and shall be binding upon the Designated
Lender to the same extent as if signed by the Designated Lender on its own
behalf. The Borrower, the Administrative Agent, the Senior Managing Agents, the
Managing Agents, the Co-Agents and the Banks may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same. No
Designated Lender may assign or transfer all or any portion of its interest
hereunder or under any other Loan Document, other than assignments to the
Designating Lender which originally designated such Designated Lender or
otherwise in accordance with the provisions of Section 9.6 (b) and (c).
(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.
(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 Xxxxxx Guaranty Trust Company of New York, the Senior
Managing Agents 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.
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
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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 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;. Effectiveness. 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. This Agreement shall become effective upon receipt by the Documentation
Agent and the Borrower of counterparts hereof signed by each of the parties
hereto (or, in the case of any party as to which an executed counterpart shall
not have been received, receipt by the Administrative Agent in form satisfactory
to it of telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party).
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
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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.
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 xxx 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 (other than pursuant to the
Acorn Guaranty (as defined in the EOPT Guaranty)) 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
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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 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
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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.
(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, xxx 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;
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(iv) any sale or other transfer of all or substantially
all assets of the Borrower; or
(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
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execution, verification, delivery and filing of proofs of claim, consents,
assignments or other 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 limitation, any "super
priority" or equal or "priming" or replacement Lien) for any Subordinated
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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.
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
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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. Senior Managing Agents, Managing Agents and
Co-Agents. Borrower, the Agents and each Bank acknowledges and agrees that the
obligations of the Senior Managing Agents, the Managing Agents and the Co-Agents
hereunder shall be limited to those obligations that are expressly set forth
herein, if any, and the Senior Managing Agents, 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 Senior
Managing Agents, the Managing Agents and the Co-Agents to the extent the Senior
Managing Agents, the Managing Agents and/or any Agent incurs any loss, cost or
damage arising from its capacity as the Senior Managing Agents, the Managing
Agents or as a Co-Agent.
SECTION 9.19. No Bankruptcy Proceedings. Each of the Borrower, the
Banks, the Administrative Agent, the Senior Managing Agents, the Managing
Agents, and the Co-Agents hereby agrees that it will not institute against any
Designated Lender or join any other Person in instituting against any Designated
Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any federal or state bankruptcy or similar law, until the later
to occur of (i) one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Designated Lender and (ii) the
Maturity Date.
[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/ Xxxxxxx Fear
-------------------------------------
Name: Xxxxxxx Fear
Title: Senior Vice President, Treasurer
Facsimile number: (000) 000-0000
Address: Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
TOTAL COMMITMENTS: $1,000,000,000
S-1
98
BANK OF AMERICA, N.A., as Administrative
Agent, as Swingline Lender and as a Bank
By:/s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
Commitment: $68,000,000
S-2
99
THE CHASE MANHATTAN BANK, as Documentation
Agent and as a Bank
By:/s /Xxxx X. Xxxxxxxxxxx
-----------------------------------
Name: XXXX X. XXXXXXXXXXX
Title: VICE PRESIDENT
Commitment: $68,000,000
S-3
100
X.X. XXXXXX SECURITIES, INC., as Co-
Syndication Agent
By:/s/ Xxxxxxx Xxxxx-Xxxxx
------------------------------------
Name: XXXXXXX XXXXX-XXXXX
Title: VICE PRESIDENT
S-4
101
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as a Bank
By:/s/ R. Xxxxx Xxxxx
------------------------------------
Name: R. XXXXX XXXXX
Title: VICE PRESIDENT
