Exhibit 4.1
REVOLVING CREDIT AGREEMENT
for $1,000,000,000 Revolving Credit Facility
dated as of May 9, 2003
among
EOP OPERATING LIMITED PARTNERSHIP,
THE BANKS LISTED HEREIN,
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arranger and Joint Bookrunner,
X.X. XXXXXX SECURITIES INC.,
as Joint Lead Arranger and Joint Bookrunner,
BANK OF AMERICA, N.A.,
as Administrative Agent,
JPMORGAN CHASE BANK,
as Syndication Agent,
BANK ONE, NA,
as Documentaion Agent
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY, XXXXXX XXXXXXX BANK, UBS AG CAYMAN
ISLANDS BRANCH, PNC BANK, NATIONAL ASSOCIATION, and
U.S. BANK NATIONAL ASSOCIATION,
as Senior Managing Agents
CITICORP NORTH AMERICA, INC., CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS
XXXXXX XXXXXXX XXXXXX, XXXXXXXX XX, XXX XXXX BRANCH,
LASALLE BANK NATIONAL ASSOCIATION, XXXXXXX XXXXX BANK USA, and WACHOVIA BANK,
as Managing Agents
AND
NATIONAL AUSTRALIA BANK LIMITED, UNION BANK OF CALIFORNIA, N.A. and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Co-Agents.
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") dated as of May 9, 2003
among EOP OPERATING LIMITED PARTNERSHIP (the "Borrower"), the BANKS listed on
the signature pages hereof, BANC OF AMERICA SECURITIES LLC, as Joint Lead
Arranger and Joint Bookrunner, X.X. XXXXXX SECURITIES INC., as Joint Lead
Arranger and Joint Bookrunner, BANK OF AMERICA, N.A., as Administrative Agent,
JPMORGAN CHASE BANK, as Syndication Agent, BANK ONE, NA, as Documentation Agent,
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY, XXXXXX XXXXXXX BANK, UBS AG CAYMAN
ISLANDS BRANCH, PNC BANK, NATIONAL ASSOCIATION, and U.S. BANK NATIONAL
ASSOCIATION, as Senior Managing Agents, CITICORP NORTH AMERICA, INC., CREDIT
SUISSE FIRST BOSTON, ACTING THROUGH ITS XXXXXX XXXXXXX XXXXXX, XXXXXXXX XX, XXX
XXXX BRANCH, LASALLE BANK NATIONAL ASSOCIATION, XXXXXXX XXXXX BANK USA, and
WACHOVIA BANK, as Managing Agents, and NATIONAL AUSTRALIA BANK LIMITED, UNION
BANK OF CALIFORNIA, N.A. and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Co-Agents.
W I T N E S S E T H
The parties hereto agree as follows:
1 ARTICLE
2 DEFINITIONS
2.1. SECTION 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.
"Administrative Agent" shall mean Bank of America, N.A. in its
capacity as Administrative Agent hereunder, and its permitted successors in such
capacity in accordance with the terms of this Agreement.
"Administrative Questionnaire" means with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
"Affiliate Qualified Institution" means one or more banks, finance
companies, insurance or other financial institutions which (A) has (or, in the
case of a bank or other financial
institution which is a subsidiary, such bank's or financial institution's parent
has) a rating of its senior unsecured debt obligations of not less than Baa-1 by
Xxxxx'x or a comparable rating by a rating agency acceptable to Administrative
Agent and (B) has total assets in excess of Five Hundred Million Dollars
($500,000,000).
"Agent-Related Persons" means the Administrative Agent, together
with its affiliates (including, in the case of Bank of America, N.A. in its
capacity as Administrative Agent, Banc of America Securities LLC), and the
officers, directors, employess, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agents" shall mean the Administrative 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
"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.
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)
-------- ------------- -------------
Non-Invest-
ment Grade 0.0 1.25
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).
"Auto-Renewal Letter of Credit" has the meaning set forth in Section
2.16(c).
"Authorized Officer" means any of Xxxxxxx Fear, Xxxxxxx Xxxxx, Xxxxx
Xxxxx, Xxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxxxx Xxxxx, or any other officer of
Borrower who Borrower shall notify the Administrative Agent is an Authorized
Officer.
"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."
"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 are authorized by law to close (i) in Dallas, Texas,
and (ii) in the case of Euro-Dollar Loans, in London, England and/or Dallas,
Texas, and (iii) in the case of Letters of Credit transactions for a particular
Fronting Bank, in the place where its office for issuance or administration of
the pertinent Letter of Credit is located and/or Dallas, Texas.
"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 or Fitch
(or, if at any time no two of the foregoing shall be rating such obligations,
then from such other nationally recognized rating services acceptable to
Administrative Agent ); (d) domestic corporate bonds, other than domestic
corporate bonds issued by Borrower or any of its Affiliates, maturing no more
than two (2) years after the date of acquisition thereof and, at the time of
acquisition, having a rating of at least A or the equivalent from any two (2) of
S&P, Xxxxx'x 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 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 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 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.
"Co-Agents" means NATIONAL AUSTRALIA BANK LIMITED, UNION BANK OF
CALIFORNIA, N.A. and DEUTSCHE BANK TRUST COMPANY AMERICAS, 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
as well as Loans required to be made by a Bank pursuant to Section 2.16 to
reimburse a Fronting Bank for a Letter of Credit that has been drawn down;
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant 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 2003,
from Banc of America Securities LLC, X.X. Xxxxxx, Securities, Inc., Bank of
America, N.A., and JPMorgan Chase Bank.
"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 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.
"Credit Rating" means the rating assigned by the Rating Agencies to
Borrower's senior unsecured long term indebtedness.
"Debt Restructuring" means a restatement of, or material change in,
the amortization or other financial terms of any Indebtedness of EOPT, the
Borrower or any Subsidiary or Investment Affiliate.
"Debt Service" means, for any period and without duplication,
Interest Expense for such period plus scheduled principal amortization
(excluding Balloon Payments) for such period on all Balance Sheet Indebtedness
of Borrower on a consolidated basis, plus Borrower's Share of scheduled
principal amortization (excluding Balloon Payments) for such period on all
Balance Sheet Indebtedness of Investment Affiliates.
"Default" means any condition or event which with the giving of
notice or lapse of time or both would, unless cured or waived, become an Event
of Default.
"Default Rate" has the meaning set forth in Section 2.8(d).
"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 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 Bank One, NA, 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.
"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).
"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 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 Rate" means for any Interest Period with respect to any
Euro-Dollar Loan, a rate per annum determined by Administrative Agent pursuant
to the following formula:
Euro-Dollar Base Rate
-------------------------------------
Euro-Dollar Rate = 1.00 - Euro-Dollar Reserve Percentage
Where,
"Euro-Dollar Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London time)
two (2) Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be available,
the rate per annum equal to the rate that appears on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO page, the applicable rate
shall be the arithmetic mean of all such rates, or
(c) If the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as the
rate of interest at which deposits in dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the
Euro-Dollar Loan being made, continued or converted by the Banks, and with a
term equivalent to such Interest Period would be offered by Bank of America,
N.A.'s London Branch to major banks in the London interbank eurodollar market at
their request at
approximately11:00 a.m. (London time) two (2) Business Days prior to the first
day of such Interest Period.
"Euro-Dollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal, carried out to
five decimal places) in effect on such day, whether or not applicable to any
Lender, under regulations issued from time to time by the Federal Reserve Board
for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities"). The Euro-Dollar
Rate for each outstanding Euro-Dollar Loan shall be adjusted automatically 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 Revolving Credit Agreement, dated as of May
12, 2000, 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 Revolving Credit Agreement and
Consent Agreement, dated as of May 2001 and that certain Second Amendment to
Revolving Credit Agreement, dated as of September 2001.
"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 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.
"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, Inc., or any successor thereto.
"Fixed Charges" for any Fiscal Quarter period means the sum of (i)
Debt Service for such period, (ii) dividends on preferred units payable by
Borrower for such period, and (iii) distributions made by Borrower in such
period to EOPT for the purpose of paying dividends on preferred shares in EOPT.
"Fixed Rate Borrowing" has the meaning set forth in Section 1.3.
"Fixed Rate Indebtedness" means all Indebtedness which accrues
interest at a fixed rate.
"Floating Rate Indebtedness" means all Indebtedness which is not
Fixed Rate Indebtedness and which is not a Contingent Obligation or an Unused
Commitment.
"Fronting Bank" shall mean Bank of America, N.A., JPMorgan Chase
Bank or such other Bank which has notified the Administrative Agent that it is
willing to be a Fronting Bank and which is designated by Borrower in its Notice
of Borrowing as the Bank which shall issue a Letter of Credit with respect to
such Notice of Borrowing.
"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.
"Governmental Authority" means any nation or government, any
federal, state, local or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government. "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 Euro-Dollar 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 3.1 hereof.
"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 7, 14, 30, 60, 90, or 180 days thereafter (or
any other period less than 180 days with the reasonable approval of the
Administrative Agent, unless any Bank has previously advised Administrative
Agent and Borrower that it is unable to enter into Euro-Dollar 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:
(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 Xxxxx'x. In the event that Borrower receives Credit Ratings only
from S&P and Xxxxx'x, and such Credit Ratings are not equivalent, the lower of
such two (2) Credit Ratings shall be used to determine whether an Investment
Grade Rating was achieved. In the event that Borrower receives more than two (2)
Credit Ratings, and such Credit Ratings are not all equivalent, the higher of
the ratings from S&P and 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.
"Land under Development" means any Real Property Asset on which
Development Activity has begun (as evidenced by obtaining a permit to commence
construction of the applicable office, parking or industrial improvement by the
applicable Governmental Authority) but has not yet been substantially completed;
provided that any such Real Property Asset will no longer be considered Land
under Development upon the earlier of (A) one year after the date a certificate
of occupancy has been issued for such Real Property Asset or the primary
building or other structure located on such Real Property Asset may otherwise be
lawfully occupied for its intended use, or (B) the first date such Real Property
Asset is more than 85% leased and occupied (based on square footage).
"Letter of Credit" has the meaning provided in Section 2.2(b).
"Letter of Credit Collateral" has the meaning provided in Section
6.4.
