exv10w1



 






Exhibit 10.1




CUSIP Number 26876GAA8




REVOLVING CREDIT AGREEMENT




for $1,250,000,000 Revolving Credit Facility

dated as of August 4, 2005




among




EOP OPERATING LIMITED PARTNERSHIP,




THE BANKS LISTED HEREIN,




J.P. MORGAN SECURITIES INC.,

as Joint Lead Arranger and Joint Bookrunner,




BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arranger and Joint Bookrunner,




BANK OF AMERICA, N.A.,

as Administrative Agent,




JPMORGAN CHASE BANK, N.A.,

as Syndication Agent,




THE BANK OF NOVA SCOTIA, US BANK NATIONAL ASSOCIATION and WACHOVIA

BANK, NATIONAL ASSOCIATION,

as Documentation Agents




CITICORP NORTH AMERICA INC., LONDON, CREDIT SUISSE, CAYMAN ISLANDS

BRANCH, DEUTSCHE BANK AG, NEW YORK BRANCH, LASALLE BANK NATIONAL

ASSOCIATION, MERRILL LYNCH BANK USA, MORGAN STANLEY BANK, PNC BANK,

N.A., UBS LOAN FINANCE LLC, MIZUHO CORPORATE BANK, LTD., and THE ROYAL

BANK OF SCOTLAND plc,

as Senior Managing Agents




THE BANK OF NEW YORK, EUROHYPO AG, NEW YORK BRANCH, and UFJ BANK

LIMITED,

as Managing Agents




AND




BANK OF CHINA, NEW YORK BRANCH and THE GOVERNOR AND COMPANY OF

THE BANK OF IRELAND,

as Co-Agents.




 









 








TABLE OF CONTENTS




ARTICLE I

DEFINITIONS




	 	 	 	 	 
	SECTION 1.1. Definitions

	 	 	1	 
	SECTION 1.2. Accounting Terms and Determinations

	 	 	32	 
	SECTION 1.3. Types of Borrowings

	 	 	32	 






ARTICLE II

THE CREDITS




	 	 	 	 	 
	SECTION 2.1. Commitments to Lend

	 	 	33	 
	SECTION 2.2. Notice of Borrowing

	 	 	34	 
	SECTION 2.3. Swingline Loan Subfacility

	 	 	36	 
	SECTION 2.4. Money Market Borrowings

	 	 	38	 
	SECTION 2.5. Notice to Banks; Funding of Loans

	 	 	42	 
	SECTION 2.6. Notes

	 	 	44	 
	SECTION 2.7. Method of Electing Interest Rates

	 	 	45	 
	SECTION 2.8. Interest Rates

	 	 	46	 
	SECTION 2.9. Fees

	 	 	47	 
	SECTION 2.10. Maturity Date; Extension

	 	 	48	 
	SECTION 2.11. Optional Prepayments

	 	 	49	 
	SECTION 2.12. General Provisions as to Payments

	 	 	50	 
	SECTION 2.13. Funding Losses

	 	 	51	 
	SECTION 2.14. Computation of Interest and Fees

	 	 	52	 
	SECTION 2.15. Use of Proceeds

	 	 	52	 
	SECTION 2.16. Letters of Credit

	 	 	52	 
	SECTION 2.17. Letter of Credit Usage Absolute

	 	 	56	 
	SECTION 2.18. Letters of Credit Maturing after the Maturity Date

	 	 	57	 
	SECTION 2.19. Mandatory Prepayments

	 	 	57	 
	SECTION 2.20. Special Provisions Regarding Alternate Currency Loans

	 	 	58	 
	SECTION 2.21. Qualified Borrowers

	 	 	60	 






ARTICLE III

CONDITIONS




	 	 	 	 	 
	SECTION 3.1. Closing

	 	 	61	 
	SECTION 3.2. Borrowings

	 	 	63	 






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ARTICLE IV

REPRESENTATIONS AND WARRANTIES




	 	 	 	 	 
	SECTION 4.1. Existence and Power

	 	 	64	 
	SECTION 4.2. Power and Authority

	 	 	65	 
	SECTION 4.3. No Violation

	 	 	65	 
	SECTION 4.4. Financial Information

	 	 	66	 
	SECTION 4.5. Litigation

	 	 	67	 
	SECTION 4.6. Compliance with ERISA

	 	 	67	 
	SECTION 4.7. Environmental

	 	 	67	 
	SECTION 4.8. Taxes

	 	 	68	 
	SECTION 4.9. Full Disclosure

	 	 	68	 
	SECTION 4.10. Solvency

	 	 	68	 
	SECTION 4.11. Use of Proceeds

	 	 	68	 
	SECTION 4.12. Governmental Approvals

	 	 	68	 
	SECTION 4.13. Investment Company Act; Public Utility Holding Company Act

	 	 	69	 
	SECTION 4.14. Principal Offices

	 	 	69	 
	SECTION 4.15. REIT Status

	 	 	69	 
	SECTION 4.16. Patents, Trademarks, etc

	 	 	69	 
	SECTION 4.17. Judgments

	 	 	69	 
	SECTION 4.18. No Default

	 	 	69	 
	SECTION 4.19. Licenses, etc

	 	 	69	 
	SECTION 4.20. Compliance With Law

	 	 	69	 
	SECTION 4.21. No Burdensome Restrictions

	 	 	70	 
	SECTION 4.22. Brokers’ Fees

	 	 	70	 
	SECTION 4.23. Intentionally Omitted

	 	 	70	 
	SECTION 4.24. Intentionally Omitted

	 	 	70	 
	SECTION 4.25. Organizational Documents

	 	 	70	 
	SECTION 4.26. Qualifying Unencumbered Properties

	 	 	70	 






ARTICLE V

AFFIRMATIVE AND NEGATIVE COVENANTS




	 	 	 	 	 
	SECTION 5.1. Information

	 	 	71	 
	SECTION 5.2. Payment of Obligations

	 	 	73	 
	SECTION 5.3. Maintenance of Property; Insurance; Leases

	 	 	74	 
	SECTION 5.4. Maintenance of Existence

	 	 	74	 
	SECTION 5.5. Compliance with Laws

	 	 	74	 
	SECTION 5.6. Inspection of Property, Books and Records

	 	 	75	 
	SECTION 5.7. Existence

	 	 	75	 
	SECTION 5.8. Financial Covenants

	 	 	75	 
	SECTION 5.9. Restriction on Fundamental Changes

	 	 	76	 
	SECTION 5.10. Changes in Business

	 	 	77	 
	SECTION 5.11. EOPT Status

	 	 	77	 






ii




 









 








	 	 	 	 	 
	SECTION 5.12. Other Indebtedness

	 	 	78	 
	SECTION 5.13. Forward Equity Contracts.

	 	 	79	 






ARTICLE VI

DEFAULTS




	 	 	 	 	 
	SECTION 6.1. Events of Default

	 	 	79	 
	SECTION 6.2. Rights and Remedies

	 	 	82	 
	SECTION 6.3. Notice of Default

	 	 	82	 
	SECTION 6.4. Actions in Respect of Letters of Credit

	 	 	83	 
	SECTION 6.5. Distribution of Proceeds after Default

	 	 	85	 






ARTICLE VII

THE AGENTS




	 	 	 	 	 
	SECTION 7.1. Appointment and Authorization

	 	 	85	 
	SECTION 7.2. Agency and Affiliates

	 	 	85	 
	SECTION 7.3. Action by Administrative Agent and Syndication Agent

	 	 	86	 
	SECTION 7.4. Consultation with Experts

	 	 	86	 
	SECTION 7.5. Liability of Administrative Agent

	 	 	86	 
	SECTION 7.6. Indemnification

	 	 	86	 
	SECTION 7.7. Credit Decision

	 	 	87	 
	SECTION 7.8. Successor Administrative Agent or Syndication Agent

	 	 	87	 
	SECTION 7.9. Consents and Approvals

	 	 	88	 






ARTICLE VIII

CHANGE IN CIRCUMSTANCES




	 	 	 	 	 
	SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair

	 	 	89	 
	SECTION 8.2. Illegality

	 	 	89	 
	SECTION 8.3. Increased Cost and Reduced Return

	 	 	90	 
	SECTION 8.4. Taxes

	 	 	92	 
	SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar Loans

	 	 	94	 






ARTICLE IX

MISCELLANEOUS




	 	 	 	 	 
	SECTION 9.1. Notices

	 	 	95	 
	SECTION 9.2. No Waivers

	 	 	95	 
	SECTION 9.3. Expenses; Indemnification

	 	 	95	 
	SECTION 9.4. Sharing of Set-Offs

	 	 	97	 
	SECTION 9.5. Amendments and Waivers

	 	 	98	 
	SECTION 9.6. Successors and Assigns

	 	 	98	 
	SECTION 9.7. Collateral

	 	 	101	 






iii



 









 








	 	 	 	 	 
	SECTION 9.8. Governing Law; Submission to Jurisdiction

	 	 	101	 
	SECTION 9.9. Counterparts; Integration;. Effectiveness

	 	 	102	 
	SECTION 9.10. WAIVER OF JURY TRIAL

	 	 	103	 
	SECTION 9.11. Survival

	 	 	103	 
	SECTION 9.12. Domicile of Loans

	 	 	103	 
	SECTION 9.13. Limitation of Liability

	 	 	103	 
	SECTION 9.14. Recourse Obligation

	 	 	103	 
	SECTION 9.15. Confidentiality

	 	 	103	 
	SECTION 9.16. Bank’s Failure to Fund

	 	 	104	 
	SECTION 9.17. Banks’ ERISA Covenant

	 	 	109	 
	SECTION 9.18. Senior Managing Agents, Managing Agents and Co-Agents

	 	 	109	 
	SECTION 9.19. No Bankruptcy Proceedings

	 	 	110	 
	SECTION 9.20. Administrative Agent May File Proofs of Claim

	 	 	110	 
	SECTION 9.21. USA PATRIOT Act Notice

	 	 	110	 
	SECTION 9.22. Public/Private Information

	 	 	111	 





SCHEDULE 1.1

SCHEDULE 4.4 (b)

SCHEDULE 5.11(c)(1)

SCHEDULE 5.11(c)(2)

SCHEDULE 5.11(c)(3)



iv




 









 








REVOLVING CREDIT AGREEMENT




     THIS REVOLVING CREDIT AGREEMENT (this “Agreement”) dated as of August 4, 2005 among
EOP OPERATING LIMITED PARTNERSHIP (the “Borrower”), the BANKS listed on the signature pages
hereof, J.P. MORGAN SECURITIES INC., as Joint Lead Arranger and Joint Bookrunner, BANC OF AMERICA
SECURITIES LLC, as Joint Lead Arranger and Joint Bookrunner, BANK OF AMERICA, N.A., as
Administrative Agent, JPMORGAN CHASE BANK, N.A., as Syndication Agent, THE BANK OF NOVA SCOTIA, US
BANK NATIONAL ASSOCIATION and WACHOVIA BANK, NATIONAL ASSOCIATION, as Documentation Agents,
CITICORP NORTH AMERICA INC., LONDON, CREDIT SUISSE, CAYMAN ISLANDS BRANCH, DEUTSCHE BANK AG, NEW
YORK BRANCH, LASALLE BANK NATIONAL ASSOCIATION, MERRILL LYNCH BANK USA, MORGAN STANLEY BANK, PNC
BANK, N.A., UBS LOAN FINANCE LLC, MIZUHO CORPORATE BANK, LTD., and THE ROYAL BANK OF SCOTLAND plc,
as Senior Managing Agents, THE BANK OF NEW YORK, EUROHYPO AG, NEW YORK BRANCH, and UFJ BANK
LIMITED, as Managing Agents, and BANK OF CHINA, NEW YORK BRANCH and THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND, as Co-Agents.



W I T N E S S E T H




          The parties hereto agree as follows:




ARTICLE I




DEFINITIONS




          SECTION 1.1. Definitions. The following terms, as used herein, have the following
meanings:




          “Absolute Rate Auction” means a solicitation of Money Market Quotes setting forth Money Market
Absolute Rates pursuant to Section 2.4.




          “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 Moody’s 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.




          “Alternate Currency” means the lawful currency of any of (i) the United Kingdom (British
Pounds Sterling) or (ii) the European Economic Union (Euros) or (iii) Japan (Yen) or (iv) Australia
(Australian Dollars). For all purposes of this Agreement, including without limitation the
calculation of the Dollar Equivalent Amount at any time and from time to time, each Alternate
Currency will be marked-to-market on the first Business Day of each month.




          “Alternate Currency Commitment” means with respect to each Bank, the amount set forth under
the name of such Bank on the signature pages hereof as its commitment for Loans in Alternate
Currencies (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) and Dollars, as
such amount may be reduced from time to time pursuant to Section 2.11(e) or in connection with an
assignment to an Assignee, and as such amount may be increased in connection with an assignment
from an Assignor. The initial aggregate Dollar Equivalent Amount of the Banks’ Alternate Currency
Commitments is $250,000,000.




          “Alternate Currency Letter of Credit” means a Letter of Credit denominated in Alternate
Currency.




          “Alternate Currency Sublimit” means, a Dollar Equivalent Amount of Loans denominated in
Alternate Currency and Alternate Currency Letter(s) of Credit (and, to the extent expressly
provided herein, Loans and Letters of Credit denominated in Dollars), equal to Two Hundred Fifty
Million Dollars ($250,000,000).




          “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




2









 







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 Moody’s, 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
Moody’s, 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/Moody’s	 	Fee Percentage
	Ratings)	 	(% per annum)
	Non-Investment Grade

	 	 	0.30	 
	BBB-/Baa3

	 	 	0.25	 
	BBB/Baa2

	 	 	0.20	 
	BBB+/Baa1

	 	 	0.15	 
	A-/A3 or better

	 	 	0.125	 






          “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




3









 







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 Moody’s; 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 Moody’s, 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/Moody’s	 	Loans	 	Dollar Loans    
	Ratings)	 	(% per annum)	 	(% per annum) 
	Non-Investment Grade

	 	 	0.0	 	 	 	0.95	 
	BBB-/Baa3

	 	 	0.0	 	 	 	0.75	 
	BBB/Baa2

	 	 	0.0	 	 	 	0.60	 
	BBB+/Baa1

	 	 	0.0	 	 	 	0.475	 
	A-/A3 or better

	 	 	0.0	 	 	 	0.45	 






          “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).




4









 








          “Authorized Officer” means any of Maureen Fear, Sarah Byrnes, Sheri Zinkovich, Erin Shumacher,
Patty Noftz, 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, but shall exclude all accounts payable, accrued interest and expenses, prepaid rents,
security deposits, and other miscellaneous liabilities included under “other liabilities” as shown
on Borrower’s consolidated balance sheet, and dividend and distributions declared but not yet paid.




          “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.




          “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 fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly
announced from time to time by the Bank serving as the Administrative Agent as its Prime Rate.




          “Base Rate Loan” means a Committed Loan in Dollars 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.




5









 








          “Borrower” means EOP Operating Limited Partnership, a Delaware limited partnership.




          “Borrower’s Share” means Borrower’s and EOPT’s share of the liabilities or assets, as the case
may be, of an Investment Affiliate as reasonably determined by Borrower based upon Borrower’s or
EOPT’s economic interest in such Investment Affiliate, as of the date of such determination.




          “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, and (iv) if such reference relates to
the date on which any amount is to be paid or made available in an Alternate Currency, the
principal financial center in the country of such Alternate Currency, as well as the city in the
country from which any Bank shall be funding such Alternate Currency Loan.




          “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,
Moody’s 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,
Moody’s 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,
Moody’s 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-




6









 







term rating of at least A or the equivalent from S&P, Moody’s or Fitch and having a short-term
rating of at least A-1 and P-1 from S&P and Moody’s, respectively (or, if at any time neither S&P
nor Moody’s shall be rating such obligations, then the highest rating from such other nationally
recognized rating services acceptable to Administrative Agent); (g) domestic and foreign
certificates of deposit or domestic time deposits or foreign deposits or bankers’ acceptances
(foreign or domestic) in Dollars, Hong Kong Dollars, Singapore Dollars or an Alternate Currency
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, Moody’s 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; and
money market funds invested in investments substantially all of which consist of the items
described in the foregoing clauses (a) through (h).




          “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 Twenty cents ($0.20) per square foot per annum of office space occupied 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 $0.20 per square foot
adjustment shall be pro-rated for the period of ownership).




          “CBD Properties” means real properties located in a “Central Business District”, as disclosed
in Borrower’s most recent supplemental securities disclosures.




          “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 BANK OF CHINA, NEW YORK BRANCH and THE GOVERNOR AND COMPANY OF THE BANK OF
IRELAND, 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




7









 








          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 sum of its Dollar Commitment and its
Alternate Currency Commitment.




          “Confidential Information Memorandum” means that certain Equity Office Properties Trust -
Confidential Information Memorandum, dated June 2005, from Banc of America Securities LLC, J.P.
Morgan, Securities, Inc., Bank of America, N.A., and JPMorgan Chase Bank, N.A..




          “Consolidated Subsidiary” means at any date any Subsidiary or other entity which is
consolidated with Borrower or EOPT in accordance with GAAP




          “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




8









 







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.




9









 








          “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.




          “Development Property(ies)” means any Real Property Asset (or, in the case of any Real
Property Asset being developed or redeveloped in phases, any phase thereof) under construction or
redevelopment (which shall be deemed to include the property commonly known as the Verizon Building
in New York City), until the earlier to occur of (a) the first day of the Fiscal Quarter
immediately succeeding the Fiscal Quarter in which the twelve (12) month anniversary of substantial
completion (which shall be deemed to be the date of the issuance of a certificate of occupancy for
the applicable Property) occurs, and (b) the first day of the Fiscal Quarter immediately succeeding
the Fiscal Quarter in which the applicable Property achieves an occupancy rate of not less than
93%.




10









 








          “Development Property Value” means an amount equal to the greater of (x) the aggregate amount
of the most recent quarter’s EBITDA with respect to such Development Property (or Borrower’s Share
thereof with respect to any Development Property owned by an Investment Affiliate) multiplied by
four, less $0.20 (or, in the case of Development Properties owned by an Investment Affiliate,
Borrower’s Share of $0.20) per square foot for occupied space for replacement reserves, divided by
a 7.50% capitalization rate for CBD Properties and an 8.75% capitalization rate for non-CBD
Properties, and (y) the undepreciated book value, determined in accordance with GAAP of such
Development Property (or Borrower’s Share thereof with respect to any Development Property owned by
an Investment Affiliate).




          “Documentation Agents” means each of THE BANK OF NOVA SCOTIA, US BANK NATIONAL ASSOCIATION and
WACHOVIA BANK, NATIONAL ASSOCIATION, in their capacity as Documentation Agents hereunder, and its
permitted successors in such capacity in accordance with the terms of this Agreement.




          “Dollar Commitment” means with respect to each Bank, the amount set forth under the name of
such Bank on the signature pages hereof as its commitment for Loans in Dollars (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(e)
or in connection with an assignment to an Assignee, and as such amount may be increased pursuant to
Section 2.1(b) or in connection with an assignment from an Assignor. The initial aggregate amount
of the Banks’ Dollar Commitments is $1,000,000,000.




          “Dollar Equivalent Amount” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternate Currency, the
equivalent amount thereof in Dollars as determined by the Administrative Agent or the Fronting
Bank, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the
most recent revaluation date pursuant to Section 2.19) for the purchase of Dollars with such
Alternate Currency.




          “Dollar Sublimit” means, an amount of Loans and Letters of Credit denominated in Dollars equal
to One Billion Dollars ($1,000,000,000), as the same may be increased or decreased in accordance
with the provisions of this Agreement).




          “Dollars” and “$” means the lawful money of the United States.




          “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.





11









 








          “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.




          “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 the Guaranty of Payment, dated as of even date herewith, executed by and
between EOPT and Administrative Agent for the benefit of the Banks.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.




12









 








          “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 made by a Bank as a Euro-Dollar Loan in accordance
with the applicable Notice of Borrowing.




          “Euro-Dollar Rate” means, for any applicable Interest Period for any Euro-Dollar Loan, the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, for Dollar or the applicable Alternate
Currency, as the case may be, deposits (for delivery on the first day of such Interest Period) with
a term equivalent such Interest Period. If such rate is not available at such time for any reason,
the “Euro-Dollar Rate” for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate 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 Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America’s London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement 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.





13









 








          “Existing Revolving Credit Facility” shall mean the revolving credit facility evidenced by
that certain Revolving Credit Agreement, dated as of May 9, 2003, 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 Amendment to Revolving Credit Agreement and Consent
Agreement, dated as of December 14, 2004.




          “Extension Date” has the meaning set forth in Subsection 2.10(b) hereof.




          “Extension Fee” shall mean a fee in an amount equal to fifteen basis points (0.15%) 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.




          “Financing Partnerships” means any Subsidiary which is wholly-owned, directly or indirectly,
by Borrower or by Borrower and EOPT.




          “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.





14









 








          “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, N.A. 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 in the same currency 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




15









 







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.




16









 







(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.




          “Intracompany Indebtedness” means Indebtedness whose obligor and obligee are each the
Borrower, EOPT or a Consolidated Subsidiary.




          “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, minus (v) the




17









 







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 Investment Affiliate Net Income for such period, all
of the foregoing without duplication .




          “Investment Grade Rating” means a rating for a Person’s senior long-term unsecured debt of
BBB- or better from S&P or a rating of Baa3 or better from Moody’s. In the event that Borrower
receives Credit Ratings only from S&P and Moody’s, and such Credit Ratings are not equivalent, the
lower of such two (2) Credit Ratings shall be used to determine whether an Investment Grade Rating
was achieved. In the event that Borrower receives more than two (2) Credit Ratings, and such
Credit Ratings are not all equivalent, the higher of the ratings from S&P and Moody’s 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 Moody’s, 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 20% 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. In
addition, the relationship of a Joint Venture Parent as a tenant in common in any asset with other
tenants in common in the same asset shall be treated as if such relationship were a general
partnership for purposes of this definition. In addition, for purposes of the definitions of
“Unencumbered Asset Value”, a Joint Venture Subsidiary shall be deemed to




18









 







include any entity (other
than a Financing Partnership) in which a Qualified Joint Venture Partner owns the balance of the
interests.




          “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, each Qualified Borrower
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 the
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).




19









 








          “Management/Development Fee Value” means an amount equal to the quotient of all third party
management and development fees for any period, divided by a 20% capitalization rate.




          “Managing Agents” means THE BANK OF NEW YORK, EUROHYPO AG, NEW YORK BRANCH, and UFJ BANK
LIMITED, in their capacity as Managing Agents hereunder.




          “Mandatory Borrowing” has the meaning set forth in Section 2.3(b)(iii).




          “Material Adverse Effect” means an effect resulting from any circumstance or event or series
of circumstances or events, of whatever nature (but excluding general economic conditions), which
does or could reasonably be expected to, materially and adversely (i) impair the ability of 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. § 300.5, toxic mold, or defined as
such by, or regulated as such under, any Environmental Law.




          “Maturity Date” shall mean the date when all of the Obligations hereunder shall be due and
payable which shall be August 3, 2009, unless accelerated pursuant to the terms hereof or extended
pursuant to Section 2.10(b) hereof




          “Money Market Absolute Rate” has the meaning set forth in Section 2.4(d)(2).




          “Money Market Absolute Rate Loan” means a loan in Dollars 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.




20









 








          “Money Market IBOR Loan” means a loan in Dollars made by a Bank pursuant to a IBOR Auction
(including, without limitation, such a loan bearing interest at the Base Rate pursuant to Article
VIII).




          “Money Market Loan” means a Money Market IBOR Loan or a Money Market Absolute Rate Loan.




          “Money Market Margin” has the meaning set forth in Section 2.4(d)(2).




          “Money Market Quote” means an offer by a Bank to make a Money Market Loan in accordance with
Section 2.4.




          “Money Market Quote Request” has the meaning set forth in Section 2.4(b).




          “Moody’s” means Moody’s 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 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




21









 







agreement)) and any amount
properly capitalized under GAAP, plus (ii) reasonable costs of purchase and non-recurring taxes
paid or payable in connection with such purchase, plus (iii) tenant improvement expenses for new
leases, leasing commissions to third party brokers, and other cash expenditures for capital
improvements paid or payable in connection with such Property.




          “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 or any Qualified Borrower, substantially in
the form of Exhibit A, Exhibit A-1 and Exhibit A-2 hereto, evidencing the obligation of the
Borrower or any Qualified 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.




22









 








          “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,
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



23









 






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 (i) 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, or (ii) which are being contested in good faith by appropriate proceedings for
review and in which respect of which there shall have been secured a subsisting stay of
execution pending such appeal or proceedings and with respect to which reasonable reserves
have been established by EOPT, Borrower or such Subsidiary, as the case may be;




     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 a rate set by Bank of America, N.A. based upon various factors including
Bank of America, N.A.’s costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by the Bank serving as the Administrative
Agent shall take effect at the opening of business on the day specified in the public announcement
of such change.




          “principal financial center” means, when used in reference to an Alternate Currency, (a) in
the case of British Pounds Sterling, London, England,
(b) in the case of Euros, Frankfurt am Main, Germany, (c) in the case of Yen, Tokyo, Japan, and (d)
in the case of Australian Dollars, Sydney, Australia.




24









 








          “Pro Rata Share” means, with respect to any Bank, as applicable, (a) a fraction (expressed as
a percentage), the numerator of which shall be the amount of such Bank’s Dollar Commitment and the
denominator of which shall be the aggregate amount of all of the Banks’ Dollar Commitments, (b) a
fraction (expressed as a percentage), the numerator of which shall be the amount of such Bank’s
Alternate Currency Commitment and the denominator of which shall be the aggregate amount of all of
the applicable Banks’ Alternate Currency Commitments, or (c) a fraction (expressed as a
percentage), the numerator of which shall be the sum of the amount of such Bank’s Alternate
Currency Commitment and its Dollar Commitment and the denominator of which shall be the aggregate
amount of all of the Banks’ Commitments, in each case 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 Borrower” means a foreign or domestic limited partnership, limited liability
company or other business entity duly organized under the laws of its jurisdiction of formation of
which the Borrower (or a Person that is owned and controlled by the Borrower) is the sole general
partner or managing member, the Indebtedness of which, in all cases, can be guaranteed by the
Borrower pursuant to the provisions of the Borrower’s organizational documents pursuant to the
Qualified Borrower Guaranty, and with respect to which a Qualified Borrower Guaranty has been
delivered.




