EXHIBIT 10.5
JOINT AND SEVERAL
HAZARDOUS MATERIAL
GUARANTY AND INDEMNIFICATION AGREEMENT
New York, New York
September 11, 1997
WHEREAS, BOSTON PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership having an office at c/o Boston Properties, Inc., 0 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx (the "Borrower"), has applied to THE CHASE MANHATTAN BANK,
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a New York banking corporation having an office at Chase Real Estate Finance
Group, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Chase"), as Administrative Agent
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for the Lenders (as such term is defined in that certain Term Loan Agreement, of
even date herewith (the "Term Loan Agreement")), for a loan in the principal sum
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of $220,000,000.00 (the "Term Loan"), which Term Loan will be secured, among
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other things, by that certain Mortgage, of even date herewith, made by the
Borrower to Chase (the "Mortgage"), covering premises known as 000 Xxxx Xxxxxx,
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Xxx Xxxx, Xxx Xxxx, and evidenced by the Note (as such term is defined in the
Mortgage);
WHEREAS, to induce the Lenders to enter into the Term Loan Agreement, the
Borrower and Boston Properties, Inc. ("BPI") have agreed to execute and deliver
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this Guaranty; and
WHEREAS, the Lenders are willing to make the Term Loan only if the Borrower
and BPI execute and deliver this Guaranty;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the Borrower and Boston Properties, Inc. hereby acknowledge, agree
and confirm that all of the above recitals are true, correct and complete and
hereby covenant and agree with the Lenders as follows:
1. For the purposes of this Guaranty the following terms shall have the
following meanings:
(a) the term "Hazardous Materials" has the meaning given to such term
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in the Term Loan Agreement;
(b) the term "Environmental Laws" has the meaning given to such term
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in the Term Loan Agreement;
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(c) the term "Governmental Authority" has the meaning given to such
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term in the Term Loan Agreement;
(d) the term "Mortgaged Property" shall have the meaning given to such
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term in the Mortgage;
(e) the term "Indebtedness" shall mean all principal, interest,
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additional interest (including specifically all interest accruing from and after
the commencement of any case, proceeding or action under any existing or future
laws relating to bankruptcy, insolvency or similar matters with respect to the
Borrower) and other sums of any nature whatsoever which may or shall become due
and payable pursuant to the provisions of the Note, the Mortgage, the Term Loan
Agreement or any other Transaction Documents (all of the above unaffected by
modification thereof in any bankruptcy or insolvency proceeding), and even
though the Lenders may not have an allowed claim for the same against the
Borrower as a result of any bankruptcy or insolvency proceeding; and
(f) the term "Material Adverse Effect" has the meaning given to such
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term in the Term Loan Agreement.
2. The undersigned hereby represents and warrants to the Lenders that to
the best of their knowledge after diligent inquiry:
(a) no Hazardous Materials are currently located at, on, in, under or
about the Mortgaged Property, except as specifically set forth in Schedule 3.06
of the Term Loan Agreement or, to the extent not set forth in Schedule 3.06 of
the Term Loan Agreement, which would have a Material Adverse Effect;
(b) no Hazardous Materials have been released, emitted, discharged,
leached, dumped or disposed of onto or into the Mortgaged Property, except as
specifically set forth in Schedule 3.06 of the Term Loan Agreement or, to the
extent not set forth in Schedule 3.06 of the Term Loan Agreement, which would
have a Material Adverse Effect;
(c) except as set forth in Schedule 3.06 of the Term Loan Agreement,
no Hazardous Materials are currently located at, in, on, under or about the
Mortgaged Property in a manner which violates any Environmental Laws, or which
requires cleanup or corrective action of any kind under any Environmental Laws;
(d) except as set forth in Schedule 3.06 of the Term Loan Agreement no
releasing, emitting, discharging, leaching, dumping or disposing of any
Hazardous Materials from the Mortgaged Property onto or into any other property
or from any other property onto or into the Mortgaged Property has occurred or
is occurring in violation of any Environmental Law;
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(e) no notice of violation, lien, complaint, suit, order or other
notice with respect to the Mortgaged Property is presently outstanding under any
Environmental Law; and
(f) except as set forth in Schedule 3.06 of the Term Loan Agreement,
the Mortgaged Property and the operation thereof are in full compliance with all
Environmental Laws, but whether or not disclosed in Section 3.06 of the Term
Loan Agreement, if the Mortgaged Property is not in full compliance with all
Environmental Laws, such non-compliance would not result in a Material Adverse
Effect.
