EXHIBIT 10.3
JOINT AND SEVERAL
GUARANTY AND AGREEMENT
(Interest)
New York, New York
September 11, 1997
WHEREAS, BOSTON PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership having an office at c/o Boston Properties, Inc., 0 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx (the "Borrower"), has applied to THE CHASE MANHATTAN BANK,
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a New York banking corporation having an office at Chase Real Estate Finance
Group, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Chase"), as Administrative Agent
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for the Lenders (as such term is defined in that certain Term Loan Agreement, of
even date herewith (the "Term Loan Agreement")), for a loan in the principal sum
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of $220,000,000.00 (the "Term Loan"), which Term Loan will be secured, among
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other things, by that certain Mortgage, of even date herewith, made by the
Borrower to Chase (the "Mortgage"), covering premises known as 000 Xxxx Xxxxxx,
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Xxx Xxxx, Xxx Xxxx, and evidenced by the Note (as such term is defined in the
Mortgage);
WHEREAS, to induce the Lenders to enter into the Term Loan Agreement, the
undersigned have agreed to execute and deliver this Agreement;
WHEREAS, the Lenders are willing to extend the Term Loan to the Borrower
only if the Borrower and BOSTON PROPERTIES, INC. ("BPI"), jointly and severally,
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execute and deliver this Agreement agreeing and guaranteeing to pay to the
Lenders interest on the Term Loan in the manner hereinafter provided;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, and in order to induce the Lenders to make and extend the Term
Loan to the Borrower, the undersigned hereby acknowledge, agree and confirm that
all of the above recitals are true, correct and complete and hereby covenant and
agree with the Lenders as follows:
1. Subject only to the limitation of liability set forth in Paragraph 2
below, until the Term Loan is fully repaid, the undersigned, jointly and
severally, and absolutely, irrevocably and unconditionally, guarantee and agree
to pay to the Lenders, following the occurrence and during the continuance of an
Event of Default including, without limitation, following an acceleration of the
Term Loan pursuant to the Term Loan Agreement, accrued and unpaid interest on
the Term Loan calculated pursuant to the provisions of the Term Loan Agreement
and the Note, whether accruing before or after such an Event of Default,
including specifically and without limitation, all interest accruing from and
after the commencement of any case, proceeding or action under any existing or
future laws relating to bankruptcy, insolvency or similar matters with respect
to the Borrower, unaffected by modification thereof in any bankruptcy or
insolvency proceeding, and even though the Lenders may not have an allowed claim
for the same against the Borrower as a result of any bankruptcy or insolvency
proceeding. For purposes of this Agreement an Event of Default shall be deemed
to be continuing if the same shall be the case under the Term Loan Agreement.
2. Notwithstanding anything to the contrary contained in Paragraph 1 of
this Agreement, for purposes of determining the interest liability under this
Agreement, interest shall be deemed to cease to accrue under this Agreement (but
not under the Term Loan Agreement or the Note) from and after the earlier to
occur of the following two (2) dates (the "Cut-Off Date") viz: (a) the date that
the Premises has been sold at a foreclosure sale or a deed-in-lieu of the
foreclosure of the Premises has been accepted by Chase or its nominee, and (b)
the date corresponding to the six (6) month anniversary of an Event of Default
under the Term Loan Agreement, which date shall be extended (i) if and to the
extent that Chase lacked knowledge of such an Event of Default under the Term
Loan Agreement, to the date when Chase first acquired knowledge of the
occurrence of such an Event of Default, or (ii) by the duration of any time
period during which, while such Event of Default remains uncured or is not
waived, the Borrower, BPI, or any related Party of the Borrower or BPI shall at
any time after the occurrence of such Event of Default take any action which
contests or otherwise impedes, delays or interferes with, in any manner, the
exercise of any rights or remedies of Chase under the Term Loan Agreement or any
of the other Transaction Documents, including, without limitation, the
commencement of any case, proceeding or action under any existing or future laws
relating to bankruptcy, insolvency or similar matters which results in a stay of
any enforcement of any right or remedy of the Lenders under any of the
Transaction Documents. Nothing in this Paragraph 2 shall be construed as
barring the commencement of any such case, proceeding or action by the Borrower
or any Related Party, the effect of such provision merely being that the six (6)
month time limitation on the interest liability of the undersigned shall be
extended until such case, proceeding or action is concluded. Notwithstanding
the foregoing, if the Borrower or any Related Party shall successfully contest
any such Event of Default, or if such Event of Default is cured, revoked,
rescinded or waived, then, in such circumstance, the provisions set forth in
clause (b) of this Paragraph 2 will once again become applicable upon the
occurrence and during the continuance of any subsequent Event of Default under
the Term Loan Agreement.