"Letter of Credit Collateral Account" has the meaning provided in
Section 6.4.
"Letter of Credit Documents" has the meaning provided in Section
2.16.
"Letter of Credit Usage" means at any time the sum of (i) the
aggregate maximum amount available to be drawn under the Letters of Credit then
outstanding, assuming compliance with all requirements for drawing referred to
therein, and (ii) the aggregate amount of the Borrower's unpaid obligations
under this Agreement in respect of the Letters of Credit.
"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. "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,
the Acorn Guaranty (as defined in the EOPT Guaranty), and the Letter of Credit
Documents.
"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 CITICORP NORTH AMERICA, INC., CREDIT SUISSE
FIRST BOSTON, ACTING THROUGH ITS XXXXXX XXXXXXX XXXXXX, XXXXXXXX XX, XXX XXXX
BRANCH, LASALLE BANK NATIONAL ASSOCIATION, XXXXXXX XXXXX BANK USA, and WACHOVIA
BANK, 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 EOPT, the
Borrower and their Consolidated Subsidiaries, taken as a whole, to
perform their respective obligations under the Loan Documents, or (ii) the
ability of Administrative 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 all substances defined as
Hazardous Substances, Oils, Pollutants or Contaminants in the National Oil and
Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Section 300.5, toxic
mold, or defined as such by, or regulated as such under, any Environmental Law.
"Maturity Date" shall mean, subject to the provisions of Section
2.10(b), May 8, 2006.
"Money Market Absolute Rate" has the meaning set forth in Section
2.4(d)(2).
"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).
"Xxxxx'x" 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; provided, however, that such term shall not include (a) any
covenant, condition or restriction contained in any ground lease from a
Governmental Authority, and (b) any financial covenant (such as a limitation on
secured indebtedness) 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.
"Net Income" means, for any period, the net earnings (or loss) after
Taxes of any Person, on a consolidated basis, before the deduction of minority
interests and before the deduction of payment of any preferred dividends, for
such period calculated in conformity with GAAP.
"Net Offering Proceeds" means all cash or other assets received by
EOPT or Borrower as a result of the sale of common shares of beneficial
interest, preferred shares of beneficial interest, partnership interests,
limited liability company interests, Convertible Securities or other ownership
or equity interests in EOPT or Borrower 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)) and any amount properly capitalized under
GAAP, 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.
"Nonrenewal Notice Date" has the meaning set forth in Section
2.16(c).
"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, signed by an
Authorized Officer 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.
"Obligations" means all obligations, liabilities, indemnity
obligations and Indebtedness of every nature of the Borrower, from time to time
owing to Administrative 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, Securities and Properties which constitute primarily warehouse
distribution facilities, 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 in connection
with worker's compensation, unemployment insurance and other social
security legislation or to secure liabilities to insurance carriers; d.
utility deposits and other deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases, purchase
contracts, construction contracts, governmental contracts, statutory
obligations, surety bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
e. Liens for purchase money obligations for equipment (or Liens to
secure Indebtedness incurred within 90 days after the purchase of any
equipment to pay all or a portion of the purchase price thereof or to
secure Indebtedness incurred solely for the purpose of financing the
acquisition of any such equipment, or extensions, renewals, or
replacements of any of the foregoing for the same or lesser amount);
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;
f. easements, rights-of-way, zoning restrictions, other similar
charges or encumbrances and all other items listed on Schedule B to
Borrower's owner's title insurance policies, except in connection with any
Indebtedness, for any of Borrower's Real Property Assets, so long as the
foregoing do not interfere in any material respect with the use or
ordinary conduct of the business of Borrower and do not diminish in any
material respect the value of the Property to which it is attached or for
which it is listed;
g. Liens and judgments which have been or will be bonded (and the
Lien on any cash or securities serving as security for such bond) 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;
h. 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
i. 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 or other financial institution which is a subsidiary, such bank's
or financial institution's parent has) a rating of its senior unsecured debt
obligations of not less than Baa-1 by Xxxxx'x or a comparable rating by a rating
agency acceptable to Administrative Agent and (B) has total assets in excess of
Ten Billion Dollars ($10,000,000,000).
"Qualifying Unencumbered Property" means any Property (excluding
Unimproved Assets) from time to time which (i) is an operating Office Property
or Parking Property or constitutes primarily a warehouse distribution facility
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. 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 and Fitch.
"Real Property Assets" means as to any Person as of any time, the
real property assets (including, without limitation, interests in participating
mortgages in which such Person's interest therein is characterized as equity
according to GAAP) owned directly or indirectly by such Person at such time.
"Recourse Debt" shall mean Indebtedness that is not Non-Recourse
Indebtedness.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REIT" means a real estate investment trust, as defined under
Section 856 of the Code.
"Required Banks" means at any time Banks 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, Investment Mortgages, 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 THE BANK OF NOVA SCOTIA, NEW YORK
AGENCY, XXXXXX XXXXXXX BANK, UBS AG CAYMAN ISLANDS BRANCH, PNC BANK, NATIONAL
ASSOCIATION, 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.
"Syndication Agent" means JPMorgan Chase Bank in its capacity as
syndication agent hereunder and its 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.
"Total Asset Value" means, with respect to Borrower and without
duplication, (i) for any Properties (other than Unimproved Assets and Land under
Development) 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,
Land under Development 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, Land under Development 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.
"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 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).
"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.
2.2. SECTION 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.
2.3. SECTION 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 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)).
3 ARTICLE
4 THE CREDITS
4.1. SECTION 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 together with such Bank's pro rata share of the Letter of Credit Usage
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 3.2(b), or in any amount required to reimburse the Fronting Bank for any
drawing under any Letter of Credit 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.
4.2. SECTION Notice of Borrowing. (a) 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.
(b) Borrower shall give the Administrative Agent, and the designated Fronting
Bank, written notice, signed by an Authorized Officer, in the event that it
desires to have Letters of Credit (each, a "Letter of Credit") issued, or to
have Letters of Credit issued on behalf of a Subsidiary, hereunder no later than
10:00 a.m., Dallas, Texas time, at least four (4) Business Days prior to the
date of such issuance. Each such notice shall be on the applicable application
form (together with such reasonable changes as may be requested by Borrower) of
the pertinent Fronting Bank, and shall specify (i) the designated Fronting Bank,
(ii) the aggregate amount of the requested Letters of Credit (which in no event
shall be less than $50,000), (iii) the individual amount of each requested
Letter of Credit and the number of Letters of Credit to be issued, (iv) the date
of such issuance (which shall be a Business Day), (v) the name and address of
the beneficiary, (vi) the expiration date of the Letter of Credit, which shall
not be later than the first anniversary of the date of issuance (which in no
event shall be later than thirty (30) days prior to the Maturity Date), (vii)
the purpose and circumstances for which such Letter of Credit is being issued
and (viii) the terms upon which each such Letter of Credit may be drawn down
(which terms shall not leave any discretion to Fronting Bank). Each such notice
may be revoked telephonically by the Borrower to the applicable Fronting Bank
and the Administrative Agent any time prior to the date of issuance of the
Letter of Credit by the applicable Fronting Bank, provided such revocation is
confirmed in writing by the Borrower to the Fronting Bank and the Administrative
Agent within one (1) Business Day thereafter by facsimile. Notwithstanding
anything contained herein to the contrary, the Borrower shall complete and
deliver to the Fronting Bank any required documentation in connection with any
requested Letter of Credit no later than two (2) Business Days prior to the
issuance thereof. No later than 10:00 a.m., Dallas, Texas time, on the date that
is four (4) Business Days prior to the date of issuance, the Borrower shall
specify a precise description of the documents and the verbatim text of any
certificate to be presented by the beneficiary of such Letter of Credit, which
if presented by such beneficiary prior to the expiration date of the Letter of
Credit would require the Fronting Bank to make a payment under the Letter of
Credit; provided, that Fronting Bank may, in its reasonable judgment, require
changes in any such documents and certificates only in conformity with changes
in customary and commercially reasonable practice or law. In determining whether
to pay on such Letter of Credit, the Fronting Bank shall be responsible only to
determine that the documents and certificates required to be delivered under the
Letter of Credit have been delivered and that they comply on their face with the
requirements of that Letter of Credit.
4.3. SECTION 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 and Letter of Credit Usage (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 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 3.2 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 is repaid, at a rate per annum equal to the Federal Funds Rate
plus the Applicable Margin for Euro-Dollar Loans for such day.
4.4. SECTION 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 shall be 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 (excluding any Loans or any portion
thereof to be repaid from the proceeds of such Money Market Loans) and Letter of
Credit Usage. Subject to the provisions of this Agreement, the Borrower may
repay any outstanding Money Market Loan on any day which is 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
(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 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 Euro-Dollar 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 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 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.
4.5. SECTION 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 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. If the Borrower
has requested the issuance of a Letter of Credit, no later than 12:00 Noon
(Dallas, Texas time) on the date of such issuance as indicated in the notice
delivered pursuant to Section 2.2(b), the Fronting Bank shall issue such Letter
of Credit in the amount so requested and deliver the same to the Borrower with a
copy thereof to the Administrative Agent. Immediately upon the issuance of each
Letter of Credit by the Fronting Bank, such Fronting Bank shall be deemed to
have sold and transferred to each other Bank, and each such other Bank shall be
deemed, and hereby agrees, to have irrevocably and unconditionally purchased and
received from the Fronting Bank, without recourse or warranty, an undivided
interest and a participation in such Letter of Credit, any drawing thereunder,
and the obligations of the Borrower hereunder with respect thereto, and any
security therefor or guaranty pertaining thereto, in an amount equal to such
Bank's ratable share thereof (based upon the ratio its Commitment bears to the
aggregate of all Commitments). Upon any change in any of the Commitments in
accordance herewith, there shall be an automatic adjustment to such
participations to reflect such changed shares. The Fronting Bank shall have the
primary obligation to fund any and all draws made with respect to such Letter of
Credit notwithstanding any failure of a participating Bank to fund its ratable
share of any such draw. The Administrative Agent will instruct the Fronting Bank
to make such Letter of Credit available to the Borrower and the Fronting Bank
shall make such Letter of Credit available to the Borrower, or at Borrower's
instruction, to the beneficiary thereof at the Borrower's aforesaid address or
at such address in the United States as Borrower shall request on the date of
the Borrowing.