3. The undersigned absolutely and unconditionally guarantees to the
Lenders that the Borrower will fully comply with all of the terms, covenants and
provisions of Sections 3.06(b), (d), (e), (f), (g) and (h) and Section 5.05(e)
of the Term Loan Agreement. If the Borrower does not fully comply with all of
the terms, covenants and provisions of said Sections of the Term Loan Agreement,
the undersigned shall reimburse the Lenders upon demand for all sums and costs
and expenses incurred by the Lenders to the extent not otherwise reimbursed to
the Lenders by the Borrower pursuant to said Sections of the Term Loan Agreement
and/or in connection with the Lenders performing the Borrower's obligations as
set forth in said Sections of the Term Loan Agreement (including specifically
all such sums and interest thereon accruing from and after the commencement of
any case, proceeding or action under any existing or future laws relating to
bankruptcy, insolvency or similar matters with respect to the Borrower), it
being understood and agreed that, the undersigned's obligations hereunder shall
be unaffected by modification of any of the Borrower's obligations in any
bankruptcy or insolvency proceeding, nor by the fact that the Lenders may not
have an allowed claim for the same against the Borrower as a result of any
bankruptcy or insolvency proceeding.
4. The undersigned will defend, indemnify, and hold harmless the Lenders
and their respective employees, agents, officers, and directors (collectively,
"Indemnitees"), from and against any and all claims, demands, penalties, causes
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of action, fines, liabilities, settlements, damages, costs, or expenses of
whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or
otherwise (including, without limitation, counsel and consultant fees and
expenses, investigation and laboratory fees and expenses, court costs, and
litigation expenses) arising out of, or in any way related to:
(a) any breach by the Borrower of any of the provisions of Sections
3.06(b), (d), (e), (f), (g) and (h) and Section 5.05(e) of the Term Loan
Agreement;
(b) the presence, disposal, spillage, discharge, emission, leakage,
release, or threatened release of any Hazardous Materials which is at, in, on,
under, about, from or affecting the Mortgaged Property, including, without
limitation, any damage or injury resulting from any such Hazardous Materials to
or affecting the Mortgaged Property or the soil, water, air, vegetation,
buildings, personal property, or persons located on the Mortgaged Property;
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(c) any personal injury (including wrongful death) or property damage
(real or personal) arising out of or related to the presence of any such
Hazardous Materials on the Mortgaged Property;
(d) any lawsuit brought or threatened, settlement reached, or order or
directive of or by any Governmental Authority relating to such Hazardous
Materials on the Mortgaged Property; or
(e) any violation of any Environmental Law in respect of the presence
of Hazardous Materials on the Mortgaged Property.
Notwithstanding anything in this Section 4 to the contrary, the undersigned
shall not be liable to the Lenders under the foregoing indemnity with respect to
Hazardous Materials which (a) first comes into existence on the Mortgaged
Property after the Lenders or their designee has either taken title to the
Mortgaged Property or entered into actual possession of the Mortgaged Property,
except to the extent the presence or alleged presence of such Hazardous Material
is due in whole or in part to the prior acts or omissions of the undersigned, or
(b) are caused to be present on or about the Mortgaged Property by the
Administrative Agent or any Lender.