Commitment: $68,000,000
S-5
102
UBS WARBURG LLC, as Syndication Agent
By:/s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
By:/s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Director
Principal
S-6
103
UBS AG STAMFORD BRANCH, as a Bank
By:/s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
By:/s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Director
Principal
Commitment: $68,000,000
S-7
104
PNC BANK, NATIONAL ASSOCIATION, as Senior
Managing Agent and as a Bank
By:/s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Commitment: $65,000,000
S-8
105
FLEET NATIONAL BANK, as Senior Managing
Agent and as a Bank
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: XXXXXXX X. XXXXXXX
Title: Authorized Officer
Commitment: $65,000,000
S-9
106
DRESDNER BANK AG, NEW YORK AND CAYMAN
BRANCHES, as Senior Managing Agent and as
a Bank
By:/s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
By:/s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: Assistant Treasurer
Commitment: $65,000,000
S-10
000
XXXXXXXXXXX XX, XXX XXXX BRANCH,
as Senior Managing Agent and as a Bank
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By:/s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Treasurer
Commitment: $65,000,000
S-11
108
U.S. BANK NATIONAL ASSOCIATION, as Senior
Managing Agent and as a Bank
By:/s/ Xxxx X. Sohs
-------------------------------
Name: Xxxx X. Sohs
Title: Vice President
Commitment: $65,000,000
S-12
109
BANK ONE, NA, as Managing Agent and as a
Bank
By:/s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
BANK ONE, NA
Commitment: $42,000,000
S-13
110
BANKERS TRUST COMPANY, as Managing Agent
and as a Bank
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: XXXXXX X. XXXXXX
Title: DIRECTOR
Commitment: $42,000,000
X-00
000
XXXXXXXXXX XXXX-XXX XXXXXXXXXXX AG (NEW
YORK BRANCH), as Managing Agent and as a
Bank
By:/s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
By:/s/ Xxxxxx X. Xxxxxx
------------------------
Name: XXXXXX X. XXXXXX
Title: Director
Commitment: $42,000,000
S-15
112
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as
Managing Agent and as a Bank
By:/s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Joint General Manager
Commitment: $42,000,000
S-16
113
NATIONAL AUSTRALIA BANK LIMITED, as
Managing Agent and as a Bank
By:/s/ Xxxx Xxxxxx
--------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Commitment: $42,000,000
S-17
000
XXX XXXX XX XXXX XXXXXX, XXX XXXX
AGENCY, as Co-Agent and as a Bank
By:/s/ X. X. Xxxxx
-----------------------------
Name: X. X. XXXXX
Title: MANAGING DIRECTOR
Commitment: $31,000,000
S-18
115
WACHOVIA BANK, N.A., as Co-Agent and as a
Bank
By:/s/ Xxxxxx X. Xxxx
---------------------------------
Name: XXXXXX X. XXXX
Title: VICE PRESIDENT
Commitment: $31,000,000
S-19
000
XXXXX XXXX XX XXXXXXXXXX, N.A., as Co-Agent
and as a Bank
By:/s/ Xxxx Xxxxxxx
-----------------------------
Name: XXXX XXXXXXX
Title: Vice President
Commitment: $31,000,000
S-20
117
LASALLE BANK NATIONAL ASSOCIATION,
as a Bank
By:/s/ Xxxx Xxxxxxxxxx
-----------------------------
Name: XXXX XXXXXXXXXX
Title: AVP
Commitment: $25,000,000
S-21
118
FIRSTAR BANK, NATIONAL ASSOCIATION, as a
Bank
By:/s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
Commitment: $25,000,000
S-22
119
THE NORTHERN TRUST COMPANY, as a Bank
By:/s/ Xxxxxx Yacillo
-------------------------------
Name: XXXXXX YACILLO
Title: Senior Vice President
Commitment: $25,000,000
S-23
120
XXXXX XXX COMMERCIAL BANK, LTD., L.A.
BRANCH, as a Bank
By:/s/ Xxxxx Xxx
-------------------------------
Name: Xxxxx Xxx
Title: V.P. & General Manager
Commitment: $25,000,000
S-24
121
Schedule 1.1
Initial Qualifying Unencumbered Properties
------------------------------------------------------------------------------------------
Property Name Location
------------------------------------------------------------------------------------------
00 Xxxxx Xxxxxx Xxxxxxxx Xxx Xxxxxxxxx, XX
------------------------------------------------------------------------------------------
Summit Office Park Ft. Worth, TX
------------------------------------------------------------------------------------------
Intercontinental Center Houston, TX
------------------------------------------------------------------------------------------
Four Forest Plaza Dallas, TX
------------------------------------------------------------------------------------------
Dominion Tower Norfolk, VA
------------------------------------------------------------------------------------------
Northborough Tower Houston, TX
------------------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxxxxx Xxxxxxxxxxx, XX
------------------------------------------------------------------------------------------
Denver Corporate Center II & III Denver, CO
------------------------------------------------------------------------------------------
University Tower Durham, NC
------------------------------------------------------------------------------------------
Xxxxxxx Pointe Shelton, CT
------------------------------------------------------------------------------------------
San Jacinto Center Austin, TX
------------------------------------------------------------------------------------------
0000 00xx Xxxxxx Xxxxxxxxxx, X.X.