(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 time 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 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.
4.6. SECTION 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 and the Administrative 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
Administrative 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).
(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.
4.7. SECTION 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"), signed by an Authorized Officer, 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;
(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 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.
4.8. SECTION 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 Euro-Dollar 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 Euro-Dollar 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.
(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.
4.9. SECTION Fees.
(a) Facility Fee. For the period beginning on the Closing 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.
(b) Letter of Credit Fee. During the Term, the Borrower shall pay to the
Administrative Agent, for the account of the Banks in proportion to their
interests in respect of issued and undrawn Letters of Credit, a fee (a "Letter
of Credit Fee") in an amount, provided that no Event of Default shall have
occurred and be continuing, equal to a rate per annum equal to the then
percentage per annum of the Applicable Margin with respect to Euro-Dollar Loans,
on the daily average of such issued and undrawn Letters of Credit, which fee
shall be payable quarterly,
in arrears, on each January 1, April 1, July 1 and October 1 during the Term,
and on the Maturity Date. From the occurrence, and during the continuance, of an
Event of Default, such fee shall be increased to be equal to four percent (4%)
per annum on the daily average of such issued and undrawn Letters of Credit.
(c) Fronting Bank Fee. The Borrower shall pay any Fronting Bank, for its own
account, a fee (a "Fronting Bank Fee") at a rate per annum equal to the greater
of (x) .10% of the issued and undrawn amount of the Letters of Credit issued by
such Fronting Bank and (y) $500 per Letter of Credit, which fee shall be in
addition to and not in lieu of, the Letter of Credit Fee. The Fronting Bank Fee
shall be payable in arrears on each January 1, April 1, July 1 and October 1
during the Term, and on the Maturity Date. (d) (e) (f) 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 Syndication Agent and the Banks
regardless of whether any Loans are actually made.
4.10. SECTION 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 not
more than one hundred twenty (120) days nor less than thirty (30) 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.
4.11. SECTION 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 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, upon at least one (1) Business Day's notice to the
Administrative Agent (by 11:00 a.m Dallas, Texas time on such Business Day),
reimburse the Administrative Agent for the benefit of the Fronting Bank for the
amount of any drawing under a Letter of Credit in whole or in part in any
amount.
(d) The Borrower may at any time return, or cause to be returned, any undrawn
Letter of Credit to the Fronting Bank in whole, but not in part, and the
Fronting Bank within three (3) Business Days shall give the Administrative Agent
and each of the Banks notice of such return.
(e) The Borrower may at any time and from time to time cancel all or any part of
the Commitments in amounts aggregating Ten Million Dollars ($10,000,000) or any
larger multiple of One Hundred Thousand Dollars ($100,000), by the delivery to
the Administrative Agent of a notice of cancellation, signed by an Authorized
Officer, 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 three (3) Business Days' 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. In no event shall the Borrower be permitted to
cancel Commitments, if, after giving effect to such cancellation and any related
payments as well as any returns by Borrower or at Borrower's direction of any
Letters of Credit to the Fronting Bank, the amount of the Loans plus Letter of
Credit Usage exceeds the Commitments, as so reduced. A reduction of the
Commitments pursuant to this Section 2.11(e) 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.
(f) 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(e) hereof, such amounts may
not be reborrowed.
4.12. SECTION 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 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.
4.13. SECTION 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.
4.14. SECTION 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).
4.15. SECTION 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.
4.16. SECTION Letters of Credit.
(a) Subject to the terms contained in this Agreement and the other Loan
Documents, upon the receipt of a notice in accordance with Section 2.2(b)
requesting the issuance of a Letter of Credit, the Fronting Bank shall issue a
Letter of Credit or Letters of Credit in such form as is reasonably acceptable
to the Borrower (subject to the provisions of Section 2.2(b)) in an amount or
amounts equal to the amount or amounts requested by the Borrower.
(b) The Letter of Credit Usage shall be no more than One Hundred Fifty Million
Dollars ($150,000,000) at any one time.
(c) If the Borrower so requests in any applicable Letter of Credit notice
pursuant to Section 2.2(b), the Fronting Bank may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic renewal
provisions (each, an "Auto-Renewal Letter of Credit"); provided that any such
Auto-Renewal Letter of Credit must permit the Fronting Bank to prevent any such
renewal at least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than one (1) day (the "Nonrenewal Notice Date") in each such
twelve-month period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise required by the applicable Fronting Bank in its
application form, the Borrower shall not be required to make a specific request
to the Fronting Bank for any such renewal. Once an Auto-Renewal Letter of Credit
has been issued, the Banks shall be deemed to have authorized (but may not
require) the Fronting Bank to permit the renewal of such Letter of Credit at any
time prior to an expiry date not later than thirty (30) days prior to the
Maturity Date; provided, however, that the Fronting Bank shall not permit any
such renewal if (A) the Fronting Bank has determined that it would have no
obligation at such time to issue such Letter of Credit in its renewed form under
the terms hereof, or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is two Business Days before the Nonrenewal
Notice Date from the Administrative Agent or the Borrower that one or more of
the applicable conditions specified in Section 3.2 is not then satisfied.
(d) In the event of any request for a drawing under any Letter of Credit by the
beneficiary thereunder, the Fronting Bank shall notify the Borrower and the
Administrative Agent (and the Administrative Agent shall notify each Bank
thereof) on or before the date on which the Fronting Bank intends to honor such
drawing, and, except as provided in this subsection (d), the Borrower shall
reimburse the Fronting Bank, in immediately available funds, on the same day on
which such drawing is honored in an amount equal to the amount of such drawing.
Notwithstanding anything contained herein to the contrary, however, unless the
Borrower shall have notified the Administrative Agent, and the Fronting Bank
prior to 11:00 a.m. (Dallas, Texas time) on the Business Day immediately prior
to the date of such drawing that the Borrower intends to reimburse the Fronting
Bank for the amount of such drawing with funds other than the proceeds of the
Loans, the Borrower shall be deemed to have timely given a Notice of Borrowing
pursuant to Section 2.2 to the Administrative Agent, requesting a Borrowing of
Base Rate Loans on the date on which such drawing is honored and in an amount
equal to the amount of such drawing. Each Bank (other than the Fronting Bank)
shall, in accordance with Section 2.5(b), make available its pro rata share of
such Borrowing to the Administrative Agent, the proceeds of which shall be
applied directly by the Administrative Agent to reimburse the Fronting Bank for
the amount of such draw. In the event that any such Bank fails to make available
to the Fronting Bank the amount of such Bank's participation on the date of a
drawing, the Fronting Bank shall be entitled to recover such amount on demand
from such Bank together with interest at the Federal Funds Rate commencing on
the date such drawing is honored, and the provisions of Section 9.16 shall
otherwise apply to such failure.
(e) If, after the date hereof, any change in any law or regulation or in the
interpretation thereof by any court or administrative or Governmental Authority
charged with the administration thereof shall either (i) impose, modify or deem
applicable any reserve, special deposit or similar requirement against letters
of credit issued by, or assets held by, or deposits in or for the account of, or
participations in any letter of credit, upon any Bank (including the Fronting
Bank) or (ii) impose on any Bank any other condition regarding this Agreement or
such Bank (including the Fronting Bank) as it pertains to the Letters of Credit
or any participation therein and the result of any event referred to in the
preceding clause (i) or (ii) shall be to increase, by an amount deemed by the
Fronting Bank or such Bank to be material, the cost to the Fronting Bank or any
Bank of issuing or maintaining any Letter of Credit or participating therein,
then the Borrower shall pay to the Fronting Bank or such Bank, within 15 days
after written demand by such Bank (with a copy to the Administrative Agent),
which demand shall be accompanied by a certificate showing, in reasonable
detail, the calculation of such amount or amounts, such additional amounts as
shall be required to compensate the Fronting Bank or such Bank for such
increased costs or reduction in amounts received or receivable hereunder. 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 2.16 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 2.16 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.
(f) The Borrower hereby agrees to protect, indemnify, pay and save the Fronting
Bank harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable attorneys'
fees and disbursements) which the Fronting Bank may incur or be subject to as a
result of (i) the issuance of the Letters of
Credit, other than to the extent of the bad faith, gross negligence or willful
misconduct of the Fronting Bank or (ii) the failure of the Fronting Bank to
honor a drawing under any Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or Governmental Authority, including by reason of court order
(collectively, "Governmental Acts"), other than to the extent of the bad faith,
gross negligence or willful misconduct of the Fronting Bank. As between the
Borrower and the Fronting Bank, the Borrower assumes all risks of the acts and
omissions of any beneficiary with respect to its use, or misuses of, the Letters
of Credit issued by the Fronting Bank. In furtherance and not in limitation of
the foregoing, the Fronting Bank shall not be responsible (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
such Letters of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or insufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) for failure of the beneficiary
of any such Letter of Credit to comply fully with conditions required in order
to draw upon such Letter of Credit, other than as a result of the bad faith,
gross negligence or willful misconduct of the Fronting Bank; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any message,
by mail, cable, telegraph, facsimile transmission, or otherwise; (v) for errors
in interpretation of any technical terms; (vi) for any loss or delay in the
transmission or otherwise of any documents required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of such Letter of Credit; or (viii) for any consequence arising from causes
beyond the control of the Fronting Bank, including any Government Acts, in each
case other than to the extent of the bad faith, gross negligence or willful
misconduct of the Fronting Bank. None of the above shall affect, impair or
prevent the vesting of the Fronting Bank's rights and powers hereunder. In
furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by the Fronting Bank under or
in connection with the Letters of Credit issued by it or the related
certificates, if taken or omitted in good faith, shall not put the Fronting Bank
under any resulting liability to the Borrower; provided that, notwithstanding
anything in the foregoing to the contrary, the Fronting Bank will be liable to
the Borrower for any damages suffered by the Borrower or its Subsidiaries as a
result of the Fronting Bank's grossly negligent or willful failure to pay under
any Letter of Credit after the presentation to it of a sight draft and
certificates strictly in compliance with the terms and conditions of the Letter
of Credit.