5. The undersigned hereby indemnifies and shall hold harmless and defend
the Lenders at the undersigned's sole cost and expense against any loss or
liability, fine, claim, demand, penalty, damage, cost or expense, whether known
or unknown, foreseen or unforeseen, contingent or otherwise (including, but not
limited to, reasonable attorneys' fees and disbursements of the Lenders'
counsel, whether in-house staff, retained firms or otherwise), arising out of or
relating to (a) (i) any breach by the Borrower of any of the provisions of
Section 3.06 (b), (d), (e), (f), (g) or (h) or Section 5.05(e) of the Term Loan
Agreement, (ii) the presence, disposal, spillage, discharge, emission, leakage,
release, or threatened release of any Hazardous Materials which is at, in, on,
under, about, from or affecting the Mortgaged Property, including, without
limitation, any damage or injury resulting from any such Hazardous Materials to
or affecting the Mortgaged Property or the soil, water, air, vegetation,
buildings, personal property, or persons located on the Mortgaged Property, or
on any other property or otherwise as a consequence of Hazardous Materials
emanating from the Mortgaged Property; (iii) any personal injury (including
wrongful death) or property damage (real or personal) arising out of or related
to any such Hazardous Materials, (iv) any lawsuit brought or threatened,
settlement reached, or order or directive of or by any Governmental Authority
relating to such Hazardous Materials, or (v) any violation of any Environmental
Laws relating to the Mortgaged Property which has a Material Adverse Effect; and
(b) any and all lawful action that may be taken by the Lenders in connection
with the enforcement of the provisions of this Guaranty and the obligations of
the undersigned hereunder, whether or not suit is filed in connection with the
same, or in connection with any of the undersigned becoming a party to a
voluntary or involuntary federal or state bankruptcy, insolvency or similar
proceeding. All sums expended by the Lenders shall be payable within ten (10)
Business Days of demand and, until reimbursed by the undersigned pursuant
hereto, shall bear interest at the Default Rate.
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6. In litigation, or the preparation therefor, in respect of the
indemnity of the undersigned to any of the Indemnitees, the undersigned shall be
entitled to select counsel reasonably acceptable to the Required Lenders, and
the Administrative Agent (as approved by the Required Lenders) shall be entitled
to select their own supervisory counsel. Prior to any settlement of any such
litigation by the Lenders, the Lenders shall provide the undersigned with notice
and the opportunity to address any of their concerns with the Lenders, and the
Lenders shall not settle any litigation without first obtaining the consent of
the undersigned thereto, which consent, by reason of this Guaranty, may be
withheld by the undersigned in its sole discretion.
7. (a) Subject to the provisions of subparagraph (b) of this Section 7,
the obligations and liabilities of the undersigned under this Guaranty shall
survive and continue in full force and effect and shall not be terminated,
discharged or released, in whole or in part, irrespective of whether the
Indebtedness has been paid in full and irrespective of any foreclosure of the
Mortgage, sale of the Mortgaged Property pursuant to the provisions of the
Mortgage or acceptance by the Lenders or their designee of a deed or assignment
in lieu of foreclosure or sale and irrespective of any other fact or
circumstance of any nature whatsoever.
(b) All obligations and liabilities of the undersigned under this
Guaranty and Indemnification Agreement shall cease and terminate eighteen (18)
months after the date of payment in full of the Term Loan (the "Cut-Off Date"),
provided that contemporaneously with or subsequent to such payment in full, the
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undersigned, at its sole cost and expense, delivers to the Administrative Agent
an environmental audit of the Mortgaged Property in form and substance, and
prepared by a qualified environmental consultant, satisfactory in all respects
to the Administrative Agent and indicating that the Mortgaged Property is in
full compliance with all applicable Environmental Laws, and provided further,
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however, that the undersigned shall continue to be obligated to indemnify the
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Indemnitees from and against any penalty, fine, liability, damage, cost or other
expense incurred by any of them and to which the aforesaid indemnification
pertains to the extent that the same arises out of any claim, penalty, fine,
liability or damage which is asserted or cause of action or suit which is
commenced prior to, or which otherwise relates back to the period before, the
Cut-Off Date; provided further that if there shall be a foreclosure of the
Mortgage, and title to the Mortgaged Property shall be transferred to the
Lenders or their designee, then the Cut-Off Date shall be twenty-four (24)
months from the later to occur of (x) the date title is so transferred and (y)
the date of such audit. In addition, if prior to the Cut-Off Date, the Term
Loan was paid in full the Mortgaged Property is sold (other than pursuant to a
foreclosure of the Mortgage), and any Lender shall become a mortgagee of the
Mortgaged Property, then with respect to such Lender or Lenders, the Cut-Off
Date shall be the date such Lender or Lenders becomes a mortgagee of the
Mortgaged Property pursuant to a mortgage other than the Mortgage.