3. The undersigned agree to pay to Chase and the other Lenders the
reasonable cost of any and all lawful action that may be taken by Chase and the
other Lenders in connection with the enforcement of the provisions of this
Agreement, whether or not suit is filed in connection therewith, or in
connection with either or both of the undersigned becoming a party to a
voluntary or involuntary federal or state bankruptcy, insolvency or similar
proceeding (including, but not limited to, reasonable attorneys' fees and
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disbursements, whether in house staff, retained firms or otherwise). All sums
due Chase and the other Lenders under this paragraph 3 by the undersigned shall
be payable by the undersigned from time to time within ten (10) Business Days of
demand and, until paid in full, shall bear interest from such due date at the
Default Rate. The obligations of the undersigned pursuant to paragraphs 1 and 3
hereof are hereinafter collectively referred to as the "Liabilities".
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4. The undersigned hereby expressly agrees that this Agreement is
independent of, and in addition to, all collateral, if any, granted, pledged or
assigned under the Transaction Documents.
5. BPI hereby consents that from time to time, before or after any
Default, with or without further notice to or assent from BPI:
(a) any security at any time held by or available to Chase or the
other Lenders for any obligation of the Borrower, or any security at any time
held by or available to Chase or the other Lenders for any obligation of any
other person or party primarily, secondarily or otherwise liable for all or any
portion of the Term Loan and/or any other obligations of the Borrower or any
other person or party (other than Chase and the Lenders) under any of the
Transaction Documents ("Other Obligations"), if any, including any guarantor of
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the Term Loan and/or of any of such Other Obligations, may be accelerated,
settled, exchanged, surrendered or released and Chase and the other Lenders may
fail to set off and may release, in whole or in part, any balance of any deposit
account or credit on its books in favor of the Borrower, or of any such other
person or party;
(b) any obligation of the Borrower, or of any such other person or
party, may be changed, altered, renewed, extended, continued, accelerated,
surrendered, compromised, settled, waived or released in whole or in part, or
any Default or Event of Default thereto waived; and
(c) Chase or any other Lender may extend further credit in any manner
whatsoever to the Borrower, and generally deal with the Borrower or any of the
above mentioned security, deposit account, credit on its books or other person
or party as Chase or any other Lender may see fit;
and BPI shall remain bound in all respects for the Liabilities under this
Agreement, without any loss of any rights by Chase or the other Lenders and
without affecting the liability of the undersigned, notwithstanding any such
exchange, surrender, release, change, alteration, renewal, extension,
continuance, compromise, waiver, inaction, extension of further credit or other
dealing; and the Borrower agrees that none of the events described in clauses
(a)-(c) above shall be construed in any way to result in a release of the
Borrower from its personal recourse obligations hereunder for the Liabilities.
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6. All moneys available to Chase or the other Lenders pursuant to the
Transaction Documents for application in payment or reduction of the Term Loan,
the Liabilities and/or any Other Obligations may be applied by Chase in such
manner and in such amounts and at such time or times and in such order, priority
and proportions as Chase may see fit.