(g) If the Fronting Bank or the Administrative Agent is required at any time,
pursuant to any bankruptcy, insolvency, liquidation or reorganization law or
otherwise, to return to the Borrower any reimbursement by the Borrower of any
drawing under any Letter of Credit, each Bank shall pay to the Fronting Bank or
the Administrative Agent, as the case may be, its pro rata share of such
payment, but without interest thereon unless the Fronting Bank or the
Administrative Agent is required to pay interest on such amounts to the person
recovering such
payment, in which case with interest thereon, computed at the same rate, and on
the same basis, as the interest that the Fronting Bank or the Administrative
Agent is required to pay.
4.17. SECTION Letter of Credit Usage Absolute. The obligations of the Borrower
under this Agreement in respect of any Letter of Credit shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement (as the same may be amended from time to time) and any Letter of
Credit Documents (as hereinafter defined) under all circumstances, including,
without limitation, to the extent permitted by law, the following circumstances:
(a) any lack of validity or enforceability of any Letter of Credit or any other
agreement or instrument relating thereto (collectively, the "Letter of Credit
Documents") or any Loan Document;
(b) any change in the time, manner or place of payment of, or in any other term
of, all or any of the obligations of the Borrower in respect of the Letters of
Credit or any other amendment or waiver of or any consent by the Borrower to
departure from all or any of the Letter of Credit Documents or any Loan
Document; provided, that the Fronting Bank shall not consent to any such change
or amendment unless previously consented to in writing by the Borrower;
(c) any exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any guaranty, for all or any
of the obligations of the Borrower in respect of the Letters of Credit;
(d) the existence of any claim, set-off, defense or other right that the
Borrower may have at any time against any beneficiary or any transferee of a
Letter of Credit (or any Persons for whom any such beneficiary or any such
transferee may be acting), the Administrative Agent, the Fronting Bank or any
Bank (other than a defense based on the bad faith, gross negligence or willful
misconduct of the Administrative Agent, the Fronting Bank or such Bank) or any
other Person, whether in connection with the Loan Documents, the transactions
contemplated hereby or by the Letters of Credit Documents or any unrelated
transaction;
(e) any draft or any other document presented under or in connection with any
Letter of Credit or other Loan Document proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; provided, that payment by the Fronting Bank under
such Letter of Credit against presentation of such draft or document shall not
have been the result of the bad faith, gross negligence or willful misconduct of
the Fronting Bank;
(f) payment by the Fronting Bank against presentation of a draft or certificate
that does not strictly comply with the terms of the Letter of Credit; provided,
that such payment
shall not have been the result of the bad faith, gross negligence or willful
misconduct of the Fronting Bank; and
(g) any other circumstance or happening whatsoever other than the payment in
full of all obligations hereunder in respect of any Letter of Credit or any
agreement or instrument relating to any Letter of Credit, whether or not similar
to any of the foregoing, that might otherwise constitute a defense available to,
or a discharge of, the Borrower; provided, that such other circumstance or
happening shall not have been the result of bad faith, gross negligence or
willful misconduct of the Fronting Bank.
5 ARTICLE
6 CONDITIONS
6.1. SECTION 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 Administrative 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, EOPT and the Administrative Agent and each of the Banks shall
have executed and delivered to the Borrower, EOPT and the Administrative Agent a
duly executed original of this Agreement;
(c) EOPT shall have executed and delivered to the Administrative Agent a duly
executed original of the EOPT Guaranty;
(d) the Administrative Agent shall have received an opinion of Xxxxx Xxxxxxx
LLP, counsel for the Borrower and EOPT, acceptable to the Administrative Agent,
the Banks and their counsel;
(e) the Administrative Agent shall have received all documents the
Administrative 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, 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 Administrative Agent;
(g) the Administrative Agent shall have received all certificates, agreements
and other documents and papers referred to in this Section 3.1 and the Notice of
Borrowing referred to in Section 3.2, if applicable, unless otherwise specified,
in sufficient counterparts, satisfactory in form and substance to the
Administrative Agent in its 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 directly 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;
(m) the Borrower shall have delivered a certificate in form acceptable to
Administrative Agent showing compliance with the requirements of Section 5.8 as
of the Closing Date;
(n) Borrower shall have 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 Loans); and
(o) Borrower shall have satisfied all of the conditions to the obligation of a
Bank to make a Loan set forth in Section 3.2 hereof.
6.2. SECTION Borrowings. The obligation of any Bank to make a Loan or to
participate in any Letter of Credit issued by the Fronting Bank and the
obligation of the Fronting Bank to issue a Letter of Credit or the obligation of
the Swingline Lender to make a Swingline Loan on the occasion of any Borrowing
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 request to cause a Fronting Bank to issue
a Letter of Credit pursuant to Section 2.16 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 plus the Letter of Credit Usage will not exceed the aggregate
amount of the Commitments; (c) immediately before and after such Borrowing or
issuance of such Letter of Credit, no Default or Event of Default shall have
occurred and be continuing both before and after giving effect to the making of
such Loans or the issuance of such Letter of Credit;
(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 or the issuance of such Letter of Credit;
(e) no law or regulation shall have been adopted, no order, judgment or decree
of any Governmental Authority shall have been issued, and no litigation shall be
pending, which does or seeks to enjoin, prohibit or restrain, the making or
repayment of the Loans or the consummation of the transactions contemplated by
this Agreement; and
(f) no event, act or condition shall have occurred after the Closing Date which,
in the reasonable judgment of the Administrative Agent or the Required Banks, as
the case may be, has had or is likely to have a Material Adverse Effect.
Each Borrowing hereunder or issuance of a Letter of Credit 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.
7 ARTICLE
8 REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative 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.
8.1. SECTION 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.
8.2. SECTION Power and Authority. The Borrower has the partnership power and
authority to execute, deliver and carry out the terms and provisions of each of
the Loan Documents to which it is a party and has taken all necessary
partnership action, if any, to authorize the execution and delivery on behalf of
the Borrower and the performance by the Borrower of such Loan Documents. The
Borrower and EOPT each have duly executed and delivered each Loan Document to
which it is a party in accordance with the terms of this Agreement, and each
such Loan Document constitutes the legal, valid and binding obligation of the
Borrower and EOPT, enforceable in accordance with its terms, except as
enforceability may be limited by applicable insolvency, bankruptcy or other laws
affecting creditors rights generally, or general principles of equity, whether
such enforceability is considered in a proceeding in
equity or at law. EOPT has the power and authority to execute, deliver and carry
out the terms and provisions of each of the Loan Documents to which it is a
party and has taken all necessary action to authorize the execution, delivery
and performance of such Loan Documents. EOPT has the power and authority to
execute, deliver and carry out the terms and provisions of each of the 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.
8.3. SECTION No Violation.
(a) Neither the execution, delivery or performance by or on behalf of the
Borrower of the Loan Documents to which it is a party, nor compliance by the
Borrower with the terms and provisions thereof nor the consummation of the
transactions contemplated by the Loan Documents, (i) will materially contravene
any applicable provision of any law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
materially conflict with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien upon any of the property or assets of the Borrower or any of its
Consolidated Subsidiaries pursuant to the terms of any indenture, mortgage, deed
of trust, or other agreement or other instrument to which the Borrower (or of
any partnership of which the Borrower is a partner) or any of its Consolidated
Subsidiaries is a party or by which it or any of its property or assets is bound
or to which it is subject (except for such breaches and defaults under loan
agreements which the lenders thereunder have agreed to forbear pursuant to valid
forbearance agreements), or (iii) will cause a material default by the Borrower
under any organizational document of any Person in which the Borrower has an
interest, or cause a material default under the Borrower's agreement or
certificate of limited partnership, the consequences of which conflict, breach
or default would have a Material Adverse Effect, or result in or require the
creation or imposition of any Lien whatsoever upon any Property (except as
contemplated herein).
(b) Neither the execution, delivery or performance by EOPT of the Loan Documents
to which it is a party, nor compliance by EOPT with the terms and provisions
thereof nor the consummation of the transactions contemplated by the Loan
Documents, (i) will materially contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will materially conflict with or result in
any breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets of
EOPT or any of its Consolidated Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, or other agreement or other instrument to
which EOPT (or of any partnership of which EOPT is a partner) or any of its
Consolidated Subsidiaries is a party or by which it or any of its property or
assets is bound or to which it is subject (except for such breaches and defaults
under loan agreements which the lenders thereunder have agreed to forbear
pursuant to valid forbearance agreements), or (iii) will cause a material
default by EOPT under any organizational document of any Person in which EOPT
has an interest, the consequences of which conflict, breach or default would
have a
Material Adverse Effect, or result in or require the creation or imposition of
any Lien whatsoever upon any Property (except as contemplated herein).
8.4. SECTION Financial Information.
(a) The consolidated balance sheets of EOPT and the Borrower as of December 31,
2002, and the related statements of operations and cash flows of EOPT and the
Borrower for the fiscal year then ended, reported on by Ernst & Young LLP,
fairly present, in conformity with GAAP, the consolidated financial position of
EOPT and the Borrower, as the case may be, as of such date and the consolidated
results of operations and cash flows for such fiscal year.
(b) Since December 31, 2002, (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.
8.5. SECTION Litigation. Except as previously disclosed by the Borrower in
writing to the Banks, there is no action, suit, proceeding or investigation
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.
8.6. SECTION 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. In the event that at any
time after the Closing Date, either the Borrower or EOPT shall become a member
of any other material Plan or Multiemployer Plan, Borrower promptly shall notify
the Administrative Agent thereof and from and after such notice Schedule 4.6
shall be deemed modified thereby.
(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 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 or any of the Banks being deemed in violation of
Sections 404 or 406 of ERISA or Section 4975 of the Code or in the
Administrative Agent 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.
8.7. SECTION 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.
8.8. SECTION 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.
8.9. SECTION Full Disclosure. All information heretofore furnished by the
Borrower to the Administrative 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
Administrative 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.
8.10. SECTION 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.
8.11. SECTION 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.
8.12. SECTION Governmental Approvals. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any Governmental 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;
8.13. SECTION 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.
8.14. SECTION 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.
8.15. SECTION REIT Status. EOPT is qualified and EOPT intends to continue to
qualify as a real estate investment trust under the Code.