(c) Notwithstanding the provisions of subparagraph (b) of this Section
7, in no event shall the provisions of subparagraph (b) release or terminate the
obligations and liabilities of the undersigned under this Guaranty and
Indemnification Agreement with respect to any Hazardous Materials relating to
the Mortgaged Property which were known to either of
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the undersigned prior to repayment of the Term Loan in full or which was caused
to be present on or about the Mortgaged Property prior to repayment of the Term
Loan in full.
8. The undersigned hereby expressly agrees that this Guaranty is
independent of, and in addition to, all collateral granted, pledged or assigned
under the Transaction Documents.
9. Except as provided in Section 5 hereof, the undersigned hereby waives:
(a) notice of acceptance of this Guaranty;
(b) protest and notice of dishonor or default to any of the
undersigned or to any other person or party with respect to any obligations
hereby guaranteed;
(c) all other notices to which any of the undersigned might otherwise
be entitled; and
(d) any demand under this Guaranty.
10. This is a guaranty of payment and not of collection by BPI and a
personal recourse obligation of the Borrower, and BPI further waives any right
to require that any action be brought against the Borrower or any other person
or party or to require that resort be had to any security or to any balance of
any deposit account or credit on the books of the Lenders in favor of the
Borrower or any other person or party. Any payment on account of or
reacknowledgment of the Indebtedness by the Borrower, or any other party liable
therefor or action taken, payment or reacknowledgment made, of any of the
obligations of the Borrower under Section 3.06 and Section 5.05(e) of the Term
Loan Agreement or otherwise with respect to any Environmental Laws or to the
Lenders in connection therewith shall be deemed to be taken or made on behalf of
the undersigned and shall serve to start anew the statutory period of
limitations applicable to the obligations of the Borrower and/or the undersigned
pursuant to said Sections of the Term Loan Agreement, hereunder or otherwise
with respect to any Environmental Laws or to the Lenders in connection therewith
or herewith.
11. Each reference herein to the Lenders shall be deemed to include each
of their respective successors and assigns, including without limitation, Chase
and its successors and assigns permitted to the provisions of Term Loan
Agreement, in whose favor the provisions of this Guaranty shall also inure, and
each reference herein to Chase shall be deemed to include Chase, in its capacity
as Administrative Agent under the Transaction Documents (as such term is defined
in the Term Loan Agreement), and in its capacity as a Lender. Each reference
herein to the undersigned shall be deemed to include the heirs, executors,
administrators, legal representatives, successors and assigns of the
undersigned, all of whom shall be bound by the provisions of this Guaranty,
provided, however, that the undersigned shall in no event nor under any
circumstance have the right, without obtaining the prior written consent of the
Lenders, to
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assign or transfer the undersigned's obligations and liabilities under this
Guaranty, in whole or in part, to any other person, party or entity.