          “Qualified Borrower Guaranty” means a full and unconditional guaranty of payment in the form
of Exhibit H attached hereto, enforceable against Borrower for the payment of a Qualified
Borrower’s debt or obligation to the Banks.




          “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 Moody’s 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).




          “Qualified Joint Venture Partner” means (a) pension funds, insurance companies, banks,
investment banks or similar institutional entities, each with significant experience in making
investments in commercial real estate, and (b) commercial real estate companies of similar quality
and experience.




          “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




25









 







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, Moody’s 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.




          “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.,
or any successor thereto.




          “Secured Debt” means Indebtedness (but excluding Intracompany 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 (but excluding
Intracompany Indebtedness), the payment of which is secured by a




26









 







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 CITICORP NORTH AMERICA INC., LONDON, CREDIT SUISSE, CAYMAN
ISLANDS BRANCH, DEUTSCHE BANK AG, NEW YORK BRANCH, LASALLE BANK NATIONAL ASSOCIATION, MERRILL LYNCH
BANK USA, MORGAN STANLEY BANK, PNC BANK, N.A., UBS LOAN FINANCE LLC, MIZUHO CORPORATE BANK, LTD.,
and THE ROYAL BANK OF SCOTLAND plc, in their capacity as Senior Managing Agents hereunder.




          “Sharing Event” means (i) the occurrence of an Event of Default with respect to the Borrower
or EOPT under clauses (f) or (g) of Section 6.1,or (ii) the acceleration of the Loans pursuant to
Article VI.




          “Solvent” means, with respect to any Person, that the fair saleable value of such Person’s
assets exceeds the Indebtedness of such Person.




          “Spot Rate” means the rate determined by the Administrative Agent or the Fronting Bank, as
applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the
purchase by such Person of such currency with another currency through its principal foreign
exchange trading office at
approximately 11:00 a.m. on the date two Business Days prior to the date as of which the
foreign exchange computation is made; provided that the Administrative Agent or the
Fronting Bank shall obtain such spot rate from Reuters (or other commercially available
source providing quotations of the spot rate as selected by Administrative Agent from time to
time); and provided further that the Fronting Bank may use such spot rate quoted on
the date as of which the foreign exchange computation is made in the case of any Letter of Credit
denominated in an Alternate Currency. 




          “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.




27









 








          “Syndication Agent” means JPMorgan Chase Bank, N.A. 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.




          “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 Development Properties) owned by Borrower, any
Consolidated Subsidiary or Investment Affiliate which was neither acquired nor disposed of by
Borrower, a Consolidated Subsidiary or an Investment Affiliate in the Fiscal Quarter most recently
ended, exclusive of Properties, if any, that shall have produced a negative EBITDA for the
applicable period, 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 occupied office space within such Properties which are Office Properties, by




28









 







(b) 0.0750 for CBD
Properties, or 0.0875 for non-CBD Properties, 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 (including Cash or
Cash equivalents in restricted Code Section 1031 accounts under the control of Borrower or any
Consolidated Subsidiary and Borrower’s Share of any Cash or Cash equivalents in restricted Code
Section 1031 accounts under the control of any Investment Affiliate), plus (v) the value of any
Unimproved Assets and any other tangible assets of Borrower or its Consolidated Subsidiaries
(including foreign currency exchange agreements, to the extent such agreements are material and are
reported or are required under GAAP to be reported by the Borrower or its Consolidated Subsidiaries
in their financial statements), as measured on a GAAP basis, plus (vi) Borrower’s Share of the
value of any Unimproved Assets and any other tangible assets of any Investment Affiliate as
measured on a GAAP basis, plus (vii) the Development Property Value of Development Properties of
Borrower or its Consolidated Subsidiaries, plus (viii) the Borrower’s Share of the Development
Property Value of Development Properties of any Investment Affiliate. 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 Debt” 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.




29









 








          “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) (including Cash or Cash equivalents in restricted Code Section
1031 accounts under the control of Borrower or any Consolidated Subsidiary and Borrower’s Share of
any Cash or Cash equivalents in restricted Code Section 1031 accounts under the control of any
Investment Affiliate), 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, exclusive of Qualifying Unencumbered Properties, if any, that
shall have produced a negative EBITDA for the applicable period, 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) $0.20 (or, in the case
of Qualifying Unencumbered Properties owned by an Investment Affiliate, Borrower’s Share of $0.20)
per square foot of occupied 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) .0750 for CBD Properties, or 0.0875 for non-CBD Properties, 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, plus (iv) the book value, determined in
accordance with GAAP, of Unimproved Assets, readily marketable securities and mortgage receivables,
plus the Development Property Value of any Qualifying Unencumbered Properties which are Development
Properties, plus the Management/Development Fee Value of any third party management and development
fees; 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 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 Unencumbere
d 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 amount of the
Unencumbered Asset Value attributable to all Qualifying Unencum-





30









 





bered 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, (dd) the
portion of the amount of the Unencumbered Asset Value attributable to Unimproved Assets, readily
marketable securities and mortgage receivables, the Development Property Value of any Qualifying
Unencumbered Properties which are Development Properties, plus the Management/Development Fee Value
of any third party management and development fees which would cause such amount to exceed thirty
percent (30%) 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 the Management/Development
Fee Value of any third party management and development fees which would cause such amount to
exceed five percent (5%) 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.



          “Unimproved Assets” means Real Property Assets (or, in the case of any Real Property Assets to
be developed in phases, any phase thereof) containing no material improvements other than
infrastructure improvements such as roads, utility feeder lines and the like.




          “United States” means the United States of America, including the fifty states and the
District of Columbia.




31









 








          “Unsecured Debt” means the amount of Indebtedness (excluding Intracompany 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
(excluding Intracompany Indebtedness) for borrowed money of such Joint Venture Subsidiary which is
not Secured Debt.




          “Unused Commitments” shall mean an amount equal to all unadvanced funds (other than unadvanced
funds in connection with any construction loan) which any third party is obligated to advance to
Borrower or another Person or otherwise pursuant to any loan document, written instrument or
otherwise.




          SECTION 1.2. Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered hereunder shall be
prepared in accordance with GAAP applied on a basis consistent (except for changes concurred in by
the Borrower’s independent public accountants) with the most recent audited consolidated financial
statements of the Borrower and its Consolidated Subsidiaries delivered to the Administrative Agent;
provided that for purposes of references to the financial results and information of “EOPT, on a
consolidated basis,” EOPT shall be deemed to own one hundred percent (100%) of the partnership
interests in Borrower; and provided further that, if the Borrower notifies the Administrative Agent
that the Borrower wishes to amend any covenant in Article V to eliminate the effect of any change
in GAAP on the operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Majority 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 Majority Banks.




          SECTION 1.3. Types of Borrowings. The term “Borrowing” denotes the aggregation
of Loans of one or more Banks to be made to the Borrower pursuant to Article 2 on the same date,
all of which Loans are of the same type (subject to Article 8) and, except in the case of Base Rate Loans and Swingline
Loans, have the same initial Interest Period. Borrowings are classified for purposes of this
Agreement either by reference to the pricing of Loans 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) and an
“Alternate Currency Borrowing” is a Borrowing comprised of Euro-Dollar Loans denominated in an
Alternate Currency) 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




32









 







Section 2.4 in which a Bank’s share is determined on the basis of its bid in
accordance therewith, and a “Swingline Borrowing” is a Borrowing under Section 2.3 in which only
the Swingline Lender participates (subject to the provisions of said Section 2.3)).




ARTICLE II



THE CREDITS



          SECTION 2.1. (a) Commitments to Lend. Each Bank severally agrees, on the terms
and conditions set forth in this Agreement, (a) to make Loans to the Borrower and to the Qualified
Borrowers 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 Dollar Equivalent
Amount of its Commitment, and (b) in furtherance and clarification of the foregoing, as to Banks
with an Alternate Currency Commitment only, to participate in Alternate Currency Letters of Credit
issued by the Fronting Bank on behalf of Borrower or the Qualified Borrowers pursuant to this
Article and to make Euro-Dollar Loans to Borrower and to the Qualifed Borrowers denominated in any
Alternate Currency (provided (i) such Alternate Currency is readily available to such Banks and is
freely transferable and convertible to Dollars, and (ii) the Reuters Monitor Money Rates Service
(or any successor thereto) reports a London Interbank Offered Rate for such Alternate Currency
relating to the applicable Interest Period, in an aggregate principal Dollar Equivalent Amount not
to exceed such Bank’s Alternate Currency Commitment. Each Borrowing outstanding under this Section
2.1 shall be in an aggregate principal Dollar Equivalent Amount of $5,000,000, or an integral
multiple of the Dollar Equivalent Amount 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 provisions of Section 2.1(b) hereof, in no event shall
(i) the aggregate Dollar Equivalent Amount of Loans
outstanding at any time, plus outstanding Dollar Equivalent Amount of the Letter of Credit Usage,
exceed $1,250,000,000 (as adjusted pursuant to Section 2.1(b), the “Facility Amount”), or
(ii) the aggregate amount of Loans denominated in an Alternate Currency plus the outstanding Letter
of Credit Usage for Alternate Currency Letters of Credit exceed the Alternate Currency Sublimit,
with, in the case of both clauses (i) and (ii), Loans denominated in Alternate Currencies and
Letter of Credit Usage for Alternate Currency Letters of Credit being marked to market monthly on
the last Business Day of each month. Notwithstanding any other provision of this Agreement to the
contrary, each Borrowing denominated in Dollars shall be deemed to use the Dollar Commitments to
the extent the Dollar Sublimit would not be exceeded thereby, and to use the Alternate Currency
Commitments if such Alternate Currency Commitments are available in the event that the Dollar




33









 







Commitments would be so exceeded. Subject to the limitations set forth herein, any amounts repaid
may be reborrowed.




          (b) Optional Increase in Commitments. At any time prior to the date that is
twenty-four (24) months after the date of this Agreement, on not more than one (1) occasion,
provided no Event of Default shall have occurred and then be continuing, the Borrower may, if it
so elects, increase the aggregate amount of the Commitments (subject to proviso (ii) in the next
sentence), either by designating a Qualified Institution not theretofore a Bank to become a Bank
(such designation to be effective only with the prior written consent of the Administrative Agent,
which consent will not be unreasonably withheld) and/or by agreeing with an existing Bank or Banks
that such Bank’s Commitment (or such Banks’ Commitments) shall be increased (but in no event shall
such Bank have any obligation to so increase its Commitment). Upon execution and delivery by the
Borrower and any such Bank or other financial institution of an instrument in form reasonably
satisfactory to the Administrative Agent, such existing Bank shall have a Commitment as therein set
forth or such Qualified Institution shall become a Bank with a Commitment as therein set forth and
all the rights and obligations of a Bank with such a Commitment hereunder; provided that:




               (i) the Borrower shall provide prompt notice of such increase to the Administrative
Agent, who shall promptly notify the Banks; and



               (ii) the amount of such increase does not cause the aggregate Dollar Commitments to
exceed $1,250,000,000, and shall not result in an increase in the Alternate Currency Commitments of
$250,000,000.


Upon any increase in the aggregate amount of the Commitments pursuant to this Section 2.1(b),
within five Business Days (in the case of any Base Rate Loans then outstanding) or at the end of
the then current Interest Period with respect thereto (in the case of any Euro-Dollar Loans then
outstanding), as applicable, each Bank’s Pro Rata Share shall be recalculated to reflect such
increase in the Dollar Commitments and the outstanding principal balance of the Committed Loans
shall be reallocated among the Banks such that the outstanding principal Dollar amount of Committed
Loans owed to each Bank (including any new Banks) shall be equal to such Bank’s Pro Rata Share (as
recalculated). 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 each Bank’s
recalculated Pro Rata Share.




     SECTION 2.2. 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)
(w) one Business Day before each Base Rate Borrowing, or (x) three Business Days before each
Euro-Dollar Borrowing denominated in Dollars, or (y) four (4) Business Days before each Euro-Dollar
Borrowing denominated in an Alternate Currency (Euro or Pounds Sterling only), or (z) five (5)
Business Days before each Euro-Dollar Borrowing denominated in an Alternate Currency (Yen or
Australian Dollars only), specifying:



34









 






     (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 if Euro-Dollar Loans are requested other than in Dollars, the type and
amount of the Alternate Currency being requested,




     (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,




     (v) if such Borrowing is to be made by a Qualified Borrower, the identity of the Qualified
Borrower, and




     (vi) payment instructions for the delivery of such Borrowing.



     (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 (or five (5) Business Days in the case of a Letter of Credit denominated in Yen or Australian
Dollars) 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) if Alternate Currency is requested, the type of the
Alternate Currency being requested, (ii) the designated Fronting Bank, (iii) the aggregate amount
of the requested Letters of Credit (which in no event shall be less than the Dollar Equivalent
Amount of $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 twelve (12) months after 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 (or
five (5) Business Days in the case of a Letter of Credit denominated in Yen or Australian Dollars),
the Borrower shall specify a precise description of the documents and the



35









 




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.




     SECTION 2.3. Swingline Loan Subfacility.



     (a) Swingline Commitment. Subject to the terms and conditions of this Section
2.3, the Swingline Lender, in its individual capacity, agrees to make certain revolving credit
loans to the Borrower (each a “Swingline Loan” and, collectively, the “Swingline
Loans”) from time to time during the term hereof; provided, however, that the
aggregate amount of Swingline Loans outstanding at any time shall not exceed the lesser of (i) ONE
HUNDRED MILLION DOLLARS ($100,000,000), 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 Business Days from the date of the applicable Swingline Borrowing, or (B) 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




36









 







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 Business Day
period after a Swingline Borrowing or such Swingline Borrowing has not been repaid, the Borrower
shall be deemed to have requested a Committed Borrowing comprised entirely of Base Rate Loans in
the amount of such 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




37









 







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.



     SECTION 2.4. Money Market Borrowings .



     (a) The Money Market Option. From time to time during the Term, and provided that at
such time the Borrower maintains a Credit Rating of at least BBB- or Baa3 (or their equivalent)
from two (2) Rating Agencies at least one (1) of which shall be S&P or Moody’s, 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) fifty percent (50%) of
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,



38









 






     (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.



39









 





     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



40









 




(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



41









 




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.



     2.5. 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 applicable 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 or, in the case of any Alternate
Currency Borrowing, local time to the principal financial center of the Alternate Currency in
question) 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 or the applicable Alternate Currency immediately available in
Dallas, Texas (or, in the case of any Alternate Currency Borrowing, the principal financial center
of the Alternate Currency in question), 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 or to the applicable Qualified Borrower or, at the
instruction of the Borrower or the applicable Qualified Borrower, to the beneficiary thereof, 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 with a Dollar Commitment or Alternate Currency Commitment, as applicable, 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 Dollar
Commitment or Alternate Currency Commitment, as applicable, bears to the aggregate of all
Dollar Commitments or Alternate Currency Commitments, as applicable). Upon any change in any of
the Commitments in accordance herewith, there shall be an automatic adjustment to such



42









 




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 or to the
Qualified Borrower, as the case may be, and the Fronting Bank shall make such Letter of Credit
available to the Borrower or the applicable Qualified 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 or the applicable Qualified Borrower shall request on the date of the Borrowing or, in
the case of an Alternate Currency Letter of Credit, at such address in Europe, the United Kingdom,
Japan, Australia or the United States as the Borrower or the applicable Qualified 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 or cause the applicable Qualified Borrower 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 or such Qualified 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.



43









 





     (e) Subject to the provisions hereof, the Administrative Agent shall make available
each Borrowing to Borrower in Federal funds or to the Borrower or the applicable Qualified Borrower
the applicable Alternate Currency immediately available in accordance with, and on the date set
forth in, the applicable Notice of Borrowing.



     2.6. SECTION Notes.



     (a) The Loans of each Bank shall be evidenced by a single Note made by each Borrower
(including any Qualified Borrower) 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 or Qualified 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 or applicable
Qualified Borrower hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Borrower and each Qualified 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.



44









 





     (f) There shall be no more than twenty (20) Euro-Dollar Groups of Loans and Money
Market Loans outstanding at any one time, of which no more than five (5) Euro-Dollar Groups of
Loans may be Alternative Currency Loans with Interest Periods of less than 30 days.



     2.7. 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 or Qualified Borrower, as the case may be, in the applicable
Notice of Borrowing or as otherwise provided in Section 2.3 with respect to Mandatory Borrowings.
Thereafter, the Borrower or the applicable Qualified Borrower (or the Borrower on behalf of the
applicable Qualified 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 or Qualified 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 (a) denominated in Dollars, the Borrower or
the applicable Qualified Borrower (or the Borrower on behalf of the applicable Qualified 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, or (b) denominated in an Alternate Currency, the Borrower or the
applicable Qualified Borrower (or the Borrower on behalf of the applicable Qualified Borrower) may
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 or the
applicable Qualified Borrower (or the Borrower on behalf of the applicable Qualified Borrower) in
the Notice of Interest Rate Election provided Borrower or the applicable Qualified Borrower (or the
Borrower on behalf of the applicable Qualified 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 the Dollar Equivalent Amount of $500,000
or any larger multiple of the Dollar Equivalent Amount of $100,000, (iii) there shall be no more
than twenty (20) Euro-Dollar Groups of Loans and Money Market Loans outstanding at any time, of
which no more than five (5) Euro-Dollar Groups of Loans may be Alternative Currency Loans with
Interest Periods of less than 30 days, (iv) no Committed Loan may be continued as, or




45









 







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 or Qualified
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 or Qualified Borrower) and such notice shall not thereafter be revocable by the
Borrower or the applicable Qualified Borrower. If the Borrower or Qualified 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 or, in the case of
Euro-Dollar Loans denominated in an Alternate Currency, continued as a Euro-Dollar Loan with an
Interest Period of 30 days, on the last day of the then current Interest Period applicable thereto.



     2.8. 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.



46









 





     (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.



     2.9. 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, a facility fee on the aggregate
Commitments at 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, or shall
cause the applicable Qualified Borrowers to pay, to the Administrative Agent, for the account of
the Banks




47










 





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, less .10%, 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 for the period after the Maturity Date
(not to exceed 12 months) during which any Letter of Credit shall continue to be outstanding in
accordance with the provisions of this Agreement, 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 or the applicable Qualified 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. In
addition, Borrower shall pay directly to the Fronting Bank for its own account, the customary
processing fees, charges and expenses of the Fronting Bank in connection with the issuance,
administration or extension of letters of credit as from time to time in effect.



     (d) 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.



     SECTION 2.10. Maturity Date; Extension.



     (a) The term (the “Term”) of the Commitments (and each Bank’s obligations to
make Loans hereunder) shall terminate and expire on the Maturity Date, subject, however, to the
provisions of Subsection 2.10(b) hereof. Upon the date of the termination of the Term, any Loans
then outstanding (together with accrued interest thereon) and all other Obligations other than with
respect to Letters of Credit, shall be due and payable on such date.



     (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



48









 




Administrative Agent and on the first day of the extension period (the “Extension
Date”); (iii) each of the representations and warranties of Borrower and each Qualified 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 and
Borrower shall comply with the provisions of Section 2.18, if applicable.



     SECTION 2.11. Optional Prepayments.



     (a) The Borrower may, upon at least one (1) Business Day’s notice to the Administrative
Agent, prepay any Group of Base Rate Loans or any Money Market Borrowing bearing interest at the
Base Rate pursuant to Section 8.1, in whole at any time, or from time to time in part in amounts
aggregating One Million Dollars ($1,000,000) or any larger multiple of One Hundred Thousand Dollars
($100,000), by paying the principal amount to be prepaid together with accrued interest thereon to
the date of prepayment. The Borrower may, from time to time on any Business Day so long as prior
notice is given to the Administrative Agent and Swingline Lender no later than 1:00 p.m. (Dallas,
Texas time) on the day on which Borrower intends to make such prepayment, prepay any Swingline
Loans in whole or in part in amounts aggregating $100,000 or a higher integral multiple of $100,000
(or, if less, the aggregate outstanding principal amount of all Swingline Loans then outstanding)
by paying the principal amount to be prepaid together with accrued interest thereon to the date of
prepayment no later than 2:00 p.m. (Dallas, Texas time) on such day. Each such optional prepayment
shall be applied to prepay ratably the Loans of the several Banks (or the Swingline Lender in the
case of Swingline Loans) included in such Group or Borrowing.



     (b) The Borrower may, upon at least one (1) Business Days’ notice to the Administrative
Agent, prepay all or any portion of 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.



49









 





     (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 or local time to the principal financial center of the Alternate
Currency in question, as applicable, 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
Dollar Commitments or the Alternate Currency Commitments in Dollar Equivalent Amounts aggregating
Ten Million Dollars ($10,000,000) or any larger multiple of Dollar Equivalent Amounts equal to One
Hundred Thousand Dollars ($100,000), by the delivery to the Administrative Agent of a notice of
cancellation, signed by an Authorized Officer, which notice shall specify the amount of Dollar
Commitments and/or Alternate Currency Commitments being cancelled, 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
applicable 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
or less than 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.



     SECTION 2.12. General Provisions as to Payments.



     (a) The Borrower or Qualified Borrower, as the case may be, 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 or local time to the principal financial center of the Alternate Currency in question,
as applicable) on the date when due, in Federal or other funds immediately available in
Dallas, Texas, or, in the case of any Alternate Currency Loans, in the applicable Alternate



50









 




Currency immediately available in the principal financial center of the Alternate Currency in
question, 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 or local time to the principal
financial center of the Alternate Currency in question, as applicable) 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 or Qualified
Borrower, as the case may be, will not make such payment in full, the Administrative Agent may
assume that the Borrower or Qualified Borrower, as the case may be, 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 or Qualified Borrower, as the case may
be, shall not have so made such payment, each Bank shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such Bank repays such
amount to the Administrative Agent, at the Federal Funds Rate.



     SECTION 2.13. Funding Losses. If the Borrower or a Qualified Borrower, as the
case may be, 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 or a Qualified Borrower, as the case may
be, 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 or a Qualified Borrower, as the case may be, 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



51









 




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.




     SECTION 2.14. Computation of Interest and Fees. All interest based on the
Euro-Dollar Rate (other than with respect to Loans denominated in Pounds Sterling) and all 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). All interest based on the Prime Rate and all
interest on Loans denominated in Pounds Sterling shall be computed on the basis of a year of 365
days (or, in the case of interest based on the Prime Rate only, 366 days in a leap year) and paid
for the actual number of days elapsed (including the first day but excluding the last day).



     SECTION 2.15. Use of Proceeds. The Borrower shall use, or shall cause any
Qualified Borrower to 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.



     SECTION 2.16. 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, provided that the Fronting Bank shall not have received written notice from the
Administrative Agent or the Borrower, not less than one (1) Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or more applicable
conditions set forth in Section 3.2 shall not have been satisfied, the Fronting Bank shall issue a
Letter of Credit or Letters of Credit in such form as is reasonably acceptable to the Fronting Bank
and Borrower or the Qualified 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; provided that, in the case of
(i) Alternate Currency Letter(s) of Credit, the Fronting Bank shall issue the same in the Alternate
Currency requested and (ii) Dollar Letter(s) of Credit, the Fronting Bank shall issue the same in
Dollars. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the Dollar Equivalent Amount of the stated
amount of such Letter of Credit in effect at such time.



     (b) The Letter of Credit Usage shall be no more than twenty-five percent (25%) of the
aggregate Commitments (and in the case of Alternate Currency Letters of Credit, no more than



52









 




the
Dollar Equivalent Amount of $125,000,000), at any one time. Upon receipt of any notice in
accordance with Section 2.2(b) requesting the issuance of a Letter of Credit, the Fronting Bank
shall confirm with the Administrative Agent (by telephone or in writing) that the limitations set
forth in this Section 2.16(b) shall not be violated.




     (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. Notwithstanding
anything contained herein to the contrary, however, in the case of Alternate Currency Letters of
Credit, Borrower or, if such Letter of Credit was issued on behalf of a Qualified Borrower, such
Qualified Borrower (which obligations of such



53









 




Qualified
Borrower are guaranteed by Borrower pursuant to the Qualified Borrower Guaranty) shall
reimburse any drawing thereunder in the Alternate Currency in which such Alternate Currency
Letter(s) of Credit are denominated; provided, however, that if (x) any such
drawing is made at a time when there exists an Event of Default or (y) Borrower shall not have
notified the Administrative Agent and Fronting Bank prior to 11 a.m. (New York time) at least two
(2) Business Days immediately prior to such drawing that Borrower intends to reimburse Fronting
Bank in the applicable Alternate Currency, then, in either such case, such reimbursement shall
instead be made by payment in Dollars of the Dollar Equivalent Amount of such drawing and in
immediately available funds. 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.



54









 





     (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 (including, without limitation, consequential damages), 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



55









 




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.




     (h) The Fronting Bank shall not be under any obligation to issue any Letter of Credit
if the issuance of such Letter of Credit would violate one or more policies of the Fronting Bank,
which policies such Fronting Bank shall apply equally to all borrowers similarly situated.



     SECTION 2.17. 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;



56









 





     (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.



     SECTION 2.18. Letters of Credit Maturing after the Maturity Date.



     (a) Notwithstanding anything contained herein to the contrary, if any Letters of
Credit, by their terms, shall mature after the Maturity Date (as the same may be extended), then,
on and after the Maturity Date, the provisions of this Agreement shall remain in full force and
effect with respect to such Letters of Credit, and the Borrower shall comply with the provisions of
Section 2.18(b). No Letter of Credit shall mature on a date that is more than twelve (12) months
after the Maturity Date then in effect.



     (b) If, at any time and from time to time, any Letter of Credit shall have been issued
hereunder and the same shall expire on a date after the Maturity Date, then, on the date that is
five (5) Business Days prior to the Maturity Date, 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 the Letter of Credit Collateral Account, Letter of Credit Collateral in
an amount equal to the Dollar Equivalent Amount of the Letter of Credit Usage under the Letters of
Credit. The Administrative Agent shall recalculate the Dollar Equivalent Amount with respect to
all Alternate Currency Letters of Credit monthly, as of the first Business Day of each month.
Interest shall accrue on the Letter of Credit Collateral Account in accordance with the provisions
of Section 6.4.