------------------------------------------------------------------------------------------
North Central Plaza Three Dallas, TX
------------------------------------------------------------------------------------------
The Quadrant Englewood, CO
------------------------------------------------------------------------------------------
Union Square San Antonio, TX
------------------------------------------------------------------------------------------
Xxx Xxxxx Xxxxxxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
0000 X Xxxxxx Xxxxxxxxxx, X.X.
------------------------------------------------------------------------------------------
000 Xxxxxxxx Xxxxxx Xxxxxxxx, XX
------------------------------------------------------------------------------------------
Xxx xxx Xxx Xxxxxxxx Xxxxx Xxxxxxxx, XX
------------------------------------------------------------------------------------------
0000 Xxxxxxx Xxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
Xxx Xxxxxxxx Xxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
Northwest Center San Antonio, TX
------------------------------------------------------------------------------------------
Xxx Xxxxxxxxxx Xxxxxx Xxxxxxxx, XX
------------------------------------------------------------------------------------------
One Lakeway Center Metairie, LA
------------------------------------------------------------------------------------------
Three Lakeway Center Metairie, LA
------------------------------------------------------------------------------------------
Two Lakeway Center Metairie, LA
------------------------------------------------------------------------------------------
Bank of America Plaza Nashville, TN
------------------------------------------------------------------------------------------
0000 XXX Xxxxxx, XX
------------------------------------------------------------------------------------------
0000 Xxxx Xxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
Paces West Atlanta, GA
------------------------------------------------------------------------------------------
0000 Xxxx Xxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
0000 Xxxxxxxxx Xxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
00 Xxxxx Xxxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
000 Xxxxx Xxxxxx Xxx Xxxx, XX
------------------------------------------------------------------------------------------
000 X. Xxxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
One American Center Austin, TX
------------------------------------------------------------------------------------------
122
------------------------------------------------------------------------------------------
Property Name Location
------------------------------------------------------------------------------------------
0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx, XX
------------------------------------------------------------------------------------------
Xxx Xxxxxxxxxx Xxxxx Xxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
Xxxxxx Xxxxx Xxxxxx Xxxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
Colonnade I San Antonio, TX
------------------------------------------------------------------------------------------
Xxx Xxxxxxx Xxxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
00 Xxxx Xxxxxx Xxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
000 Xxxxx Xxxxxx Xxxxxxxx, XX
------------------------------------------------------------------------------------------
Oakbrook Terrace Tower Oakbrook Terrace, IL
------------------------------------------------------------------------------------------
Xxx Xxxxxxxx Xxxxx Xxx Xxxxxxxxx, XX
------------------------------------------------------------------------------------------
Xxxxx Xxxxxx Tower San Diego, CA
------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxxx Xxx Xxxxxxxxx, XX
------------------------------------------------------------------------------------------
00 X. XxXxxxx Xxxxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
Prudential Portfolio Various
------------------------------------------------------------------------------------------
000 X. Xxxx Xxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
Four and Five Valley Square Blue Xxxx, PA
------------------------------------------------------------------------------------------
Four Falls Corporate Center Conshohocken, PA
------------------------------------------------------------------------------------------
Oak Hill Plaza King of Prussia, PA
------------------------------------------------------------------------------------------
Xxx Xxxxx Xxxxxx Xxxxx, XX
------------------------------------------------------------------------------------------
Three Devon Square Wayne, PA
------------------------------------------------------------------------------------------
Xxx Xxxxx Xxxxxx Xxxxx, XX
------------------------------------------------------------------------------------------
Xxx Xxxxxx Xxxxxx Xxxx Xxxx, XX
------------------------------------------------------------------------------------------
Xxx Xxxxxxxxx Xxxxxx Xxxxxxxxxx, X.X.
------------------------------------------------------------------------------------------
Xxx Xxxxxx Xxxxxx Xxxx Xxxx, XX
------------------------------------------------------------------------------------------
Three Valley Square Blue Xxxx, PA
------------------------------------------------------------------------------------------
0000 Xxxx Xxxxxx Xxxxxxxxxx, XX
------------------------------------------------------------------------------------------
Fair Oaks Plaza Fairfax, VA
------------------------------------------------------------------------------------------
Lakeside Square Dallas, TX
------------------------------------------------------------------------------------------
LaSalle Plaza Minneapolis, MN
------------------------------------------------------------------------------------------
0000 Xxxxx Xxxxxx Xxxxxxxx, XX
------------------------------------------------------------------------------------------
0000 Xxxxx Xxxxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
Calais Office Center Anchorage, AK
------------------------------------------------------------------------------------------
Xxxxx Fargo Center Seattle, WA
------------------------------------------------------------------------------------------
Nordstrom Medical Tower Seattle, WA
------------------------------------------------------------------------------------------
Xxx Xxxxxxxx Xxxxxx Xxxxxxxx, XX
------------------------------------------------------------------------------------------
Rainier Plaza Bellevue, WA
------------------------------------------------------------------------------------------
Second and Seneca Buildings Seattle, WA
------------------------------------------------------------------------------------------
000 X. Xxxxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
00000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
00000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
123
------------------------------------------------------------------------------------------
Property Name Location
------------------------------------------------------------------------------------------