12. BPI hereby consents that from time to time, before or after any
default by the Borrower, with or without further notice to or assent from any of
the undersigned:
(a) any security at any time held by or available to the Lenders for
any obligation of the Borrower, or any security at any time held by or available
to the Lenders for any obligation of any other person or party primarily,
secondarily or otherwise liable for all or any portion of the Indebtedness, the
Liabilities and/or any other obligations of the Borrower or any other person or
party, other than the Lenders, under any of the Transaction Documents ("Other
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Obligations"), if any, including any guarantor of the Indebtedness, the
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Liabilities and/or of any of such Other Obligations, may be accelerated,
settled, exchanged, surrendered or released and the Lenders may fail to set off
and may release, in whole or in part, any balance of any deposit account or
credit on its books in favor of the Borrower, or any such other person or party;
(b) any obligation of the Borrower, or of any such other person or
party, may be changed, altered, renewed, extended, continued, accelerated,
surrendered, compromised, settled, waived or released in whole or in part, or
any default with respect thereto waived; and
(c) the Lenders may extend further credit in any manner whatsoever to
the Borrower, and generally deal with the Borrower or any of the above mentioned
security, deposit account, credit on its books or other person or party as the
Lenders may see fit;
and BPI shall remain bound under this Guaranty, without any loss of rights by
the Lenders and without affecting the liability of the undersigned,
notwithstanding any such exchange, surrender, release, change, alteration,
renewal, extension, continuance, compromise, waiver, inaction, extension of
further credit or other dealing. In addition, all moneys available to the
Lenders for application in payment or reduction of the Indebtedness, the
Liabilities and/or any Other Obligations may be applied by the Lenders in such
manner and in such amounts and at such time or times and in such order, priority
and proportions as the Lenders may see fit; and the Borrower agrees that none of
the events described in clauses (a)-(c) above shall be construed in any way to
result in a release of the Borrower from its personal recourse obligations
hereunder for the Liabilities.
13. The term "undersigned" as used herein shall, if this Guaranty is
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signed by more than one party, unless otherwise stated herein, mean the
"undersigned and each of them" and each undertaking herein contained shall be
their joint and several undertaking. The Lenders may proceed against none, one
or more of the undersigned at one time or from time to time as the Lenders see
fit in each of their sole and absolute discretion. If any party hereto shall be
a partnership, the agreements and obligations on the part of the undersigned
herein contained shall remain in force and application notwithstanding any
changes in the individuals composing the
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partnership and the term "undersigned" shall include any altered or successive
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partnerships but the predecessor partnerships and their general partner(s) shall
not thereby be released from any obligations or liability hereunder. If any
party hereto shall be a corporation, the agreements and obligations on the part
of the undersigned herein contained shall remain in force and application
notwithstanding the merger, consolidation, reorganization or absorption thereof,
and the term "undersigned" shall include such new entity, but the old entity
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shall not thereby be released from any obligations or liabilities hereunder. The
Borrower is executing this Guaranty as a further assurance that its obligations
set forth herein will, subject to the provisions of Section 6(b) hereof, remain
in full force and effect, notwithstanding the assignment or discharge of record
of the Mortgage or any other fact or circumstances whatsoever.
14. No delay on the part of the Lenders in exercising any right or remedy
under this Guaranty or failure to exercise the same shall operate as a waiver in
whole or in part of any such right or remedy. No notice to or demand on any of
the undersigned shall be deemed to be a waiver of the obligation of all of the
undersigned or of the right of the Lenders to take further action without notice
or demand as provided in this Guaranty. No course of dealing between any of the
undersigned and the Lenders shall change, modify or discharge, in whole or in
part, this Guaranty or any obligations of the undersigned hereunder.
15. This Guaranty may only be modified, amended, changed or terminated by
an agreement in writing signed by Chase, as Administrative Agent, and both of
the undersigned. No waiver of any term, covenant or provision of this Agreement
shall be effective unless given in writing by Chase, as Administrative Agent,
and if so given by Chase shall only be effective in the specific instance in
which given. The execution and delivery hereafter to Chase or any other Lender
by any of the undersigned of a new instrument of guaranty or any reaffirmation
of guaranty, of whatever nature, shall not terminate, supersede or cancel this
instrument, unless executed by Chase, as Administrative Agent, and expressly so
provided therein, and all rights and remedies of Chase and the other Lenders
hereunder and under each other Transaction Document, at law and in equity,
whether against any or both of the undersigned or any other party or parties,
shall be cumulative and may be exercised singly or concurrently.