7. The undersigned hereby waives:
(a) notice of acceptance of this Agreement and of the extending of the
Term Loan or the making of any advance thereunder by the Lenders to the
Borrower;
(b) presentment and demand for payment of the Liabilities or any
portion thereof;
(c) protest and notice of dishonor or default to any of the
undersigned or to any other person or party with respect to the Liabilities or
any portion thereof;
(d) all other notices to which any of the undersigned might otherwise
be entitled; and
(e) any demand under this Agreement.
8. If any of the following events should occur:
(a) an Event of Default continues uncured;
(b) any of the undersigned violates any provision of this Agreement;
(c) any of the undersigned terminates or dissolves or suspends its
usual business activities or conveys, sells, leases, transfers or otherwise
disposes of all or substantially all of its property, business or assets other
than in the ordinary course of business;
then, and in such event, Chase may declare the Liabilities to be, and the same
shall become, immediately due and payable.
9. This Agreement includes a personal recourse agreement by the Borrower
and a personal recourse guaranty by BPI. BPI acknowledges and agrees that such
guaranty is a guaranty of payment and not of collection. The undersigned waive
any right to require that any action be brought against the Borrower or any
other person or party or to require that resort be had to any security or to any
balance of any deposit account or credit on the books of Chase or any other
Lender in favor of the Borrower or any other person or party. Any payment on
account of or reacknowledgment of the Liabilities by the Borrower or any other
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party liable therefor shall be deemed to be made on behalf of BPI and shall
serve to start anew the statutory period of limitations applicable to the
Liabilities.
10. The provisions hereof shall inure to the benefit of Chase and the
other Lenders, and shall be binding upon each of the undersigned. Each
reference herein to Chase and the other Lenders shall be deemed to include their
respective successors and assigns permitted pursuant to the provisions of the
Term Loan Agreement, and each reference to Chase shall refer to it in its
capacity as a Lender and as the Administrative Agent under the Transaction
Documents. Each reference herein to the undersigned shall be deemed to include
the administrators, legal representatives, successors and assigns of the
undersigned, provided, however, that the undersigned shall in no event nor under
any circumstance have the right, without obtaining the prior written consent of
Chase, to assign or transfer the Liabilities, in whole or in part, to any other
person, party or entity.
11. The term "undersigned" as used herein shall, if this Agreement is
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signed by more than one party, unless otherwise stated herein, mean the
"undersigned and each of them'' and each undertaking herein contained shall be
their joint and several undertaking. Chase may proceed against none, one or more
of the undersigned at one time or from time to time as it sees fit in its sole
and absolute discretion. If any party hereto shall be a partnership, the
agreements and obligations on the part of the undersigned herein contained shall
remain in force and application notwithstanding any changes in the individuals
composing the partnership and the term "undersigned" shall include any altered
or successive partnerships, but the predecessor partnerships and their general
partner(s) shall not thereby be released from any obligations or liability
hereunder. If any party hereto shall be a corporation, the agreements and
obligations on the part of the undersigned herein contained shall remain in
force and application notwithstanding the merger, consolidation, reorganization
or absorption thereof, and the term "undersigned" shall include such new entity,
but the old entity shall not thereby be released from any obligations or
liabilities hereunder.
12. No delay on the part of Chase or any other Lender in exercising any
right or remedy under this Agreement or failure to exercise the same shall
operate as a waiver in whole or in part of any such right or remedy. No notice
to or demand on any of the undersigned shall be deemed to be a waiver of the
obligations of any of the undersigned or of the right of Chase or any other
Lender to take further action without notice or demand as provided in this
Agreement. No course of dealing between any of the undersigned and Chase or any
other Lender shall change, modify or discharge, in whole or in part, this
Agreement or any obligations of the undersigned hereunder.