8.16. SECTION 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.
8.17. SECTION Judgments. 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 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).
8.18. SECTION 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.
8.19. SECTION 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.
8.20. SECTION 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.
8.21. SECTION 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.
8.22. SECTION 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
Syndication Agent and the Banks, and certain other Persons as previously
disclosed in writing to the Administrative Agent.
8.23. SECTION Labor Matters. Except as disclosed on Schedule 4.6, as of the
Closing Date, 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.
8.24. SECTION 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.
8.25. SECTION 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
Administrative Agent true, correct and complete copies of each such documents,
except for exhibits to Borrower's partnership agreement identifying the current
list of partners which, with the permission of the Banks, has been omitted
therefrom. EOPT holds (directly or indirectly) an 89.06% ownership interest in
the Borrower as of the date hereof.
8.26. SECTION 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 or ground leased
(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
Negative Pledge. All of the information set forth on Schedule 1.1 is true and
correct in all material respects.
8.27. SECTION Tax Shelter Regulations. Borrower does not intend to treat the
Loans and/or Letters of Credit as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4). In the event Borrower
determines to take any action inconsistent with such intention, it will promptly
notify the Administrative Agent thereof. If Borrower so notifies the
Administrative Agent, Borrower acknowledges that one or more of the Banks may
treat its Committed Loans, Money Market Loans and/or its interest in Swingline
Loans and/or Letters of Credit as part of a transaction that is subject to
Treasury Regulation Section 301.6112-1, and such Bank or Banks, as applicable,
will maintain the lists and other records required by such Treasury Regulation.
9 ARTICLE
10 AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Bank has any
Commitment hereunder or any Obligations remain unpaid:
10.1. SECTION Information. The Borrower will deliver to the Administrative Agent
(who will promptly deliver copies of the same to each of the Banks):
(a) as soon as available and in any event within five (5) Business Days after
the same is required to be filed with the Securities and Exchange Commission
(but in no event later than 125 days after the end of each Fiscal Year of the
Borrower) a consolidated balance sheet of the Borrower, EOPT and their
Consolidated Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of Borrower's and EOPT's operations and consolidated
statements of Borrower's and EOPT's cash flow for such Fiscal Year, setting
forth in each case in comparative form the figures for the previous Fiscal Year
(if available), all reported in a manner acceptable to the Securities and
Exchange Commission on Borrower's and EOPT's Form 10K and reported on by Ernst &
Young LLP or other independent public accountants of nationally recognized
standing;
(b) as soon as available and in any event within five (5) Business Days after
the same is required to be filed with the Securities and Exchange Commission
(but in no event later than 80 days after the end of each of the first three
quarters of each Fiscal Year of the Borrower and EOPT), (i) a consolidated
balance sheet of the Borrower, EOPT and their Consolidated Subsidiaries as of
the end of such quarter and the related consolidated statements of Borrower's
and EOPT's operations and consolidated statements of Borrower's and EOPT's cash
flow for such quarter and for the portion of the Borrower's or EOPT's Fiscal
Year ended at the end of such quarter, all reported in the form provided to the
Securities and Exchange Commission on Borrower's and EOPT's Form 10Q, and (ii)
and such other information reasonably requested by the Administrative Agent 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
(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 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;
(j) promptly after Borrower has notified the Administrative Agent of any
intention by Borrower to treat the Loans and/or Letters of Credit as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4), a duly completed copy of IRS Form 8886 or any successor form; and
(k) 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.
10.2. SECTION 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.
10.3. SECTION 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;
provided, however, that such coverages and amounts are available to Borrower at
commercially reasonable rates. The Borrower will deliver to the Administrative
Agent upon the reasonable request of the Administrative Agent from time to time
(i) full information as to the insurance carried, (ii) within five (5) days of
receipt of notice from any insurer a copy of any notice of cancellation or
material change in coverage from that existing on the date of this Agreement and
(iii) forthwith, notice of any cancellation or nonrenewal (without replacement)
of coverage by the Borrower.
10.4. SECTION 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.
10.5. SECTION 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 or Banks to any material liability
therefor.
10.6. SECTION 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.
10.7. SECTION 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.
10.8. SECTION Financial Covenants.
(a) Total Liabilities to Total Asset Value. The Borrower shall not permit the
ratio of Total Liabilities to Total Asset Value of Borrower to exceed 0.55:1 at
any time.
(b) EBITDA to Interest Expense Ratio. Borrower shall not permit the ratio of
EBITDA for the then most recently completed Fiscal Quarter to Interest Expense
for the then most recently completed Fiscal Quarter to be less than 2.00:1. (c)
[Intentionally Omitted.]
(d) Cash Flow to Fixed Charges Ratio. Borrower shall not permit the ratio of
Cash Flow for the then most recently completed Fiscal Quarter to Fixed Charges
for the then most recently completed Fiscal Quarter to be less than 1.5:1.
(e) Secured Debt to Total Asset Value. Borrower shall not permit the ratio of
Secured Debt to Total Asset Value of Borrower to exceed 0.40:1 at any time.
(f) Unencumbered Pool. Borrower shall not permit the ratio of the outstanding
Unsecured Debt to Unencumbered Asset Value to exceed 0.55:1 at any time.
(g) Unencumbered Net Operating Income to Unsecured Debt Service. Borrower shall
not permit the ratio of Unencumbered Net Operating Income for the then most
recently completed Fiscal Quarter to Unsecured Debt Service for the then most
recently completed Fiscal Quarter to be less than 2.0:1.
(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) $10,700,000,000, and (ii) seventy percent (70%) of all Net Offering
Proceeds received by EOPT or Borrower after December 31, 2002 (other than
proceeds received within ninety (90) days after the redemption, retirement or
repurchase of ownership or equity interests in Borrower or Guarantor, up to the
amount paid by Borrower or Guarantor in connection with such redemption,
retirement or repurchase, where, for the avoidance of doubt, the net effect is
that neither Borrower nor Guarantor shall have increased its Net Worth as a
result of any such proceeds).
(i) Dividends. The Borrower will not, as determined on an aggregate annual
basis, pay any partnership distributions in excess of 90% of the Borrower's FFO
for such year. During the continuance of a monetary Event of Default, Borrower
shall only pay partnership distributions that are necessary to enable EOPT to
make those dividends necessary to maintain EOPT's status as a real estate
investment trust.
(j) Permitted Holdings. Borrower's primary business will be the ownership,
operation and development of Office Properties and Parking Properties and any
other business activities of Borrower and its Subsidiaries will remain
incidental thereto. Notwithstanding the foregoing, Borrower and its Subsidiaries
may acquire or maintain Permitted Holdings if and so long as the aggregate value
of Permitted Holdings, whether held directly or indirectly by Borrower does not
exceed, at any time, twenty-five percent (25%) of Total Asset Value of Borrower
unless a greater percentage is approved by the Majority Banks (which approval
shall not be unreasonably withheld, conditioned or delayed); provided, however,
Borrower and its Subsidiaries may not acquire or maintain (i) Unimproved Assets
if and to the extent that the aggregate value of Unimproved Assets, whether held
directly or indirectly by Borrower, exceeds, at any time ten percent (10%) of
Total Asset Value of Borrower or (ii) interests in Taxable REIT Subsidiaries if
and to the extent that the aggregate value of interests in Taxable REIT
Subsidiaries, whether held directly or indirectly by Borrower exceeds, at any
time, twenty percent (20%) of Total Asset Value of Borrower unless, in either
case, a greater percentage is approved by the Majority Banks (which approval
shall not be unreasonably withheld, conditioned or delayed). For purposes of
calculating the foregoing percentage the value of Unimproved Assets and
interests in Taxable REIT Subsidiaries shall be calculated based upon the lower
of the cost thereof and value, 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 or value 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.
10.9. SECTION 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.
(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,
conditioned or delayed. Without limitation of the foregoing, no Person shall be
admitted as a general partner of the Borrower other than EOPT. EOPT shall not
amend its declaration of trust, by-laws, or other organizational documents in
any manner that would have a Material Adverse Effect without the Majority Banks'
consent, which shall not be unreasonably withheld, conditioned or delayed. 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.
10.10. SECTION 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.
10.11. SECTION EOPT Status.
(a) Status. EOPT shall at all times (i) remain a publicly traded company listed
for trading on the New York Stock Exchange, and (ii) maintain its status as a
self-directed and self-administered real estate investment trust under the Code.
(b) Indebtedness. EOPT shall not, directly or indirectly, create, incur, assume
or otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(1) the Obligations; and
(2) Indebtedness of Borrower for which there is recourse to EOPT which,
after giving effect thereto, may be incurred or may remain outstanding
without giving rise to an Event of Default or Default under any provision
of this Article V.
(c) Restriction on Fundamental Changes.
(1) EOPT shall not have an investment in any Person other than (i)
Borrower or indirectly through Borrower, (ii) directly or indirectly in
Financing Partnerships, and (iii) the interests identified on Schedule
5.11(c)(1) as being owned by EOPT.
(2) EOPT shall not acquire an interest in any Property other than
securities issued by Borrower and Financing Partnerships and the interests
identified on Schedule 5.11(c)(2) attached hereto.
(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 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 sole general partner of Borrower.
10.12. SECTION Other Indebtedness. Borrower and EOPT shall not allow any of
their Subsidiaries, Financing Partnerships or Joint Venture Subsidiaries that
own, directly or indirectly, any Qualifying Unencumbered Property to directly or
indirectly create, incur, assume or otherwise become or remain liable with
respect to any Indebtedness other than trade debt incurred in the ordinary
course of business and Indebtedness owing to Borrower, if the resulting failure
of such Property to qualify as a Qualifying Unencumbered Property would result
in an Event of Default under Section 5.8.