16. The undersigned acknowledges that this Guaranty and the undersigned's
obligations under this Guaranty are and shall at all times continue to be
absolute, irrevocable and unconditional in all respects, and shall at all times
be valid and enforceable irrespective of any other agreements or circumstances
of any nature whatsoever which might otherwise constitute a defense to this
Guaranty and the obligations of all of the undersigned under this Guaranty or
the obligations of any other person or party (including, without limitation, the
Borrower) relating to this Guaranty or the obligations of all of the undersigned
hereunder or otherwise with respect to the Indebtedness, including, but not
limited to, a foreclosure of the Mortgage or the realization upon any other
collateral given, pledged or assigned as security for all or any portion of the
Indebtedness, or the filing of a petition under Title 11 of the United States
Code with regard to the Borrower or the undersigned, or the commencement of an
action or proceeding for the benefit of the creditors of the Borrower or the
undersigned, or the obtaining by the Lenders
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of title to, respectively, the Mortgaged Property or to any collateral given,
pledged or assigned as security for the Indebtedness by reason of the
foreclosure or enforcement of the Mortgage or any other pledge or security
agreement, the acceptance of a deed or assignment in lieu of foreclosure or
sale, or otherwise. This Guaranty sets forth the entire agreement and
understanding of the Lenders and the undersigned with respect to the matters
covered by this Guaranty, and the undersigned acknowledges that no oral or other
agreements, understandings, representations or warranties exist with respect to
this Guaranty or with respect to the obligations of the undersigned under this
Guaranty, except those specifically set forth in this Guaranty.
17. This Guaranty has been validly authorized, executed and delivered by
the undersigned. The undersigned represents and warrants to the Lenders that it
has the corporate power to do so and to perform its obligations under this
Guaranty and this Guaranty constitutes the legally binding obligation of the
undersigned fully enforceable against the undersigned in accordance with the
terms hereof. The undersigned further represents and warrants to the Lenders
that:
(a) neither the execution and delivery of this Guaranty nor the
consummation of the transactions contemplated hereby nor compliance with the
terms and provisions hereof will violate any applicable provision of law or any
applicable regulation or other manifestation of governmental action; and
(b) all necessary approvals, consents, licenses, registrations and
validations of any governmental regulatory body, including, without limitation,
approvals required to permit the undersigned to execute and carry out the
provisions of this Guaranty, for the validity of the obligations of the
undersigned hereunder and for the making of any payment or remittance of any
funds required to be made by the undersigned under this Guaranty, have been
obtained and are in full force and effect.
18. Notwithstanding any payments made by all of the undersigned pursuant
to the provisions of this Guaranty, the undersigned shall not seek to enforce or
collect upon any rights which it now has or may acquire against the Borrower
either by way of subrogation, indemnity, reimbursement or contribution for any
amount paid under this Guaranty or by way of any other obligations whatsoever of
the Borrower to any of the undersigned, nor shall any of the undersigned file,
assert or receive payment on any claim, whether now existing or hereafter
arising, against the Borrower in the event of the commencement of a case by or
against the Borrower under Title 11 of the United States Code. In the event
either a petition is filed under said Title 11 of the United States Code with
regard to the Borrower or an action or proceeding is commenced for the benefit
of the creditors of the Borrower, this Guaranty shall at all times thereafter
remain effective in regard to any payments or other transfers of assets to the
Lenders received from or on behalf of the Borrower prior to notice of
termination of this Guaranty and which are or may be held voidable on the
grounds of preference or fraud, whether or not the Indebtedness has been paid in
full. Any payment on account of or reacknowledgment of the Indebtedness by the
Borrower, or any other party liable therefor, or action taken, or payment
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or reacknowledgment made, of any of the obligations of the Borrower to take and
complete the actions specified in Article 6 of the Mortgage and Section 5.05(e)
of the Term Loan Agreement shall serve to start anew the statutory period of
limitations applicable to the Borrower with respect to said Article 6 and
Section 5.05(e), and the undersigned hereunder.