     SECTION 2.19. Mandatory Prepayments. The Administrative Agent shall calculate
the Dollar Equivalent Amount of all Loans denominated in an Alternate Currency and Letter of Credit
Usage of Alternate Currency Letters of Credit at the time of each Borrowing thereof and on the last
Business Day of each month during each Interest Period longer than one month in duration. If at
any such time (y) the Dollar Equivalent Amount of the sum of (i) all outstanding Loans denominated
in an Alternate Currency, (ii) all outstanding Loans denominated in Dollars made against the
Alternate Currency Commitment, (iii) the outstanding Dollar Equivalent Amount of the Letter of
Credit Usage for Alternate Currency Letters of Credit, and (iv) the Letter of Credit Usage for
Letters of Credit denominated in Dollar issued against the Alternate Currency Commitment, so
determined by the Administrative Agent, in the aggregate, exceeds the Alternate Currency Sublimit,
Borrower shall repay (and cause the applicable Qualified Borrowers to repay)
all or a portion of such Loans, otherwise in accordance with the applicable terms of this



57









 




Agreement, in such amount so that, following the making of such payment, the Dollar Equivalent
Amount outstanding of such Loans and Letter of Credit Usage does not exceed the Alternate Currency
Sublimit, or (z) the Dollar Equivalent Amount of the sum of (i) all
outstanding Loans and (ii) the outstanding Dollar Equivalent Amount of the Letter of Credit Usage
so determined by the Administrative Agent, in the aggregate, exceeds the Commitments, Borrower
shall, in each case, repay (or cause the applicable Qualified Borrower to repay) all or a portion
of the Loans, otherwise in accordance with the applicable terms of this Agreement, in such amount
so that, following the making of such payment, the Dollar Equivalent Amount outstanding of Loans
and Letter of Credit Usage does not exceed the Commitments.




     SECTION 2.20. Special Provisions Regarding Alternate Currency Loans.



     (a) Upon the occurrence of a Sharing Event, automatically (and without the taking of
any action) (x) all then outstanding Euro-Dollar Loans denominated in an Alternate Currency shall
be automatically converted into Base Rate Loans denominated in Dollars (in an amount equal to the
Dollar Equivalent Amount of the aggregate principal amount of the applicable Euro-Dollar Loans on
the date such Sharing Event first occurred, which Loans denominated in Dollars (i) shall thereafter
continue to be deemed to be Base Rate Loans and (ii) unless the Sharing Event resulted solely from
a termination of the Commitments, shall be immediately due and payable on the date such Sharing
Event has occurred) and (y) unless the Sharing Event resulted solely from a termination of the
Commitments, all accrued and unpaid interest and other amounts owing with respect to such Loans
shall be immediately due and payable in Dollars, taking the Dollar Equivalent Amount of such
accrued and unpaid interest and other amounts.



     (b) Upon the occurrence of a Sharing Event, and after giving effect to any automatic
conversion pursuant to Section 2.20(a), each Bank shall (and hereby unconditionally and irrevocably
agrees to) purchase and sell (in each case in Dollars) undivided participating interests in all
such Loans outstanding to, and any unpaid Letter of Credit Usage owing by, the Borrower in such
amounts so that each Bank shall have a share of such outstanding Loans and unpaid Letter of Credit
Usage then owing by the Borrower equal to its Pro Rata Share of the Commitments (although if
because of fluctuations in currency exchange rates any Bank would be required to purchase such
participations after giving effect to which such Bank’s allocated share of all Loans and Letter of
Credit Usage (including participations therein purchased pursuant to this Section 2.20) would
exceed the Dollar Equivalent Amount of such Bank’s Dollar Commitment and Alternate Currency
Commitment, then such participations shall be in an amount after giving effect to which such Bank’s
allocated share of all Loans and Letter of Credit Usage (including participations therein purchased
pursuant to this Section 2.20) would equal the Dollar Equivalent Amount of such Bank’s Dollar
Commitment and Alternate Currency Commitment. Upon any such occurrence, the Administrative Agent
shall notify each Bank and shall specify the amount of dollars required from such Bank in order to
effect the purchases and sales by the various Banks of participating interests in the amounts
required above (together with accrued interest with respect to the period for the last interest
payment date through the date of the Sharing Event plus any
additional amounts payable by the Borrower pursuant to this Section 2.20 in respect of such
accrued but unpaid interest); provided, in the event that a Sharing Event shall



58









 




have occurred, each
Bank shall be deemed to have purchased, automatically and without request, such participating
interests. Promptly upon receipt of such request, each Bank shall deliver to the Administrative
Agent (in immediately available funds in Dollars) the net amounts as specified by the
Administrative Agent. The Administrative Agent shall promptly deliver the
amounts so received to the various Banks in such amounts as are needed to effect the purchases
and sales of participations as provided above. Promptly following receipt thereof, each Bank which
has sold participations in any of its Loans (through the Administrative Agent) will deliver to each
Bank (through the Administrative Agent) which has so purchased a participating interest a
participation certificate dated the date of receipt of such funds and in such amount. It is
understood that the amount of funds delivered by each Bank shall be calculated on a net basis,
giving effect to both the sales and purchases of participations by the various Banks as required
above.




     (c) Upon the occurrence of a Sharing Event (i) no further Loans shall be made, (ii) all
amounts from time to time accruing with respect to, and all amounts from time to time payable on
account of, any outstanding Euro-Dollar Loans initially denominated in an Alternate Currency
(including, without limitation, any interest and other amounts which were accrued but unpaid on the
date of such purchase) shall be payable in Dollars as if such Euro-Dollar Loans had originally been
made in Dollars and shall be distributed by the relevant Banks (or their Affiliates) to the
Administrative Agent for the account of the Banks which made such Loans or are participating
therein and (iii) the Commitments of the Banks shall be automatically terminated. Notwithstanding
anything to the contrary contained above, the failure of any Bank to purchase its participating
interest in any Loans upon the occurrence of a Sharing Event shall not relieve any other Bank of
its obligation hereunder to purchase its participating interests in a timely manner, but no Bank
shall be responsible for the failure of any other Bank to purchase the participating interest to be
purchased by such other Bank on any date.



     (d) If any amount required to be paid by any Bank pursuant to Section 2.20(b) is not
paid to the Administrative Agent within one (1) Business Day following the date upon which such
Bank receives notice from the Administrative Agent of the amount of its participations required to
be purchased pursuant to said Section 2.20(b), such Bank shall also pay to the Administrative Agent
on demand an amount equal to the product of (i) the amount so required to be paid by such Bank for
the purchase of its participations times (ii) the daily average Federal Funds Rate during the
period from and including the date of request for payment to the date on which such payment is
immediately available to the Administrative Agent times (iii) a fraction the numerator of which is
the number of days that elapsed during such period and the denominator of which is 360. If any such
amount required to be paid by any Bank pursuant to Section 2.20(b) is not in fact made available to
the Administrative Agent within three (3) Business Days following the date upon which such Bank
receives notice from the Administrative Agent as to the amount of participations required to be
purchased by it, the Administrative Agent shall be entitled to recover from such Bank on demand,
such amount with interest thereon calculated from such request date at the rate per annum
applicable to Base Rate Loans hereunder. A certificate of the Administrative Agent submitted to any
Bank with respect to any amounts payable by any Bank pursuant to this Section 2.20 shall be paid to
the Administrative Agent for the account of the relevant Banks;
provided that, if the Administrative Agent (in its sole



59









 




discretion) has elected to fund on
behalf of such Bank the amounts owing to such Banks, then the amounts shall be paid to the
Administrative Agent for its own account.




     (e) Whenever, at any time after the relevant Banks have received from any Banks
purchases of participations in any Loans pursuant to this Section 2.20, the Banks receive any
payment on account thereof, such Banks will distribute to the Administrative Agent, for the
account of the various Banks participating therein, such Banks’ participating interests in
such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such participations were outstanding) in like funds as received; provided,
however, that in the event that such payment received by any Banks are required to be returned, the
Banks who received previous distributions in respect of their participating interests therein will
return to the respective Banks any portion thereof previously so distributed to them in like funds
as such payment is required to be returned by the respective Banks.



     (f) Each Bank’s obligation to purchase participating interests pursuant to this Section
2.20 shall be absolute and unconditional and shall not be affected by any circumstance including,
without limitation, (a) any setoff, counterclaim, recoupment, defense or other right which such
Bank may have against any other Bank, the Borrower or any other Person for any reason whatsoever,
(b) the occurrence or continuance of an Event of Default, (c) any adverse change in the condition
(financial or otherwise) of the Borrower or any other Person, (d) any breach of this Agreement by
the Borrower, any of its Subsidiaries or any Bank or any other Person, or (e) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.



     (g) Notwithstanding anything to the contrary contained elsewhere in this Agreement,
upon any purchase of participations as required above, each Bank which has purchased such
participations shall be entitled to receive from the Borrower any increased costs and indemnities
directly from the Borrower to the same extent as if it were the direct Bank as opposed to a
participant therein. The Borrower acknowledges and agrees that, upon the occurrence of a Sharing
Event and after giving effect to the requirements of this Section 2.20, increased Taxes may be
owing by the Borrower pursuant to Section 8.4, which Taxes shall be paid (to the extent provided in
Section 8.4) by the Borrower, without any claim that the increased Taxes are not payable because
same resulted from the participations effected as otherwise required by this Section 2.20.



     SECTION 2.21. Qualified Borrowers.



     (a) The Borrower may, at any time or from time to time, upon not less than ten (10)
Business Days’ notice in the case of a domestic Qualified Borrower or fifteen (15) Business Day’s
notice in the case of a foreign Qualified Borrower, designate one or more Qualified Borrowers to be
added to this Agreement by notifying the Administrative Agent thereof, and the Administrative Agent
shall promptly notify each Bank. Borrower shall, or shall cause such Qualified Borrower to, deliver
all documents required to be delivered pursuant to Section 3.1
with respect to a Qualified Borrower, each of which shall be in form and substance reasonably
satisfactory to



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the Administrative Agent. Following the giving of any notice pursuant to this
Section 2.21, if the designation of such Qualified Borrower obligates the Administrative Agent or
any Bank to comply with “know your customer” or similar identification procedures in circumstances
where the necessary information is not already available to it, the Borrower shall, promptly upon
the request of the Administrative Agent or any Bank, supply such documentation and other evidence
as is reasonably requested by the Administrative Agent or any Bank in order for the Administrative
Agent or such Bank to carry out and be satisfied it has complied with the
results of all necessary “know your customer” or other similar checks under all applicable
laws and regulations.




     (b) If the Borrower shall designate as a Qualified Borrower hereunder any entity not
organized under the laws of the United States or any State thereof, any Bank may, with notice to
the Administrative Agent and the Borrower, fulfill its Commitment by causing an Affiliate of such
Bank to act as the Bank in respect of such Qualified Borrower (and such Bank shall, to the extent
of Loans made to, and participations in Letters of Credit issued for the account of such Qualified
Borrower, be deemed for all purposes hereof to have pro tanto assigned such Loans and
participations to such Affiliate in compliance with the provisions of Section 9.6 (but only for so
loan as such Loans or Letters of Credit shall be outstanding) except that unless such an Affiliate
is a Qualified Institution, nothing herein shall be deemed to have relieved such Bank from its
obligations under its Commitments).



ARTICLE III




CONDITIONS




     SECTION 3.1. Closing. The closing hereunder shall occur on the date when each
of the following conditions is satisfied (or waived in writing by the Administrative Agent and the
Banks), each document to be dated the Closing Date unless otherwise indicated:



     (a) the Borrower and any Qualified 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 and the Qualified Borrower Guaranty, if applicable;



     (d) the Administrative Agent shall have received an opinion of DLA Piper Rudnick Gray Cary US
LLP, counsel for the Borrower, EOPT and any Qualified Borrower, acceptable to the Administrative
Agent, the Banks and their counsel;



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     (e) the Administrative Agent shall have received all documents the Administrative Agent
may reasonably request relating to the existence of the Borrower, each Qualified Borrower as of the
Closing Date, if any, 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 and correlative documentation for each Qualified Borrower as of the Closing Date;



     (f) the Borrower, each Qualified 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 and each
Qualified Borrower as of the Closing Date shall have taken all actions required to authorize the
execution and delivery of its Note and the performance thereof by such Qualified Borrower;



     (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,
Meagher & Flom 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, Meagher & Flom LLP;



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     (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, each
Qualified Borrower as of the Closing Date 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.



     SECTION 3.2. 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) in the event that such Loan is to be made to, or such Letter of Credit is to be issued for
the account of, a Qualified Borrower, receipt by the Administrative Agent of a Note by such
Qualified Borrower for the account of each Bank, if not previously delivered, satisfying the
requirements of Section 2.6, together with all other items that would have been required to be
delivered pursuant to Section 3.1 with respect to such Qualified Borrower;



     (c) 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;



     (d) 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;



     (e) 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



63









 




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;




     (f) 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



     (g) no event, act or condition shall have occurred after the date of the most recent financial
statements of Borrower which 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(c), (d), (e), (f) and (g) (to the extent that Borrower is or should have been aware of
any Material Adverse Effect) of this Section, except as otherwise disclosed in writing by Borrower
to the Banks. Notwithstanding anything to the contrary, no Borrowing shall be permitted if such
Borrowing would cause Borrower to fail to be in compliance with any of the covenants contained in
this Agreement or in any of the other Loan Documents.




ARTICLE IV




REPRESENTATIONS AND WARRANTIES




     In order to induce the Administrative Agent and each of the other Banks which is or may become
a party to this Agreement to make the Loans, the Borrower makes the following representations and
warranties as of the Closing Date. Such representations and warranties shall survive the
effectiveness of this Agreement, the execution and delivery of the other Loan Documents and the
making of the Loans.



     SECTION 4.1. Existence and Power. The Borrower is a limited partnership, duly
formed and validly existing as a limited partnership under the laws of the State of Delaware and
has all powers and all material governmental licenses, authorizations, consents and approvals
required to own its property and assets and carry on its business as now conducted or as it
presently proposes to conduct and has
been duly qualified and is in good standing in every jurisdiction in which the failure to be so
qualified and/or in good standing is likely to have a Material Adverse Effect. EOPT is a real
estate investment trust, duly formed, validly existing and in good standing as a real estate
investment trust under the laws of the State of Maryland and has all powers and all material
governmental licenses, authorizations, consents and approvals required to own its property and
assets and carry on its business as now conducted or as it presently proposes to conduct and has
been duly qualified and is in good standing in every jurisdiction in which the failure to be so
qualified and/or in good standing is likely to have a Material Adverse Effect. Each Qualified
Borrower is a duly formed and validly existing juridical entity under the laws of its jurisdiction
of formation and has all powers and all material govern-



64









 




mental licenses, authorizations, consents
and approvals required to own its property and assets and carry on its business as now conducted or
as it presently proposes to conduct and has been duly qualified and is in good standing in every
jurisdiction in which the failure to be so qualified and/or in good standing is likely to have a
Material Adverse Effect.




     SECTION 4.2. Power and Authority . The Borrower and each Qualified Borrower 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 partnership action, if any, to
authorize the execution and delivery on
behalf of the Borrower or such Qualified Borrower and the performance by the Borrower or such
Qualified Borrower of such Loan Documents to which it is a party. The Borrower, such Qualified
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, each Qualified Borrower and EOPT, enforceable in
accordance with its terms, except as enforceability may be limited by applicable insolvency,
bankruptcy or other laws affecting creditors rights generally, or general principles of equity,
whether such enforceability is considered in a proceeding in equity or at law. EOPT has the power
and authority to execute, deliver and carry out the terms and provisions of each of the Loan
Documents to which it is a party and has taken all necessary action to authorize the execution,
delivery and performance of such Loan Documents. EOPT has the power and authority to execute,
deliver and carry out the terms and provisions of each of the Loan Documents on behalf of the
Borrower to which the Borrower is a party and has taken all necessary action to authorize the
execution and delivery on behalf of the Borrower and the performance by the Borrower of such Loan
Documents.



     SECTION 4.3. No Violation.



     (a) Neither the execution, delivery or performance by or on behalf of the Borrower of the Loan
Documents to which it is a party, nor compliance by the Borrower with the terms and provisions
thereof nor the consummation of the transactions contemplated by the Loan Documents, (i) will
materially contravene any applicable provision of any law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will materially conflict
with or result in any breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the obligation to create
or impose) any Lien upon any of the property or assets of the Borrower or
any of its Consolidated Subsidiaries pursuant to the terms of any indenture, mortgage, deed of
trust, or other agreement or other instrument to which the Borrower (or of any partnership of which
the Borrower is a partner) or any of its Consolidated Subsidiaries is a party or by which it or any
of its property or assets is bound or to which it is subject (except for such breaches and defaults
under loan agreements which the lenders thereunder have agreed to forbear pursuant to valid
forbearance agreements), or (iii) will cause a material default by the Borrower under any
organizational document of any Person in which the Borrower has an interest, or cause a material
default under the Borrower’s agreement or certificate of limited partnership, the consequences of
which conflict, breach or default would have a Material Adverse Effect, or result in or require the




65










 






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).



     (c) Neither the execution, delivery or performance by any Qualified Borrower of the Loan
Documents to which it is a party, nor compliance by such Qualified Borrower with the terms and
provisions thereof nor the consummation of the transactions contemplated by such 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 such Qualified
Borrower pursuant to the terms of any indenture, mortgage, deed of trust, or other agreement or
other instrument to which such Qualified Borrower (or of any partnership of which such Qualified
Borrower is a partner) 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 such Qualified Borrower under any organizational document of any Person in
which such Qualified Borrower has an interest, the consequences of which conflict, breach or
default would have a Material Adverse Effect, or result in or require the creation or imposition of
any Lien whatsoever upon any Property (except as contemplated herein).



     SECTION
4.4. Financial Information.



     (a) The consolidated balance sheets of EOPT and the Borrower as of December 31, 2004, 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



66









 





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, 2004, (i) except as may have been disclosed in writing to the Banks,
nothing has occurred prior to the Closing Date having a Material Adverse Effect, and (ii) except as
set forth on Schedule 4.4(b), neither the Borrower nor EOPT has incurred any material indebtedness
or guaranty on or before the Closing Date.



     SECTION 4.5. Litigation. Except as previously disclosed by the Borrower in writing to the
Banks, there is no action, suit, proceeding or investigation pending against, or to the knowledge
of the Borrower threatened against or affecting, (i) the Borrower, any Qualified Borrower, EOPT or
any of their Consolidated Subsidiaries, (ii) the Loan Documents or any of the transactions
contemplated by the Loan Documents or (iii) any of their assets, before any court or arbitrator or
any governmental body, agency or official in which there is a reasonable possibility of an adverse
decision which could, individually, or in the aggregate have a Material Adverse Effect or which in
any manner draws into question the validity of this Agreement or the other Loan Documents. As of
the Closing Date, no such action, suit or proceeding exists.



     SECTION 4.6. Compliance with ERISA. 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 or any Qualified Borrower constitute “assets” (within the meaning of ERISA or Section 4975
of the Code, including, but not limited to, 29 C.F.R. § 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, and shall not permit any Qualified Borrower to, use any “assets”
(within the meaning of ERISA or Section 4975 of the Code, including but not limited to 29 C.F.R. §
2510.3-101) of an “employee benefit plan” within the meaning of Section 3(3) of ERISA or a “plan”
within the meaning of Section 4975(e)(1) of the Code to repay or secure the Note, the Loan, or the
Obligations.



     SECTION 4.7. Environmental. The Borrower conducts reviews of the effect of
Environmental Laws on the business, operations and properties of the Borrower and its Consolidated
Subsidiaries and Qualified Borrowers when necessary in the course of which it identifies



67









 




and evaluates associated liabilities and costs (including, without limitation, any capital or
operating expenditures required for clean-up or closure of properties presently owned, any capital
or operating expenditures required to achieve or maintain compliance with environmental protection
standards imposed by law or as a condition of any license, permit or contract, any related
constraints on operating activities, and any actual or potential liabilities to third parties,
including, without limitation, employees, and any related costs and expenses). On the basis of this
review, the Borrower has reasonably concluded that such associated liabilities and costs,
including, without limitation, the costs of compliance with Environmental Laws, are unlikely to
have a Material Adverse Effect.




     SECTION 4.8. Taxes. The Borrower, each Qualified 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, any Qualified Borrower, EOPT or any
Consolidated Subsidiary, except such taxes, if any, as are reserved against in accordance with
GAAP, such taxes as are being contested in good faith by appropriate proceedings or such taxes, the
failure to make payment of which when due and payable will not have, in the aggregate, a Material
Adverse Effect. The charges, accruals and reserves on the books of the Borrower, EOPT and their
Consolidated Subsidiaries in respect of taxes or other governmental charges are, in the opinion of
the Borrower, adequate.



     SECTION 4.9. Full Disclosure. All information heretofore furnished by the Borrower or any
Qualified 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.



     SECTION 4.10. Solvency. On the Closing Date and after giving effect to the transactions
contemplated by the Loan Documents occurring on the Closing Date, the Borrower, each Qualified
Borrower, and EOPT will be Solvent.



     SECTION 4.11. Use of Proceeds. All proceeds of the Loans will be used by the Borrower or the
applicable Qualified Borrower only in accordance with the provisions hereof. Neither the making of
any Loan nor the use of the proceeds thereof will violate or be inconsistent with the provisions of
regulations T, U, or X of the Federal Reserve Board.



     SECTION 4.12. Governmental Approvals. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any Governmental
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;



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     SECTION 4.13. Investment Company Act; Public Utility Holding Company Act. Neither the
Borrower, any Qualified Borrower, EOPT nor any Consolidated Subsidiary is (x) an “investment
company” or a company “controlled” by an “investment company”, within the meaning of the Investment
Company Act of 1940, as amended, (y) a “holding company” or a “subsidiary company” of a “holding
company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or (z) subject to any other
federal or state law or regulation which purports to restrict or regulate its ability to borrow
money.



     SECTION 4.14. Principal Offices. As of the Closing Date, the principal office, chief executive
office and principal place of business of the Borrower is Two North Riverside Plaza, Chicago,
Illinois 60606.



     SECTION 4.15. REIT Status. EOPT is qualified and EOPT intends to continue to qualify as a real
estate investment trust under the Code.



     SECTION 4.16. Patents, Trademarks, etc. The Borrower and each Qualified Borrower has obtained
and holds in full force and effect all patents, trademarks, servicemarks, trade names, copyrights
and other such rights, free from burdensome restrictions, which are necessary for the operation of
its business as presently conducted, the impairment of which is likely to have a Material Adverse
Effect.



     SECTION 4.17. Judgments. 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).



     SECTION 4.18. No Default. No Event of Default or, to the best of the Borrower’s knowledge,
Default exists under or with respect to any Loan Document and neither the Borrower nor any
Qualified Borrower, nor EOPT is in default in any material respect beyond any applicable grace
period under or with respect to any other material agreement, instrument or undertaking to which it
is a party or by which it or any of its
property is bound in any respect, the existence of which default is likely to result in a
Material Adverse Effect.



     SECTION 4.19. Licenses, etc. The Borrower and each Qualified Borrower has obtained and does
hold in full force and effect, all franchises, licenses, permits, certificates, authorizations,
qualifications, accreditation, easements, rights of way and other consents and approvals which are
necessary for the operation of its businesses as presently conducted, the absence of which is
likely to have a Material Adverse Effect.



     SECTION 4.20. Compliance With Law. To the Borrower’s knowledge, the Borrower, each Qualified
Borrower and each of its respective Real Property Assets are in compliance with



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all laws, rules, regulations, orders, judgments, writs and decrees, including, without
limitation, all building and zoning ordinances and codes, the failure to comply with which is
likely to have a Material Adverse Effect.




     SECTION 4.21. No Burdensome Restrictions. Except as may have been disclosed by the Borrower in
writing to the Banks, neither Borrower nor any Qualified Borrower is a party to any agreement or
instrument or subject to any other obligation or any charter or corporate or partnership
restriction, as the case may be, which, individually or in the aggregate, is likely to have a
Material Adverse Effect.



     SECTION 4.22. Brokers’ Fees. The Borrower has not dealt with any broker or finder with respect
to the transactions contemplated by this Agreement or otherwise in connection with this Agreement,
and the Borrower has not done any act, had any negotiations or conversation, or made any agreements
or promises which will in any way create or give rise to any obligation or liability for the
payment by the Borrower of any brokerage fee, charge, commission or other compensation to any party
with respect to the transactions contemplated by the Loan Documents, other than the fees payable to
the Administrative Agent, the Syndication Agent and the Banks, and certain other Persons as
previously disclosed in writing to the Administrative Agent.



     SECTION 4.23. Intentionally Omitted.



     SECTION 4.24. Intentionally Omitted.



     SECTION 4.25. Organizational Documents. The documents delivered pursuant to Section 3.1(e)
constitute, as of the Closing Date, all of the organizational documents (together with all
amendments and modifications thereof) of the Borrower, each Qualified Borrower as of the Closing
Date and EOPT. The Borrower represents that it has delivered to the Administrative Agent true,
correct and complete copies, as of the Closing Date, 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.



     SECTION 4.26. Qualifying Unencumbered Properties. As of March 31, 2005, 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.



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ARTICLE V




AFFIRMATIVE AND NEGATIVE COVENANTS




     The Borrower covenants and agrees that, so long as any Bank has any Commitment hereunder or
any Obligations remain unpaid:



     SECTION
5.1. Information. The Borrower will deliver to 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
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
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 in all material respects 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



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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 and to the extent the same are not publicly available
(provided that in all events, Borrower shall provide notice to the Administrative Agent of any such
filing), 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



72









 




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.



     SECTION 5.2. Payment of Obligations. The Borrower, each Qualified Borrower, EOPT and their
Consolidated Subsidiaries will pay and discharge, at or before maturity, all their



73









 




respective material obligations and liabilities including, without limitation, any obligation
pursuant to any agreement by which it or any of its properties is bound, in each case where the
failure to so pay or discharge such obligations or liabilities is likely to result in a Material
Adverse Effect, and will maintain in accordance with GAAP, appropriate reserves for the accrual of
any of the same.