13. This Agreement may only be modified, amended, changed or terminated by
an agreement in writing signed by Chase, as Administrative Agent, and both of
the undersigned. No waiver of any term, covenant or provision of this Agreement
shall be effective unless given in writing by Chase, as Administrative Agent,
and if so given by Chase shall only be
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effective in the specific instance in which given. The execution and delivery
hereafter to Chase or any other Lender by any of the undersigned of a new
instrument of guaranty or any reaffirmation of guaranty, of whatever nature,
shall not terminate, supersede or cancel this instrument, unless executed by
Chase, as Administrative Agent, and expressly so provided therein, and all
rights and remedies of Chase and the other Lenders hereunder and under each
other Transaction Document, at law and in equity, whether against any or both of
the undersigned or any other party or parties, shall be cumulative and may be
exercised singly or concurrently.
14. The undersigned acknowledge that this Agreement and the undersigned's
obligations under this Agreement are and shall at all times continue to be
absolute, irrevocable and unconditional in all respects, and shall at all times
be valid and enforceable irrespective of any other agreements or circumstances
of any nature whatsoever which might otherwise constitute a defense to this
Agreement and the obligations of any of the undersigned under this Agreement or
the obligations of any other person or party relating to this Agreement or the
obligations of any of the undersigned hereunder or otherwise with respect to the
Term Loan, or the Liabilities, including, but not limited to, the realization
upon any collateral given, pledged or assigned as security for all or any
portion of the Term Loan, or the filing of a petition under Title 11 of the
United States Code with regard to the undersigned, or the commencement of an
action or proceeding for the benefit of the creditors of the undersigned, or the
obtaining by Chase of title to any collateral given, pledged or assigned as
security for the Term Loan by reason of foreclosure or enforcement of Xxxxx'x
xxxx thereon, the acceptance of an assignment or deed in lieu of foreclosure or
sale, or otherwise. This Agreement sets forth the entire agreement and
understanding of Chase, the other Lenders and the undersigned with respect to
the matters covered by this Agreement and the undersigned acknowledge that no
oral or other agreements, understandings, representations or warranties exist
with respect to this Agreement or with respect to the Liabilities, except those
specifically set forth in this Agreement.
15. This Agreement has been validly authorized, executed and delivered by
each of the undersigned. The undersigned represent and warrant to Chase and the
other Lenders that they have the corporate and partnership power to do so and to
perform their respective obligations under this Agreement, and this Agreement
constitutes the legally binding obligations of each of the undersigned fully
enforceable against each of the undersigned in accordance with the terms hereof.
The undersigned further represent and warrant to Chase and the other Lenders
that:
(a) neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby nor compliance with the
terms and provisions hereof will violate any applicable provision of law or any
applicable regulation or other manifestation of governmental action; and
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(b) all necessary approvals, consents, licenses, registrations and
validations of any governmental regulatory body, including, without limitation,
approvals required to permit the undersigned to execute and carry out the
provisions of this Agreement, for the validity of the obligations of the
undersigned hereunder and for the making of any payment or remittance of any
funds required to be made by either of the undersigned under this Agreement,
have been obtained and are in full force and effect.
16. Notwithstanding any payments made by BPI pursuant to the provisions of
this Agreement, BPI shall not seek to enforce or collect upon any rights which
it now has or may acquire against the Borrower either by way of subrogation,
indemnity, reimbursement or contribution for any amount paid under this
Agreement or by way of any other obligations whatsoever of the Borrower to BPI,
nor shall BPI file, assert or receive payment on any claim, whether now existing
or hereafter arising, against the Borrower in the event of the commencement of a
case by or against the Borrower under Title 11 of the United States Code. In
the event either a petition is filed under said Title 11 of the United States
Code with regard to the Borrower or an action or proceeding is commenced for the
benefit of the creditors of the Borrower, this Agreement shall at all times
thereafter remain effective in regard to any payments or other transfers of
assets to Chase or any other Lender, received from or on behalf of the Borrower
prior to notice of termination of this Agreement and which are or may be held
voidable on the grounds of preference or fraud, whether or not the Term Loan has
been paid in full.