19. Any notice, request or demand given or made under this Guaranty shall
be in writing and shall be hand delivered or sent by Federal Express or other
reputable courier service or by postage prepaid registered or certified mail,
return receipt requested, and shall be deemed given (a) when received at the
following addresses if hand delivered or if sent by Federal Express or other
reputable courier service, and (b) three (3) Business Days after being
postmarked and addressed as follows if sent by registered or certified mail,
return receipt requested:
If to Chase:
The Chase Manhattan Bank
Chase Real Estate Finance Group
000 Xxxxxxx Xxxxxx - 40th Floor
New York, New York 10017
Attention: Xx. Xxxxx X. Xxxxxxx, Vice President
With a copy to:
The Chase Manhattan Bank
Legal Department
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
and
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
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If to the undersigned:
Boston Properties, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
President and Chief Executive Officer
With a copy to:
Xxxxxxx, Xxxx & Xxxxx LLP
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Van, Esq.
it being understood and agreed that each party will use reasonable efforts to
send copies of any notices to the addresses marked "With a copy to"
hereinabove set forth; provided, however, that failure to deliver such copy or
copies shall have no consequence whatsoever to the effectiveness of any notice
made to any of the undersigned or Chase. Each party to this Guaranty may
designate a change of address by notice given, as herein provided, to the other
party fifteen (15) days prior to the date such change of address is to become
effective.
20. This Guaranty is, and shall be deemed to be, a contract entered into
under and pursuant to the laws of the State of New York and shall be in all
respects governed, construed, applied and enforced in accordance with the laws
of the State of New York without regard to principles of conflicts of laws. The
undersigned acknowledges and agrees that this Guaranty is, and is intended to
be, an instrument for the payment of money only, as such phrase is used in
(S)3213 of the Civil Practice Law and Rules of the State of New York, and the
undersigned has been fully advised by its counsel of the Lenders' rights and
remedies pursuant to said (S)3213. Nevertheless, the Lenders are hereby given
the right to elect, in its sole and absolute discretion, that this Guaranty be
governed by the laws of the state in which the Mortgaged Property is situate.
21. The undersigned agrees to submit to personal jurisdiction in the State
of New York in any action or proceeding arising out of this Guaranty. In
furtherance of such agreement, the undersigned hereby agrees and consents that
without limiting other methods of obtaining jurisdiction, personal jurisdiction
over the undersigned in any such action or proceeding may be obtained within or
without the jurisdiction of any court located in New York and that any process
or notice of motion or other application to any such court in connection
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with any such action or proceeding may be served upon the undersigned by
registered or certified mail to, or by personal service at, the last known
address of the undersigned, whether such address be within or without the
jurisdiction of any such court. The undersigned hereby further agrees that the
venue of any litigation arising in connection with the Indebtedness or in
respect of any of the obligations of the undersigned under this Guaranty, shall,
to the extent permitted by law, be in New York County.
22. The undersigned absolutely, unconditionally and irrevocably waives any
and all right to assert or interpose any defense, setoff, counterclaim or
crossclaim of any nature whatsoever with respect to this Guaranty or the
obligations of the undersigned under this Guaranty or the obligations of any
other person or party (including, without limitation, the Borrower) relating to
this Guaranty or the obligations of the undersigned hereunder or otherwise with
respect to the Term Loan in any action or proceeding brought by the Lenders to
collect the Indebtedness, or any portion thereof, or to enforce the obligations
of the undersigned under this Guaranty (provided, however, that the foregoing
shall not be deemed a waiver of the right of the undersigned to assert any
compulsory counterclaim maintained in a court of the United States, or of the
State of New York if such counterclaim is compelled under local law or rule of
procedure, nor shall the foregoing be deemed a waiver of the right of the
undersigned to assert any claim which would constitute a defense, setoff,
counterclaim or crossclaim of any nature whatsoever against the Lenders in any
separate action or proceeding). The undersigned hereby undertakes and agrees
that, subject to the provisions of Section 6(b) hereof, this Guaranty shall
remain in full force and effect for all of the obligations and liabilities of
the undersigned hereunder, notwithstanding the maturity of the Term Loan,
whether by acceleration, scheduled maturity or otherwise.