10.13. SECTION 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.
11 ARTICLE
12 DEFAULTS
12.1. SECTION 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, 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 (or in the case of Section 5.11, EOPT) 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), (c) or (e), 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), (d),
(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 EOPT on the EOPT Guaranty 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 or EOPT, as applicable, 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 or EOPT,
as applicable;
(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 $50,000,000 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) the Board of Trustees of the EOPT shall cease to consist of a majority of
Continuing EOPT Trustees. "Continuing EOPT Trustees" shall mean the trustees of
EOPT on the Effective Date and each other trustee of EOPT if such trustee's
nomination for election to the Board of Trustees of EOPT is recommended by a
majority of the then Continuing EOPT Trustees or by a majority of any nominating
committee appointed by the then Continuing EOPT Trustees for the purpose of
nominating directors for election to the Board of Trustees of EOPT, unless such
recommendation is in connection with, or as a result of, the acquisition of a
controlling interest in EOPT by a third Person;
(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 or any of the
Bank's rights in connection therewith shall constitute a prohibited transaction
under ERISA and/or the Code.
12.2. SECTION 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 Administrative Agent, and the Banks each agree that
any exercise or enforcement of the rights and remedies granted to 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 Administrative Agent on behalf of 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.
12.3. SECTION 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. The
Administrative Agent shall not 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 has received
notice in writing from a Bank or Borrower referring to this Agreement or the
other Loan Documents, describing such event or condition. Should Administrative
Agent 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 send Borrower a notice of Default or
Event of Default, Administrative Agent shall promptly give notice thereof to
each Bank.
12.4. SECTION Actions in Respect of Letters of Credit. (a) If, at any time and
from time to time, any Letter of Credit shall have been issued hereunder and an
Event of Default shall have occurred and be continuing, then, upon the
occurrence and during the continuation thereof, the Administrative Agent may,
and upon the demand of the Required Banks shall, whether in addition to the
taking by the Administrative Agent of any of the actions described in this
Article or otherwise, make a demand upon the Borrower to, and forthwith upon
such demand (but in any event within ten (10) days after such demand) the
Borrower shall, pay to the Administrative Agent, on behalf of the Banks, in same
day funds at the Administrative Agent's office designated in such demand, for
deposit in a special cash collateral account (the "Letter of Credit Collateral
Account") to be maintained in the name of Borrower for the benefit of the
Administrative Agent (on behalf of the Banks) and under the Administrative
Agent's sole dominion and control at such place as shall be designated by the
Administrative Agent, an amount equal to the amount of the Letter of Credit
Usage under the Letters of Credit. Interest shall accrue on the Letter of Credit
Collateral Account at a rate equal to the rate on overnight funds.
(b) The Borrower hereby grants to the Administrative Agent, as administrative
agent for its benefit and the ratable benefit of the Banks a lien on and a
security interest in, the following collateral (the "Letter of Credit
Collateral"):
(i) the Letter of Credit Collateral Account, all cash deposited therein and all
certificates and instruments, if any, from time to time representing or
evidencing the Letter of Credit Collateral Account;
(ii) all notes, certificates of deposit and other instruments from time to time
hereafter delivered to or otherwise possessed by the Administrative Agent for or
on behalf of the Borrower in substitution for or in respect of any or all of the
then existing Letter of Credit Collateral;
(iii) all interest, dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the then existing Letter of Credit Collateral; and
(iv) to the extent not covered by the above clauses, all proceeds of any or all
of the foregoing Letter of Credit Collateral.
The lien and security interest granted hereby secures the payment of all
obligations of the Borrower now or hereafter existing hereunder and under any
other Loan Document.
(c) The Borrower hereby authorizes the Administrative Agent for the ratable
benefit of the Banks to apply, from time to time after funds are deposited in
the Letter of Credit Collateral Account, funds then held in the Letter of Credit
Collateral Account to the payment of any amounts, in such order as the
Administrative Agent may elect, as shall have become due and payable by the
Borrower to the Banks in respect of the Letters of Credit.
(d) Neither the Borrower nor any Person claiming or acting on behalf of or
through the Borrower shall have any right to withdraw any of the funds held in
the Letter of Credit Collateral Account, except as provided in Section 6.4(h)
hereof.
(e) The Borrower agrees that it will not (i) sell or otherwise dispose of any
interest in the Letter of Credit Collateral or (ii) create or permit to exist
any lien, security interest or other charge or encumbrance upon or with respect
to any of the Letter of Credit Collateral, except for the security interest
created by this Section 6.4.
(f) If any Event of Default shall have occurred and be continuing:
(i) The Administrative Agent may, in its sole discretion, without notice to the
Borrower except as required by law and at any time from time to time, charge,
set off or otherwise apply all or any part of the Letter of Credit Collateral,
first, (x)
amounts previously drawn on any Letter of Credit that have not been reimbursed
by the Borrower and (y) any Letter of Credit Usage described in clause (ii) of
the definition thereof that are then due and payable and second, any other
unpaid Obligations then due and payable against the Letter of Credit Collateral
Account or any part thereof, in such order as the Administrative Agent shall
elect. The rights of the Administrative Agent under this Section 6.4 are in
addition to any rights and remedies which any Bank may have.
(ii) The Administrative Agent may also exercise, in its sole discretion, in
respect of the Letter of Credit Collateral Account, in addition to the other
rights and remedies provided herein or otherwise available to it, all the rights
and remedies of a secured party upon default under the Uniform Commercial Code
in effect in the State of Illinois at that time.
(g) The Administrative Agent shall be deemed to have exercised reasonable care
in the custody and preservation of the Letter of Credit Collateral if the Letter
of Credit Collateral is accorded treatment substantially equal to that which the
Administrative Agent accords its own property, it being understood that,
assuming such treatment, the Administrative Agent shall not have any
responsibility or liability with respect thereto.
(h) At such time as all Events of Default have been cured or waived in writing,
all amounts remaining in the Letter of Credit Collateral Account shall be
promptly returned to the Borrower. Absent such cure or written waiver, any
surplus of the funds held in the Letter of Credit Collateral Account and
remaining after payment in full of all of the Obligations of the Borrower
hereunder and under any other Loan Document after the Maturity Date shall be
paid to the Borrower or to whomsoever may be lawfully entitled to receive such
surplus.
12.5. SECTION 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).
13 ARTICLE
14 THE AGENTS
14.1. SECTION Appointment and Authorization. Each Bank irrevocably appoints and
authorizes the Administrative 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 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, 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 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.
14.2. SECTION Agency and Affiliates. Bank of America, N.A. and JPMorgan Chase
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 Syndication Agent respectively, and Bank of America,
N.A., JPMorgan Chase 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 Syndication Agent, respectively, hereunder, and the
term "Bank" and "Banks" shall include Bank of America, N.A. and JPMorgan Chase
Bank, in their individual capacities.
14.3. SECTION Action by Administrative Agent and Syndication Agent. The
obligations of the Administrative Agent and Syndication Agent hereunder are only
those expressly set forth herein. Without limiting the generality of the
foregoing, the Administrative Agent and Syndication 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
Syndication Agent shall be administrative in nature. Subject to the provisions
of Sections 7.1, 7.5 and 7.6, Administrative Agent shall use the same care in
the administration of the Loans in the same manner as Administrative Agent uses
in the administration of its own loans.
14.4. SECTION Consultation with Experts. As between Administrative Agent and
Syndication Agent on the one hand and the Banks on the other hand, the
Administrative Agent and Syndication 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.
14.5. SECTION Liability of Administrative Agent. As between Administrative Agent
on the one hand and the Banks on the other hand, none of the Administrative
Agent nor any of its affiliates nor any Agent-Related Person, 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 on
the one hand and the Banks on the other hand, none of the Administrative Agent
nor any Agent-Related Person, 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 (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 the Agent-Related
Persons on the one hand and the Banks on the other hand, neither the
Administrative Agent nor the Agent-Related Persons 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.
14.6. SECTION Indemnification. Each Bank shall, ratably in accordance with its
Commitment, indemnify the Administrative Agent and each Agent-Related Person and
their affiliates and its 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 under this Agreement, the other Loan
Documents or any action taken or omitted by such indemnitee hereunder. In the
event that the Administrative Agent or any Agent-Related Person shall,
subsequent to its receipt of indemnification payment(s) from Banks in accordance
with this section, recoup any amount from the Borrower, or any other party
liable therefor in connection with such indemnification, the Administrative
Agent or such Agent-Related Person 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 Administrative Agent or such Agent-Related
Person 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.
14.7. SECTION Credit Decision. Each Bank acknowledges that it has, independently
and without reliance upon the Administrative Agent, the Syndication Agent or any
other Bank or Agent-Related Person, 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, the Syndication Agent or any
other Bank or Agent-Related Person, 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.
14.8. SECTION Successor Administrative Agent or Syndication Agent. The
Administrative Agent or the Syndication Agent may resign at any time by giving
notice thereof to the Banks, the Borrower and each other. In addition, the
Administrative Agent or the Syndication Agent, as applicable, shall resign in
the event its Commitment (without participations) is reduced to less than Thirty
Million Dollars ($30,000,000), in the case of the Administrative Agent, or
Twenty-Five Million Dollars ($25,000,000), in the case of the Syndication Agent
(and only for so long as JPMorgan Chase Bank is Syndication Agent), unless as a
result of a cancellation or reduction in the aggregate Commitments. In addition,
if the Administrative Agent shall so resign, then it shall also have the right
simultaneously therewith, to resign as one of the Fronting Banks (it being
understood that such resignation shall have no affect on any Letters of Credit
that it may have issued as Fronting Bank and which shall be outstanding at such
time), and shall resign as the Swingline Lender. Upon any such resignation, the
Majority Banks shall have the right to appoint a successor Administrative Agent
and Swingline Lender or Syndication Agent, as applicable, which successor
Administrative Agent and Swingline Lender 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, conditioned or delayed
(except that Borrower shall, in all events, be deemed to have approved JPMorgan
Chase Bank, as a successor Administrative Agent and Swingline Lender and Bank of
America, N.A., as a successor Syndication Agent). If no successor Administrative
Agent and Swingline Lender 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 and Swingline Lender or Syndication Agent (as applicable) gives notice of
resignation, then the retiring Administrative Agent, or retiring Syndication
Agent (as applicable) may, on behalf of the Banks, appoint a successor
Administrative Agent or Syndication Agent (as applicable), which shall be the
Administrative Agent and Swingline Lender or the Syndication Agent as the case
may be, who shall act until the Majority Banks shall appoint an Administrative
Agent and Swingline Lender or Syndication Agent. Any appointment of a successor
Administrative Agent and Swingline Lender or Syndication Agent by Majority Banks
or the retiring Administrative Agent and Swingline Lender or the Syndication
Agent pursuant to the preceding sentence shall, provided no Event of Default has
occurred and is then continuing, be subject to the Borrower's approval, which
approval shall not be unreasonably withheld, conditioned or delayed. Upon the
acceptance of its appointment as the Administrative Agent and Swingline Lender
or Syndication Agent hereunder by a successor Administrative Agent and Swingline
Lender or successor Syndication Agent, as applicable, such successor
Administrative Agent and Swingline Lender, or successor Syndication Agent, as
applicable, shall thereupon succeed to and become vested with all the rights and
duties of the retiring Administrative Agent and Swingline Lender or retiring
Syndication Agent, as applicable, and the retiring Administrative Agent and
Swingline Lender 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 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 or the Syndication Agent, as applicable. For gross
negligence or willful misconduct, as determined by all the Banks (excluding for
such determination Administrative Agent in its capacity as a Bank, as
applicable), Administrative Agent or Syndication Agent may be removed at any
time by giving at least thirty (30) Business Days prior written notice to
Administrative Agent, Syndication Agent and Borrower. Such resignation or
removal shall take effect upon the acceptance of appointment by a successor
Administrative Agent or Syndication Agent, as applicable, in accordance with the
provisions of this Section 7.8.