17. Any notice, request or demand given or made under this Agreement shall
be in writing and shall be hand delivered or sent by Federal Express or other
reputable courier service or by postage prepaid registered or certified mail,
return receipt requested, and shall be deemed given (a) when received at the
following addresses if hand delivered or if sent by Federal Express or other
reputable courier service, and (b) three (3) Business Days after being
postmarked and addressed as follows if sent by registered or certified mail,
return receipt requested:
If to Chase:
The Chase Manhattan Bank
Chase Real Estate Finance Group
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx, Vice President
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With a copy to:
The Chase Manhattan Bank
Legal Department
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
and
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
If to the undersigned:
Boston Properties, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
President and Chief Executive Officer
With a copy to:
Xxxxxxx, Xxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Van, Esq.
it being understood and agreed that each party will use reasonable efforts to
send copies of any notices to the addresses marked "With a copy to" hereinabove
set forth; provided, however, that failure to deliver such copy or copies shall
have no consequence whatsoever to the effectiveness of any notice made to any of
the undersigned or Chase. Each party to this Agreement may designate a change
of address by notice given, as herein provided, to the other party fifteen (15)
days prior to the date such change of address is to become effective.
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18. This Agreement is, and shall be deemed to be, a contract entered into
under and pursuant to the laws of the State of New York and shall be in all
respects governed, construed, applied and enforced in accordance with the laws
of the State of New York without regard to principles of conflicts of laws. The
undersigned acknowledges and agrees that this Agreement is, and is intended to
be, an instrument for the payment of money only, as such phrase is used in (S)
3213 of the Civil Practice Law and Rules of the State of New York, and the
undersigned has been fully advised by its counsel of Chase's and the other
Lenders' rights and remedies pursuant to said (S) 3213.
19. Each of the undersigned agrees to submit to personal jurisdiction in
the State of New York in any action or proceeding arising out of this Agreement.
In furtherance of such agreement, the undersigned hereby agree and consent that
without limiting other methods of obtaining jurisdiction, personal jurisdiction
over the undersigned in any such action or proceeding may be obtained within or
without the jurisdiction of any court located in New York and that any process
or notice of motion or other application to any such court in connection with
any such action or proceeding may be served upon the undersigned by registered
or certified mail to, or by personal service at, the last known address of the
undersigned, whether such address be within or without the jurisdiction of any
such court. The undersigned hereby further agrees that the venue of any
litigation arising in connection with the Term Loan or in respect of any of the
Liabilities, shall, to the extent permitted by law, be in New York County.
20. Each of the undersigned absolutely, unconditionally and irrevocably
waives any and all right to assert or interpose any defense (other than the
right of the undersigned to assert or interpose the defense that the Cut-off
Date has occurred and its Liabilities under this Agreement have terminated
pursuant to the terms of this Agreement), setoff, counterclaim or crossclaim of
any nature whatsoever with respect to this Agreement, the Liabilities, or the
obligations of any other person or party relating to this Agreement or otherwise
with respect to the Term Loan in any action or proceeding brought by Chase or
any other Lender to enforce the obligations of the undersigned under this
Agreement (provided, however, that the foregoing shall not be deemed a waiver of
the right of the undersigned to assert any compulsory counterclaim maintained in
a court of the United States, or of the State of New York if such counterclaim
is compelled under local law or rule of procedure, nor shall the foregoing be
deemed a waiver of the right of the undersigned to assert any claim which would
constitute a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against Chase in any separate action or proceeding).
21. No exculpatory provisions which may be contained in the Note, the
Mortgage, the Term Loan Agreement or in any other Transaction Document shall in
any event or under any circumstances be deemed or construed to modify, qualify,
or affect in any manner whatsoever the personal, recourse, joint and several
obligations and liabilities of each of the undersigned under this Agreement.