     SECTION 5.3. Maintenance of Property; Insurance; Leases.



     (a) The Borrower will keep, and will cause each Consolidated Subsidiary and Qualified Borrower
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 and each Qualified Borrower, to the extent applicable, shall maintain, or
cause to be maintained, 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; provided, however, that such coverages and
amounts are available to Borrower at commercially reasonable rates. The Borrower and each Qualified
Borrower, to the extent applicable, 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 or such Qualified Borrower.



     SECTION 5.4. Maintenance of Existence. The Borrower, each Qualified Borrower and EOPT each
will preserve, renew and keep in full force and effect, its partnership and trust existence and its
respective rights, privileges and franchises necessary for the normal conduct of business unless
the failure to maintain such rights and franchises does not have a Material Adverse Effect.



     SECTION 5.5. Compliance with Laws. The Borrower and EOPT will, and will cause their
Subsidiaries to, comply in all material respects with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities (including, without limitation,
Environmental Laws, and all zoning and building codes with respect to its Real Property Assets and
ERISA and the rules and regulations thereunder and all federal securities laws) except where the
necessity of compliance therewith is contested in good faith by appropriate proceedings or



74









 




where the failure to do so will not have a Material Adverse Effect or expose Administrative
Agent or Banks to any material liability therefor.




     SECTION 5.6. Inspection of Property, Books and Records. The Borrower will keep proper books of
record and account in which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities in conformity with GAAP, modified as
required by this Agreement and applicable law; and will permit representatives of any Bank at such
Bank’s expense to visit and inspect any of its properties, including without limitation its Real
Property Assets, and so long as disclosure of such information could not result in a violation of,
or expose the Borrower, any Qualified 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, any Qualified Borrower, EOPT or any of their
Subsidiaries or on any Property of any of them, to examine and make abstracts from any of its books
and records and to discuss its affairs, finances and accounts with its officers
and independent public accountants, all at such reasonable times during normal business hours,
upon reasonable prior notice and as often as may reasonably be desired. Administrative Agent shall
coordinate any such visit or inspection to arrange for review by any Bank requesting any such visit
or inspection.



     SECTION
5.7. Existence. The Borrower shall do or cause to be done, all things necessary to
preserve and keep in full force and effect its, each Qualified Borrower’s, EOPT’s and their
Consolidated Subsidiaries’ existence and its patents, trademarks, servicemarks, tradenames,
copyrights, franchises, licenses, permits, certificates, authorizations, qualifications,
accreditation, easements, rights of way and other rights, consents and approvals the nonexistence
of which is likely to have a Material Adverse Effect.



     SECTION 5.8. Financial Covenants.



     (a) Total Debt to Total Asset Value. Borrower shall not permit the ratio of Total Debt to
Total Asset Value of Borrower to exceed 0.60:1 at any time; provided, however, that with respect to
any Fiscal Quarter in which Borrower acquired any Real Property Assets, the ratio of Total Debt to
Total Asset Value of Borrower for such Fiscal Quarter and for the next succeeding Fiscal Quarter
may exceed 0.60:1, provided that such ratio in no event shall exceed 0.65:1, and provided, further,
that thereafter such ratio shall not exceed 0.60:1.



     (b) 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.



     (c) 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.



     (d) Unencumbered Pool. Borrower shall not permit the ratio of the outstanding Unsecured Debt
to Unencumbered Asset Value to exceed 0.60:1 at any time; provided, however,



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that with respect to any Fiscal Quarter in which Borrower acquired any Real Property Assets,
the ratio of Unsecured Debt to Unencumbered Asset Value of Borrower for such Fiscal Quarter and for
the next succeeding Fiscal Quarter may exceed 0.60:1, provided that such ratio in no event shall
exceed 0.65:1, and provided, further, that thereafter such ratio shall not exceed 0.60:1.




     (e) 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, thirty percent (30%) 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).



     (f) 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 Section 5.8(d)
hereof, to become subject to a Lien that secures the Indebtedness of any Person, other than
Permitted Liens.



     (g) Calculation. Calculations of ratios and financial requirements shall be made as of the
last day of each Fiscal Quarter.



     SECTION 5.9. Restriction on Fundamental Changes.



     (a) Neither the Borrower nor EOPT shall enter into any merger or consolidation without
obtaining the prior written consent thereto in writing of the Majority Banks, which consent shall
not be unreasonably withheld, conditioned or delayed, unless (i) the Borrower or EOPT is the
surviving entity, (ii) the entity which is merged into Borrower or EOPT is predominantly in the
commercial real estate business, (iii) the creditworthiness of the surviving entity’s long term
unsecured debt or implied senior debt, as applicable, is not lower than Borrower’s or EOPT’s
creditworthiness two months immediately preceding such merger, and (iv) the then fair market value
of the assets of the entity which is merged into the Borrower or EOPT is less than twenty-five
percent (25%) of the Borrower’s or EOPT’s then Total Asset Value following such merger. Neither the
Borrower nor EOPT shall liquidate, wind-up or dissolve (or suffer any liquidation or dissolution),
discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, all or substantially all of its business or property,
whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or
leasing of portions of the Real Property Assets in the ordinary course of business.



     (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.



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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. No
Qualified Borrower shall amend its organizational documents in any manner that would have a
Material Adverse Effect without the Majority Banks’ consent. The Borrower shall not make any “in-kind”
transfer of any of its property or assets to any
of its constituent partners if such transfer would result in an Event of Default under Section
6.1(b) by reason of a breach of the provisions of Section 5.8.




     (c) Subject to the provisions of clause (b) above, the Borrower shall deliver to
Administrative Agent copies of all amendments to its agreement of limited partnership or to EOPT’s
declaration of trust, by-laws, or other organizational documents no less than ten (10) days after
the effective date of any such amendment.



     SECTION 5.10. Changes in Business.



     (a) Except for Permitted Holdings, neither the Borrower, any Qualified Borrower nor EOPT shall
enter into any business which is substantially different from that conducted by the Borrower or
EOPT on the Closing Date after giving effect to the transactions contemplated by the Loan
Documents. The Borrower shall carry on its business operations through the Borrower, its
Consolidated Subsidiaries and its Investment Affiliates.



     (b) Except for Permitted Holdings, Borrower shall not engage in any line of business other
than ownership, operation and development of Office Properties and Parking Properties and the
provision of services incidental thereto, whether directly or through its Consolidated Subsidiaries
and Investment Affiliates.



     SECTION 5.11. EOPT Status.



     (a) Status. EOPT shall at all times (i) remain a publicly traded company listed for trading on
the New York Stock Exchange, and (ii) maintain its status as a self-directed and self-administered
real estate investment trust under the Code.



     (b) Indebtedness. EOPT shall not, directly or indirectly, create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to, any Indebtedness, except:




     (1) the Obligations; and




     (2) Indebtedness of Borrower for which there is recourse to EOPT which, after
giving effect thereto, may be incurred or may remain outstanding without giving rise to an Event of
Default or Default under any provision of this Article V.



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     (c) Restriction
on Fundamental Changes.




     (1) EOPT shall not have an investment in any Person other than (i) Borrower
or indirectly through Borrower, (ii) directly or indirectly in Financing Partnerships, 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.



     SECTION 5.12. Other Indebtedness. Borrower and EOPT shall not allow any of their Subsidiaries,
Financing Partnerships or Joint Venture Subsidiaries that own, directly or indirectly, any
Qualifying Unencumbered Property to directly or indirectly create, incur, assume or 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



78









 




failure of such Property to qualify as a Qualifying Unencumbered Property would result in an
Event of Default under Section 5.8.




     SECTION 5.13. Forward Equity Contracts. If Borrower shall enter into any forward equity
contracts, Borrower may only settle the same by delivery of stock, it being agreed that if Borrower
shall settle the same with cash, the same shall constitute an Event of Default hereunder.



ARTICLE VI




DEFAULTS




     SECTION 6.1. Events of Default. An “Event of Default” shall have occurred if one or more of
the following events shall have occurred and be continuing:



     (a) the Borrower or any Qualified Borrower shall fail to pay when due any principal of any
Loan, or the Borrower or any Qualified 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, or in the case of Section 5.10, any
Qualified Borrower) shall fail to observe or perform any covenant contained in Section 5.8, Section
5.9(a) or (b), Section 5.10, Section 5.11(a), (b), (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;



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     (e) the Borrower, any Qualified 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, any Qualified 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 Fifty
Million Dollars ($50,000,000) or more shall be entered by a court or courts of competent
jurisdiction against EOPT, any Qualified Borrower, the Borrower or, to the extent of any recourse
to EOPT or the Borrower, any Qualified 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



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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 $20,000,000 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 $20,000,000 and which the Administrative Agent reasonably determines will have a
Material Adverse Effect;



     (n) at any time, for any reason the Borrower or any Qualified Borrower seeks to repudiate its
obligations under any Loan Document or EOPT seeks to repudiate its
obligations under the EOPT Guaranty or the Borrower seeks to repudiate its obligations under
the Qualified Borrower Guaranty;



     (o) a default beyond any applicable notice or grace period under any of the other Loan
Documents;



     (p) any assets of Borrower or any Qualified Borrower shall constitute “assets” (within the
meaning of ERISA or Section 4975 of the Code, including but not limited to 29 C.F.R. § 2510.3-101
or any successor regulation thereto) of an “employee benefit plan” within the



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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.



     SECTION 6.2. Rights and Remedies.



     (a) Upon the occurrence of any Event of Default described in Sections 6.1(f), (g), (p) or (q),
the Commitments and the Swingline Commitment shall immediately terminate and the unpaid principal
amount of, and any and all accrued interest on, the Loans and any and all accrued fees and other
Obligations hereunder shall automatically become immediately due and payable, with all additional
interest from time to time accrued thereon and without presentation, demand, or protest or other
requirements of any kind (including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and notice of acceleration), all of which are
hereby expressly waived by the Borrower for itself and on behalf of any Qualified 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 Majority 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 for itself and on behalf of
any Qualified 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 Majority 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
Majority Banks are unable to reach agreement, then, from and after an Event of Default, the
Administrative Agent may pursue such rights and remedies as it may determine.



     SECTION 6.3. Notice of Default. The Administrative Agent shall give notice to the Borrower
under Section 6.1(c) and 6.1(d) promptly upon being requested to do so by the Majority Banks and
shall thereupon notify all the Banks thereof. The Administrative Agent shall



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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.




     SECTION 6.4. 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
Majority 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, provided that if no Event of Default shall have occurred
and be continuing, any interest, dividends and other earnings received with respect to the Letter
of Credit Collateral shall be distributed to Borrower on a monthly basis; and



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               (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.



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          (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, and in the case of Letters of Credit maturing after the Maturity Date, upon the return of
any such Letters of Credit, any amount attributable to such Letter of Credit shall be promptly
returned to the Borrower. Absent such cure or written waiver or return, 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.



          SECTION 6.5. Distribution of Proceeds after Default. Notwithstanding anything contained herein
to the contrary but subject to the provisions of Section 9.16 hereof, from and after an Event of
Default, to the extent proceeds are received by Administrative Agent, such proceeds will be
distributed to the Banks pro rata in accordance with the unpaid principal amount of the Loans
(giving effect to any participations granted therein pursuant to Section 2.3 and Section 9.4).



ARTICLE VII




THE AGENTS




          SECTION 7.1. Appointment and Authorization. Each Bank irrevocably appoints and authorizes the
Administrative Agent 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.



          SECTION 7.2. Agency and Affiliates. Bank of America, N.A. and JPMorgan Chase Bank, N.A.
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, N.A., 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, N.A., in their individual
capacities.



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          SECTION 7.3. 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.



          SECTION 7.4. 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.



          SECTION 7.5. 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 Majority 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.



          SECTION 7.6. 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)



86









 




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.




          SECTION 7.7. 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.



          SECTION 7.8. 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, N.A. is the 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, N.A., 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




87










 






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.




          SECTION 7.9. Consents and Approvals. All communications from Administrative Agent to the
Banks requesting the Banks’ determination, consent, approval or disapproval (i) shall be given in
the form of a written notice to each Bank, (ii) shall be accompanied by a description of the matter
or item as to which such determination, approval, consent or disapproval is requested, or shall
advise each Bank where such matter or item may be inspected, or shall otherwise describe the matter
or issue to be resolved, (iii) shall include, if reasonably requested by a Bank and to the extent
not previously provided to such Bank, written materials and a summary of all oral information
provided to Administrative Agent by Borrower in respect of the matter or issue to be resolved, and
(iv) shall include Administrative Agent’s recommended course of action or determination in respect
thereof. Each Bank shall reply promptly, but in any
event within ten (10) Business Days after receipt of the request therefor from Administrative Agent
(the “Bank Reply Period”). Unless a Bank shall give written notice to Administrative Agent
that it objects to the recommendation or determination of Administrative Agent (together with a
written explanation of the reasons behind such objection) within the Bank Reply Period, such Bank
shall be deemed to have approved of or consented to such recommendation or determination. With
respect to decisions requiring the approval of the 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 Majority





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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.




ARTICLE VIII




CHANGE IN CIRCUMSTANCES




          SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair. If on or prior
to the first day of any Interest Period for any Euro-Dollar Borrowing or Money Market IBOR Loan the
Administrative Agent determines in good faith that deposits in dollars (in the applicable amounts)
are not being offered in the relevant market for such Interest Period, the Administrative Agent
shall forthwith give notice thereof to the Borrower and the Banks, whereupon until the
Administrative Agent notifies the Borrower that the circumstances giving rise to such suspension no
longer exist, the obligations of the Banks to make Euro-Dollar Loans shall be suspended. In such
event, (a) 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, and (b) any Notice of Borrowing for a Euro-Dollar
Borrowing denominated in an Alternate Currency shall be ineffective.




          SECTION 8.2. Illegality. If, on or after the date of this Agreement, the adoption of
any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Euro-Dollar Lending Office) with any request or directive (whether or not
having the force of law) made after the Closing Date of any such authority, central bank or
comparable agency shall make it unlawful for
any Bank (or its Euro-Dollar Lending Office) to (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





89









 







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).




          SECTION 8.3. Increased Cost and Reduced Return.




          (a) If, on or after (x) the date hereof in the case of Committed Loans made pursuant to Section
2.1, or (y) the date of the related Money Market Quote (in each case, the “Loan Effective
Date”), in the case of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive (whether or not having the force of law)
made at the Closing Date of any such authority, central bank or comparable agency shall impose,
modify or deem applicable any reserve (including, without limitation, any
such requirement imposed by the Board of Governors of the Federal Reserve System), 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





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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).






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          SECTION 8.4. Taxes.




          (a) Any and all payments by the Borrower or any Qualified 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 or any
Qualified 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 or Qualified Borrower shall make such deductions, (iii) the Borrower or
Qualified Borrower shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law and (iv) the Borrower or Qualified 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 and each Qualified 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) In the event that Non-Excluded Taxes not imposed on the Closing Date are imposed, or
Non-Excluded Taxes imposed on the Closing Date increase, the applicable Bank shall notify the
Administrative Agent and the Borrower of such event in writing within a reasonable period following
receipt of knowledge thereof. If such Bank shall fail to notify Borrower of any such event within
ninety (90) days following the end of the month during which such event occurred, then Borrower’s
or Qualified Borrower’s liability for such additional Non-Excluded Taxes incurred by such Bank as a
result of such event (including payment of a make-whole amount under Section 8.4(a)(i)) shall be
limited to those attributable to the period occurring subsequent to the ninetieth (90th) day prior
to, but excluding, the date upon which such Bank actually notified Borrower of the occurrence of
such event.





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          (d) The Borrower and each Qualified 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.




          (e) 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).




          (f) 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.




          (g) Upon reasonable demand by Borrower or any Qualified Borrower to the Administrative Agent or
any Bank, the Administrative Agent or Bank, as the case may be, shall deliver to the Borrower or
such Qualified Borrower, or to such government or taxing authority as the Borrower or such
Qualified Borrower may reasonably direct, any form or document that may be required or reasonably
requested in writing in order to allow the Borrower or such Qualified





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Borrower to make a payment to
or for the account of such Bank or the Administrative Agent hereunder or under any other Loan
Document without any deduction or withholding for or on account of any Non-Excluded Taxes or with
such deduction or withholding at a reduced rate (so long as the completion, execution or submission
of such form or document would not materially prejudice the legal or commercial position of the
party in receipt of such demand), with any such form or document to be accurate and completed in a
manner reasonably satisfactory to the Borrower or such Qualified Borrower making such demand and to
be executed and to be delivered with any reasonably required certification.




          (h) If the Borrower or any Qualified 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.




          (i) If at any time, any Bank shall be owed amounts pursuant to this Section 8.4, the Borrower
shall have the right, upon five (5) Business Day’s notice to the Administrative Agent to either (x)
cause a bank, reasonably acceptable to the Administrative Agent, to offer to purchase the
Commitments of such Bank for an amount equal to such Bank’s outstanding Loans, and to become a Bank
hereunder, or to obtain the agreement of one or more existing Banks to offer to purchase the
Commitments of such Bank for such amount, which offer such Bank is hereby required to accept, or
(y) to repay in full all Loans then outstanding of such Bank, together with
interest and all other amounts due thereon, upon which event, such Bank’s Commitment shall be
deemed to be canceled pursuant to Section 2.11(c).




          SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar Loans. If (i) the
obligation of any Bank to make Euro-Dollar Loans has been suspended pursuant to Section 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
to the Borrower as Dollar denominated 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 no Borrowing from such Bank would take effect with respect to Loans
denominated in an Alternate Currency, 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






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          (c) Borrower will not be required to make any payment which would otherwise be required by Section
2.13 with respect to such Euro-Dollar Loans converted to Base Rate Loans pursuant to clause (a)
above.








ARTICLE IX




MISCELLANEOUS




          SECTION 9.1. Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including bank wire, telex, facsimile transmission followed by
telephonic confirmation or similar writing) and shall be given to such party: (x) in the case of
the Borrower, any Qualified 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, Two
North Riverside Plaza, Suite 2100,
Chicago, Illinois 60606, Attn: Chief Legal Counsel, and to DLA Piper Rudnick Gray Cary US LLP, 203
North LaSalle Street, Suite 1900, Chicago, Illinois 60601, Attn: James M. Phipps, 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.




          SECTION 9.2. 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.




          SECTION 9.3. 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,
Meagher & Flom LLP), in connection with the preparation of this Agreement, the Loan Documents and
the documents and instruments referred to therein, and any




95









 







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





96









 







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).




          SECTION 9.4. Sharing of Set-Offs. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any such rights, upon the
occurrence and during the continuance of any Event of Default, each Bank is hereby authorized at
any time or from time to time, without presentment, demand, protest or other notice of any kind to
the Borrower or any Qualified 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 or any Qualified Borrower against and on account of the Obligations of the
Borrower or such Qualified 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, for itself and on behalf
of any Qualified 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 or such Qualified Borrower in the amount of such participation.
Notwithstanding anything to the contrary contained herein, any Bank may, by separate agreement with
the Borrower or any Qualified 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.





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          SECTION 9.5. Amendments and Waivers. Any provision of this Agreement or the Notes or
other Loan Documents may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by the Borrower and the Majority Banks (and, if the rights or duties of the
Administrative Agent 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 Majority 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 extend the term of any Letter of Credit beyond twelve
(12) months after the Maturity Date, (iv) change the percentage of the Commitments (except pursuant
to the Increase Option) 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) change the method of calculating the Banks’ Pro Rata
Shares, (vi) release the EOPT Guaranty or any Qualified Borrower Guaranty or (vii) modify the
provisions of this Section 9.5.




          SECTION 9.6. Successors and Assigns.




          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Borrower may not assign or
otherwise transfer any of its rights under this Agreement or the other Loan 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





98









 







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, the Fronting Banks’ 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.





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          (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.





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          (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.




          SECTION 9.7. Collateral. Each of the Banks represents to the Administrative Agent and
each of the other Banks that it in good faith is not relying upon any “margin stock” (as defined in
Regulation U) as collateral in the extension or maintenance of the credit provided for in this
Agreement.




          SECTION 9.8. Governing Law; Submission to Jurisdiction.




          (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW
OTHER THAN SECTION 1401 OF THE NEW YORK GENERAL OBLIGATIONS 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 and each Qualified Borrower, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and appellate courts from any thereof. The Borrower
irrevocably consents, for itself and each Qualified Borrower, 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







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the Borrower or Qualified Borrower at its address set forth below. The Borrower, for itself and each Qualified
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 or any Qualified
Borrower in any other jurisdiction.




          (c) If for the purpose of obtaining judgment in any court it is necessary to convert a sum due
hereunder in one currency into another currency, the parties hereto agree, to the fullest extent
that they may effectively do so under applicable law, that the rate of exchange used shall be the
spot rate at which in accordance with normal banking procedures the first currency could be
purchased in New York City with such other currency by the person obtaining such judgment on the
Business Day preceding that on which final judgment is given.




          (d) The parties agree, to the fullest extent that they may effectively do so under applicable law,
that the obligations of the Borrower or any Qualified Borrower to make payments in any currency of
the principal of and interest on the Loans of the Borrower and any Qualified Borrower and any other
amounts due from the Borrower or any Qualified Borrower hereunder to the Administrative Agent as
provided herein (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment (whether or not entered in accordance with Section 9.8(c)), in any currency other than
the relevant currency, except to the extent that such tender or recovery shall result in the actual
receipt by the Administrative Agent at its relevant office on behalf of the Banks of the full
amount of the relevant currency expressed to be payable in respect of the principal of and interest
on the Loans and all other amounts due hereunder (it being assumed for purposes of this clause (i)
that the Administrative Agent will convert any amount tendered or recovered into the relevant
currency on the date of such tender or recovery), (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the relevant currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the relevant currency so
expressed to be payable and (iii) shall not be affected by an unrelated judgment being obtained for
any other sum due under this Agreement.




          SECTION 9.9. Counterparts; Integration;. Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement constitutes the entire
agreement and understanding among the parties hereto and supersedes any and all prior agreements
and understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the 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).





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          SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER,EACH QUALIFIED 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.




          SECTION 9.11. Survival. All indemnities set forth herein shall survive the execution and
delivery of this Agreement and the other Loan Documents and the making and repayment of the Loans
hereunder.




          SECTION 9.12. Domicile of Loans. Each Bank may transfer and carry its Loans at, to or
for the account of any domestic or foreign branch office, subsidiary or affiliate of such Bank.




          SECTION 9.13. Limitation of Liability. No claim may be made by the Borrower or any other
Person acting by or through Borrower against the Administrative Agent, the 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, for itself and each Qualified Borrower, hereby waives, releases and agrees not to sue
upon any claim for any such damages, whether or not accrued and whether or not known or suspected
to exist in its favor.




          SECTION 9.14. Recourse Obligation. This Agreement and the Obligations hereunder are
fully recourse to the Borrower and each Qualified 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, or (ii) any
general partner of Borrower other than EOPT, in each case except in the event of fraud or
misappropriation of funds on the part of such officer, director, shareholder or employee or such
general partner.




          SECTION 9.15. Confidentiality. The Administrative Agent and each Bank shall use
reasonable efforts to assure that information about Borrower, EOPT and its Subsidiaries and
Investment 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






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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.




          SECTION 9.16. Bank’s Failure to Fund.




          (a) If a Bank does not advance to Administrative Agent such Bank’s Pro Rata Share of a Loan in
accordance herewith, then neither Administrative Agent 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.



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               (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, sue 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;



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               (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





106









 







claim shall pay to Administrative Agent the amount payable on such claim and, to the full extent necessary for that purpose, each Junior
Creditor hereby transfers and assigns to the Administrative Agent all of the Junior Creditor’s
rights to any such payments or distributions to which Junior Creditor would otherwise be entitled.




          (f) (i) If any payment or distribution of any character or any security, whether in cash, securities
or other property, shall be received by any Junior Creditor in contravention of any of the terms
hereof, such payment or distribution or security shall be received in trust for the benefit of, and
shall promptly be paid over or delivered and transferred to, Administrative Agent for application
to the payment of all Senior Debt, to the extent necessary to achieve Payment in Full. In the
event of the failure of any Junior Creditor to endorse or assign any such payment, distribution or
security, Administrative Agent is hereby irrevocably authorized to endorse or assign the same as
attorney-in-fact for such Junior Creditor.




               (ii) Each Junior Creditor shall take such action (including, without limitation, the execution and
filing of a financing statement with respect to this Agreement and the execution, verification,
delivery and filing of proofs of claim, consents, assignments or other instructions that
Administrative Agent may require from time to time in order to prove or realize upon any rights or
claims pertaining to Subordinated Debt or to effectuate the full benefit of the subordination
contained herein) as may, in Administrative Agent’s sole and absolute discretion, be necessary or
desirable to assure the effectiveness of the subordination effected by this Agreement.



          (g) (i) Each Bank that becomes a Junior Creditor understands and acknowledges by its execution hereof
that each other Bank is entering into this Agreement and the Loan Documents in reliance upon the
absolute subordination in right of payment and in time of payment of Subordinated Debt to Senior
Debt as set forth herein.




               (ii) Only upon the Payment in Full of all Senior Debt shall any Junior Creditor be subrogated to
any remaining rights of the Banks which are not Defaulting Banks to receive payments or
distributions of assets of the Borrower made on or applicable to any Senior Debt.



               (iii) Each Junior Creditor agrees that it will deliver all instruments or other writings evidencing
any Subordinated Debt held by it to Administrative Agent, promptly after request therefor by the
Administrative Agent.



               (iv) No Junior Creditor may at any time sell, assign or otherwise transfer any Subordinated Debt,
or any portion thereof, including, without limitation, the granting of any Lien thereon, unless and
until satisfaction of the requirements of Section 9.6 above and the proposed transferee shall have
assumed in writing the obligation of the Junior Creditor to the Banks under this Agreement, in a
form acceptable to the Administrative Agent.



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               (v) If any of the Senior Debt, should be invalidated, avoided or set aside, the subordination
provided for herein nevertheless shall continue in full force and effect and, as between the Banks
which are not Defaulting Banks and all Junior Creditors, shall be and be deemed to remain in full
force and effect.