14.9. SECTION 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 each non-responding Bank shall be deemed to have concurred with such
recommended course of action), as the case may be.
15 ARTICLE
16 CHANGE IN CIRCUMSTANCES
16.1. SECTION 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.
16.2. SECTION 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 (x) make, maintain or fund its
Euro-Dollar Loans, or (y) to participate in any Letter of Credit issued by the
Fronting Bank, or, with respect to the Fronting Bank, to issue any Letter of
Credit, 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 in case of the event described in
clause (x) above to make Euro-Dollar Loans, or in the case of the event
described in clause (y) above, to participate in any Letter of Credit issued by
the Fronting Bank or, with respect to the Fronting Bank, to issue any Letter of
Credit, 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 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(e).
16.3. SECTION 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), 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), 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.
(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), 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(e).
16.4. SECTION Taxes.
(a) Any and all payments by the Borrower to or for the account of any Bank 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 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 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 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 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 Letter
of Credit 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 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 or the Administrative
Agent (as the case may be) and, so long as such Bank 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 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 in the case of each other Bank, shall
provide the Borrower with (A) two duly completed copies of Internal Revenue
Service form 1001, or any successor form prescribed by the Internal Revenue
Service, and (B) an Internal Revenue Service Form W-8BEN or W-8ECI, as
appropriate, 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, 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 being under Sections
1442(c)(1) and 1442(a) of the Internal Revenue Code, 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).
16.5. SECTION Base Rate Loans Substituted for Affected Euro-Dollar Loans. If (i)
the obligation of any Bank to make Euro-Dollar Loans has been suspended pursuant
to Section 8.2 or (ii) any Bank has demanded compensation under Section 8.3 or
8.4 with respect to its Euro-Dollar Loans and the Borrower shall, by at least
five Business Days' prior notice to such Bank through the Administrative Agent,
have elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer exist:
(a) Borrower shall be deemed to have delivered a Notice of Interest Rate
Election with respect to such affected Euro-Dollar Loans and thereafter all
Loans which would otherwise be made by such Bank as Euro-Dollar Loans shall be
made instead as Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all payments of
principal which would otherwise be applied to repay such Euro-Dollar Loans shall
be applied to repay its Base Rate Loans instead, and
(c) Borrower will not be required to make any payment which would otherwise be
required by Section 2.13 with respect to such Euro-Dollar Loans converted to
Base Rate Loans pursuant to clause (a) above.
17 ARTICLE
18 MISCELLANEOUS
18.1. SECTION 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 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, 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 this Section; provided that notices to the
Administrative Agent under Article II or Article VIII shall not be effective
until received.
18.2. SECTION No Waivers. No failure or delay by the Administrative 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.
18.3. SECTION Expenses; Indemnification.
(a) The Borrower shall pay within thirty (30) days after written notice from the
Administrative Agent, (i) all reasonable out-of-pocket costs and expenses of the
Administrative 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 and each
Bank, including, without limitation, fees and disbursements of counsel for the
Administrative 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, and (B) 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. For
purposes of this Section 9.3(a)(iii), (1) counsel for Administrative Agent shall
mean a single outside law firm representing Administrative Agent, and (2)
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 Administrative Agent).
(b) The Borrower agrees to indemnify the Administrative Agent and each Bank,
their respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding that may at any
time (including, without limitation, at any time following the payment of the
Obligations) be asserted against any Indemnitee, as a result of, or arising out
of, or in any way related to or by reason of, (i) any of the transactions
contemplated by the Loan Documents or the execution, delivery or performance of
any Loan Document, (ii) any violation by the Borrower or the Environmental
Affiliates of any applicable Environmental Law, (iii) any Environmental Claim
arising out of the management, use, control, ownership or operation of property
or assets by the Borrower or any of the Environmental Affiliates, including,
without limitation, all on-site and off-site activities of Borrower or any
Environmental Affiliate involving Materials of Environmental Concern, (iv) the
breach of any environmental representation or warranty set forth herein, but
excluding those liabilities, losses, damages, costs and expenses (a) for which
such Indemnitee has been compensated pursuant to the terms of this Agreement,
(b) incurred solely by reason of the gross negligence, willful misconduct bad
faith or fraud of any Indemnitee as finally determined by a court of competent
jurisdiction, (c) arising from violations of Environmental Laws relating to a
Property which are caused by the act or omission of such Indemnitee after such
Indemnitee takes possession of such Property or (d) owing by such Indemnitee to
any third party based upon contractual obligations of such Indemnitee owing to
such third party which are not expressly set forth in the Loan Documents. In
addition, the indemnification set forth in this Section 9.3(b) in favor of any
director, officer, agent or employee of Administrative Agent 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 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 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 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).
18.4. SECTION 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 to set off and to
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final) and any
other indebtedness at any time held or owing by such Bank (including, without
limitation, by branches and agencies of such Bank wherever located) to or for
the credit or the account of the Borrower against and on account of the
Obligations of the Borrower then due and payable to such Bank under this
Agreement or under any of the other Loan Documents, including, without
limitation, all interests in Obligations purchased by such Bank. Each Bank
agrees that if it shall by exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the aggregate amount of principal
and interest due with respect to any Note held by it or Letter of Credit
participated in by it, or, in the case of the Fronting Bank, Letter of Credit
issued by it, which is greater than the proportion received by any other Bank or
Letter of Credit issued or participated in by such 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 or Letter of Credit issued
or participated in by such other 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 or Letters of Credit. The Borrower agrees, to the
fullest extent it may effectively do so under applicable law, that any holder of
a participation in a Note or Letter of Credit, 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.
18.5. SECTION Amendments and Waivers. Any provision of this Agreement or the
Notes or other Loan Documents may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the Majority
Banks (and, if the rights or duties of the Administrative Agent or the Swingline
Lender in their capacity as Administrative Agent or the Swingline Lender, as
applicable, are affected thereby, by the Administrative 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 or for the
extension of the term of any Letter of Credit beyond the Maturity Date, (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.
18.6. SECTION Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
under this Agreement or the other Loan Documents without the prior written
consent of all Banks and the Administrative Agent and a Bank may not assign or
otherwise transfer any of its interest under this Agreement except as permitted
in subsections (b), (c) and (e) 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, conditioned 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 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,
conditioned or delayed; and provided further that if an Assignee is an affiliate
of such transferor Bank and is an Affiliate Qualified Institution, or was a Bank
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 one
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 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, Thirty Million
Dollars ($30,000,000)) 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.
18.7. SECTION Collateral. Each of the Banks represents to the Administrative
Agent and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
18.8. SECTION 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 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.
18.9. SECTION 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 Administrative 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).
18.10. SECTION WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE ADMINISTRATIVE
AGENT, THE SYNDICATION AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVE ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18.11. SECTION 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.
18.12. SECTION 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.
18.13. SECTION 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 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.
18.14. SECTION 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.
18.15. SECTION Confidentiality. The Administrative 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 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 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 and the Banks hereunder and under
the other Loan Documents, (c) in connection with assignments and participations
and the solicitation of prospective assignees and participants referred to in
Section 9.6 hereof, who have agreed in writing to be bound by a confidentiality
agreement substantially equivalent to the terms of this Section 9.15, and (d) as
may otherwise be required or requested by any regulatory
authority having jurisdiction over the Administrative Agent or any Bank or by
any applicable law, rule, regulation or judicial process. Notwithstanding
anything herein to the contrary, "information" shall not include, and the
Administrative Agent and each Bank may disclose without limitation of any kind,
any information with respect to the "tax treatment" and "tax structure" (in each
case within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated hereby and all materials of any kind (including
opinions and tax analyses) that are provided to the Administrative Agent or such
Bank relating to such tax treatment and tax structure; provided that with
respect to any document or similar item that in either case contains information
concerning the tax treatment or tax structure of the transaction as well as
other information, this sentence shall only apply to such portion of the
documents or similar item that relate to the tax treatment or tax structure of
the Loans, Letters of Credit and transactions contemplated hereby. The
Administrative Agent and/or the Bank making any such disclosure shall endeavor
to notify Borrower prior to making any such disclosure of the fact that such
disclosure is being made and the nature of the disclosure. In addition, the
Administrative Agent and/or such Bank shall provide Borrower with a copy of the
disclosure promptly after the same is made.
18.16. SECTION 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 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 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 monetary default on its part under the Loan Documents and (y)
unconditionally tendered to the Administrative Agent such Defaulting Bank's Pro
Rata Share of all costs, expenses and disbursements required to be paid or
reimbursed pursuant to the terms of the Loan Documents.
(iii) "Payment in Full" means, as of any date, the receipt by the Banks who are
not Junior Creditors of an amount of cash, in lawful currency of the United
States, sufficient to indefeasibly pay in full all Senior Debt.