0000 Xxxxx 00xx Xxxxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
0000 X Xxxxxx Xxxxxxxxxx, X.X.
------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
0000 X. Xxxx Xxxx Xxxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
0 Xxxxxx Xxxxxx-000 Xxxx Xxxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
000 Xxxx Xxxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
000 Xxxxxxxx Xxxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
AT&T Plaza Oak Brook, IL
------------------------------------------------------------------------------------------
Civic Opera House Chicago, IL
------------------------------------------------------------------------------------------
Xxxxxx Corporate Center Bedford, MA
------------------------------------------------------------------------------------------
Xxxxxx Corporate Center II Bedford, MA
------------------------------------------------------------------------------------------
Xxxx Xxxxxxxx Xxxxxxxx Xxxx Xxxxx Xxxxx, XX
------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxx Xxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
New England Executive Park Burlington, MA
------------------------------------------------------------------------------------------
Xxx Xxxxx Xxxx Xxxxxxxxx, XX
------------------------------------------------------------------------------------------
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
------------------------------------------------------------------------------------------
000 Xxxxxx Xxxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
The Tower at New England Executive Park Burlington, MA
------------------------------------------------------------------------------------------
Denver Post Tower Denver, CO
------------------------------------------------------------------------------------------
000 Xxxxxx Xxxxxxxx Xxx Xxxxxxxxx, XX
------------------------------------------------------------------------------------------
000 00xx Xxxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
Xxxxx Center Denver, CO
------------------------------------------------------------------------------------------
Trinity Place Denver, CO
------------------------------------------------------------------------------------------
Dominion Plaza Denver, CO
------------------------------------------------------------------------------------------
Millennium Plaza Englewood, CO
------------------------------------------------------------------------------------------
Polk and Xxxxxx Buildings Arlington, VA
------------------------------------------------------------------------------------------
Bank of America Tower Seattle, WA
------------------------------------------------------------------------------------------
Northland Plaza Bloomington, MN
------------------------------------------------------------------------------------------
0000 X. Xxxxxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
Metropoint Denver, CO
------------------------------------------------------------------------------------------
124
------------------------------------------------------------------------------------------
Property Name Location
------------------------------------------------------------------------------------------
Xxx Xxxx Xxxxxx Xxxxxxxxxxx, XX
------------------------------------------------------------------------------------------
Xxxx Xxxxxx Xxxxx Xxx Xxxx, XX
------------------------------------------------------------------------------------------
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
------------------------------------------------------------------------------------------
000 Xxxxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
Xxxxx Xxxxx Xxxxxx, XX
------------------------------------------------------------------------------------------
Metropoint II Denver, CO
------------------------------------------------------------------------------------------
0 Xxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
10 & 00 Xxxxx Xxxxxx Xxxxxxx, XX
------------------------------------------------------------------------------------------
Preston Commons Dallas, TX
------------------------------------------------------------------------------------------
Sterling Plaza Dallas, TX
------------------------------------------------------------------------------------------
Parking Facilities:
------------------------------------------------------------------------------------------
Property Name Location
------------------------------------------------------------------------------------------
Boston Harbor Garage Boston, MA
------------------------------------------------------------------------------------------
Milwaukee Center Garage Milwaukee, WI
------------------------------------------------------------------------------------------
0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxxxxxxxx, XX
------------------------------------------------------------------------------------------
00xx & Xxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxxxx, XX
------------------------------------------------------------------------------------------
0000-00 Xxxxxxxxxx Xxxxxx Xxxxxxxxxxxx, XX
------------------------------------------------------------------------------------------
0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxxxxxxxx, XX
------------------------------------------------------------------------------------------
Juniper/Locust Streets Garage Philadelphia, PA
------------------------------------------------------------------------------------------
Xxxxx-Wabash Garage Chicago, IL
------------------------------------------------------------------------------------------
Riverfront Center Pittsburg, PA
------------------------------------------------------------------------------------------
Forbes and Allies Garages Pittsburg, PA
------------------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx, XX
------------------------------------------------------------------------------------------
St. Louis Parking St. Louis, MO
------------------------------------------------------------------------------------------
125
SCHEDULE 4.4 (b)
Disclosure of
Additional Material Indebtedness
1. Drawings under this Agreement.
126
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
Stationary Engineers Local 39 Health and
Welfare Trust Fund
127
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 Xxxxx 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.
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.
128
SCHEDULE 5.11(c)(1)
EOP-QRS Trust
EOP-QRS LaJolla Trust
129
SCHEDULE 5.11(c)(2)
EOP-QRS Trust
EOP-QRS LaJolla Trust
130
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:
XXX-0000 Xxxxxx Xxxxxx Limited Partnership, a Delaware limited partnership
(1601 Market Street, Philadelphia, Pennsylvania)
EOP-1620 Limited Partnership, an Illinois limited partnership
(0000 X Xxxxxx, Xxxxxxxxxx, X.X.)
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)