               (vi) Each Junior Creditor hereby irrevocably waives, in respect of Subordinated Debt, all rights
(x) under Sections 361 through 365, 502(e) and 509 of the Bankruptcy Code (or any similar sections
hereafter in effect under any other Federal or state laws or legal or equitable principles relating
to bankruptcy, insolvency, reorganizations, liquidations or otherwise for the relief of debtors or
protection of creditors), and (y) to seek or obtain conversion to a different type of proceeding or
to seek or obtain dismissal of a proceeding, in each case in relation to a bankruptcy,
reorganization, insolvency or other proceeding under similar laws with respect to the Borrower.
Without limiting the generality of the foregoing, each Junior Creditor hereby specifically waives
(A) the right to seek to give credit (secured or otherwise) to the Borrower in
any way under Section 364 of the Bankruptcy Code unless the same is subordinated in all
respects to Senior Debt in a manner acceptable to Administrative Agent in its sole and absolute
discretion and (B) the right to receive any collateral security (including, without limitation, any
“super priority” or equal or “priming” or replacement Lien) for any Subordinated Debt unless the
Banks which are not Defaulting Banks have received a senior position acceptable to the Banks in
their sole and absolute discretion to secure all Senior Debt (in the same collateral to the extent
collateral is involved).



          (h) (i) In addition to and not in limitation of the subordination effected by this Section 9.16, the
Administrative Agent and each of the Banks which are not Defaulting Banks may in their respective
sole and absolute discretion, also exercise any and all other rights and remedies available at law
or in equity in respect of a Defaulting Bank; and




               (ii) The Administrative Agent shall give each of the Banks notice of the occurrence of a default
under this Section 9.16 by a Defaulting Bank and if the Administrative Agent and/or one or more of
the other Banks shall, at their option, fund any amounts required to be paid or advanced by a
Defaulting Bank, the other Banks who have elected not to fund any portion of such amounts shall not
be liable for any reimbursements to the Administrative Agent and/or to such other funding Banks.



          (i) Notwithstanding anything to the contrary contained or implied herein, a Defaulting Bank shall
not be entitled to vote on any matter as to which a vote by the Banks is required hereunder,
including, without limitation, any actions or consents on the part of the Administrative Agent as
to which the approval or consent of all the Banks or the 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.





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          (j) Each of the Administrative Agent and any one or more of the Banks which are not Defaulting
Banks may, at their respective option, (i) advance to the Borrower such Bank’s Pro Rata Share of
the Loans not advanced by a Defaulting Bank in accordance with the Loan Documents, or (ii) pay to
the Administrative Agent such Bank’s Pro Rata Share of any costs, expenses or disbursements
incurred or made by the Administrative Agent pursuant to the terms of this Agreement not
theretofore paid by a Defaulting Bank. Immediately upon the making of any such advance by the
Administrative Agent or any one of the Banks, such Bank’s Pro Rata Share and the Pro Rata Share of
the Defaulting Bank shall be recalculated to reflect such advance. All payments, repayments and
other disbursements of funds by the Administrative Agent to Banks shall thereupon and, at all times
thereafter be made in accordance with such Bank’s recalculated Pro Rata Share unless and until a
Defaulting Bank shall fully cure all defaults on the part of such Defaulting Bank under the Loan
Documents or otherwise existing in respect
of the Loans or this Agreement, at which time the Pro Rata Share of the Bank(s) which advanced
sums on behalf of the Defaulting Bank and of the Defaulting Bank shall be restored to their
original percentages.




          SECTION 9.17. Banks’ ERISA Covenant. Each Bank, by its signature hereto or on the
applicable Transfer Supplement, hereby agrees (a) that on the date any Loan is disbursed hereunder
no portion of such Bank’s Pro Rata Share of such Loan will constitute “assets” within the meaning
of 29 C.F.R. § 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. § 2510.3-101) of an “employee benefit plan” within the
meaning of Section 3(3) of ERISA or a “plan” within the meaning of Section 4975(e)(1) of the Code
and (ii) by itself would cause such Loan to constitute a prohibited transaction under ERISA or the
Code (which is not exempt from the restrictions of Section 406 of ERISA and Section 4975 of the
Code and the taxes and penalties imposed by Section 4975 of the Code and Section 502(i) of ERISA)
or any Agent or Bank being deemed in violation of Section 404 of ERISA.




          SECTION 9.18. Senior Managing Agents, Managing Agents and Co-Agents. Borrower, the
Agents and each Bank acknowledges and agrees that the obligations of the Senior Managing Agents,
the Managing Agents and the Co-Agents hereunder shall be limited to those obligations that are
expressly set forth herein, if any, and the Senior Managing Agents, the Managing Agents and the
Co-Agents shall not be required to take any action or assume any liability except as may be
required in each of their capacity as a Bank hereunder. Borrower, the Agents and each Bank agrees
that the indemnifications set forth herein for the benefit of the Agents shall also run to the
benefit of the Senior Managing Agents, the Managing Agents and the Co-Agents to the extent the
Senior Managing Agents, the Managing Agents and/or any Agent incurs any loss, cost or damage
arising from its capacity as the Senior Managing Agents, the Managing Agents or as a Co-Agent.





109









 








          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.




          SECTION 9.21. USA PATRIOT Act Notice. Each Bank that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Bank) hereby
notifies the Borrower and each Qualified Borrower that pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is
required to obtain, verify and record information that identifies the Borrower and each Qualified
Borrower, which information includes the name and address of the Borrower and





110









 







each Qualified Borrower and other information that will allow such Bank or the Administrative Agent, as
applicable, to identify the Borrower and each Qualified Borrower in accordance with the Act.




          SECTION 9.22. Public/Private Information. The Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Syndication Agent will make available to the Banks and the Fronting
Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively,
“Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”) and (b) certain of the Banks may be “public-side” lenders (i.e., Banks that
do not wish to receive material non-public information with respect to the Borrower or its
securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials
that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page
thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have
authorized the Administrative Agent, the Syndication Agent, the Fronting Banks and the Banks to
treat such Borrower Materials as not containing any material non-public information with respect to
the Borrower or its securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute Information, they shall
be treated as set forth in Section 9.15); (y) all Borrower Materials marked “PUBLIC” are permitted
to be made available through a portion of the Platform marked “PUBLIC” or through a portion of the
Platform designated “Public Investor;” and (z) the Administrative Agent and the Syndication Agent
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform not designated “Public Investor.”




[SIGNATURE PAGE FOLLOWS]





111









 






     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/ Maureen Fear
	 

	 	 	 	 
	 	 	Name: Maureen Fear
	 	 	Title: Senior Vice President, Treasurer
	 
	 	 	 	 
	Facsimile number: (312) 559-5009
	Address:	 	Two North Riverside Plaza
	 

	 	 	 	Suite 2100
	 

	 	 	 	Chicago, Illinois 60606
	 

	 	 	 	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/ Maureen Fear
 	 
	 	Name:  	Maureen Fear 	 
	 	Title:  	Senior Vice President, Treasurer 	 
	 


TOTAL
COMMITMENTS: $1,250,000,000





S-1









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as
Administrative Agent, as Swingline Lender, and as a Bank	 
	 
	 	By: /s/ Michael W. Edwards
 	 
	 	Name:  	Michael W. Edwards 	 
	 	Title: Senior Vice President 	 



	 
	Dollar Commitment: $55,000,000

	Alternate Currency Commitment: $20,000,000








S-2









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as
Syndication Agent and as a Bank	 
	 
	 	By: /s/ MARC E. COSTANTINO
 	 
	 	Name:  	MARC E. COSTANTINO  	 
	 	Title:  	VICE PRESIDENT 	 



	 
	Dollar Commitment: $55,000,000

	Alternate Currency Commitment: $20,000,000








S-3









 








	 	 	 	 	 
	 	UBS LOAN FINANCE LLC, as Senior
Managing Agent and as a Bank	 
	 
	 	By:
/s/ Wilfred V. Saint
 	 
	 	Name:  	Wilfred V. Saint	 
	 	Title:  	Director
Banking Products
Services, US	 
	 	 	 
	 	By: /s/ Joselin Fernandes
 	 
	 	Name:  	Joselin Fernandes 	 
	 	Title: 	Associate Director Banking Products
Services, US	 




	 
	Dollar Commitment: $50,000,000

	Alternate Currency Commitment: $15,000,000







S-4









 








	 	 	 	 	 
	 	PNC BANK, N.A., as Senior Managing Agent

and as a Bank

 	 
	 	By: /s/ Michael E. Smith 	 
	 	Name:  	Michael E. Smith 	 
	 	Title:  	Senior Vice President 	 



	 
	Dollar Commitment: $50,000,000

	Alternate Currency Commitment: $15,000,000








S-5









 








	 	 	 	 	 
	 	EUROHYPO AG, NEW YORK BRANCH, as
Managing Agent and as a Bank

	 
	 
	 	By: /s/ Ben J. Marciano
 	 
	 	Name:  	Ben J. Marciano	 
	 	Title:  	Managing Director 	 
	 	 	 
	 	                                       By: /s/ Stephen Cox
 	 
	 	Name:  	Stephen Cox 	 
	 	Title:  	Vice President 	 



	 
	Dollar Commitment: $40,000,000

	Alternate Currency Commitment: $0








S-6









 








	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as

Documentation Agent and as a Bank

 	 
	 	By: /s/  Megan McBride
 	 
	 	Name:  	Megan McBride 	 
	 	Title:  	Sr. Vice President 	 



	 
	Dollar Commitment: $50,000,000

	Alternate Currency Commitment: $20,000,000







S-7









 








	 	 	 	 	 
	 	DEUTSCHE BANK AG, NEW YORK BRANCH, as

Senior Managing Agent and as a Bank

 	 
	 	By: /s/ Brenda Casey
 	 
	 	Name:  	Brenda Casey 	 
	 	Title:  	Vice President 	 
	 	 	 
	 	By: /s/ Steven P. Lapham 	 
	 	Name:  	Steven P. Lapham 	 
	 	Title:  	Managing Director 	 



	 
	Dollar Commitment: $50,000,000

	Alternate Currency Commitment: $15,000,000








S-8









 








	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA, as
Documentation Agent and as a Bank

 	 
	 	By: /s/ R.H. BOESE
 	 
	 	Name:  	R.H. BOESE 	 
	 	Title:  	MANAGING DIRECTOR 	 



	 
	Dollar Commitment: $50,000,000

Alternate Currency Commitment: $20,000,000








S-9









 








	 	 	 	 	 
	 	WACHOVIA BANK, N.A., as Documentation Agent

and as a Bank

 	 
	 	By: /s/ David H. Blackman
 	 
	 	Name:  	David H. Blackman 	 
	 	Title:  	Managing Director 	 



	 
	Dollar Commitment: $50,000,000

	Alternate Currency Commitment: $20,000,000








S-10









 








	 	 	 	 	 
	 	CITICORP NORTH AMERICA INC., as
Senior Managing Agent and as a Bank

 	 
	 	By: /s/ Jeanne M. Craig
 	 
	 	Name:  	Jeanne M. Craig 	 
	 	Title:  	Vice President 	 



	 
	Dollar Commitment: $50,000,000

	Alternate Currency Commitment: $15,000,000








S-11









 








	 	 	 	 	 
	 	LASALLE BANK NATIONAL ASSOCIATION,

as Senior Managing Agent and as a Bank

 	 
	 	By: /s/ Klay Schmeisser
 	 
	 	Name:  	Klay Schmeisser 	 
	 	Title:  	Senior Vice President 	 



	 
	Dollar Commitment: $50,000,000

Alternate Currency Commitment: $15,000,000








S-12









 








	 	 	 	 	 
	 	MORGAN STANLEY BANK, as Senior Managing Agent
and as a Bank


	 
	 	By: /s/ Daniel Twenge 	 
	 	Name:  	Daniel Twenge 	 
	 	Title: Morgan Stanley Bank 	 



	 
	Dollar Commitment: $50,000,000

	Alternate Currency Commitment: $15,000,000








S-13









 








	 	 	 	 	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH as

Senior Managing Agent and as a Bank

 	 
	 	By: /s/ Brian Caldwell
 	 
	 	Name:  	Brian Caldwell 	 
	 	Title:  	Director 	 
	 	 	 
	 	                                        By: /s/ Rianka Mohan
 	 
	 	Name:  	Rianka Mohan 	 
	 	Title:  	Associate 	 



	 
	Dollar Commitment: $50,000,000

Alternate Currency Commitment: $15,000,000








S-14









 





	 	 	 	 	 
	 	 	MERRILL LYNCH BANK USA, as Senior Managing Agent and as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Louis Alder
	 

	 	 	 	 
	 

	 	Name:
	 	Louis Alder
	 

	 	Title:
	 	Director
	 
	 	 	 	 
	 	 	Dollar Commitment: $65,000,000
	 	 	Alternate Currency Commitment: $0






S-15









 






	 	 	 	 	 
	 	 	MIZUHO CORPORATE BANK, LTD., as Senior Managing Agent and as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Noel Purcell
	 

	 	 	 	 
	 

	 	Name:
	 	Noel Purcell
	 

	 	Title:
	 	Senior Vice President
	 
	 	 	 	 
	 	 	Dollar Commitment: $40,000,000
	 	 	Alternate Currency Commitment: $10,000,000






S-16









 







	 	 	 	 	 
	 	 	THE ROYAL BANK OF SCOTLAND PLC, as Senior
Managing Agent and as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Bruce Ferguson
	 

	 	 	 	 
	 

	 	Name:
	 	Bruce Ferguson
	 

	 	Title:
	 	Senior Vice President
	 
	 	 	 	 
	 	 	Dollar Commitment: $40,000,000
	 	 	Alternate Currency Commitment: $10,000,000






S-17









 






	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as a Managing Agent
and as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Rick Laudisi
	 

	 	 	 	 
	 

	 	Name:
	 	Rick Laudisi
	 

	 	Title:
	 	Vice President
	 
	 	 	 	 
	 	 	Dollar Commitment: $35,000,000
	 	 	Alternate Currency Commitment: $5,000,000






S-18









 






	 	 	 	 	 
	 	 	BANK OF CHINA, NEW YORK BRANCH, as a Co-
Agent and as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ William Smith
	 

	 	 	 	 
	 

	 	Name:
	 	William Smith
	 

	 	Title:
	 	Deputy General Manager
	 
	 	 	 	 
	 	 	Dollar Commitment: $15,000,000
	 	 	Alternate Currency Commitment: $5,000,000






S-19









 






	 	 	 	 	 
	 	 	THE GOVERNOR AND COMPANY OF THE BANK OF
IRELAND, as a Co-Agent and as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Gwen Evans
	 

	 	 	 	 
	 

	 	Name:
	 	Gwen Evans
	 

	 	Title:
	 	Authorised Signatory
	 
	 	 	 	 
	 

	 	By:
	 	/s/ David Hickey
	 

	 	 	 	 
	 

	 	Name:
	 	David Hickey
	 

	 	Title:
	 	Authorised Signatory
	 
	 	 	 	 
	 	 	Dollar Commitment: $15,000,000
	 	 	Alternate Currency Commitment: $5,000,000






S-20









 






	 	 	 	 	 
	 	 	UFJ BANK LIMITED, as a Managing Agent and as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jesse McDonald
	 

	 	 	 	 
	 

	 	Name:
	 	Jesse McDonald
	 

	 	Title:
	 	Vice President
	 
	 	 	 	 
	 	 	Dollar Commitment: $35,000,000
	 	 	Alternate Currency Commitment: $5,000,000






S-21









 






	 	 	 	 	 
	 	 	THE NORTHERN TRUST COMPANY, as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Eleanor Grumman
	 

	 	 	 	 
	 

	 	Name:
	 	Eleanor Grumman
	 

	 	Title:
	 	Vice President
	 
	 	 	 	 
	 	 	Dollar Commitment: $15,000,000
	 	 	Alternate Currency Commitment: $5,000,000






S-22









 






	 	 	 	 	 
	 	 	CHANG HWA COMMERCIAL BANK, LTD., LOS ANGELES.
BRANCH, as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Wen-Che Chen
	 

	 	 	 	 
	 

	 	Name:
	 	Wen-Che Chen
	 

	 	Title:
	 	Vice President & General Manager
	 
	 	 	 	 
	 	 	Dollar Commitment: $20,000,000
	 	 	Alternate Currency Commitment: $0






S-23









 






	 	 	 	 	 
	 	 	MALAYAN BANKING BERHAD, as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Wan Fadzmi Othman
	 

	 	 	 	 
	 

	 	Name:
	 	Wan Fadzmi Othman
	 

	 	Title:
	 	General Manager
	 
	 	 	 	 
	 	 	Dollar Commitment: $20,000,000
	 	 	Alternate Currency Commitment: $0






S-24









 






	 	 	 	 	 
	 	 	PEOPLE’S BANK, as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Steven Jonassen
	 

	 	 	 	 
	 

	 	Name:
	 	Steven Jonassen
	 

	 	Title:
	 	Vice President
	 
	 	 	 	 
	 	 	Dollar Commitment: $20,000,000
	 	 	Alternate Currency Commitment: $0






S-25









 






	 	 	 	 	 
	 	 	FIRST COMMERCIAL BANK, LOS ANGELES

BRANCH, as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Chih- Tiao Shih
	 

	 	 	 	 
	 

	 	Name:
	 	Chih- Tiao Shih
	 

	 	Title:
	 	SAVP & Deputy General Manager
	 
	 	 	 	 
	 	 	Dollar Commitment: $15,000,000
	 	 	Alternate Currency Commitment: $0






S-26









 






	 	 	 	 	 
	 	 	HUA NAN COMMERCIAL BANK, NEW YORK AGENCY, as a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jeng-Fang Geeng
	 

	 	 	 	 
	 

	 	Name:
	 	Jeng-Fang Geeng
	 

	 	Title:
	 	General Manager
	 
	 	 	 	 
	 	 	Dollar Commitment: $15,000,000
	 	 	Alternate Currency Commitment: $0







S-27










 






Schedule 1.1




 









 








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 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:




     PA-1601 Market Street Limited Partnership, a Delaware limited partnership



          (1601 Market Street, Philadelphia, Pennsylvania)




     DC-1620 Limited Partnership, an Illinois limited partnership



          (1620 L Street, Washington, D.C.)




Properties in which EOP-QRS Trust is a 0.1% General Partner or Managing Member:




     DC-1111 19th Street Limited Partnership, a Delaware limited partnership



          (1111 19th Street, Washington, D.C.)




     DC-1333 H Street, L.P., a Delaware limited partnership



          (1333 H Street, Washington, D.C.)




     OR-5550 Macadam Building Limited Partnership, a Delaware limited partnership



          (5550 Macadam Building, Portland, Oregon)




     OR-BF Plaza Limited Partnership, a Delaware limited partnership



          (Benjamin Franklin 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)





 










 






EXHIBIT A




NOTE




Chicago, Illinois




August 4, 2005




          For value received, EOP OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership (the
“Borrower”), promises to pay to the order of                                         (the “Bank”) the
unpaid principal amount of each Loan made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below on the maturity date provided for in the Credit Agreement). The
Borrower further promises to pay interest on the unpaid principal amount of each such Loan from the
date advanced until such principal amount is paid in full on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available funds to Bank of
America, N.A., for the account of the Bank, pursuant to the following wire transfer instructions:



	 	 	 
	 

	 	Bank of America, N.A.
	 

	 	Real Estate Loan Administration Services
	 

	 	ABA #111 000 012
	 

	 	Credit: Account #1292000883
	 

	 	Attn: Sharon M. Tolin
	 

	 	RE: EOP Operating LP






          All Loans made by the Bank, the respective types and maturities thereof and all repayments of
the principal thereof shall be recorded by the Bank and, if the Bank so elects in connection with
any transfer or enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.



          This note is one of the Notes referred to in, and is executed and delivered pursuant to
and subject to all of the terms of, the Revolving Credit Agreement, dated as of August 4, 2005,
among the Borrower, the banks listed on the signature pages thereof, Banc of America Securities LLC
and J.P. Morgan Securities Inc., as Joint Lead Arrangers and Joint Bookrunners, Bank of America,
N.A., as Administrative Agent, JPMorgan Chase Bank, N.A., as Syndication Agent, and The Bank of
Nova Scotia, US Bank National Association and Wachovia Bank, National Association, as Documentation
Agents (as the same may be amended from time to time, the “Credit Agreement”). Capitalized
terms used herein but not otherwise defined shall have the meanings ascribed to them in the Credit
Agreement. The terms and conditions of the Credit



 









 




Agreement are hereby incorporated in their entirety by reference as though fully set forth
herein. Upon the occurrence of certain Events of Default as more particularly described in the
Credit Agreement, the unpaid principal amount evidenced by this Note shall become, and upon the
occurrence and during the continuance of certain other Events of Default, such unpaid principal
amount may be declared to be, due and payable in the manner, upon the conditions and with the
effect provided in the Credit Agreement.




          Demand, presentment, diligence, protest and notice of nonpayment are hereby waived by the
Borrower.



          THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.



[SIGNATURE PAGE FOLLOWS]




 









 








	 	 	 	 	 	 	 
	 	 	EOP OPERATING LIMITED PARTNERSHIP,
	 	 	     a Delaware limited partnership
	 
	 	 	 	 	 	 
	 	 	By:	 	Equity Office Properties Trust, a Maryland real
	 	 	 	 	estate investment trust, its managing general partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 

	 	 	 	 	 	Title:






 









 






Note (cont’d)




LOANS AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	Amount of	 	Type of	 	Principal	 	Maturity	 	Notation
	Date	 	Loan	 	Loan	 	Repaid	 	Date	 	Made By
	 

	 	 
	 	 
	 	 
	 	 
	 	 





 









 






EXHIBIT A-1




NOTE




Chicago, Illinois




________, 200_




          For value received, EOP OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership (the
“Borrower”), promises to pay to the order of ___(the “Bank”) the unpaid
principal amount of each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date provided for in the Credit Agreement). The Borrower further
promises to pay interest on the unpaid principal amount of each such Loan from the date advanced
until such principal amount is paid in full on the dates and at the rate or rates provided for in
the Credit Agreement. All such payments of principal and interest shall be made in lawful money of
the United States in Federal or other immediately available funds to Bank of America, N.A. for the
account of the Bank, pursuant to the following wire transfer instructions:



	 	 	 
	 

	 	Bank of America, N.A.
	 

	 	Real Estate Loan Administration Services
	 

	 	ABA #111 000 012
	 

	 	Credit: Account #1292000883
	 

	 	Attn: Sharon M. Tolin
	 

	 	RE: EOP Operating LP






          All Loans made by the Bank, the respective types and maturities thereof and all repayments of
the principal thereof shall be recorded by the Bank and, if the Bank so elects in connection with
any transfer or enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.



          This note is one of the Designated Lender Notes referred to in, and is executed and
delivered pursuant to and subject to all of the terms of, the Revolving Credit Agreement, dated as
of August 4, 2005, among the Borrower, the banks listed on the signature pages thereof, Banc of
America Securities LLC and J.P. Morgan Securities Inc., as Joint Lead Arrangers and Joint
Bookrunners, Bank of America, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A., as
Syndication Agent, and The Bank of Nova Scotia, US Bank National Association and Wachovia Bank,
National Association, as Documentation Agents (as the same may be amended from time to time, the
“Credit Agreement”). Capitalized terms used herein but not otherwise defined shall have
the meanings ascribed to them in the Credit Agreement. The terms and



 









 




conditions of the Credit Agreement are hereby incorporated in their entirety by reference as
though fully set forth herein. Upon the occurrence of certain Events of Default as more
particularly described in the Credit Agreement, the unpaid principal amount evidenced by this Note
shall become, and upon the occurrence and during the continuance of certain other Events of
Default, such unpaid principal amount may be declared to be, due and payable in the manner, upon
the conditions and with the effect provided in the Credit Agreement.




          Demand, presentment, diligence, protest and notice of nonpayment are hereby waived by the
Borrower.



          THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.



[SIGNATURE PAGE FOLLOWS]




 









 








	 	 	 	 	 	 	 
	 	 	EOP OPERATING LIMITED PARTNERSHIP,
	 	 	a Delaware limited partnership
	 
	 	 	 	 	 	 
	 	 	By:	 	Equity Office Properties Trust, a Maryland real
	 	 	 	 	estate investment trust, its managing general partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 

	 	 	 	 	 	Title:






 









 






Note (cont’d)




LOANS AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	Amount of	 	Type of	 	Principal	 	Maturity	 	Notation
	Date	 	Loan	 	Loan	 	Repaid	 	Date	 	Made By
	 

	 	 
	 	 
	 	 
	 	 
	 	 





 









 






EXHIBIT A-3




QUALIFIED BORROWER NOTE




	 	 	 
	 

	 	Chicago, Illinois
	$                                        

	 	 ___,200_






          For value received,                                                             (the “Qualified Borrower”), promises to
pay to the order of                                                             (the “Bank”) the unpaid principal amount of each
Loan made by the Bank to the Qualified Borrower pursuant to the Credit Agreement referred to below
on the maturity date provided for in the Credit Agreement. The Qualified Borrower further promises
to pay interest on the unpaid principal amount of each such Loan from the date advanced until such
principal amount is paid in full on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful money of, as
required by the Credit Agreement, the United States, the United Kingdom, the European Economic
Union, Japan or Australia, as the case may be, in Federal or other immediately available funds to
Bank of America, N.A. for the account of the Bank, pursuant to wire transfer instructions given by
Bank of America, N.A. from time to time.



          All Loans made by the Bank, the respective types and maturities thereof and all repayments of
the principal thereof shall be recorded by the Bank and, if the Bank so elects in connection with
any transfer or enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Qualified Borrower hereunder or under the Credit Agreement.



          This note is one of the Notes by a Qualified Borrower referred to in, and is executed and
delivered pursuant to and subject to all of the terms of, the Revolving Credit Agreement, dated as
of August 4, 2005, among the Borrower, the banks listed on the signature pages thereof, Banc of
America Securities LLC and J.P. Morgan Securities Inc., as Joint Lead Arrangers and Joint
Bookrunners, Bank of America, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A., as
Syndication Agent, and The Bank of Nova Scotia, US Bank National Association and Wachovia Bank,
National Association, as Documentation Agents (as the same may be amended from time to time, the
“Credit Agreement”). Capitalized terms used herein but not otherwise defined shall have
the meanings ascribed to them in the Credit Agreement. The terms and conditions of the Credit
Agreement are hereby incorporated in their entirety by reference as though fully set forth herein.
Upon the occurrence of certain Events of Default as more particularly described in the Credit
Agreement, the unpaid principal amount evidenced by this Note shall become, and upon the occurrence
and during the continuance of certain other Events of Default, such unpaid principal amount may be
declared to be, due and payable in the manner, upon the conditions and with the effect provided in
the Credit Agreement.