(iv) "Senior Debt" means (x) collectively, any and all indebtedness, obligations
and liabilities of the Borrower to the Banks who are not Junior Creditors from
time to time, whether fixed or contingent, direct or indirect, joint or several,
due or not due, liquidated or unliquidated, determined or undetermined, arising
by contract, operation of law or otherwise, whether on open account or evidenced
by one or more instruments, and whether for principal, premium, interest
(including, without limitation, interest accruing after the filing of a petition
initiating any proceeding referred to in Section 6.1(f) or (g)), reimbursement
for fees, indemnities, costs, expenses or otherwise, which arise under, in
connection with or in respect of the Loans or the Loan Documents, and (y) any
and all deferrals, renewals, extensions and refundings of, or amendments,
restatements, rearrangements, modifications or supplements to, any such
indebtedness, obligation or liability.
(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;
(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.
(i) If any payment or distribution of any character or any security, whether in
cash, securities or other property, shall be received by any Junior Creditor in
contravention of any of the terms hereof, such payment or distribution or
security shall be received in trust for the benefit of, and shall promptly be
paid over or delivered and transferred to, Administrative Agent for application
to the payment of all Senior Debt, to the extent necessary to achieve Payment in
Full. In the event of the failure of any Junior Creditor to endorse or assign
any such payment, distribution or security, Administrative Agent is hereby
irrevocably authorized to endorse or assign the same as attorney-in-fact for
such Junior Creditor.
(ii) Each Junior Creditor shall take such action (including, without limitation,
the execution and filing of a financing statement with respect to this Agreement
and the execution, verification, delivery and filing of proofs of claim,
consents, assignments or other 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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 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).
(ix) 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
(x) 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.
(f) 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.
(g) 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.
18.17. SECTION Banks' ERISA Covenant. Each Bank, by its signature hereto or on
the applicable Transfer Supplement, hereby agrees (a) that on the date any Loan
is disbursed hereunder no portion of such Bank's Pro Rata Share of such Loan
will constitute "assets" within the meaning of 29 C.F.R. Section 2510.3-101 of
an "employee benefit plan" within the meaning of Section 3(3) of ERISA or a
"plan" within the meaning of Section 4975(e)(1) of the Code, and (b) that
following such date such Bank shall not allocate such Bank's Pro Rata Share of
any Loan to an account of such Bank if such allocation (i) by itself would cause
such Pro Rata Share of such Loan to then constitute "assets" (within the meaning
of 29 C.F.R. Section 2510.3-101) of an "employee benefit plan" within the
meaning of Section 3(3) of ERISA or a "plan" within the meaning of Section
4975(e)(1) of the Code and (ii) by itself would cause such Loan to constitute a
prohibited transaction under ERISA or the Code (which is not exempt from the
restrictions of Section 406 of ERISA and Section 4975 of the Code and the taxes
and penalties imposed by Section 4975 of the Code and Section 502(i) of ERISA)
or any Agent or Bank being deemed in violation of Section 404 of ERISA.
18.18. SECTION 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.
SECTION 9.20. Administrative Agent May File Proofs of Claim. In case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to Borrower or any party to the EOPT Guaranty, the
Administrative Agent (irrespective of whether the principal of any Loan or
Letter of Credit shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent
shall have made any demand on Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, Letters of Credit and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Banks and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Banks
and the Administrative Agent and their respective agents and counsel and
other amounts due the Banks and the Administrative Agent hereunder allowed
in such judicial proceeding); and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Bank to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Banks, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel and other amounts due the
Administrative Agent hereunder. Nothing contained herein shall be deemed to
authorize the Administrative Agent to authorize or consent to or accept or adopt
on behalf of any Bank any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Bank or to authorize
the Administrative Agent to vote in respect of the claim of any Bank in any such
proceeding.
[SIGNATURE PAGE FOLLOWS]
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
FOR PURPOSES OF AGREEING TO BE
BOUND BY THE PROVISIONS OF
SECTION 5.11 HEREOF ONLY:
EQUITY OFFICE PROPERTIES TRUST, a Maryland
real estate investment trust
By: /s/ Xxxxxxx Fear
---------------------------------------
Name: Xxxxxxx Fear
Title: Senior Vice President, Treasurer
TOTAL COMMITMENTS: $1,000,000,000
BANK OF AMERICA, N.A.,
as Administrative Agent, as
Swingline Lender, and as a Bank
By: /s/ Xxxxx XxXxxxx
----------------------------
Name: Xxxxx XxXxxxx
Title: Principal
Commitment: $75,000,000
2
JPMORGAN CHASE BANK,
as Syndication Agent and as a Bank
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
Commitment: $75,000,000
3
UBS AG, CAYMAN ISLANDS BRANCH,
as Senior Managing Agent and as a Bank
By: /s/ Xxxxxxxx X'Xxxxx
----------------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Director
By: /s/ Xxxxxxx X. Saint
----------------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director Banking
Products Services, US
Commitment: $65,000,000
4
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
5
EUROHYPO AG, NEW YORK BRANCH,
as Managing Agent and as a Bank
By: /s/ Xxx X. Xxxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx Charrick
--------------------------------
Name: Xxxxxx Charrick
Title: Vice President
Commitment: $45,000,000
6
U.S. BANK NATIONAL ASSOCIATION,
as Senior Managing Agent and as a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Commitment: $65,000,000
BANK ONE, NA, as Documentation Agent
and as a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
Commitment: $75,000,000
7
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Co-Agent and as a Bank
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Vice President
Commitment: $35,000,000
8
NATIONAL AUSTRALIA BANK LIMITED,
as Co-Agent and as a Bank
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Commitment: $35,000,000
0
XXX XXXX XX XXXX XXXXXX, XXX XXXX AGENCY,
as Senior Managing Agent and as a Bank
By: /s/ X.X. Xxxxx
--------------------------------
Name: X.X. Xxxxx
Title: Managing Director
Commitment: $65,000,000
10
WACHOVIA BANK, N.A.,
as Managing Agent and as a Bank
By: /s/ Xxx X. Xxxx
--------------------------------
Name: Xxx X. Xxxx
Title: Director
Commitment: $45,000,000
00
XXXXX XXXX XX XXXXXXXXXX, N.A.,
as Co-Agent and as a Bank
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
Commitment: $35,000,000
12
LASALLE BANK NATIONAL ASSOCIATION,
as Managing Agent and as a Bank
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxxx
Title: First Vice President
Commitment: $45,000,000
13
XXXXXX XXXXXXX BANK, as Senior
Managing Agent and as a Bank
By: /s/ Jaap L. Tonckens
--------------------------------
Name: Jaap L. Tonckens
Title: Vice President
Commitment: $65,000,000
14
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH
as Managing Agent and as a Bank
By: /s/ Xxxx X'Xxxx
-------------------------------
Name: Xxxx X'Xxxx
Title: Director
Commitment: $45,000,000
00
XXXXXXXX XXXXX XXXXXXX, INC.,
as Managing Agent and as a Bank
By: /s/ Xxxxxxx Chlopack
----------------------------
Name: Xxxxxxx Chlopack
Title: Vice President
Commitment: $45,000,000
16
XXXXXXX XXXXX BANK USA,
as Managing Agent and as a Bank
By: /s/ D. Xxxxx Xxxxx
--------------------------
Name: D. Xxxxx Xxxxx
Title: Director
Commitment: $45,000,000
00
XXX XXXX XX XXX XXXX, as a Bank
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Commitment: $25,000,000
18
THE NORTHERN TRUST COMPANY, as a Bank
By: /s/ Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
Commitment: $25,000,000
19
XXXXX XXX COMMERCIAL BANK, LTD.,
LOS ANGELES BRANCH, as a Bank
By: /s/ Xxx Xxxx
---------------------------
Name: Xxx Xxxx
Title: Vice President & General
Manager
Commitment: $25,000,000
20
Schedule 1.1
21
SCHEDULE 4.4 (b)
Disclosure of
Additional Material Indebtedness
1. Drawings under this Agreement.
2. Issuance of $500,000,000 10 year unsecured notes on 1/14/03
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, paid
time off 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
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.
SCHEDULE 5.11(c)(1)
EOP-QRS Trust
SCHEDULE 5.11(c)(2)
EOP-QRS Trust
SCHEDULE 5.11(c)(3)
FINANCING PARTNERSHIPS OWNED BY EOP-QRS TRUST
Properties in which EOP-QRS Trust is a 1% Limited Partner:
XX-0000 Xxxxxx Xxxxxx Limited Partnership, a Delaware limited partnership
(1601 Market Street, Philadelphia, Pennsylvania)
DC-1620 Limited Partnership, an Illinois limited partnership
(0000 X Xxxxxx, Xxxxxxxxxx, X.X.)
Properties in which EOP-QRS Trust is a 0.1% General Partner or Managing Member:
XX-0000 00xx Xxxxxx Limited Partnership, a Delaware limited partnership
(0000 00xx Xxxxxx, Xxxxxxxxxx, X.X.)
DC-1333 H Street, L.P., a Delaware limited partnership
(0000 X Xxxxxx, Xxxxxxxxxx, X.X.)
OR-5550 Macadam Building Limited Partnership, a Delaware limited
partnership
(0000 Xxxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxxx)
OR-BF Plaza Limited Partnership, a Delaware limited partnership
(Xxxxxxxx Xxxxxxxx Plaza, Portland, Oregon)
OH-Community Corporate Center Limited Partnership, a Delaware limited
partnership
(Community Corporate Center, Columbus, Ohio)
OH-One Crosswoods Limited Partnership, a Delaware limited partnership
(One Crosswoods Center, Columbus, Ohio)
DC-One Lafayette Limited Partnership, a Delaware limited partnership
(One Lafayette, Washington, D.C.)
DC-Two Lafayette Limited Partnership, a Delaware limited partnership
(Two Lafayette, Washington, D.C.)
DC-Three Lafayette Limited Partnership, a Delaware limited partnership
(Three Lafayette, Washington, D.C.)
OR-River Forum Limited Partnership, a Delaware limited partnership
(River Forum I & II, Portland, Oregon)
LA-Lakeway I, L.L.C., a Delaware limited liability company
(Lakeway Center I, Metairie, Louisiana)
LA-Lakeway II, L.L.C., a Delaware limited liability company
(Lakeway Center I, Metairie, Louisiana)
LA-Lakeway III, L.L.C., a Delaware limited liability company
(Lakeway Center I, Metairie, Louisiana)