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22. The obligations and liabilities of the undersigned under this
Agreement are in addition to the obligations and liabilities of the undersigned
under the Other Agreements (as hereinafter defined). The discharge of any or
all of the undersigned's obligations and liabilities under any one or more of
the Other Agreements by the undersigned or by reason of operation of law or
otherwise shall in no event or under any circumstance constitute or be deemed to
constitute a discharge, in whole or in part, of the undersigned's obligations
and liabilities under this Agreement. Conversely, the discharge of any or all
of the undersigned's obligations and liabilities under this Agreement by the
undersigned or by reason of operation of law or otherwise shall in no event or
under any circumstance constitute or be deemed to constitute a discharge, in
whole or in part, of the undersigned's obligations and liabilities under any of
the Other Agreements. The term "Other Agreements" as used herein shall mean (a)
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that certain Joint and Several Guaranty and Agreement (Net Cash Flow Shortfall)
of even date and execution herewith made by the undersigned to and for the
benefit of Chase, (b) that certain Joint and Several Hazardous Material Guaranty
And Indemnification Agreement of even date and execution herewith made by the
undersigned to and for the benefit of Chase and (c) any other agreement, if any,
now or hereafter given by any of the undersigned pursuant to which either or
both have pursuant recourse obligations to Chase and/or the other Lenders in
connection with the Term Loan. The undersigned hereby undertakes and agrees
that this Agreement shall remain in full force and effect for all of the
liabilities of the undersigned hereunder, notwithstanding the maturity of the
Term Loan, whether by acceleration, scheduled maturity or otherwise, subject
however, to the provisions of Paragraph 2 hereof.
23. This Agreement may be executed in one or more counterparts by some or
all of the parties hereto, each of which counterparts shall be an original and
all of which together shall constitute a single agreement of guaranty. The
failure of any party listed below to execute this Agreement, or any counterpart
hereof, shall not relieve the other signatory or signatories from their
obligations hereunder.
24. Capitalized terms not defined in this Agreement shall have the
meanings ascribed to such terms in the Term Loan Agreement.
25. THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND
CHASE BY ITS ACCEPTANCE OF THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY
WAIVES, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM
ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT.
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IN WITNESS WHEREOF, the undersigned has duly executed this Agreement the
day and year first above set forth.
BOSTON PROPERTIES, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
BOSTON PROPERTIES LIMITED
PARTNERSHIP, a Delaware
limited partnership
By: Boston Properties, Inc., its sole
general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
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Corporate Acknowledgement
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STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On the 11th day of September, 1997, before me personally came Xxxxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he has
an office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; that he is the Senior
Vice President of Boston Properties, Inc., the corporation described in and
which executed the above instrument; and that he signed his name thereto by
authority of the Board of Directors of said corporation on its own behalf and as
general partner of Boston Properties Limited Partnership.
/s/ Xxxxxxx Xxxxxx
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Notary Public
XXXXXXX XXXXXX
NOTARY PUBLIC, State of New York
No. 01SH4998206
Qualified in Westchester County
Commission Expires June 22, 1998
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Limited Partnership Acknowledgement
-----------------------------------
STATE OF NEW YORK )
:ss.:
COUNTY OF NEW YORK )
On the 11th day of September, 1997, before me personally came Xxxxxx X.
Xxxxxx, to me known and known to me to be the Senior Vice President of BOSTON
PROPERTIES INC., a Delaware corporation, the sole general partner of BOSTON
PROPERTIES LIMITED PARTNERSHIP, the Delaware Limited Partnership which executed
the foregoing instrument and he acknowledged before me that he executed the same
as the Senior Vice President of said general partner aforesaid for the uses and
purposes in said instrument set forth.
/s/ Xxxxxxx Xxxxxx
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Notary Public
XXXXXXX XXXXXX
NOTARY PUBLIC, State of New York
No. 01SH4998206
Qualified in Westchester County
Commission Expires June 22, 1998
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