 









 





          Demand, presentment, diligence, protest and notice of nonpayment are hereby waived by the
Qualified Borrower.



          THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.



[SIGNATURE PAGE FOLLOWS]




 









 








	 	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






 









 






EXHIBIT B




Form of Money Market Quote Request




[Date]




	 	 	 
	To:

	 	Bank of America, N.A. (the “Administrative Agent”)
	 
	 	 
	From:

	 	EOP Operating Limited Partnership
	 
	 	 
	Re:

	 	Revolving Credit Agreement (the “Credit Agreement”) dated as of
August 4, 2005, among EOP Operating Limited Partnership, the Banks
parties thereto, Banc of America Securities LLC and J.P. Morgan
Securities Inc., as Joint Lead Arrangers and Joint Bookrunners, Bank
of America, N.A., as Administrative Agent, JPMorgan Chase Bank,
N.A., as Syndication Agent, and The Bank of Nova Scotia, US Bank
National Association and Wachovia Bank, National Association, as
Documentation Agents.






          We hereby give notice pursuant to Section 2.4 of the Credit Agreement that we request Money
Market Quotes for the following proposed Money Market Borrowing(s):



Date of Borrowing:                                                             




	 	 	 
	Principal Amount*	 	Interest Period**
	$

	 	 






          Such Money Market Quotes should offer a Money Market [Margin] [Absolute Rate]. [The applicable
base rate is the Interbank Offered Rate.]



          Money Market Loans in the amount of $___are currently outstanding.



[SIGNATURE PAGE FOLLOWS]






 




			
	*	 	Amount must be $5,000,000 or a larger multiple of $100,000,
with all outstanding Money Market Loans not to exceed 50% of the aggregate
Commitments.
	 
	**	 	Not less than 30 days (LIBOR Auction) or not less than 14
days (Absolute Rate Auction), subject to the provisions of the definition of
Interest Period.




 









 










          Terms used herein have the meanings assigned to them in the Credit Agreement.



	 	 	 	 	 
	 	 	EOP OPERATING LIMITED PARTNERSHIP,
	 	 	a Delaware limited partnership
	 
	 	 	 	 
	 

	 	By:
	 	Equity Office Properties Trust,
	 

	 	 	 	a Maryland real estate investment trust
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






 









 






EXHIBIT C




Form of Invitation for Money Market Quotes




	 	 	 
	To:

	 	[Name of Bank]
	 
	 	 
	Re:

	 	Invitation for Money Market Quotes to EOP Operating Limited
Partnership (the “Borrower”)






          Pursuant to Section 2.4 of the Revolving Credit Agreement, dated as of August 4 , 2005, among
EOP Operating Limited Partnership, the Banks parties thereto, the undersigned, as Administrative
Agent, Banc of America Securities LLC and J.P. Morgan Securities Inc., as Joint Lead Arrangers and
Joint Bookrunners, JPMorgan Chase Bank, N.A., as Syndication Agent, and The Bank of Nova Scotia, US
Bank National Association and Wachovia Bank, National Association, as Documentation Agents, we are
pleased on behalf of the Borrower to invite you to submit Money Market Quotes to the Borrower for
the following proposed Money Market Borrowing(s):



Date of Borrowing:                                                             




	 	 	 
	Principal Amount	 	Interest Period
	$

	 	 






          Such Money Market Quotes should offer a Money Market [Margin] [Absolute Rate]. [The
applicable base rate is the Interbank Offered Rate.]



          Please respond to this invitation by no later than [2:00 P.M.] [9:30 A.M.] (Dallas, Texas
time) on [date].



	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as
	 	 	Administrative Agent
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Officer






 









 






EXHIBIT D




Form of Money Market Quote




	 	 	 
	To:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	Re:

	 	Money Market Quote to EOP Operating Limited Partnership (the “Borrower”)






          In response to your invitation on behalf of the Borrower dated ___, 200_, we hereby
make the following Money Market Quote on the following terms:



	 	 	 
	1.

	 	Quoting Bank:                                                             
	2.

	 	Person to contact at Quoting Bank:
	 
	 	 
	 

	 	                                                                                
	3.

	 	Date of Borrowing:                                                             *
	4.

	 	We hereby offer to make Money Market Loan(s) in the following principal amounts, for the
following Interest Periods and at the following rates:






	 	 	 	 	 
	Principal	 	Interest Money Market
	Amount**	 	Period***	 	[Margin****] [Absolute Rate*****]
	$

	 	 
	 	 
	$

	 	 
	 	 







[Provided, that the aggregate principal amount of Money Market Loans for which the above
offers may be accepted shall not exceed $___.]**




     We understand and agree that the offer(s) set forth above, subject to the satisfaction
of the applicable conditions set forth in the Revolving Credit Agreement, dated as of August
4, 2005, among EOP Operating Limited Partnership, the Banks parties thereto, Banc of America
Securities LLC and J.P. Morgan Securities Inc., as Joint Lead Arrangers and Joint
Bookrunners, JPMorgan Chase Bank, N.A., as Syndication Agent, and The Bank of Nova Scotia,
US Bank National Association and Wachovia Bank, National Association, as Documentation
Agents, and yourselves, as Administrative Agent, irrevocably obligates us to make the Money
Market Loan(s) for which any offer(s) are accepted, in whole or in part.



	 	 	 
	 

	 	Very truly yours,
	 
	 	 
	 

	 	[NAME OF BANK]
	 
	 	 
	Dated:                                         

	 	By:                                                             






 









 






Authorized Officer






 




			
	*	 	As specified in the related Invitation.
	 
	**	 	Principal amount bid for each Interest Period may not exceed principal amount requested.
Specify aggregate limitation if the sum of the individual offers exceeds the amount the Bank
is willing to lend. Bids must be made for $5,000,000 or a larger multiple of $100,000.
	 
	***	 	Not less than 14 days, as specified in the related Invitation. No more than five bids are
permitted for each Interest Period.
	 
	****	 	Margin over or under the Interbank Offered Rate determined for the applicable Interest
Period. Specify percentage (to the nearest 1/10,000 of 1%) and specify whether “PLUS” or
“MINUS”.
	 
	*****	 	Specify rate of interest per annum (to the nearest 1/10,000th of 1%).





 









 










EXHIBIT E




TRANSFER SUPPLEMENT




          TRANSFER SUPPLEMENT (this “Transfer Supplement”) dated as of                                         200___, between
                                                            (the “Assignor”) and                                        having an address at
                                                            (the “Purchasing Bank”).



W I T N E S S E T H:




          WHEREAS, the Assignor has made loans to EOP Operating Limited Partnership, a Delaware limited
partnership (the “Borrower”), pursuant to the Revolving Credit Agreement, dated as of
August 4, 2005 (as the same may be amended, supplemented or otherwise modified through the date
hereof, the “Credit Agreement”), among the Borrower, the banks party thereto, Banc of
America Securities LLC and J.P. Morgan Securities Inc., as Joint Lead Arrangers and Joint
Bookrunners, Bank of America, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A., as
Syndication Agent, and The Bank of Nova Scotia, US Bank National Association and Wachovia Bank,
National Association, as Documentation Agents. All capitalized terms used and not otherwise
defined herein shall have the respective meanings set forth in the Credit Agreement;



          WHEREAS, the Purchasing Bank desires to purchase and assume from the Assignor, and the
Assignor desires to sell and assign to the Purchasing Bank, certain rights, title, interest and
obligations under the Credit Agreement;



          NOW, THEREFORE, IT IS AGREED:



          1. In consideration of the amount set forth in the receipt (the “Receipt”) given by
Assignor to Purchasing Bank of even date herewith, and transferred by wire to Assignor, the
Assignor hereby assigns and sells, without recourse, representation or warranty except as
specifically set forth herein, to the Purchasing Bank, and the Purchasing Bank hereby purchases and
assumes from the Assignor, a ___% interest (the “Purchased Interest”) of the Loans
constituting a portion of the Assignor’s rights and obligations under the Credit Agreement as of
the Effective Date (as defined below) including, without limitation, such percentage interest of
the Assignor in any Loans owing to the Assignor, any Note held by the Assignor, any Loan Commitment
of the Assignor and any other interest of the Assignor under any of the Loan Documents.



          2. The Assignor: (i) represents and warrants that as of the date hereof the aggregate
outstanding principal amount of its share of the Loans owing to it (without giving effect to
assignments thereof which have not yet become effective) is $___; (ii) represents and warrants
that it is the legal and beneficial owner of the interests being assigned by it hereunder and that
such interests are free and clear of any adverse claim; (iii) represents and warrants that it has
not received any notice of Default or Event of Default from the Borrower;



 









 




(iv) represents and warrants that is has full power and authority to execute and deliver, and
perform under, this Transfer Supplement, and all necessary corporate and/or partnership action has
been taken to authorize, and all approvals and consents have been obtained for, the execution,
delivery and performance thereof; (v) represents and warrants that this Transfer Supplement
constitutes its legal, valid and binding obligation enforceable in accordance with its terms; (vi)
makes no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations (or the truthfulness or accuracy thereof) made in or in connection
with the Credit Agreement, or the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, or the other Loan
Documents or any other instrument or document furnished pursuant thereto; and (vii) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower or the performance or observance by the Borrower of any of its obligations under the
Credit Agreement or the other Loan Documents or any other instrument or document furnished pursuant
thereto. Except as specifically set forth in this Paragraph 2, this assignment shall be without
recourse to Assignor.




          3. The Purchasing Bank: (i) confirms that it has received a copy of the Credit Agreement, and
the other Loan Documents, together with such financial statements and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Transfer Supplement and to become a party to the Credit Agreement, and has not relied on any
statements made by Assignor; (ii) agrees that it will, independently and without reliance upon any
of the Administrative Agent, the Documentation Agent, the Syndication Agent, the Assignor or any
other Bank and based on such documents and information as it shall deem appropriate at the time,
continue to make its own appraisal of and investigation into the business, operations, property,
prospects, financial and other conditions and creditworthiness of the Borrower and will make its
own credit analysis, appraisals and decisions in taking or not taking action under the Credit
Agreement, and the other Loan Documents; (iii) appoints and authorizes the Administrative Agent,
the Documentation Agent and the Syndication Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement, and the other Loan Documents as are delegated to
such agents by the terms thereof, together with such powers as are incidental thereto; (iv) agrees
that it will be bound by and perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a Bank; (v) specifies as
its addresses for notices, its Domestic Lending Office and its Eurodollar Lending office, the
addresses and offices set forth beneath its name on the signature page hereof; (vi) represents and
warrants that it has full power and authority to execute and deliver, and perform under, this
Transfer Supplement, and all necessary corporate and/or partnership action has been taken to
authorize, and all approvals and consents have been obtained for, the execution, delivery and
performance thereof; (vii) represents and warrants that this Transfer Supplement constitutes its
legal, valid and binding obligation enforceable in accordance with its terms; and (viii) represents
and warrants that the interest being assigned hereunder is being acquired by it for its own
account, for investment purposes only and not with a view to the public distribution thereof and
without any present intention of its resale in either case that would be in violation of applicable
securities laws.



 









 





          4. This Transfer Supplement shall be effective on the date (the “Effective Date”) on
which all of the following have occurred: (i) it shall have been executed and delivered by the
parties hereto; (ii) copies hereof shall have been delivered to the Administrative Agent and the
Borrower; (iii) the Purchasing Bank shall have received an original Note; and (iv) the Purchasing
Bank shall have paid to the Assignor the agreed purchase price as set forth in the Receipt.



          5. On and after the Effective Date, (i) the Purchasing Bank shall be a party to the Credit
Agreement and, to the extent provided in this Transfer Supplement, have the rights and obligations
of a Bank thereunder and be entitled to the benefits and rights of the Banks thereunder and (ii)
the Assignor shall, to the extent provided in this Transfer Supplement as to the Purchased
Interest, relinquish its rights and be released from its obligations under the Credit Agreement.



          6. From and after the Effective Date, the Assignor shall cause the Administrative Agent to
make all payments under the Credit Agreement, and the Notes in respect of the Purchased Interest
assigned hereby (including, without limitation, all payments of principal, fees and interest with
respect thereto and any amounts accrued but not paid prior to such date) to the Purchasing Bank.



          7. This Transfer Supplement may be executed in any number of counterparts which, when taken
together, shall be deemed to constitute one and the same instrument.



          8. Assignor hereby represents and warrants to Purchasing Bank that it has made all payments
demanded to date by Bank of America, N.A., as Administrative Agent in connection with the
Assignor’s Pro Rata Share of the obligation to reimburse the Agent for its expenses and made all
Loans required. In the event Bank of America, N.A., as Administrative Agent, shall demand
reimbursement for fees and expenses from Purchasing Bank for any period prior to the Effective
Date, Assignor hereby agrees to promptly pay Bank of America, N.A., as Administrative Agent, such
sums directly, subject, however, to Paragraph 12 hereof.



          9. Assignor will, at the cost of Assignor, and without expense to Purchasing Bank, do,
execute, acknowledge and deliver all and every such further acts, deeds, conveyances, assignments,
notices of assignments, transfers and assurances as Purchasing Bank shall, from time to time,
reasonably require, for the better assuring, conveying, assigning, transferring and confirming unto
Purchasing Bank the property and rights hereby given, granted, bargained, sold, aliened, enfeoffed,
conveyed, confirmed, assigned and/or intended now or hereafter so to be, on which Assignor may be
or may hereafter become bound to convey or assign to Purchasing Bank, or for carrying out the
intention or facilitating the performance of the terms of this Agreement or for filing, registering
or recording this Agreement.



          10. The parties agree that no broker or finder was instrumental in bringing about this
transaction. Each party shall indemnify, defend the other and hold the other free and harmless
from and against any damages, costs or expenses (including, but not limited to,



 









 




reasonable attorneys’ fees and disbursements) suffered by such party arising from claims by
any broker or finder that such broker or finder has dealt with said party in connection with this
transaction.




          11. Subject to the provisions of Paragraph 12 hereof, if, with respect to the Purchased
Interest only, Assignor shall on or after the Effective Date receive (a) any cash, note,
securities, property, obligations or other consideration in respect of or relating to the Loan or
the Loan Documents or issued in substitution or replacement of the Loan or the Loan Documents, (b)
any cash or non-cash consideration in any form whatsoever distributed, paid or issued in any
bankruptcy proceeding in connection with the Loan or the Loan Documents or (c) any other
distribution (whether by means of repayment, redemption, realization of security or otherwise),
Assignor shall accept the same as Purchasing Bank’s agent and hold the same in trust on behalf of
and for the benefit of Purchasing Bank, and shall deliver the same forthwith to Purchasing Bank in
the same form received, with the endorsement (without recourse) of Assignor when necessary or
appropriate. If the Assignor shall fail to deliver any funds received by it within the same
Business Day of receipt, unless such funds are received by Assignor after 4:00 p.m., Eastern
Standard Time, then the following Business Day after receipt, said funds shall accrue interest at
the Federal Funds Rate and in addition to promptly remitting said amount, Assignor shall remit such
interest from the date received to the date such amount is remitted to the Purchasing Bank.



          12. Assignor and Purchasing Bank each hereby agree to indemnify and hold harmless the other,
each of its directors and each of its officers in connection with any claim or cause of action
based on any matter or claim based on the acts of either while acting as a Bank under the Credit
Agreement. Promptly after receipt by the indemnified party under this Section of notice of the
commencement of any action, such indemnified party shall notify the indemnifying party in writing
of the commencement thereof. If any such action is brought against any indemnified party and that
party notifies the indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein, and to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such indemnified party, and after receipt
of notice from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof. In no event shall the indemnified party settle or consent to
a settlement of such cause of action or claim without the consent of the indemnifying party.



          13. THIS TRANSFER SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.



          14. On or promptly after the Effective Date, Borrower, Administrative Agent, Assignor and
Purchasing Bank shall make appropriate arrangements so that a Note executed by Borrower, dated the
Effective Date is issued to Purchasing Bank.



 









 





          [15. On or before the Effective Date, Purchasing Bank shall comply with the provisions of
Section 8.4(d) of the Credit Agreement.] [Include only if Purchasing Bank is a foreign
institution.]



	 	 	 	 	 
	 	 	[Purchasing Bank]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Notice Address:
	 	 	Domestic Lending Office:
	 	 	Eurodollar Lending Office:
	 
	 	 	 	 
	 	 	[Assignor]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






Receipt Acknowledged this

                                        day of                                         ,200___:



BANK OF AMERICA, N.A., as Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 







 









 






EXHIBIT F




NOTICE ADDRESSES




	 	 	 
	Borrower:

	 	Syndication Agent:
	Two North Riverside Plaza

	 	JPMorgan Chase Bank, N.A.
	Suite 2100

	 	277 Park Avenue
	Chicago, Illinois 60606

	 	New York, New York 10172
	Attn: Chief Financial Officer

	 	Attn: Marc Costantino
	Facsimile: (312) 559-5008

	 	Facsimile: (646) 534-0574
	 
	 	 
	Administrative Agent:

	 	Senior Managing Agent:
	Bank of America, N.A.

	 	Citicorp North America Inc.
	TX1-492-14-11

	 	390 Greenwich Street
	901 Main Street, 14th Floor

	 	1st Floor
	Dallas, Texas 75202

	 	New York, NY 10013
	Attn: Cindy Fisher

	 	Attn: Michael Chlopak
	Facsimile: (214) 290-8392

	 	Facsimile: (212) 723-8380
	 
	 	 
	for Borrowings/rollovers/pay downs:
	 	 
	Bank of America, N.A.
	 	 
	TX1-492-14-05
	 	 
	901 Main Street, 14th Floor
	 	 
	Dallas, Texas 75202
	 	 
	Attn: Sharon M. Tolin
	 	 
	Facsimile: (214) 290-9645
	 	 
	 
	 	 
	Documentation Agent:

	 	Senior Managing Agent:
	The Bank of Nova Scotia

	 	Credit Suisse, Cayman Islands Branch
	One Liberty Plaza, 25th Floor

	 	Eleven Madison Avenue
	New York, NY 10006

	 	New York, NY 10010
	Attn: Neil Crawford

	 	Attn: William O’Daly
	Facsimile: 212-225-5166

	 	Facsimile: (212) 743-2254
	 
	 	 
	Documentation Agent:

	 	Senior Managing Agent:
	U.S. Bank National Association

	 	Deutsche Bank Trust Company Americas
	The Rookery Building

	 	200 Crescent Court
	209 S. LaSalle Street, Suite 410

	 	Suite 550
	Chicago, IL 60604

	 	Dallas, TX 75201
	Attn: Megan McBride

	 	Attn: Scott Speer
	Facsimile: 312-325-8852

	 	Facsimile: (214) 740-7910
	 
	 	 
	Documentation Agent:

	 	Senior Managing Agent:
	Wachovia Bank, National Association

	 	LaSalle National Bank
	301 South College Street, 16th Floor

	 	135 South LaSalle Street






 









 






	 	 	 
	Mail Code:

	 	Suite 1225
	Charlotte, NC 28288

	 	Chicago, Illinois 60603-3499
	Attn: David Blackman

	 	Attn: Klay Schmeisser
	 

	 	Facsimile: (312) 904-6691
	 
	 	 
	Senior Managing Agent:

	 	Senior Managing Agent:
	Merrill Lynch Bank USA

	 	Morgan Stanley Bank
	15 W. South Temple

	 	1633 Broadway
	Suite 300

	 	25th Floor
	Salt Lake City, UT 84101

	 	New York, NY 10019
	Attn: Derek Befus

	 	Attn: Erma dell’Aquila
	Facsimile: (801) 531-7470

	 	Facsimile: (212) 537-1867
	 
	 	 
	Senior Managing Agent:

	 	Senior Managing Agent:
	PNC Bank National Association

	 	UBS Loan Finance LLC
	One PNC Plaza

	 	677 Washington Boulevard
	Mail Stop PI-POPP-19-2

	 	Stamford, CT 05901
	Pittsburgh, PA 15222

	 	Attn: Chris Aitkin
	Attn: Michael Smith

	 	Facsimile: (203) 719-3888
	Facsimile: (412) 762-6500
	 	 
	 
	 	 
	Senior Managing Agent:

	 	Senior Managing Agent:
	Mizuho Corporate Bank, Ltd.

	 	The Royal Bank of Scotland plc
	1251 Avenue of the Americas

	 	101 Park Avenue, 12th Floor
	New York, NY 10020

	 	New York, NY 10178
	Attn: Takeshi Kubo

	 	Attn: Bruce Ferguson
	Facsimile: (212) 282-4488

	 	Facsimile: (212) 401-3456
	 
	 	 
	Managing Agent:

	 	Managing Agent:
	The Bank of New York

	 	Eurohypo AG, New York Branch
	One Wall Street, 21st Floor

	 	123 N. Wacker Drive
	New York, NY 10286

	 	Suite 2300
	Attn: Jamia Jasper

	 	Chicago, Illinois 60606
	Facsimile: (212) 809-9526

	 	Attn: Curt Steiner
	 

	 	Facsimile: (312) 267-8875
	 
	 	 
	Managing Agent:

	 	Co-Agent:
	UFJ Bank Limited

	 	Bank of China, New York Branch
	55 East 52nd Street

	 	410 Madison Avenue
	New York, NY 10055

	 	New York, NY 10017
	Attn: Jesse McDonald

	 	Attn: David Hoang
	Facsimile: (212) 754-1304

	 	Facsimile: (212) 308-4993
	 
	 	 
	Co-Agent:

	 	Chang Hwa Commercial Bank, Ltd., L.A.
	The Governor and Company of the Bank of

	 	Branch
	Ireland

	 	333 South Grand Avenue, #600






 









 






	 	 	 
	LaTouch House

	 	Los Angeles, California 90071
	International Financial Services Centre

	 	Attn: Carson Hsu
	Custom House Docks

	 	Facsimile: (213) 620-7227
	Dublin 1
	 	 
	Ireland
	 	 
	Attn: Philip Allen
	 	 
	Facsimile: 353-1-829-0129
	 	 
	 
	 	 
	The Northern Trust Company

	 	Malayan Banking Berhad
	50 S. LaSalle, Floor B-2

	 	400 Park Avenue, 9th Floor
	Chicago, Illinois 60675

	 	New York, NY 10022
	Attn: Eleanor Grumman

	 	Attn: Nor Akmar Wallace
	Facsimile: (312) 444-7028

	 	Facsimile: (212) 308-0109
	 
	 	 
	People’s Bank

	 	First Commercial Bank, Los Angeles Branch
	850 Main Street, RC-204

	 	515 S. Flower Street #1050
	Bridgeport, CT 06604

	 	Los Angeles, CA 90071
	Attn: Steven Jonassen

	 	Attn: Josephine Chong
	Facsimile: (203) 338-7344

	 	Facsimile: (213) 362-0219
	 
	 	 
	Hua Nan Commercial Bank, New York
	 	 
	Agency
	 	 
	330 Madison Avenue, 38th Floor
	 	 
	New York, NY 10017
	 	 
	Attn: Frank Tang
	 	 
	Facsimile: (212) 286-1212
	 	 






 









 






EXHIBIT G




FORM OF DESIGNATION AGREEMENT




Dated _____________, 200_




     Reference is made to that certain Revolving Credit Agreement, dated as of August 4, 2005 (as
amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among EOP
OPERATING LIMITED PARTNERSHIP, the banks parties thereto, and BANK OF AMERICA, N.A. (the
“Administrative Agent”), as Administrative Agent. Terms defined in the Credit Agreement
are used herein with the same meaning.



     [NAME OF DESIGNOR] (the “Designor”), [NAME OF DESIGNEE] (the “Designee”), and the
Administrative Agent agree as follows:



     1. The Designor hereby designates the Designee, and the Designee hereby accepts such
designation, to have a right to make Money Market Loans pursuant to Article III of the Credit
Agreement. Any assignment by Designor to Designee of its rights to make a Money Market Loan
pursuant to such Article III shall be effective at the time of the funding of such Money Market
Loan and not before such time.



     2. Except as set forth in Section 7 below, the Designor makes no representation or warranty
and assumes no responsibility pursuant to this Designation Agreement with respect to (a) any
statements, warranties or representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of any Loan
Document or any other instrument and document furnished pursuant thereto and (b) the financial
condition of the Borrower or the performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or document furnished pursuant thereto.



     3. The Designee (a) confirms that it has received a copy of each Loan Document,
together with copies of the financial statements referred to in Articles IV and V of the Credit
Agreement and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Designation Agreement; (b) agrees that it will
independently and without reliance upon the Administrative Agent, the Designor or any other Bank
and based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under any Loan Document; (c) confirms
that it is a Designated Lender; (d) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under any Loan Document as
are delegated to the Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (e) agrees to be



 









 




bound by each and every provision of each Loan Document and further agrees that it will
perform in accordance with their terms all of the obligations which by the terms of any Loan
Document are required to be performed by it as a Bank.




     4. The Designee hereby appoints Designor as Designee’s agent and attorney in fact, and grants
to Designor an irrevocable power of attorney, to receive payments made for the benefit of Designee
under the Credit Agreement, to deliver and receive all communications and notices under the Credit
Agreement and other Loan Documents and to exercise on Designee’s behalf all rights to vote and to
grant and make approvals, waivers, consents of amendments to or under the Credit Agreement or other
Loan Documents. Any document executed by the Designor on the Designee’s behalf in connection with
the Credit Agreement or other Loan Documents shall be binding on the Designee. The Borrower, the
Administrative Agent and each of the Banks may rely on and are beneficiaries of the preceding
provisions.



     5. Following the execution of this Designation Agreement by the Designor and its Designee, it
will be delivered to the Administrative Agent for acceptance and recording by the Administrative
Agent. The effective date for this Designation Agreement (the “Effective Date”) shall be
the date of acceptance hereof by the Administrative Agent, unless otherwise specified on the
signature page thereto.