23. No exculpatory provisions which may be contained in any Transaction
Document shall in any event or under any circumstances be deemed or construed to
modify, qualify, or affect in any manner whatsoever the obligations and
liabilities of the undersigned under this Guaranty.
24. The obligations and liabilities of the undersigned under this Guaranty
are in addition to the obligations and liabilities of the undersigned under the
Other Guaranties (as hereinafter defined). The discharge of any or all of the
undersigned's obligations and liabilities under any one or more of the Other
Guaranties by the undersigned or by reason of operation of law or otherwise
shall in no event or under any circumstance constitute or be deemed to
constitute a discharge, in whole or in part, of the undersigned's obligations
and liabilities under this Guaranty. Conversely, the discharge of any or all of
the undersigned's obligations and liabilities under this Guaranty by the
undersigned or by reason of operation of law or otherwise shall in no event or
under any circumstance constitute or be deemed to constitute a discharge, in
whole or in part, of the undersigned's obligations and liabilities under any of
the Other Guaranties. The term "Other Guaranties" as used herein shall mean
(a) that certain Joint and Several Guaranty And Agreement (Net Cash Flow
Shortfall) of even date and execution herewith made by the undersigned to and
for the benefit of Chase, (b) that certain Joint And Several
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Hazardous Material Guaranty And Indemnification Agreement of even date and
execution herewith made by the undersigned to and for the benefit of Chase and
(c) any other agreement, if any, now or hereafter given by any of the
undersigned pursuant to which either or both have recourse obligations to Chase
and/or the other Lenders in connection with the Term Loan.
25. This Guaranty may be executed in one or more counterparts by some or
all of the parties hereto, each of which counterparts shall be an original and
all of which together shall constitute a single agreement of guaranty. The
failure of any party listed below to execute this Guaranty, or any counterpart
hereof, or the ineffectiveness for any reason of any such execution, shall not
relieve the other signatories from their obligations hereunder.
26. Capitalized terms not defined herein shall have the meaning ascribed
thereto in the Term Loan Agreement.
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27. The undersigned hereby irrevocably and unconditionally waives, and the
Lenders by its acceptance of this Guaranty irrevocably and unconditionally
waives, any and all right to trial by jury in any action, suit or counterclaim
arising in connection with, out of or otherwise relating to this Guaranty.
IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty the day
and year first above set forth.
BOSTON PROPERTIES, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
BOSTON PROPERTIES LIMITED
PARTNERSHIP,
a Delaware limited partnership
By BOSTON PROPERTIES, INC., its sole
general partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
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Corporate Acknowledgement
-------------------------
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On the 11th day of September, 1997, before me personally came Xxxxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he has
an office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; that he is the Senior
Vice President of Boston Properties, Inc., the corporation described in and
which executed the above instrument; and that he signed his name thereto by
authority of the Board of Directors of said corporation on its own behalf and as
general partner of Boston Properties Limited Partnership.
/s/ Xxxxxxx Xxxxxx
---------------------------
Notary Public
[NOTARY STAMP APPEARS HERE]
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Limited Partnership Acknowledgement
-----------------------------------
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On the 11th day of September, 1997, before me personally came Xxxxxx X.
Xxxxxx, to me known and sworn to me to be the Senior Vice President of BOSTON
PROPERTIES INC., a Delaware corporation, the sole general partner of BOSTON
PROPERTIES LIMITED PARTNERSHIP, the Delaware Limited Partnership which executed
the foregoing instrument and he acknowledged before me that he executed the same
as the Senior Vice President of said general partner aforesaid for the uses and
purposes in said instrument set forth.
/s/ Xxxxxxx Xxxxxx
---------------------------
Notary Public
[NOTARY STAMP APPEARS HERE]
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