     6. The Administrative Agent 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.



     7. The Designor unconditionally agrees to pay or reimburse the Designee and save the Designee
harmless against all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed or
asserted by any of the parties to the Loan Documents against the Designee, in its capacity as such,
in any way relating to or arising out of this Agreement or any other Loan Documents or any action
taken or omitted by the Designee hereunder or thereunder, provided that the Designor shall
not be liable for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements if the same results from the Designee’s
gross negligence or willful misconduct.



     8. Upon such acceptance and recording by the Administrative Agent, as of the Effective
Date, the Designee shall be a party to the Credit Agreement with a right (subject to the provisions
of Section 2.4(b)) to make Money Market Loans as a Bank pursuant to Section 2.4 of the Credit
Agreement and the rights and obligations of a Bank related thereto; provided, however, that
the Designee shall not be required to make payments with respect to such obligations except to the
extent of excess cash flow of such Designee which is not otherwise required to repay obligations of
such Designated Lender which are then due and payable.



 









 




Notwithstanding the
foregoing, the Designor, as administrative agent for the Designee, shall be and remain
obligated to the Borrower, the Co-Agents and the Banks for each and every of the obligations of the
Designee and its Designor with respect to the Credit Agreement, including, without limitation, any
indemnification obligations under Section 7.6 of the Credit Agreement and any sums otherwise
payable to the Borrower by the Designee.




     9. This Designation Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York.



     10. This Designation Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Designation Agreement by facsimile transmission
shall be effective as delivery of a manually executed counterpart of this Designation Agreement.



 









 





     IN WITNESS WHEREOF, the Designor and the Designee, intending to be legally bound, have caused
this Designation Agreement to be executed by their officers thereunto duly authorized as of the
date first above written.



	 	 	 	 	 
	Effective Date:	 	                    , 200_
	 
	 	 	 	 
	 	 	[NAME OF DESIGNOR], as Designor
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	[NAME OF DESIGNEE] as Designee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Applicable Lending Office (and address
	 	 	for notices):
	 
	 	 	 	 
	 	 	[ADDRESS]






	 	 	 	 	 
	Accepted this                      day	 	 
	of                     , 200_	 	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A.	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 
	 	 
	Title:
	 	 	 	 
	 

	 	 
	 	 





 









 






EXHIBIT H




QUALIFIED BORROWER GUARANTY OF PAYMENT




          GUARANTY OF PAYMENT (this “Guaranty”), made as of August 4, 2005, between EOP
OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership, having an address at Two North
Riverside Plaza, Suite 2100, Chicago, Illinois 60606 (“Guarantor”), and BANK OF AMERICA,
N.A., as administrative agent (“Administrative Agent”) for the banks and other financial
institutions (the “Banks”) listed on the signature pages of the Revolving Credit Agreement
(as the same may be amended, modified, supplemented or restated, the “Credit Agreement”),
dated as of the date hereof, among EOP Operating Limited Partnership (“Borrower”), the
Banks, BANC OF AMERICA SECURITIES LLC and J.P. MORGAN SECURITIES, INC., as joint lead arrangers and
joint bookrunners, JPMORGAN CHASE BANK, N.A., as syndication agent, and The Bank of Nova Scotia, US
Bank National Association and Wachovia Bank, National Association, as documentation agents.




W I T N E S S E T H:




          WHEREAS, pursuant to the terms of the Credit Agreement, a Qualified Borrower may request that
the Banks make one or more loans (each, a “Loan”) to the Qualified Borrower, to be
guaranteed by Guarantor by this Guaranty and to be evidenced by Qualified Borrower Notes
(collectively, the “Note”), payable by the Qualified Borrower to the order of the Banks.




          WHEREAS, this Guaranty is the “Qualified Borrower Guaranty” referred to in the Credit
Agreement;




          WHEREAS, in order to induce the Administrative Agent and the Banks to make one or more Loans
to one or more Qualified Borrowers, and to satisfy one of the conditions contained in the Credit
Agreement with respect thereto, the Guarantor has agreed to enter into this Guaranty;




          WHEREAS, capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Credit Agreement;




          NOW THEREFORE, in consideration of the premises and the direct and indirect benefits to be
derived from the making of the Loans by the Banks to
Qualified Borrowers, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Guarantor hereby agrees as follows:




          1. Guarantor, on behalf of itself and its successors and assigns, hereby irrevocably,
absolutely and unconditionally guarantees the full and punctual payment when due, whether at stated
maturity or otherwise, of all obligations of each




 









 







and every Qualified Borrower now or hereafter
existing under the Notes and the Credit Agreement, including in the event that the Borrower
exercises its rights under the Credit Agreement to increase the Facility Amount, for principal
and/or interest as well as any and all other amounts due thereunder, including, without limitation,
all indemnity obligations of Borrower thereunder, and any and all reasonable costs and expenses
(including, without limitation, reasonable attorneys’ fees and disbursements) incurred by the
Administrative Agent or the Banks in enforcing their rights under this Guaranty (all of the
foregoing obligations being the “Guaranteed Obligations”).




          2. Intentionally Omitted.




          3. Intentionally Omitted.




          4. It is agreed that the Guaranteed Obligations of Guarantor hereunder are primary and
this Guaranty shall be enforceable against Guarantor and its successors and assigns without the
necessity for any suit or proceeding of any kind or nature whatsoever brought by the Administrative
Agent or any of the Banks against the relevant Qualified Borrower or its respective successors or
assigns or any other party or against any security for the payment and performance of the
Guaranteed Obligations and without the necessity of any notice of non-payment or non-observance or
of any notice of acceptance of this Guaranty or of any notice or demand to which Guarantor might
otherwise be entitled (including, without limitation, diligence, presentment, notice of maturity,
extension of time, change in nature or form of the Guaranteed Obligations, acceptance of further
security, release of further security, imposition or agreement arrived at as to the amount of or
the terms of the Guaranteed Obligations, notice of adverse change in such Qualified Borrower’s
financial condition and any other fact which might materially increase the risk to Guarantor), all
of which Guarantor hereby expressly waives; and Guarantor hereby expressly agrees that the validity
of this Guaranty and the obligations of Guarantor hereunder shall in no way be terminated,
affected, diminished, modified or impaired by reason of the assertion of or the failure to assert
by the Administrative Agent or any of the Banks against such Qualified Borrower or its respective
successors or assigns, any of the rights or remedies reserved to the Administrative Agent or any of
the Banks pursuant to the provisions of the Loan Documents. Guarantor agrees that any notice or
directive given at any time to the Administrative Agent or any of the Banks which is inconsistent
with the waiver in the immediately preceding sentence shall be void and may be ignored by the
Administrative Agent and the Banks, and, in addition, may not be pleaded or introduced as evidence
in any litigation relating to
this Guaranty for the reason that such pleading or introduction would be at variance with the
written terms of this Guaranty, unless the Administrative Agent has specifically agreed otherwise
in a writing, signed by a duly authorized officer. Guarantor specifically acknowledges and agrees
that the foregoing waivers are of the essence of





 









 







this transaction and that, but for this Guaranty
and such waivers, the Administrative Agent and the Banks would not make requested Loans to a
Qualified Borrower.




          5. Guarantor waives, and covenants and agrees that it will not at any time insist upon, plead
or in any manner whatsoever claim or take the benefit or advantage of, any and all appraisal,
valuation, stay, extension, marshalling-of-assets or redemption laws, or right of homestead or
exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise
affect the performance by Guarantor of its obligations under, or the enforcement by the
Administrative Agent or any of the Banks of, this Guaranty. Guarantor further covenants and agrees
not to set up or claim any defense, counterclaim, offset, setoff or other objection of any kind to
any action, suit or proceeding in law, equity or otherwise, or to any demand or claim that may be
instituted or made by the Administrative Agent or any of the Banks other than the defense of the
actual timely payment and performance by the relevant Qualified Borrower of the Guaranteed
Obligations hereunder; provided, however, that the foregoing shall not be deemed a waiver of
Guarantor’s right to assert any compulsory counterclaim, if such counterclaim is compelled under
local law or rule of procedure, nor shall the foregoing be deemed a waiver of Guarantor’s right to
assert any claim which would constitute a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against Administrative Agent or any Bank in any separate action or proceeding.
Guarantor represents, warrants and agrees that, as of the date hereof, its obligations under this
Guaranty are not subject to any counterclaims, offsets or defenses against the Administrative Agent
or any Bank of any kind.




          6. The provisions of this Guaranty are for the benefit of the Administrative Agent and the
Banks and their successors and permitted assigns, and nothing herein contained shall impair as
between any Qualified Borrower and the Administrative Agent and the Banks the obligations of such
Qualified Borrower under the Loan Documents.




          7. This Guaranty shall be a continuing, unconditional and absolute guaranty and the liability
of Guarantor hereunder shall in no way be terminated, affected, modified, impaired or diminished by
reason of the happening, from time to time, of any of the following, all without notice or the
further consent of Guarantor:





     a. any assignment, amendment, modification or waiver of or change in any of the terms,
covenants, conditions or provisions of any of the Guaranteed Obligations or the Loan
Documents or the invalidity or unenforceability of any of the foregoing; or




     b. any extension of time that may be granted by the Administrative Agent to any
Qualified Borrower, any guarantor, or their respective



 









 






successors or assigns, heirs,
executors, administrators or personal representatives; or




     c. any action which the Administrative Agent may take or fail to take under or in
respect of any of the Loan Documents or by reason of any waiver of, or failure to enforce
any of the rights, remedies, powers or privileges available to the Administrative Agent
under this Guaranty or available to the Administrative Agent at law, equity or otherwise,
or any action on the part of the Administrative Agent granting indulgence or extension in
any form whatsoever; or




     d. any sale, exchange, release, or other disposition of any property pledged,
mortgaged or conveyed, or any property in which the Administrative Agent and/or the Banks
have been granted a lien or security interest to secure any indebtedness of any Qualified
Borrower to the Administrative Agent and/or the Banks; or




     e. any release of any person or entity who may be liable in any manner for the payment
and collection of any amounts owed by any Qualified Borrower to the Administrative Agent
and/or the Banks; or




     f. the application of any sums by whomsoever paid or however realized to any amounts
owing by any Qualified Borrower to the Administrative Agent and/or the Banks under the Loan
Documents in such manner as the Administrative Agent shall determine in its sole
discretion; or




     g. Any Qualified Borrower’s or any guarantor’s voluntary or involuntary liquidation,
dissolution, sale of all or substantially all of their respective assets and liabilities,
appointment of a trustee, receiver, liquidator, sequestrator or conservator for all or any
part of any Qualified Borrower’s or any guarantor’s assets, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement, composition or
readjustment, or the commencement of other similar proceedings affecting any Qualified
Borrower or any guarantor or any of the assets of any of them, including, without
limitation, (i) the release or discharge of any Qualified Borrower or any guarantor from
the payment and performance of their respective obligations under any of the Loan Documents
by operation of law, or (ii) the impairment, limitation or modification of the liability of
any Qualified Borrower or any guarantor in bankruptcy, or of any remedy for the enforcement
of the Guaranteed Obligations under any of the Loan Documents, or Guarantor’s liability
under this Guaranty, resulting from the operation of any present or future
provisions of the Bankruptcy Code or other present or future federal, state or
applicable statute or law or from the decision in any court; or



 









 






     h. any improper disposition by any Qualified Borrower of the proceeds of the
Loans, it being acknowledged by Guarantor that the Administrative Agent or any Bank shall
be entitled to honor any request made by any Qualified Borrower for a disbursement of such
proceeds and that neither the Administrative Agent nor any Bank shall have any obligation
to see the proper disposition by any Qualified Borrower of such proceeds.



          8. Guarantor agrees that if at any time all or any part of any payment at any time received by
the Administrative Agent from any Qualified Borrower or Guarantor under or with respect to this
Guaranty is or must be rescinded or returned by the Administrative Agent or any Bank for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of any
Qualified Borrower or Guarantor), then Guarantor’s obligations hereunder shall, to the extent of
the payment rescinded or returned, be deemed to have continued in existence notwithstanding such
previous receipt by such party, and Guarantor’s obligations hereunder shall continue to be
effective or reinstated, as the case may be, as to such payment, as though such previous payment
had never been made.




          9. Until this Guaranty is terminated pursuant to the terms hereof, Guarantor (i) shall have no
right of subrogation against any Qualified Borrower or any entity comprising same by reason of any
payments or acts of performance by Guarantor in compliance with the obligations of Guarantor
hereunder, (ii) waives any right to enforce any remedy which Guarantor now or hereafter shall have
against any Qualified Borrower or any entity comprising same by reason of any one or more payment
or acts of performance in compliance with the obligations of Guarantor hereunder and (iii) from and
after an Event of Default (as defined in the Credit Agreement), subordinates any liability or
indebtedness of any Qualified Borrower or any entity comprising same now or hereafter held by
Guarantor or any affiliate of Guarantor to the obligations of any Qualified Borrower under the Loan
Documents. The foregoing, however, shall not be deemed in any way to limit any rights that
Guarantor may have pursuant to the organizational documents of any Qualified Borrower or which it
may have at law or in equity with respect to any other partners of such Qualified Borrower.




          10. Guarantor represents and warrants to the Administrative Agent and the Banks with the
knowledge that the Administrative Agent and the Banks are relying upon the same, as follows:





     a. Guarantor will be familiar with the financial condition of each Qualified
Borrower;;




     b. Guarantor has determined that it is in its best interests to enter into this
Guaranty;



 









 






     c. this Guaranty is necessary and convenient to the conduct, promotion and
attainment of Guarantor’s business, and is in furtherance of Guarantor’s business purposes;




     d. the benefits to be derived by Guarantor from each Qualified Borrower’s access to
funds made possible by the Loan Documents are at least equal to the obligations undertaken
pursuant to this Guaranty;




     e. Guarantor is solvent and has full power and legal right to enter into this Guaranty
and to perform its obligations under the term hereof and (i) Guarantor is organized and
validly existing under the laws of the State of Maryland, (ii) Guarantor has complied with
all provisions of applicable law in connection with all aspects of this Guaranty, and (iii)
the person executing this Guaranty has all the requisite power and authority to execute and
deliver this Guaranty;




     f. to the best of Guarantor’s knowledge, there is no action, suit, proceeding, or
investigation pending or threatened against or affecting Guarantor at law, in equity, in
admiralty or before any arbitrator or any governmental department, commission, board,
bureau, agency or instrumentality (domestic or foreign) which is likely to materially and
adversely impair the ability of Guarantor to perform its obligations under this Guaranty;




     g. the execution and delivery of and the performance by Guarantor of its obligations
under this Guaranty have been duly authorized by all necessary action on the part of
Guarantor and do not (i) violate any provision of any law, rule, regulation (including,
without limitation, Regulation U or X of the Board of Governors of the Federal Reserve
System of the United States), order, writ, judgment, decree, determination or award
presently in effect having applicability to Guarantor or the organizational documents of
Guarantor the consequences of which violation is likely to materially and adversely impair
the ability of Guarantor to perform its obligations under this Guaranty or (ii) violate or
conflict with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any indenture, agreement or other instrument to which Guarantor is a
party, or by which Guarantor or any of its property is bound, the consequences of which
violation, conflict, breach or default is likely to materially and adversely impair the
ability of Guarantor to perform its obligations under this Guaranty;




     h. this Guaranty has been duly executed by Guarantor and constitutes the legal,
valid and binding obligation of Guarantor, enforceable
against it in accordance with its terms except as enforceability may be limited by
applicable insolvency, bankruptcy or other laws affecting creditors’ rights



 









 






generally or
general principles of equity, whether such enforceability is considered in a proceeding in
equity or at law;




     i. no authorization, consent, approval, license or formal exemption from, nor any
filing, declaration or registration with, any Federal, state, local or foreign court,
governmental agency or regulatory authority is required in connection with the making and
performance by Guarantor of this Guaranty, except those which have already been obtained;
and




     j. Guarantor is not an “investment company” as that term is defined in, nor is it
otherwise subject to regulation under, the Investment Company Act of 1940, as amended.



          11. Guarantor and Administrative Agent each acknowledge and agree that this Guaranty is a
guarantee of payment and performance and not of collection and enforcement in respect of any
obligations which may accrue to the Administrative Agent and/or the Banks from any Qualified
Borrower under the provisions of any Loan Document.




          12. Subject to the terms and conditions of the Credit Agreement, and in conjunction therewith,
the Administrative Agent or any Bank may assign any or all of its rights under this Guaranty. In
the event of any such assignment, the Administrative Agent shall give Guarantor prompt notice of
same. If the Administrative Agent elects to sell all the Loans or participations in the Loans and
the Loan Documents, including this Guaranty, the Administrative Agent or any Bank may forward to
each purchaser and prospective purchaser all documents and information relating to this Guaranty or
to Guarantor, whether furnished by any Qualified Borrower or Guarantor or otherwise, subject to the
terms and conditions of the Credit Agreement.




          13. Guarantor agrees, upon the written request of the Administrative Agent, to execute and
deliver to the Administrative Agent, from time to time, any modification or amendment hereto or any
additional instruments or documents reasonably considered necessary by the Administrative Agent or
its counsel to cause this Guaranty to be, become or remain valid and effective in accordance with
its terms, provided, that, any such modification, amendment, additional instrument or document
shall not increase Guarantor’s obligations or diminish its rights hereunder and shall be reasonably
satisfactory as to form to Guarantor and to Guarantor’s counsel.




          14. The representations and warranties of Guarantor set forth in this Guaranty shall survive
until this Guaranty shall terminate in accordance with the terms hereof.




 









 








          15. This Guaranty contains the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements relating to such subject matter and may
not be modified, amended, supplemented or discharged except by a written agreement signed by
Guarantor and the Administrative Agent.




          16. If all or any portion of any provision contained in this Guaranty shall be determined to
be invalid, illegal or unenforceable in any respect for any reason, such provision or portion
thereof shall be deemed stricken and severed from this Guaranty and the remaining provisions and
portions thereof shall continue in full force and effect.




          17. This Guaranty may be executed in counterparts which together shall constitute the same
instrument.




          18. All notices, requests and other communications to any party hereunder shall be in writing
(including bank wire, telex, facsimile transmission followed by telephonic confirmation or similar
writing) and shall be addressed to such party at the address set forth below or to such other
address as may be identified by any party in a written notice to the others:




	 	 	 
	If to Guarantor

	 	Equity Office Properties Trust
	 

	 	Two North Riverside Plaza
	 

	 	Suite 2100
	 

	 	Chicago, Illinois 60606
	 

	 	Attn: Chief Financial Officer
	With Copies of
	 	 
	Notices to Guarantor to:

	 	Equity Office Properties Trust
	 

	 	Two North Riverside Plaza
	 

	 	Suite 2100
	 

	 	Chicago, Illinois 60606
	 

	 	Attn: Chief Legal Counsel
	 

	 	and
	 

	 	DLA Piper Rudnick Gray Cary US LLP
	 

	 	203 North LaSalle Street
	 

	 	Suite 1900
	 

	 	Chicago, Illinois 60601
	 

	 	Attn: James M. Phipps, Esq.
	If to the
	 	 
	Administrative Agent:

	 	Bank of America, N.A.
	 
	 	 
	 

	 	Attn:
	 

	 	Facsimile:






 









 






          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.




          19. Any acknowledgment or new promise, whether by payment of principal or interest or
otherwise by any Qualified Borrower or Guarantor, with respect to the Guaranteed Obligations shall,
if the statute of limitations in favor of Guarantor against the Administrative Agent shall have
commenced to run, toll the running of such statute of limitations, and if the period of such
statute of limitations shall have expired, prevent the operation of such statute of limitations.




          20. This Guaranty shall be binding upon Guarantor and its successors and assigns and shall
inure to the benefit of the Administrative Agent and the Banks and their successors and permitted
assigns.




          21. The failure of the Administrative Agent to enforce any right or remedy hereunder, or
promptly to enforce any such right or remedy, shall not constitute a waiver thereof, nor give rise
to any estoppel against the Administrative Agent, nor excuse Guarantor from its obligations
hereunder. Any waiver of any such right or remedy to be enforceable against the Administrative
Agent must be expressly set forth in a writing signed by the Administrative Agent.




          22. a. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.




               b. Any legal action or proceeding with respect to this Guaranty and any action for
enforcement of any judgment in respect thereof may be brought in the courts of the State of New
York or of the United States of America for
the Southern District of New York, and, by execution and delivery of this Guaranty, the
Guarantor hereby accepts for itself and in respect of its property, generally and unconditionally,
the non-exclusive jurisdiction of the aforesaid courts and appellate courts from any thereof. The
Guarantor irrevocably consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the Guarantor at its address for notices set forth herein. The Guarantor
hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue



 









 




of any of the aforesaid actions or proceedings arising out of or in connection with this Guaranty
brought in the courts referred to above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum. Nothing herein shall affect the right of the Administrative
Agent to serve process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other jurisdiction.




               c. GUARANTOR HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES OF
ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. IT IS HEREBY ACKNOWLEDGED BY GUARANTOR THAT THE
WAIVER OF A JURY TRIAL IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT TO ACCEPT THIS
GUARANTY AND THAT THE LOANS MADE BY THE BANKS ARE MADE IN RELIANCE UPON SUCH WAIVER. GUARANTOR
FURTHER WARRANTS AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE, FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED BY THE
ADMINISTRATIVE AGENT IN COURT AS A WRITTEN CONSENT TO A NON-JURY TRIAL.



               d. Guarantor does hereby further covenant and agree to and with the Administrative Agent that
Guarantor may be joined in any action against Any Qualified Borrower in connection with the Loan
Documents and that recovery may be had against Guarantor in such action or in any independent
action against Guarantor (with respect to the Guaranteed Obligations), without the Administrative
Agent first pursuing or exhausting any remedy or claim against any Qualified Borrower or its
successors or assigns. Guarantor also agrees that, in an action brought with respect to the
Guaranteed Obligations in any jurisdiction, it shall be conclusively bound by the judgment in any
such action by the Administrative Agent (wherever brought) against any Qualified Borrower or its
successors or assigns, as if Guarantor were a party to such action, even though Guarantor was not
joined as a party in such action.



               e. Guarantor agrees to pay all reasonable expenses (including, without limitation, attorneys’
fees and disbursements) which may be
incurred by the Administrative Agent or the Banks in connection with the enforcement of their
rights under this Guaranty, whether or not suit is initiated.



          23. Notwithstanding anything to the contrary contained herein, this Guaranty shall
terminate and be of no further force or effect upon the full performance and payment of the
Guaranteed Obligations hereunder and the termination of the Commitments under the Credit Agreement.
Upon termination of this Guaranty in accordance with the terms of this Guaranty, the
Administrative Agent





 









 







promptly shall deliver to Guarantor such documents as Guarantor or Guarantor’s
counsel reasonably may request in order to evidence such termination.




          24. All of the Administrative Agent’s rights and remedies under each of the Loan Documents or
under this Guaranty are intended to be distinct, separate and cumulative and no such right or
remedy therein or herein mentioned is intended to be in exclusion of or a waiver of any other right
or remedy available to the Administrative Agent.




          25. The Guarantor shall not use any assets of an “employee benefit plan” within the meaning of
Section 3(3) of ERISA or a “plan” within the meaning of Section 4975(e)(1) of the Internal Revenue
Code (the “Code”) to repay or secure the Loan, the Note, the Obligations or this Guaranty.
The Guarantor shall not assign, sell, pledge, encumber, transfer, hypothecate or otherwise dispose
of any of its rights or interests (direct or indirect) in any Qualified Borrower, or attempt to do
any of the foregoing or suffer any of the foregoing, or permit any party with a direct or indirect
interest or right in any Qualified Borrower to do any of the foregoing, if such action would cause
the Note, the Loan, the Obligations, this Guaranty, or any of the Loan Documents or the exercise of
any of the Administrative Agent’s or Bank’s rights in connection therewith, to constitute a
prohibited transaction under ERISA or the Code (unless the Guarantor furnishes to the
Administrative Agent a legal opinion satisfactory to the Administrative Agent that the transaction
is exempt from the prohibited transaction provisions of ERISA and the Code (and for this purpose,
the Administrative Agent and the Banks, by accepting the benefits of this Guaranty, hereby agree to
supply Guarantor all relevant non-confidential, factual information reasonably necessary to such
legal opinion and reasonably requested by Guarantor) or would otherwise result in the
Administrative Agent or any of the Banks being deemed in violation of Sections 404 or 406 of ERISA
or Section 4975 of the Code or would otherwise result in the Administrative Agent or any of the
Banks being a fiduciary or party in interest under ERISA or a “disqualified person” as defined in
Section 4975(e)(2) of the Code with respect to an “employee benefit plan” within the meaning of
Section 3(3) of ERISA or a “plan” within the meaning of Section 4975(e)(1) of the Code. The
Guarantor shall indemnify and hold each of the Administrative Agent and the Banks free and harmless
from and against all loss, costs (including attorneys’ fees and expenses), expenses, taxes and
damages (including consequential damages) that each of the Administrative Agent and the Banks may
suffer by reason of the
investigation, defense and settlement of claims and in obtaining any prohibited transaction
exemption under ERISA necessary in Administrative Agent’s reasonable judgment as a result of
Guarantor’s action or inaction or by reason of a breach of the foregoing provisions by Guarantor.




[SIGNATURE PAGE FOLLOWS]




 









 








          IN WITNESS WHEREOF, the parties hereto have executed and delivered this Guaranty
as of the date and year first above written.




	 	 	 	 	 	 	 
	 	 	GUARANTOR:	 
	 	 	EOP OPERATING LIMITED PARTNERSHIP
	 
	 	 	 	 	 	 
	 	 	By:	 	EQUITY OFFICE PROPERTIES
	 	 	 	 	TRUST
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	/s/ Maureen Fear	 
	 

	 	 	 	 	 	 
	 	 	 	 	Name: Maureen Fear
	 	 	 	 	Title: Senior Vice
President, Treasurer






	 	 	 	 	 
	ACCEPTED:
	 
	 	 	 	 
	BANK OF AMERICA, N.A.
	 
	 	 	 	 
	By:
	 	/s/ Michael W. Edwards	 	 
	 

	 	 	 	 
	 

	 	Name: Michael W. Edwards	 	 
	 

	 	Title: Senior Vice President	 	 






 









 






ACKNOWLEDGMENT FOR GUARANTOR




	 	 	 	 	 	 	 
	STATE OF ILLINOIS

	 	 	)	 	 	 
	 

	 	 	)	 	 	SS.
	COUNTY OF COOK

	 	 	)	 	 	 






          On
August 1, 2005, before me personally came Maureen Fear, to me known to be the
person who executed the foregoing instrument, and who, being duly sworn by me, did depose and say
that he is Senior Vice President and Treasurer of Equity Office Properties Trust, the general partner of EOP
Operating Limited Partnership, and that he executed the foregoing instrument in the organization’s
name, and that he had authority to sign the same, and he acknowledged to me that he executed the
same as the act and deed of said organization for the uses and purposes therein mentioned.




[Seal]




	 	 	 
	 

	 	/s/ Debra
Hudson                
	 

	 	Notary Public







 









 






GUARANTY OF PAYMENT




          GUARANTY OF PAYMENT (this “Guaranty”), made as of August 4, 2005, between EQUITY
OFFICE PROPERTIES TRUST, a Maryland real estate investment trust, having an address at Two North
Riverside Plaza, Suite 2100, Chicago, Illinois 60606 (“Guarantor”), and BANK OF AMERICA,
N.A., as administrative agent (“Administrative Agent”) for the banks and other financial
institutions (the “Banks”) listed on the signature pages of the Revolving Credit Agreement
(as the same may be amended, modified, supplemented or restated, the “Credit Agreement”),
dated as of the date hereof, among EOP Operating Limited Partnership (“Borrower”), the
Banks, BANC OF AMERICA SECURITIES LLC and J.P. MORGAN SECURITIES, INC., as joint lead arrangers and
joint bookrunners, JPMORGAN CHASE BANK, N.A., as syndication agent, and THE BANK OF NOVA SCOTIA, US
BANK NATIONAL ASSOCIATION and WACHOVIA BANK, NATIONAL ASSOCIATION, as documentation agents.




WITNESSETH:




          WHEREAS, the Banks have agreed to make loans to Borrower in the aggregate principal amount not
to exceed One Billion Two Hundred Fifty Million Dollars ($1,250,000,000), which amount may be
increased to an aggregate principal amount not to exceed One Billion Five Hundred Million Dollars
($1,500,000,000) (hereinafter collectively referred to as the “Loans”);




          WHEREAS, the Loans are and will be evidenced by (i) certain promissory notes (the
“Notes”) of Borrower made to each of the Banks in accordance with the terms of the Credit
Agreement, and (ii) certain promissory notes of one or more Qualified Borrowers made to each of the
Banks, in each case in accordance with the terms of the Credit Agreement ;




          WHEREAS, the Credit Agreement and the Notes and any other documents executed in connection
therewith are hereinafter collectively referred to as the “Loan Documents”;




          WHEREAS, capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Credit Agreement;




          WHEREAS, Guarantor is the sole general partner of Borrower; and




          WHEREAS, as a condition to the execution and delivery of the Loan Documents, the Banks have
required that Guarantor execute and deliver this Guaranty.




          NOW THEREFORE, in consideration of the premises and the benefits to be derived from the making
of the Loans by the Banks to Borrower and the Qualified Borrowers, and in order to induce the
Administrative Agent and the Banks to enter into the Credit Agreement and the other Loan Documents,
the Guarantor hereby agrees as follows:




          1. Guarantor, on behalf of itself and its successors and assigns, hereby irrevocably,
absolutely and unconditionally guarantees the full and punctual payment when due, whether at stated
maturity or otherwise, of all Obligations of Borrower now or hereafter existing







 









 







under the Notes and
the Credit Agreement, including in the event that the Borrower exercises its rights under the
Credit Agreement to increase the Facility Amount and including those Obligations of Borrower under
the Qualified Borrower Guaranty, for principal and/or interest as well as any and all other amounts
due thereunder, including, without limitation, all indemnity obligations of Borrower thereunder,
and any and all reasonable costs and expenses (including, without limitation, reasonable attorneys’
fees and disbursements) incurred by the Administrative Agent or the Banks in enforcing their rights
under this Guaranty (all of the foregoing obligations being the “Guaranteed Obligations”).




          2. Intentionally Omitted.




          3. The individual and personal liability of Guarantor hereunder shall not be reduced or
extinguished by any payments to Administrative Agent or any of the Banks for application in payment
or reduction of any of the Guaranteed Obligations, whether made by Borrower, Guarantor or from any
other source, except to the extent that such payments permanently reduce the entire amount of the
Guaranteed Obligations to an amount less than the portion of the Guaranteed Obligations hereby
guaranteed by Guarantor. Any such payments shall be applied by Administrative Agent or the Banks
in the order of priority that Administrative Agent, in its sole discretion, may determine, first to
the discharge of that portion, if any, of the Guaranteed Obligations as to which Guarantor is not
individually and personally liable pursuant to the terms and provisions hereof (including, without
limitation, the portion of the Guaranteed Obligations guaranteed under Guaranty No. 2), and any
amount remaining after such application to the portion of the Guaranteed Obligations guaranteed
hereunder.




          4. It is agreed that the Guaranteed Obligations of Guarantor hereunder are primary and
this Guaranty shall be enforceable against Guarantor and its successors and assigns without the
necessity for any suit or proceeding of any kind or nature whatsoever brought by the Administrative
Agent or any of the Banks against Borrower or its respective successors or assigns or any other
party or against any security for the payment and performance of the Guaranteed Obligations and
without the necessity of any notice of non-payment or non-observance or of any notice of acceptance
of this Guaranty or of any notice or demand to which Guarantor might otherwise be entitled
(including, without limitation, diligence, presentment, notice of maturity, extension of time,
change in nature or form of the Guaranteed Obligations, acceptance of further security, release of
further security, imposition or agreement arrived at as to the amount of or the terms of the
Guaranteed Obligations, notice of adverse change in Borrower’s financial condition and any other
fact which might materially increase the risk to Guarantor), all of which Guarantor hereby
expressly waives; and Guarantor hereby expressly agrees that the validity of this Guaranty and the
obligations of Guarantor hereunder shall in no way be terminated, affected, diminished, modified or
impaired by reason of the assertion of or the failure to assert by the Administrative Agent or any
of the Banks against Borrower or its respective successors or assigns, any of the rights or
remedies reserved to the Administrative Agent or any of the Banks pursuant to the provisions of the Loan Documents.
Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any
of the Banks which is inconsistent with the waiver in the immediately preceding sentence






2









 







shall be
void and may be ignored by the Administrative Agent and the Banks, and, in addition, may not be
pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that
such pleading or introduction would be at variance with the written terms of this Guaranty, unless
the Administrative Agent has specifically agreed otherwise in a writing, signed by a duly
authorized officer. Guarantor specifically acknowledges and agrees that the foregoing waivers are
of the essence of this transaction and that, but for this Guaranty and such waivers, the
Administrative Agent and the Banks would have declined to execute and deliver the Loan Documents.




          5. Guarantor waives, and covenants and agrees that it will not at any time insist upon, plead
or in any manner whatsoever claim or take the benefit or advantage of, any and all appraisal,
valuation, stay, extension, marshalling-of-assets or redemption laws, or right of homestead or
exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise
affect the performance by Guarantor of its obligations under, or the enforcement by the
Administrative Agent or any of the Banks of, this Guaranty. Guarantor further covenants and agrees
not to set up or claim any defense (including, without limitation, any defense as a result in a
change in the legal structure of the Borrower), counterclaim, offset, setoff or other objection of
any kind to any action, suit or proceeding in law, equity or otherwise, or to any demand or claim
that may be instituted or made by the Administrative Agent or any of the Banks other than the
defense of the actual timely payment and performance by Borrower of the Guaranteed Obligations
hereunder; provided, however, that the foregoing shall not be deemed a waiver of Guarantor’s right
to assert any compulsory counterclaim, if such counterclaim is compelled under local law or rule of
procedure, nor shall the foregoing be deemed a waiver of Guarantor’s right to assert any claim
which would constitute a defense, setoff, counterclaim or crossclaim of any nature whatsoever
against Administrative Agent or any Bank in any separate action or proceeding. Guarantor
represents, warrants and agrees that, as of the date hereof, its obligations under this Guaranty
are not subject to any counterclaims, offsets or defenses against the Administrative Agent or any
Bank of any kind.




          6. The provisions of this Guaranty are for the benefit of the Administrative Agent and the
Banks and their successors and permitted assigns, and nothing herein contained shall impair as
between Borrower and the Administrative Agent and the Banks the obligations of Borrower under the
Loan Documents.




          7. This Guaranty shall be a continuing, unconditional and absolute guaranty and the liability
of Guarantor hereunder shall in no way be terminated, affected, modified, impaired or diminished by
reason of the happening, from time to time, of any of the following, although without notice or the
further consent of Guarantor:





     (a) any assignment, amendment, modification or waiver of or change in any of the
terms, covenants, conditions or provisions of any of the Guaranteed Obligations or the
Loan Documents or the invalidity or unenforceability of any of the foregoing; or




     (b) any extension of time that may be granted by the Administrative Agent to



3









 





Borrower, any guarantor, or their respective successors or assigns, heirs, executors, administrators
or personal representatives; or




     (c) any action which the Administrative Agent may take or fail to take under or in
respect of any of the Loan Documents or by reason of any waiver of, or failure to enforce
any of the rights, remedies, powers or privileges available to the Administrative Agent
under this Guaranty or available to the Administrative Agent at law, equity or otherwise, or
any action on the part of the Administrative Agent granting indulgence or extension in any
form whatsoever; or




     (d) any sale, exchange, release, or other disposition of any property pledged,
mortgaged or conveyed, or any property in which the Administrative Agent and/or the Banks
have been granted a lien or security interest to secure any indebtedness of Borrower to the

Administrative Agent and/or the Banks; or




     (e) any release of any person or entity who may be liable in any manner for the payment
and collection of any amounts owed by Borrower to the Administrative Agent and/or the Banks;
or




     (f) the application of any sums by whomsoever paid or however realized to any amounts
owing by Borrower to the Administrative Agent and/or the Banks under the Loan Documents in
such manner as the Administrative Agent shall determine in its sole discretion; or




     (g) Borrower’s or any guarantor’s voluntary or involuntary liquidation, dissolution,
sale of all or substantially all of their respective assets and liabilities, appointment of
a trustee, receiver, liquidator, sequestrator or conservator for all or any part of
Borrower’s or Guarantor’s assets, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment, or the commencement of
other similar proceedings affecting Borrower or any guarantor or any of the assets of any of
them, including, without limitation, (i) the release or discharge of Borrower or any
guarantor from the payment and performance of their respective obligations under any of the
Loan Documents by operation of law, or (ii) the impairment, limitation or modification of
the liability of Borrower or any guarantor in bankruptcy, or of any remedy for the
enforcement of the Guaranteed Obligations under any of the Loan Documents, or Guarantor’s
liability under this Guaranty, resulting from the operation of any present or future
provisions of the Bankruptcy Code or other present or future federal, state or applicable
statute or law or from the decision in any court; or




     (h) any improper disposition by Borrower of the proceeds of the Loans, it being
acknowledged by Guarantor that the Administrative Agent or any Bank shall be entitled to honor any request made by Borrower for a disbursement of such proceeds and
that neither the Administrative Agent nor any Bank shall have any obligation to see the
proper disposition by Borrower of such proceeds.



4









 





      
    8. Guarantor agrees that if at any time all or any part of any payment
at any time received by
the Administrative Agent from Borrower or Guarantor under or with respect to this Guaranty is or
must be rescinded or returned by the Administrative Agent or any Bank for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or reorganization of Borrower or
Guarantor), then Guarantor’s obligations hereunder shall, to the extent of the payment rescinded or
returned, be deemed to have continued in existence notwithstanding such previous receipt by such
party, and Guarantor’s obligations hereunder shall continue to be effective or reinstated, as the
case may be, as to such payment, as though such previous payment had never been made.




          9. Until this Guaranty is terminated pursuant to the terms hereof, Guarantor (i) shall have no
right of subrogation against Borrower or any entity comprising same by reason of any payments or
acts of performance by Guarantor in compliance with the obligations of Guarantor hereunder, (ii)
waives any right to enforce any remedy which Guarantor now or hereafter shall have against Borrower
or any entity comprising same by reason of any one or more payment or acts of performance in
compliance with the obligations of Guarantor hereunder and (iii) from and after an Event of Default
(as defined in the Credit Agreement), subordinates any liability or indebtedness of Borrower or any
entity comprising same now or hereafter held by Guarantor or any affiliate of Guarantor to the
obligations of Borrower under the Loan Documents. The foregoing, however, shall not be deemed in
any way to limit any rights that Guarantor may have pursuant to the Agreement of Limited
Partnership of Borrower or which it may have at law or in equity with respect to any other partners
of Borrower.




          10. Guarantor represents and warrants to the Administrative Agent and the Banks with the
knowledge that the Administrative Agent and the Banks are relying upon the same, as follows:





     (a) as of the date hereof, Guarantor is the sole general partner of Borrower;




     (b) based upon such relationships, Guarantor has determined that it is in its best
interests to enter into this Guaranty;




     (c) this Guaranty is necessary and convenient to the conduct, promotion and attainment
of Guarantor’s business, and is in furtherance of Guarantor’s business purposes;




     (d) the benefits to be derived by Guarantor from Borrower’s access to funds made
possible by the Loan Documents are at least equal to the obligations undertaken pursuant to
this Guaranty;




     (e) Guarantor is solvent and has full power and legal right to enter into this Guaranty
and to perform its obligations under the term hereof and (i) Guarantor is organized and
validly existing under the laws of the State of Maryland, (ii) Guarantor has



5









 





complied with
all provisions of applicable law in connection with all aspects of this Guaranty, and (iii)
the person executing this Guaranty has all the requisite power and authority to execute and
deliver this Guaranty;




     (f) to the best of Guarantor’s knowledge, there is no action, suit, proceeding, or
investigation pending or threatened against or affecting Guarantor at law, in equity, in
admiralty or before any arbitrator or any governmental department, commission, board,
bureau, agency or instrumentality (domestic or foreign) which is likely to materially and
adversely impair the ability of Guarantor to perform its obligations under this Guaranty;




     (g) the execution and delivery of and the performance by Guarantor of its obligations
under this Guaranty have been duly authorized by all necessary action on the part of
Guarantor and do not (i) violate any provision of any law, rule, regulation (including,
without limitation, Regulation U or X of the Board of Governors of the Federal Reserve
System of the United States), order, writ, judgment, decree, determination or award
presently in effect having applicability to Guarantor or the organizational documents of
Guarantor the consequences of which violation is likely to materially and adversely impair
the ability of Guarantor to perform its obligations under this Guaranty or (ii) violate or
conflict with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any indenture, agreement or other instrument to which Guarantor is a
party, or by which Guarantor or any of its property is bound, the consequences of which
violation, conflict, breach or default is likely to materially and adversely impair the
ability of Guarantor to perform its obligations under this Guaranty;




     (h) this Guaranty has been duly executed by Guarantor and constitutes the legal, valid
and binding obligation of Guarantor, enforceable against it in accordance with its terms
except as enforceability may be limited by applicable insolvency, bankruptcy or other laws
affecting creditors’ rights generally or general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law;




     (i) no authorization, consent, approval, license or formal exemption from, nor any
filing, declaration or registration with, any Federal, state, local or foreign court,
governmental agency or regulatory authority is required in connection with the making and
performance by Guarantor of this Guaranty, except those which have already been obtained;
and




     (j) Guarantor is not an “investment company” as that term is defined in, nor is it
otherwise subject to regulation under, the Investment Company Act of 1940, as amended.



          11. Guarantor and Administrative Agent each acknowledge and agree that this Guaranty is a
guarantee of payment and performance and not of collection and enforcement in respect of any
obligations which may accrue to the Administrative Agent and/or the Banks from






6









 







Borrower under the
provisions of any Loan Document.




          12. Subject to the terms and conditions of the Credit Agreement, and in conjunction therewith,
the Administrative Agent or any Bank may assign any or all of its rights under this Guaranty. In
the event of any such assignment, the Administrative Agent shall give Guarantor prompt notice of
same. If the Administrative Agent elects to sell all the Loans or participations in the Loans and
the Loan Documents, including this Guaranty, the Administrative Agent or any Bank may forward to
each purchaser and prospective purchaser all documents and information relating to this Guaranty or
to Guarantor, whether furnished by Borrower or Guarantor or otherwise, subject to the terms and
conditions of the Credit Agreement.




          13. Guarantor agrees, upon the written request of the Administrative Agent, to execute and
deliver to the Administrative Agent, from time to time, any modification or amendment hereto or any
additional instruments or documents reasonably considered necessary by the Administrative Agent or
its counsel to cause this Guaranty to be, become or remain valid and effective in accordance with
its terms, provided, that, any such modification, amendment, additional instrument or document
shall not increase Guarantor’s obligations or diminish its rights hereunder and shall be reasonably
satisfactory as to form to Guarantor and to Guarantor’s counsel.




          14. The representations and warranties of Guarantor set forth in this Guaranty shall survive
until this Guaranty shall terminate in accordance with the terms hereof.




          15. This Guaranty contain the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements relating to such subject matter and may not be
modified, amended, supplemented or discharged except by a written agreement signed by Guarantor and
the Administrative Agent.




          16. If all or any portion of any provision contained in this Guaranty shall be determined to
be invalid, illegal or unenforceable in any respect for any reason, such provision or portion
thereof shall be deemed stricken and severed from this Guaranty and the remaining provisions and
portions thereof shall continue in full force and effect.




          17. This Guaranty may be executed in counterparts which together shall constitute the same
instrument.




          18. All notices, requests and other communications to any party hereunder shall be in writing
(including bank wire, telex, facsimile transmission followed by telephonic confirmation or similar
writing) and shall be addressed to such party at the address set forth below or to such other
address as may be identified by any party in a written notice to the others:




7









 








	 	 	 
	If to Guarantor

	 	Equity Office Properties Trust
	 

	 	Two North Riverside Plaza
	 

	 	Suite 2100
	 

	 	Chicago, Illinois 60606
	 

	 	Attn: Chief Financial Officer
	With Copies of
	 	 
	Notices to Guarantor to:

	 	Equity Office Properties Trust
	 

	 	Two North Riverside Plaza
	 

	 	Suite 2100
	 

	 	Chicago, Illinois 60606
	 

	 	Attn: Chief Legal Counsel
	 

	 	           and
	 

	 	DLA Piper Rudnick Gray Cary US LLP
	 

	 	203 North LaSalle Street
	 

	 	Suite 1900
	 

	 	Chicago, Illinois 60601
	 

	 	Attn: James M. Phipps, Esq.
	If to the
	 	 
	Administrative Agent:

	 	Bank of America, N.A.
	 
	 	 
	 

	 	Attn:
	 

	 	Facsimile:






          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.




          19. Any acknowledgment or new promise, whether by payment of principal or interest or
otherwise by Borrower or Guarantor, with respect to the Guaranteed Obligations shall, if the
statute of limitations in favor of Guarantor against the Administrative Agent shall have commenced
to run, toll the running of such statute of limitations, and if the period of such statute of
limitations shall have expired, prevent the operation of such statute of limitations.




          20. This Guaranty shall be binding upon Guarantor and its successors and assigns and shall
inure to the benefit of the Administrative Agent and the Banks and their successors and permitted
assigns.




8









 








          21. The failure of the Administrative Agent to enforce any right or remedy hereunder, or
promptly to enforce any such right or remedy, shall not constitute a waiver thereof, nor give rise
to any estoppel against the Administrative Agent, nor excuse Guarantor from its obligations
hereunder. Any waiver of any such right or remedy to be enforceable against the Administrative
Agent must be expressly set forth in a writing signed by the Administrative Agent.




          22. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.




               (b) Any legal action or proceeding with respect to this Guaranty and any action for
enforcement of any judgment in respect thereof may be brought in the courts of the State of New
York or of the United States of America for the Southern District of New York, and, by execution
and delivery of this Guaranty, the Guarantor hereby accepts for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
appellate courts from any thereof. The Guarantor irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to the Guarantor at its address for
notices set forth herein. The Guarantor hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Guaranty brought in the courts referred to above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum. Nothing herein
shall affect the right of the Administrative Agent to serve process in any other manner permitted
by law or to commence legal proceedings or otherwise proceed against the Guarantor in any other
jurisdiction.



               (c) GUARANTOR HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES
OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. IT IS HEREBY ACKNOWLEDGED BY GUARANTOR THAT
THE WAIVER OF A JURY TRIAL IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT TO ACCEPT THIS
GUARANTY AND THAT THE LOANS MADE BY THE BANKS ARE MADE IN RELIANCE UPON SUCH WAIVER. GUARANTOR
FURTHER WARRANTS AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE, FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED BY THE
ADMINISTRATIVE AGENT IN COURT AS A WRITTEN CONSENT TO A NON-JURY TRIAL.



               (d) Guarantor does hereby further covenant and agree to and with the Administrative Agent that
Guarantor may be joined in any action against Borrower in connection with the Loan Documents and
that recovery may be had against Guarantor in such action or in any independent action against
Guarantor (with respect to the Guaranteed Obligations), without



9









 




the Administrative Agent first pursuing or exhausting any remedy or claim against Borrower or
its successors or assigns. Guarantor also agrees that, in an action brought with respect to the
Guaranteed Obligations in any jurisdiction, it shall be conclusively bound by the judgment in any
such action by the Administrative Agent (wherever brought) against Borrower or its successors or
assigns, as if Guarantor were a party to such action, even though Guarantor was not joined as a
party in such action.




               (e) Guarantor agrees to pay all reasonable expenses (including, without limitation, attorneys’
fees and disbursements) which may be incurred by the Administrative Agent or the Banks in
connection with the enforcement of their rights under this Guaranty, whether or not suit is
initiated.



          23. Notwithstanding anything to the contrary contained herein, this Guaranty shall terminate
and be of no further force or effect upon the full performance and payment of the Guaranteed
Obligations hereunder and the termination of the Commitments under the Credit Agreement. Upon
termination of this Guaranty in accordance with the terms of this Guaranty, the Administrative
Agent promptly shall deliver to Guarantor such documents as Guarantor or Guarantor’s counsel
reasonably may request in order to evidence such termination.




          24. All of the Administrative Agent’s rights and remedies under each of the Loan Documents or
under this Guaranty are intended to be distinct, separate and cumulative and no such right or
remedy therein or herein mentioned is intended to be in exclusion of or a waiver of any other right
or remedy available to the Administrative Agent.




          25. The Guarantor shall not use any assets of an “employee benefit plan” within the
meaning of Section 3(3) of ERISA or a “plan” within the meaning of Section 4975(e)(1) of the
Internal Revenue Code (the “Code”) to repay or secure the Loan, the Note, the Obligations
or this Guaranty. The Guarantor shall not assign, sell, pledge, encumber, transfer, hypothecate or
otherwise dispose of any of its rights or interests (direct or indirect) in Borrower, or attempt to
do any of the foregoing or suffer any of the foregoing, or permit any party with a direct or
indirect interest or right in Borrower to do any of the foregoing, if such action would cause the
Note, the Loan, the Obligations, this Guaranty, or any of the Loan Documents or the exercise of any
of the Administrative Agent’s or Bank’s rights in connection therewith, to constitute a prohibited
transaction under ERISA or the Code (unless the Guarantor furnishes to the Administrative Agent a
legal opinion satisfactory to the Administrative Agent that the transaction is exempt from the
prohibited transaction provisions of ERISA and the Code (and for this purpose, the Administrative
Agent and the Banks, by accepting the benefits of this Guaranty, hereby agree to supply Guarantor
all relevant non-confidential, factual information reasonably necessary to such legal opinion and
reasonably requested by Guarantor) or would otherwise result in the Administrative Agent or any of
the Banks being deemed in violation of Sections 404 or 406 of ERISA or Section 4975 of the Code or
would otherwise result in the Administrative Agent or any of the Banks being a fiduciary or party
in interest under ERISA or a “disqualified person” as defined in Section 4975(e)(2) of the Code
with respect to an “employee benefit plan” within the meaning of Section 3(3) of ERISA or a “plan”
within the meaning of Section




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4975(e)(1) of the Code. The Guarantor shall indemnify and hold each of the Administrative
Agent and the Banks free and harmless from and against all loss, costs (including attorneys’ fees
and expenses), expenses, taxes and damages (including consequential damages) that each of the
Administrative Agent and the Banks may suffer by reason of the investigation, defense and
settlement of claims and in obtaining any prohibited transaction exemption under ERISA necessary in
Administrative Agent’s reasonable judgment as a result of Guarantor’s action or inaction or by
reason of a breach of the foregoing provisions by Guarantor.




          26. This Guaranty shall become effective simultaneously with the making of the initial Loans
under the Credit Agreement.



[SIGNATURE PAGE FOLLOWS]







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          IN WITNESS WHEREOF, the parties hereto have executed and delivered this Guaranty as of the
date and year first above written.




	 	 	 	 	 	 	 
	 	 	 	 	GUARANTOR:
	 	 	 	 	EQUITY OFFICE PROPERTIES TRUST
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Maureen Fear
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Maureen Fear
	 

	 	 	 	 	 	Title: Senior Vice President,
Treasurer
	 
	 	 	 	 	 	 
	ACCEPTED:	 	 	 	 
	 
	 	 	 	 	 	 
	BANK OF AMERICA, N.A.	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ Michael W. Edwards	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:  Michael W. Edwards	 	 	 	 
	 

	 	Title: Senior Vice President	 	 	 	 







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ACKNOWLEDGMENT FOR GUARANTOR




	 	 	 	 	 	 	 	 	 
	STATE OF ILLINOIS

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	SS.
	 	 
	COUNTY OF COOK

	 	 	)	 	 	 	 	 






          On
August 1, 2005, before me personally came Maureen Fear, to me known to be the
person who executed the foregoing instrument, and who, being duly sworn by me, did depose and say
that he is Senior Vice President and Treasurer of Equity Office Properties Trust, and that he executed the
foregoing instrument in the organization’s name, and that he had authority to sign the same, and he
acknowledged to me that he executed the same as the act and deed of said organization for the uses
and purposes therein mentioned.




[Seal]




	 	 	 
	 

	 	/s/ Debra
Hudson             
	 

	 	Notary Public







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